Complainant

Respondent

Parties

Paul  Smith

Dept Of Justice

Representatives

Conor Hannaway, SHRC Limited

Nóra Ní Loinsigh BL instructed by Emmet Hayes, Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00058258-001

13/08/2023

The Complainant is employed as an Immigration Officer working with the Border Management Unit (“BMU”) under the aegis of the Department of Justice at Dublin Airport.  The Complainant commenced work on 29 May 2017.

The Complainant claims that for the period 1 July 2022 to 5 March 2023, he ought to have been paid at an overtime rate (rather than a flat rate) for 2 hours per week, following changes made to civil service employment terms and conditions subsequent to the ending of the Haddington Road Agreement.

The complaint is rejected by the Respondent.

The Border Management Unit (BMU) is a section of the Department of Justice which provides immigration control and security at Dublin Airport.

The Complainant took up the position of Immigration Officer with the BMU at Dublin Airport in May 2017. The BMU operates 24 hours a day, 7 days a week and its staff work shifts. When he was first employed, the Complainant worked a shift pattern of 37 hours per week over a two-week period. The 37 hours per week included two hours which had been added to the working week as a result of the Haddington Road Agreement (HRA).

During the period 4 July 2022 to 3 March 2023 the Respondent was in discussion with the Complainant’s union, Fórsa, concerning the restoration of the 35-hour week. Given that the roster required 37 hours per week, there was an issue concerning compensation for the two additional hours.

Up to that time, additional hours worked by members of the BMU were compensated as overtime. In such cases the Complainant was paid for overtime worked in accordance with section 11 of his contract which states that any additional time should be either paid as overtime or time in lieu. Overtime was paid in line with the Department of Public Expenditure and Reform (DPER) Circular 08/2021.

The initial proposal put forward by management provided for overtime to be paid in accordance with the Circular and identified separately on payslips. However, DPER vetoed this agreement.

The Complainant continued to work overtime on a regular basis in the period July 2022 to March 2023. While the negotiations were ongoing BMU staff were requested not to submit overtime claims. The Complainant did not agree with the final agreement that was eventually reached between the Respondent and Fórsa as set out in an email to staff from management of the BMU on 1 March 2023.  One of the terms of the agreement between the Respondent and Fórsa was a retrospective payment of 2 hours per week (backdated to 1 July 2022) to be paid to staff at a flat rate plus shift allowance.  The Complainant was prepared to accept the arrangement going forward but did not accept the retrospective element. He understood that he would be paid overtime, and he wanted his contractual terms based on the DPER Circular to apply up to the time that the new agreement was implemented.  The Complainant submits that the Respondent unilaterally implemented the terms of the new agreement with effect from 6 March 2023.

On 11 March 2023, the Complainant submitted a claim for €4,978.51 in respect of overtime worked in the period 1 July 2022 to 26 February 2023 based on the terms of his contract and Department of Public Expenditure and Reform Circular 08/2021.  The overtime claim was rejected.

On 16 June 2023, the Complainant was paid €1,123,78 and on 23 June 2023 he was paid €263.67 (a total of €1,387.45).  The Complainant submits that he should have been paid €4,978.51. The consequence was that the Complainant was underpaid by €3,591.06.

Direct evidence of the Complainant

The Complainant said that it was his understanding that his working week changed from 37 hours to 35 hours with effect from 1 July 2022. 

Questions from the Adjudication Officer

In response to a question regarding his union membership, the Complainant stated that he left Fórsa the day after the ballot on the 2023 agreement.

Conclusion

The Complainant fully accepts government policy and collective agreements.  However, he has an issue with the application of policy on an individual basis and has the sense that government policy was not correctly applied in his case.

The Complainant believed that the extra hours in worked between July 2022 and March 2023 would be paid at overtime rates.

