Complainant

Respondent

Anonymised Parties

A Worker

A Services Provider

Representatives

Paul Hardy SIPTU

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00033908-001

21/01/2020

The claimant’s representative submitted as follows:

1          INTRODUCTION

1.1      The claimant is a Security Officer employed by the respondent company since 11 June 2011. He brings a complaint under section 45A of the Industrial Relations Act 1946 concerning non-payment of minimum shift/duty hours as per the applicable Employment Regulation Order. The complaint was received by the Workplace Relations Commission on 21 January 2020.

2          BACKGROUND

2.1      It was submitted that the union does not understand there to be a dispute as to the applicability of the Employment Regulation Order (Security Industry Joint Labour Committee) 2017, SI No 231 of 2017 (‘the ERO’), to the claimant’s employment, as he is a ‘security operative’ and the employer is a ‘security firm’ within the meaning of the Security Industry Joint Labour Committee Establishment Order 1998, SI No 377 of 1998.

2.2      The claimant was rostered to work 27 shifts of two hours’ duration (0800 – 1000) at a bank premises between July 2019 and January 2020. The dates were 15 July, 13–15 August, 24 September, 1–3, 8, 10, & 14–16 October, 12–15, 20 & 26 November, 27 & 31 December, and 1–3 & 7–8 January. The applicable hourly rate was €11.65. The claimant was paid €629.10 for this work, that is to say for 54 hours at the hourly rate.

3          MAIN ARGUMENTS

3.1      The union contended that an additional €629.10 was properly payable to the claimant in respect of these shifts by operation of Section 2(20)[1] of the ERO. That subsection is entitled ‘Minimum Shift/Duty Hours’ and provides that:

When a security worker is called in to carry out a Shift/Duty comprising of less than four hours, this will attract a minimum of four hours’ pay.

3.2      The union believe that the position of the employer, but of no other employer in the industry of which we aware, will be that this subsection does not refer to employees rostered in advance. It is our position that it is obvious that the subsection was not agreed to produce a pay differential between hours worked as part of a roster and hours worked on an ad hoc basis, but to provide for a minimum length of shift of four hours in the industry and to compensate a worker for the inconvenience of any shorter period of work.

3.3      The union asked the Adjudication Officer to note that the subsection is entitled ‘Minimum Shift/Duty Hours’ and not, for example, something like ‘Short Notice Shift/Duty Hours’ and that the subsection makes no provision for any minimum notice for hours to be worked default of which would trigger the requirement for payment of a minimum of four hours’ pay. Without such a provision, the ERO cannot operate as contended for by the employer.  

3.4      Moreover, Section 2(20) makes no reference to Section 2(4), which provides for ‘all hours of work’ to be rostered ‘[o]ther than in exceptional circumstances.’[2] No ‘exceptional circumstances’ were cited to the claimant on any of these occasions or since and we contend that there is no reason to read Section 2(20) as applying only in ‘exceptional circumstances’ — which, on the employer’s construction, must be the case. The ERO makes no reference to any other distinction between rostered and ad hoc hours of work, save the provision in Section 2(4) that all hours of work shall be rostered save in exceptional circumstances.

3.5      As a roster is an instruction to an employee to work during particular times, we see no distinction of significance as to pay between hours worked on foot of an instruction to work made weekly and an instruction to work made on an occasional basis. If this were the case, a significant administrative burden would be based on employers in the security industry, namely that of distinguishing between hours worked on a ‘Shift/Duty comprising of less than four hours’ on the basis of how much notice had been provided to the employee beforehand and in what manner.

3.6      It is interesting, though not of course, determinative, that 2 HR consultancy companies describe the effect of Section 2(20) as providing for a ‘Minimum Day Rate’.

3.7      The Adjudication Officer Decisions ADJ-00012698 (December 2019) and ADJ-00015300 (August 2019), made under the Payment of Wages Act 1991, concerned the same issue (and, indeed, concerned the same shift pattern worked outside the same bank branch). These decisions, which were in favour of the employee, have been appealed to the Labour Court.

CONCLUSION

4.1      The claimant seeks a decision declaring that his complaint is well founded, requiring the employer to comply with the ERO, and requiring the employer to pay compensation of such amount as the Adjudication Officer considers just and equitable.

CASES CITED

A Security Worker v A Security Company ADJ-00012698 (18 December 2019)

A Security Worker v a Security Company ADJ-00015300 (21 August 2019)

The claimant’s representative was adamant that the heading of the relevant Section in the ERO was Minimum Shift/Duty Hours and stated that notwithstanding the respondent’s submissions regarding Section 2(4), that this provision was taken out of context and made no reference to call ins. He submitted that the union’s interpretation of Section 20 was shared by other employer’s and HR advisers and that it had become the industry norm. The claimant advised that he would be contacted via the company portal or his phone to attend on the specified dates and that generally he received 4/5 days’ notice. It was submitted by the union that it was only reasonable that there would be a minimum shift payment for a call in.

The respondent’s representative submitted as follows:

1.     The matter before the Adjudicator involves claims taken by the claimant, against his former employer the respondent under the Industrial Relations Act, 1946.

2.     The claimant contends that he should have been paid for 4 hours per shift, for 2-hour shifts worked for a period between July 2019, and January 2020. It is the claimant’s submission that according to the Security Industry ERO section 2(20) he is entitled to be paid for 4 a four-hour minimum shift.

