Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Representatives

Self- represented

Respondent Managing Director and Office Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00029479-001

05/07/2019

This complaint is brought under the provisions of section 45A of the Industrial Relations Act 1946.

The complainant commenced employment as a security officer with the respondent on 14 September 2018 as a security guard.

He works a minimum of 40 hours a week. He is paid fortnightly and earns €10- 10.50 per hour and not the ERO rate of €11.35 per hour.

He submitted his complaint to the WRC on 5 July 2019.

The complainant has been working with the respondent as a security guard since September 2018.The complainant submits that as a security guard he is entitled to the rate of €11.35 per hour and €11.35 per hour from June 2019 as set out in Employment Regulation Order( Security Industry labour Committee ) 2017, S.1. 231 of 2017. He is only paid €10 per hour.

He asks the adjudicator to decide in his favour.

The respondent rejects the complainant’s claim for the ERO rate of €11.65

The respondent operates as a security services nationwide.

The complainant commenced his employment as a security guard (door supervisory personnel) with the respondent on 14th September 2018. His contract provides for an hourly rate of €10. The respondent submitted his roster for the period 1/9/2018 to 1/11/2019 demonstrating that the vast majority of the complainant’s hours were spent providing door security services in fast food restaurants during operating hours.

The complainant has alleged that the respondent has failed to implement the Employment Regulation Order (Security Industry Joint Labour Committee) 2017, S.I 231 of 2017 by not paying him an hourly rate of €11.35 and €11.65 from June 2019.

The respondent relies on the Labour Court decision of ISIA v NERA (DEC101). The Court was asked to determine whether a worker as defined in the Employment Regulation Order, S.I. No. 500/2006 applied to the type of workers commonly known as “Bouncers?” It was suggested by ISIA ( Irish Security Industry Association) that it did not as the definition had not changed since the first ERO, S.I. No.20/2000 issued. NERA maintained that DSP are security operatives within the plain and literal meaning of the definitions as set out in the 2006 ERO in that they perform a range of security and surveillance functions for the protection of persons and property.

In coming to a determination, the Labour Court also reviewed the Private Security Services Act 2004 as the DSP sector were then recognised as a “separate discipline within the security industry.”

Under the 2004 Act, the term door supervisor was defined as meaning

“a person who for remuneration, as part of his or her duties, performs any of the following functions:

(a) Controlling, supervising, regulating or restricting entry to the premises or place,

(b) Controlling or monitoring the behaviour of persons therein,

(c) Removing persons therefrom because of their behaviour”

The Court had to determine “whether the definition of security operative contained in the Establishment Order can properly be construed as to encompass Door Supervisors.”.

In reaching their decision, the Court held,

“. As the Court understands it Door Supervisors undertake specific duties which are helpfully described in the definition of the terms contained in the Private Security Act 2004, as set out earlier in this Decision. Those duties are qualitatively different to those of security operatives in the generality of the security industry. It follows that Door Supervisors do not come within the ambit of the definition of security operative contained in the order and such workers are not covered by the Establishment Order nor the ERO in issue. Accordingly, the Court is further satisfied that the ERA’s do not apply to workers known as Door Supervisors.”

The respondent submits that the claimant was a door supervisor for restaurants. He was responsible for crowd control as per the definition provided in the Private Security Services Act 2004 as set out.The role did not attract the same level of responsibility that the role of a static security officer does, such as patrolling premises, locking up buildings, preventing theft etc…

The complainant was therefore paid €10.00 and €10.50 per hour.

As a door supervisor the complainant does not come within the definition of Security Operative as per the definition provided for in the Establishment Order nor the ERO, S.I 231 of 2017.

The respondent asks the adjudicator to dismiss the complaint.

I have been asked to decide if the complainant has an entitlement to the rates for security guards as set out in Employment Regulation Order (Security Industry Joint Labour Committee) 2017, S.I 231 of 2017.

The complainant did not contest the respondent’s evidence both written and oral that his work is that of a door supervisor in fast food restaurants. His contract , signed by him, agrees to a rate of €10 per hour in 2018. His contract describes him as a security guard, DSP.

I find the Labour Court decision ISIA v NERA (DEC101) clearly differentiates between door security personnel and security operatives in the generality of the security industry.

In keeping with the Labour Court decision, I find that the Employment Regulation Order (Security Industry Joint Labour Committee) 2017, S.I 231 of 2017 does not apply to door supervisors.

The complainant presented no reasons as to why the Labour court decision should not apply to his particular circumstances or how his role did not match or extend beyond the description of door supervisors contained in that decision.

Based on the evidence submitted , I do not find this complaint to be well founded.

I do not find this complaint to be well founded.