Factual Background                    

The Immigration Service Delivery (ISD) formerly known as the Irish Naturalisation and Immigration Service assumed full responsibility for the front-line immigration control at Terminal 1 in Dublin Airport in June 2015; the Transfer Facility in Terminal 2 in October 2015 and for the remaining areas of Terminal 2 from October 2017. This service is operated by the Border Management Unit (“BMU”). 

The staff at the BMU work a 24/7 shift pattern. The Complainant commenced work in the BMU on 29 May 2017. This was subject to terms and conditions, with which he agreed in writing.

The Public Service Stability Agreement 2013-2016 (known as the “Haddington Road Agreement”) was implemented in 2013. This was some 2 years prior to the establishment of the BMU. On foot of the Agreement (and associated legislation), amendments were made to the terms and conditions of civil servants which included amendments to working hours and arrangements. For civil servants who worked a 35-hour week in 2013, this was increased to 37 hours per week. 

In 2022, the Department of Public Expenditure, NDP Delivery and Reform (DPENDPR) formerly known as the Department of Public Expenditure and Reform (DPER) issued Circular 14/2022 entitled “Revision of Working Hours in the Civil Service”. This applied to all civil servants. 

Paragraph 3 of Circular 14/2022 states: ‘Workinghourforany gradewillnotbelessthanthelevelthatappliedpriortothe             HaddingtonRoadAgreement(HRA).Inthisregardaminimum floorof35hoursperweekwillapply.’Paragraph 4 states:‘HRAhoursimplementedin2013willberestoredinallcivilserviceemploymentswitheffectfromJuly12022.’ 

From 1 July 2022 therefore, the HRA changes were reversed such that the 2013 hours of affected civil servants were restored. For those whose hours of work had been changed to a 37-hour week since 2013, these hours were then reduced to 35 hours per week. As the BMU had not been established in 2013, a further period of consultation was required to honour the changes made to the working hours of other civil servants, as there could not be a “restoration” to previous working arrangements. A particular consideration in respect of the BMU was the shift pattern worked by staff, which would have required significant alteration if working hours were reduced from 37 to 35 hours per week. 

Between July 2022 and February 2023 there was ongoing communication and discussion between Fórsa (the union representing the Complainant and other BMU staff), the Department of Justice and the Department of Public Expenditure, NDP Delivery and Reform. 

The following is a brief summary of those discussions:

·       In considering the impact of the HRA on the Border Management Unit, the Management team (within the BMU) considered a number of options and advised that the optimum outcome for them would be to maintain the shift pattern as it was and pay staff for any additional hours. 

·       Sanction was sought from the Head of Corporate and the Assistant Secretary in Immigration Service Delivery. This was based on the essential conclusion that in order for the BMU to continue to operate effectively, with least risk of disruption to the service provided, the only viable option was to maintain existing shift arrangements and pay staff for the additional hours. This would see the BMU frontline officers paid for the additional 2 hours per week rather than work reduced hours as per the majority of other COs and EOs in the Civil/Public service. The estimated cost for the Department (subject to verification by HR/NSSO) would have been €0.389m per annum. 

·       In early July 2022, Human Resources, Department of Justice reached out to DPENDPR to put this proposal to them. Fórsa, the union representing the employees in BMU were contacted and were in agreement with the proposal of payment for the additional time. 

·       DPENDPR did not agree with this option, on the basis that BMU was not in existence in its current form prior to the Haddington Road Agreement and as such there was no requirement for ‘restoration’.  

·       On 26 July 2022 an email was issued from Human Resources to Fórsa to advise them of DPENDPR’s position.

·       On 3 August 2022 Fórsa wrote to its members advising that their default position remained that they wanted the Department to pay staff for the additional hours. 

·       On 25 August 2022 HR again wrote to Fórsa reiterating that all public service bodies including civil service departments cannot act unilaterally in relation to pay matters, particularly those arising from central agreements.

·       On 3 October 2022 following discussions between Fórsa and its members, Fórsa updated them as to the position of the Department owing to DPENDPR’s instruction and suggesting that it may be the way forward to take overtime claims for the additional hours – although they asked their members not to do that at that juncture. 