Background

3.     The Claimant was assigned to the bank contract as part of a roster pattern when covering multiple sites and also as a dedicated officer to the site. The site had rostered shifts which meant that he had to cover 2-hours in the morning, 8am to 10am, before the bank opened to the public, and then from 4.00 pm until 9.00 pm., during the week. In addition, officers would also be rostered to work at weekends, covering the site from 8.00 am to 9.00 pm.

4.     The Claimant is claiming that he was entitled to be paid a minimum of 4 hours pay for any time he was required to work for less than 4 hours. The basis of this claim, he maintains, is that the Security JLC specifically provides for such a scenario.

5.     In this regard he is referring to Section 20 which states: -

(20) Minimum Shift/Duty Hours

When a security worker is called in to carry out a Shift/Duty comprising of less

than four hours, this will attract a minimum of four hours’ pay.

Company Position

6.     The Respondent, whose HR Director is a member of the Joint Labour Committee, does not agree that this clause refers to Rostered working hours as it specifically refers to “when a security worker is called in…..”.

7.     It is the respondent’s position that there is a distinct difference between being “rostered”. Rostered hours are dealt with in a separate, earlier section of the Order. In addition to this, it is well accepted within the industry that situations arise where a person could be called in to cover for an officer who may have failed to report for duty or may have had to leave early and cover was required. Such officers would not be “on-call” but would be contacted at short notice to see if they were available to “come in” to cover.

8.     As stated, this type of work is distinct from Rostered hours, which is addressed in

Section 4: -

(4) Hours of Work/Rosters

Completed rosters setting out all hours of work for a minimum period of one

week will be made available to workers in writing. Other than in exceptional

circumstances completed rosters will be issued and made available to the worker

a minimum of 3 days in advance of commencement. Rosters are subject to flexibility

relating to operational and business needs.

In addition, under Section 14, it clearly states that in relation to rostered hours, except for demonstrable operational requirements, once an officer has completed their 6-month probation period, they are entitled to be rostered for a minimum of 24 hours.

(14) Minimum Hours of Employment

Workers who enter the industry will be offered a contract of employment with

a minimum of 24 hours per week after 6 months’ service.

If it is required for operational purposes that the contract hours available are

less than 24 hours per week, and it is demonstrably so, then this clause will not

apply and new workers may be employed for hours that are less than provided

for in the ERO.

9.     The Respondent contends that had it been the intention of the JLC to have all rostered hours subject to a minimum then it would have been appropriate to include this in either of these two sections and not to have dealt with it separately under the title of “called in” working.

10.   The Respondent further contends that it is patently clear that a person who is “called in” is someone who:  

-       is not on duty at that time, and

-       who has not been rostered to work those hours.

11.In the case of the Claimant, these were hours required to be covered by the client and also formed part of a shift which in fact was 7 hours in total. Such working arrangements would not be uncommon in this industry and, in many cases, would suit officers who have other commitments but wish to work some hours.

12.Under the Payment of Wages Act, as the Chairperson would be aware, for there to be a legitimate claim that an unlawful deduction has been made, the claimant must establish that there was an actual deduction from his wages or the non-payment of money due to the claimant. In Sullivan v Department of Education (1998) E.L.R.217, the Court took the word payable to mean “properly payable”, consequently it must be a payment to which the employee must be properly entitled.

13.In this case the Company contend that Mr. Lyons was paid for all hours he was rostered and to which he was entitled and that the Employment Regulation Order has not created a minimum shift period for rostered hours only minimum weekly hours. Thus, company contend that, as there is no legal entitlement to a minimum of 4 hours, the non- payment of the additional unworked hours to the claimant is not a deduction.

Conclusion

14.The company contend: - there is no entitlement for a minimum payment for rostered hours -the only time there is an entitlement would be where an officer is called in when not on duty.

Were any other interpretation to be placed on this, then this would result in a significant change in how the industry operates and would have significant repercussive effects on both employers and employees.

15.We are seeking a decision from the Adjudicator that the claim is not well founded and that the Employment Regulation Order has been correctly applied by the Respondent.

The respondent’s representative asserted that call in arrangements referred to being called in at short notice and not via a rostering arrangement as set out by the union. He asserted that this was the intention of the JLC and was currently being amended.   He further submitted that the 3 largest players in the security industry did not implement the ERO in accordance with the union’s interpretation. It was further submitted that a distinction had to be drawn between rostered work and call ins which were different. He asserted that if the union’s interpretation had been the intention of the parties when the ERO was drafted it would have been explicit in the wording of the agreement. The respondent’s representative indicated that if the notice for call in was less than 3 days than the claimant would be entitled to the 4 hour payment.

I have considered the evidence presented at the hearing and noted the respective position of the parties .At the kernel of this dispute is a difference of interpretation between the parties on the wording of the ERO with the union insisting that the agreement provides for a 4 hour min call in and the respondent insisting that a distinction had to be drawn between rostered hours and call ins which it was argued arose at short notice and in non-routine circumstances. Additionally, I have reviewed the authorities relied upon by the parties.

Having reviewed the arguments advanced by the parties , I acknowledge the contention of the union that the clause they are relying upon 2(20) is entitled Minimum Shift/Duty hours – however notwithstanding this , the body of this clause specifically references the 4 hours min applying to a security worker being called in and consequently I find the case advanced by the respondent to be more compelling and persuasive. Accordingly, I have concluded that the complaint is not well founded.

Call ins /Rostered Hours – Interpretation of ERO