Complainant

Respondent

Anonymised Parties

Security Officer

              Security company

Representatives

Self -represented

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033976-001

23/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033976-002

23/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033976-003

23/01/2020

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

CA-00033976-004

23/01/2020

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

CA-00033976-005

23/01/2020

The complainant has presented three complaints alleging breaches of the Organization of Working Time Act, 1997, and two complaints under section 45A of the Industrial Relations Act ,1946.

The complainant was employed as a security officer with the respondent from December 2005 until August 2019.

He worked 24 hours a week, made up of two shifts of 12 hours.

He earned €11.35 per hour.

 He submitted his complaint to the WRC om 23/1/2020.

CA- 00033976-005. Complaint under Section 45A of the Industrial Relations Act, 1946.

The respondent contends that the complaintnumbered CA- 00033976-005 submitted under Section 45A of the Industrial Relations Act, 1946, encompassing

1) analleged breach of S.I No 500/2006- Employment regulation Order (Security Industry Joint    Labour Committee),2006, (ERO) in the non-compliance with the regulations on overtime rates   and submitted on 28/9/2022, and

       2) a further alleged breach of the ERO concerning the failure to apply the regulations governing            payment for public holidays, and submitted to the WRC on 30/11/2022       

fail to comply with the statutory time limits as set out in section 41 (6) of the Workplace Relations Act , 2015 and are therefore  inadmissible.

 CA -00033976-004.Complaint under Section 45A of the Industrial Relations Act, 1946.

The complainant withdrew this complaint.

 CA -00033976-005.Complaint under Section 45A of the Industrial Relations Act, 1946.

The complainant contends that this complaint concerning the breach of the ERO regulations governing overtime rates, submitted on 28/9/2022, and the breach concerning payment for public holidays  submitted on 30/11/2022 are  merely an expansion of his original in-time complaint  submitted on 23/1/2020,  under Section 45A of the Industrial Relations Act, 1946.

He contends that they are capable of being encompassed within his original complaint and should be held to be admissible.

CA- 00033976-005.Complaint under Section 45A of the Industrial Relations Act, 1946 .

There are three elements to this complaint.

The first element of this complaint is within time and alleges a breach of the S.I No 500/2006- Employment regulation Order (Security Industry Joint Labour Committee),2006 (ERO) in that the respondent failed to provide the complainant with breaks. This complaint is within time.  My findings on this complaint are contained in the section Findings and Conclusions on the Substantive Complaints.

The second element of this alleged contravention of the ERO sees the  complainant cite a breach of the ERO regulations on overtime rates. The complainant  contends that his notification to the WRC of 28/9/2022, setting out a breach of the ERO regulations on overtime rates should be admissible as it is merely an expansion of the original complaint lodged with the WRC on the 23/1/2020 and  submitted under section 45A of the Industrial Relations Act, 1946. Concerning the requirements of section 41 of the Workplace Relations Act,2015, the complainant maintains that as the original breach of the ERO , submitted on 23/1/2020  was submitted within the statutory period, that specific complaint  should be capable of encompassing this additional detail  of a breach.

Aside from the fact that it is a breach unrelated to the breach of the ERO concerning the non-provision of breaks during his working hours, the capacity of a complainant to add on to  or expand on his original complaint was dealt with in the Supreme Court in Co Louth VEC V Brannigan, IESC 40. The Court was faced with an appeal based on the obligations of the then equality officer  to -as the appellant held -decide on a preliminary matter prior to the substantive case. In the course of their deliberations, the court held that a complaint could be expanded but only if the specific complaints in contention and for which redress was being sought were lodged within the statutory period for making a complaint. This element of the complainant’s complaint was lodged on 28/9/2022. He resigned his employment in August 2019, which is the latest possible date for an infringement.  The complaint of a contravention of an ERO is subject to the terms of the Workplace Relations Act 2015 by virtue of schedule 5, part 2 of the  Act of 2015. Section 41 (6)  of the Act of 2015  states

“Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

The third element of the complaint alleging a breach of the ERO, cites a breach of Part 11, section 11, in that he was only paid for 4.8 hours for the previous public holiday which fell on the 17/3/2019, as opposed to the 8 hours provided for in the ERO. This complaint of an undated contravention was first identified in a letter to the WRC on 30/11/2022 and the actual date was then subsequently supplied to the WRC on 3/2/2023. This separate breach of the ERO, unrelated to the complaint submitted within the statutory period was lodged over three years from the last possible contravention and over two years beyond the date of the lodgement of the claim.

The complainant states that it should be considered as a development of his original complaint.

 The Act of 2015 requires that contraventions must be submitted within a six-month period which would mean that the complaint would have to have filed his complaint by 16/9/2020.

I find on the basis of the law and the evidence that I do not have jurisdiction to hear this element of this complaint.

 The complainant worked with the respondent for a period of 14 years.