·       A bilateral meeting between Fórsa and the Department of Justice took place on 12 January 2023. 

·       A meeting between Fórsa and its members took place on 27 January 2023 following which members were balloted on the Department’s proposal. On 17 February 2023, Fórsa confirmed that its members had voted in favour of the proposals.

 The agreement reached was in the following terms:

·       The current BMU roster would be maintained and BMU staff would work a new net day of 10:15 paid hours on shifts that they are rostered.

·       The additional time worked is equivalent to 2 hours per week and would be split equally between additional breaks and additional banked leave (to be known as HRA leave which is equivalent to 4 shifts per year and is separate from annual leave).

·       A retrospective payment of 2 hours per week (backdated to 1 July 2022) would be paid to staff at a flat rate plus shift allowance.

This was communicated to BMU staff by email on 1 March 2023 with the changes to take effect from 6 March 2023.

The Complainant has submitted that one of the proposals made by BMU management during the discussions was that staff would be paid overtime. This is not the case. It was never proposed by the BMU (or by or on behalf of the Department) that staff would be paid at the overtime rate for the two hours of additional work arising pre and post HRA. There was reference made to overtime payments in communications between Fórsa and its members, but the union specifically requested that its members not advance such claims pending the outcome of the discussions.

On 11 March 2023, 5 days after the changes came into effect, the Complainant lodged a claim for overtime on the basis that he believed he ought to have been paid at the overtime rate for the additional two hours for this period.

LegalSubmissions                        

The Complainant commenced his employment in May 2017. The employment of the Complainant as an Immigration Officer (at the level of a Civil Service Clerical Officer) was expressly subject to a number of terms and conditions, including the following:

·       The appointment was subject to the Civil Service Regulation Acts 1956 to 2005, the Public Service Management (Recruitment and Appointments) Act 2004 and any other Act for the time being in force relating to the Civil Service.

·       The rate of pay might be adjusted from time to time, in line with Government pay policy.

·       Statutory deductions from salary would be made as appropriate by the Respondent.

·       Assignment as an Immigration Control Officer (ICO) at Dublin Airport working a 24 x7x 365 roster attracts a shift allowance of 25% of the basic Clerical Officer salary. In accordance with section 21(1)(d) the Organisation of Working Time Act on assignment to the ICO shift roster, ICOs receive an additional payment of 28% of weekly gross salary in respect of public holidays worked and an additional payment of 20% of our weekly gross salary in respect of public holidays not worked.

·       Hours of attendance would be as fixed from time to time but would amount to on average not less than 43 hours and 15 minutes gross or 37 hours net per week when balanced over a two-week period. On assignment to Dublin Airport as an Immigration Control Officer a shift roster will apply which would require attendance of 7 shifts across a 14-day period.

The Complainant signed the Form of Acceptance accepting, interalia, the above terms and conditions on 5 May 2017 and commenced his employment shortly thereafter. 

The employment of an individual within the Civil Service is subject to the rules and regulations of the Civil Service and differs in this regard to a private sector contract of employment. The Civil Service Regulation Acts 1956-2005 govern the terms and conditions of employment of the Complainant and empower the relevant Minister to make regulations, issue circulars, etc. governing his employment. 

Section 17 of the Civil Service Regulation Act, 1956 provides that:

(1)The  Ministershallberesponsiblefor thefollowingmatters

(a) theregulationandcontroloftheCivilService,

(b) theclassification,re-classification,numbersandremunerationofcivilservants,

(c) the fixingof—

(i)thetermsandconditionsof serviceofcivilservants,and 

(ii)theconditionsgoverningthe promotionofcivilservants.

(2)TheMinister may,forthepurposeofsubsection(1)ofthissection,makesuch arrangementsashethinksit andmaycancel orvarythosearrangements…”.

