FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : BIDVEST NOONAN (ROI) LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LIMITED) - AND - MR JOHN LYONS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00012698 CA- 00016628.002 The terms used to describe the parties are those used in the Workplace Relations Commission hearing in the first instance. Mr. Lyons, ‘the Complainant’, worked for Bidvest Noonan, (formerly Noonan Services Group Ltd.), ‘the Respondent’ as a Security Officer. At the time covered by the instant case, 5 July 2017 to 4 January 2018, he was assigned to a leading Bank as part of a rostered pattern, which included split shifts. From time to time, as a result, the Complainant was required to work for two hours in the morning prior to the Bank opening and then again in those evenings and also for an hour in the early mornings on weekends. It is the Complainant’s position that the relevant Employment Regulation Order, ‘the ERO’, for the security industry provides that any working period of less than 4 hours attracts a minimum of four hours’ pay. It is the Respondent’s position that the relevant section of the ERO provides only for such minimum pay in cases where a worker is called in to work outside of their normal, rostered hours. As the Complainant did not receive what he claims as his entitlement of four hours’ pay for all periods in which he worked less than that amount of hours, he lodged a claim with the Workplace Relations Commission under the Payment of Wages Act 1991, ‘the Act’, and argued that four hours’ pay was ‘properly payable’ for each such instance in accordance with s. 1 of the Act and, as he had not received this amount, improper deductions had been made from his pay, contrary to s.5 of the Act. The Adjudication Officer upheld the complaint and the Respondent appealed that decision to the Court. Respondent arguments There is no dispute that the Complainant is covered by the relevant ERO, S.I. No. 231 of 2017. Section 2(20) of that ERO refers to a ‘security worker who is called in to carry out a Shift/Duty’. This does not refer to rostered working hours as ‘called in’ is distinct from ‘rostered’. Rostered hours are dealt with separately in s.2(4) of the ERO and it is clear from this section that such hours are planned/scheduled and are notified in advance as part of a structured work plan. It is a part of the industry that unplanned situations arise where a person may be ‘called in’ to cover for the unforeseen circumstances. S. 2(14) of the ERO sets out the minimum entitlements of workers in the industry in respect of rostered hours and provides that, after 6 months’ service, they are entitled to be rostered for a minimum of 24 hours per week. If it had been the intention to have all working periods subject to minimum payments then either s. 2(4) or s.2(14) would have provided for this and a separate section for ‘called in’ working would not have been necessary. For a legitimate claim under the Act, it must be established that there has been an actual deduction or non-payment of money due, neither of which is applicable. The cases ofSullivan v. Department of Education (1998) E.L.R. 217and a recent High Court case ofMarek Balans v Tescowere drawn to the Court’s attention to illustrate what is required of the Court in determining what is ‘properly payable’. Complainant arguments The union is not aware of any other employer in the industry who applies the relevant section of the ERO on the basis that it does not refer to rostered employees. It is obvious that this section was not agreed in the Joint Labour Committee in order to differentiate between hours worked as part of a roster and hours worked on anad hocbasis and the ERO makes no such distinction. The heading of the relevant section is ‘Minimum Shift/Duty Hours’ not something like ‘Short Notice Shift/Duty’ and no requirement in respect of minimum notice. s.2(20) makes no reference to the requirement in s. 2(4) for all hours worked to be rostered ‘other than exceptional circumstances.’ No such circumstances are claimed in respect of the attendances at issue. There is no reason to believe that s.2 (20) applies only in emergencies. It is interesting, though not determinative that the HR consultancies Peninsula and Graphite HRM have both described, in writing, the effect of s.2(20) as providing for a minimum daily rate. The Law Payment of Wages Act 1991 S.1
(iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind. 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
There is no dispute between the parties in the instant case about the fact that the Complainant’s terms and conditions of employment are covered by the Employment Regulation Order, (Security Industry Joint Labour Committee) 2017, S.I. No. 231 of 2017, ‘the ERO’, and that the terms of the Order form part of the Complainant’s contract. The source of disagreement between the parties is the interpretation of S. 2 (20) of that ERO, which reads, as follows; 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. It is contended by SIPTU, on behalf of the Complainant, that this section means simply that any time a worker in the industry is required to attend work for a period of less than four hours, they are guaranteed a minimum payment for four hours. As a consequence, to pay less for such attendance amounts to a failure to pay a worker what is ‘properly payable’ to them under s.1 of the Payment of Wages Act 1991 and amounts to a deduction contrary to the terms of s.5 of that Act. MSS, on behalf of the Respondent, contends that the section’s reference to ‘called in’ is in respect of periods other than those for which a worker is rostered, as the phrase does not refer to ‘rostered’ and uses the phrase ‘called in’ instead, which is understood in the industry to refer to periods of work attendance outside normal rostered hours when workers are asked to attend. Therefore, it is argued that what is ‘properly payable’ is no more or less than the relevant hourly rate for the number of hours actually worked and that no deduction, contrary to the provisions of the Act, has been made. Both sides cite arguments in favour of ‘ordinary plain English’ to substantiate their interpretation of what is intended. Both make well put and, on their face, plausible arguments for their interpretation. The argument, made by both sides for diametrically opposite interpretations, to the effect that the meaning is obvious, is, therefore, unfortunately, of little use to the Court. Both parties offered other sections of the ERO to bolster their arguments. In the case of the Complainant, reference was made to S. 2(4) of the ERO which states that all hours worked should be rostered, other than in exceptional circumstances, which are not argued to apply to the Complainant in the instant case. On the other hand, the Respondent draws attention to S. 2(14), which deals specifically with the issue of minimum hours by providing that all workers, after 6 months’ service, are entitled to a minimum roster of 24 hours per week, which, the Respondent contends, is the only guarantee in respect of minimum rostered hours in the ERO. The Court is being asked to interpret the ERO. The Court dealt with the approach that has to be taken when it is asked for an interpretation of terms of a registered agreement in the case ofMythen Bros. Ltd. v. Building and Allied Trades Union (2006) E.L.R. 237.The Court said that interpretation should not approached as if it was a statute or a product of legal draughtsmanship. Its terms should be construed ‘by applying to them a meaning that they would normally bear in the context of industrial relationsso as to achieve the result envisaged by the parties to the agreement’,(emphasis added). In the instant case, the Court is being asked to construe a term of an ERO in the absence of direct evidence from the parties who engaged in the formulation of the ERO as to what was intended by the clause that is in dispute. This case was not referred to the Court under s. 45 of the Industrial Relations Act 1946, as amended by s. 13 of the Industrial Relations (Amendment) Act 2012, which allows an individual to seek an interpretation of an ERO by the Court. The case was brought under the Payment of Wages Act, under which Act the burden of proof in establishing what is ‘properly payable’ rests with the Complainant. It is not possible for the Court to reach a determination that the sum claimed is ‘properly payable’ in the absence of evidence from the parties who engaged in the formulation of the ERO as to the result that was envisaged by them. Therefore, the Complainant cannot discharge the burden of proof to establish that the wages claimed are ‘properly payable’ and the claim before the Court must fail. The Decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