He was assigned to provide security services to a big pharmaceutical plant. His job entailed patrolling the premises, monitoring screens, answering telephone calls and checking traffic and persons entering the plant.

Evidence of the complainant given under oath.

CA-00033976-001. Complaint under section 27 of the Organisation of Working Time Act, 1

The complainant formally withdrew this complaint.

CA-00033976-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant states that he worked 12-hour shifts on Saturday and Sunday nights, 7.30pm – 7.30 am without, with few exceptions, any official breaks from 22/7/2019- 19/8/2019, contrary to section 12 of the Act of 1997.

He raised it with his supervisor and his area manager who stated to him that if wanted a break away from the security hut the time would be deducted from his wages. 

He was unable to leave his workstation, the security hut, as he had to monitor screens during the break, answer the telephone, and engage with persons entering the plant. The only time he could leave the control room was to control the premises. The pharmaceutical company to which he was permanently assigned was a 24/7 operation. He had to deal with all incoming calls, night and day. Two security officers were on at one time but were seldom together in the security hut as the second security officer had to patrol the premises for say an hour and 45 minutes seven times a night. The security officers took over the phones in 2016.

The complainant disputes the respondent’s statement contained in their submission to the WRC about patrol times, The minimal time spent on patrol was 1.25- 1.5 hours. They do seven patrols in each shift of 12 hours.

He refers to what he terms the Paddy Power cases which recognised he right of an employee to enjoy an uninterrupted break.

He asks the adjudicator to uphold his complaint.

CA-00033976-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant formally withdrew this complaint.

CA-CA- 00033976-004. Complaint under Section 45A of the Industrial Relations Act, 1946

The complainant formally withdrew this complaint.

CA- 00033976-005. Complaint under Section 45A of the Industrial Relations Act, 1946.

The complainant states that this complaint concerns the failure of the respondent to provide him with breaks which he maintains is in contravention of S.I No 500/2006- Employment regulation Order (Security Industry Joint Labour Committee),2006 ERO  and is linked to the complaint CA-00033976-002, alleging a breach of section 12 of the Act of 1997.

This complaint also alleges a breach of the regulations governing overtime contained in Part 11, section 1,(ii)of the ERO. He alleges a further breach of the regulations governing payment for public holidays, found at Part 11, section 11(ii) of the ERO in respect of the public holiday which fell  on 17/3/2019.

These two alleged contraventions are contained in the sections dealing with the preliminary jurisdictional points, on page 3 of this decision.

The respondent denies that they contravened any of the statutes set out in the complainant’s complaint.

The respondent provides security services to its clients, one of whom is a large pharmaceutical company and is the plant to which the complainant is assigned.

CA-00033976-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint.

CA-00033976-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

Evidence e of the Key Account Manager given under affirmation.

 He manages a number of key international accounts including the company to which the complainant is assigned. The witness refers to S.I. No 21/1998 which exempts the application of sections, 11,12 and 13 of the Act of 1997 to the security industry so long as the workers can and do take breaks.

 So also does the ERO pursuant to section 4 (6) of the Act of 1997 exempt by agreement the provisions of section 11,12 and 13 of the Act of 1997.

 In the retail sector an employee can walk away from her station; it’s not possible in the security industry.

The timing of breaks is operationally driven. The complainant can take them at a time when he is not so busy.

Patrolling would take up to 8.5 hours between the two security officers on a 12-hour shift so there was ample time in the remaining hours when the two security officers were in the control centre to take breaks. The complainant never alerted the company to any difficulty in accessing breaks. There were two security officers on a shift simultaneously to enable them to take breaks.

The respondent doesn’t record when the breaks are taken. He has no records of when breaks are taken. The respondent reminds staff of their entitlement to take breaks.

The HR Manager gave evidence under affirmation.

The respondent tries to resolve any difficulties through dialogue with staff members and union.

Exemptions from a strict application of the provisions of the Act of 1997 are permissible by way of section 4(6) of the Act of 1997 Organisation and because of the nature of the job.

CA-00033976-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant formally withdrew this complaint.

CA- 00033976-004. Complaint under Section 45A of the Industrial Relations Act, 1946.

The complainant formally withdrew this complaint.

CA- 00033976-005. Complaint under Section 45A of the Industrial Relations Act, 1946.

A complaint of a failure to implement the provisions of the ERO governing breaks in the complainant’s shift has been dealt with in complaint numbered CA-00033976-002

The same complaint appears in this complaint where the respondent denies that they are in breach of the regulation governing the provisions of breaks and refers to section 11 (iii) which expressly refers to the exemption pursuant to section  4( 6) of the  Act of 1997.

The complainant was enabled to take his breaks. That is why the respondent always had two security officers assigned per shift.

Concerning the alleged breach of the ERO regulations governing overtime rates and payment for public holidays, these matters have been addressed by the respondent in their preliminary objections on page 3 of this decision.

The claimant has not complied with the statutory time limits set out in the Workplace Relations Act, 2015 and are the complaints are, therefore, inadmissible.

CA-00033976-001 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant formally withdrew this complaint.

CA-00033976-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant submitted his complaint on 23/1/2020.  So, the referable period is the 24 /7/2019-23/1/2020.

The complainant resigned his position on  19/8/2019.

Relevant Law.

Section 12 of the Act provides:-

“(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1)

(3) The Minister may by regulations provide, as respects a specified class or classes or employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

However, Section 4 of the Act of 1997 allows the Minister to exempt by regulation from the application of s.12 any specified class or classes. In S.I. No. 21 of 1998 (Organisation of Working Time (General Exemptions) Regulations, 1998), the Minister did exempt the security industry from the application of s.12 as follows:-

“An activity of a security or surveillance nature the purpose of which is to protect persons or property, and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.”

The Regulations also provide (at Article 3) that:-

“. The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her.”

Notwithstanding the exemptions, the Regulations qualify them as follows:-

“4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first mentioned rest period and break.

5. (1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.

(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.”

The High Court considered the meaning of these qualifying provisions in the circumstances obtaining in the appeal of a security officer, denied scheduled breaks, in the case of Stasaitis v. Noonan Service Group Ltd [2014] IEHC 199 (, Kearns P, 11 April 2014).

The Court held that

“The requirement of “strict construction” can only mean in this particular context that an interpretation is adopted which most effectively secures the rights of an employee as envisaged by both the Directive and the legislation. Thus, the Court is satisfied that any arrangements put in place must satisfy the criteria of equivalence and compensation”.

In the circumstance obtaining inStasaitis, the Court found that the arrangements enabled the security officer to take breaks though he could not leave the security hut. He had access to a kitchen in the hut. The evidence indicated that he was able to take breaks.

The uncontested evidence in the instant case was that there were two security officers on a shift simultaneously. The uncontested evidence is that there were periods within the twelve-hour shifts in which both security officers were in the security hut and either one could take a break.

The uncontested evidence is that there was a kitchenette at the back of the security hut and the plant to which the complainant was assigned had canteen facilities.

I find in the circumstances, that the respondent met their obligation under the Act of 1997 to provide arrangements for breaks that satisfy the criteria of equivalence and compensation.

I do not find this complaint to be well founded.

CA-00033976-003. Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant formally withdrew this complaint.

CA- 00033976-004. Complaint under Section 45A of the Industrial Relations Act, 1946

The complainant formally withdrew this complaint.

CA- 00033976-005. Complaint under Section 45A of the Industrial Relations Act, 1946 .

Ther are three elements to this complaint.

The first element of this complaint is within time and alleges a breach of the S.I No 500/2006- Employment regulation Order (Security Industry Joint Labour Committee),2006, in that the respondent failed to provide the complainant with breaks. I have found that the exemption in section 4 (6) of the Act of 1997 and which qualifies the right to breaks as set out in Part 11, Section 11, (iii)  of the ERO applies in this instance. I have found that the obligations contained in the ERO to provide the employee with a rest period and break which can be regarded as equivalent to those provided for in Sections 11,12 and 13 of the Act have been honoured and are set out in my findings above in complaint numbered CA-00033976-002.  

I do not find this element of the complainant’s complaint to be well founded.

The second element of this alleged contravention of the ERO sees the complainant cite a breach of the ERO regulations on overtime rates. The complainant contends that his notification to the WRC of 28/9/2022, setting out a breach of the ERO regulations on overtime rates should be admissible as it is merely an expansion of the original complaint lodged with the WRC on the 23/1/2020 and submitted under section 45A of the Industrial Relations Act, 1946.

I find that I do not have jurisdiction to hear this element of the complainant’s complaint for the reasons set out in my Findings and Conclusions on the Preliminary Points, on page 4 of this decision.

The third element of the complaint alleging a breach of the ERO cites a breach of Part 11, Section 11, in that he was only paid for 4.8 hours for the previous public holiday which fell on the 17/3/2019 as opposed to the 8 hours provided for in S.I No 500/2006- Employment regulation Order (Security Industry Joint Labour Committee),2006. This complaint of an undated contravention was first identified in a letter to the WRC on 30/11/2022 and the actual date was then supplied to the WRC on 3/2/2023. The complainant states that it should be considered as development of his original complaint.

I find that I do not have jurisdiction to hear this element of the complainant’s complaint for the reasons set out in my Findings and Conclusions on the Preliminary Points, on page 4 of this decision.

CA-00033976-001 Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant withdrew this complaint.

CA-00033976-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not find this complaint to be well founded.

CA-00033976-003.Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant withdrew this complaint.

CA- 00033976-004.Complaint under Section 45A of the Industrial Relations Act, 1946

The complainant withdrew this complaint.

CA- 00033976-005.Complaint under Section 45A of the Industrial Relations Act, 1946.

I decide that I do not have jurisdiction to hear this complaint.

Section 4(6), exemptions, Organisation of Working Time Act, 1997.