The Complainant’s employment is governed by the terms and conditions of the civil service therefore, rather than by the ordinary principles governing employment by private contract (see, for example GilheaneyvRevenueCommissioners [1996] ELR 25, in which Costello P held, at 36-37 “[…]theministerinmakingtheapplicant’sappointmenttothecivilservicehadnointentionofenteringintoacontractualrelationship,withhim;andthatthelegalbasis forhisappointmentisanadministrativeactmade bytheexerciseofstatutorypowers”).

TheissuesraisedbytheComplainant

The Complainant alleges that he ought to have been paid in line with Circular 08/2021 regarding overtime in the civil service. The Complainant also claims that he has been the subject of a unilateral change to the terms and conditions of his employment. 

During the period from July 2022 to March 2023 the Complainant continued to work the same hours (37 hours per week across a shift pattern) as he had done prior to July 2022. The Respondent submits that this claim does not relate to additional overtime hours worked in addition to these hours.  The Respondent contends that, in his claim, the Complainant seeks to retrospectively assert that these hours were overtime hours. 

Circular 08/2021, upon which the Complainant relies, makes clear that overtime relates to hours outside of the standard working week. At paragraph 1.2 it states that “overtimeisthe paymentgivento anofficerforextraattendanceoutofthestandardworkingweek.”

The Respondent submits that the hours in respect of which the Complainant seeks to be paid at the overtime rate do not fall within this definition as they formed part of his standard working week. 

Furthermore, the Complainant appears to assert that he is not bound by the agreement reached between his employer and his union, nor by the terms and conditions set by his employer. A civil servant is subject to the terms and conditions fixed by government and cannot unilaterally repudiate these. Furthermore, it is expressly stated in the terms and conditions of the Complainant’s own employment that his rate of pay is subject to adjustments in line with Government policy. 

It is submitted on behalf of the Complainant that he had not agreed to changes made to the terms and conditions of his employment and that, as such, he cannot be bound by them. As a civil servant the Complainant is bound by the terms and conditions as set by government (as is reflected in both legislation and in the terms and conditions of his employment). There is no requirement of law that changes made are subject to individual agreement between each and every civil servant. Such a system would not be compatible with the provisions of the Civil Service Regulation Act 1956. It also bears emphasising that the agreement reached was done so with the consent of the union of which the Complainant was (and to the best of the knowledge of the Respondent continues to be) a member of. 

It is further submitted by the Complainant that there had been a unilateral amendment to the terms and conditions of his employment. As is clear from the terms and conditions, as agreed by the Complainant, his hours of work were “as fixedfromtime totimebutwillamount toonaveragenotlessthan43hoursand15minutesgross or37hoursnet perweekwhenbalancedovera two-weekperiod.”. 

During the period over which the complaint is made, the Complainant continued to work these 37 hours.  There was no unilateral amendment made to the terms and conditions of his employment and he was subsequently paid an additional amount in respect of this period to reflect changes across the civil service. He did not work hours beyond those set out in his contract nor did he work overtime hours. 

Direct evidence of Ms Scallan, HR Manager

Ms Scallan referred to paragraph 6 of the Department of Public Expenditure and Reform (DPER) circular 14/2022 titled “Revision of Working Hours in the Civil Service – Implementation of the Independent Hours Body Recommendations in relation to the Haddington Road Agreement Hours and Updated Flexible Working Arrangements for Civil Servants” in which it was stated that “As a result of this change the majority of civil servants will now be working 35 hours net per week.  For those not on 35 hours net per week, adjustments will need to be made to the above attendance period by local management”. 

Ms Scallan confirmed that the Respondent was engaged in negotiations with Fórsa to implement the provisions of circular 14/2022 in relation to the staff of the BMU.  A proposal was put to the Fórsa on 12 January 2023 which was balloted on and came into effect on 6 March 2022.

Direct evidence of Ms Leahy, Head of Border Management Unit

Ms Leahy stated that her chief concerns in the negations with Fórsa regarding the implementation of circular 14/2022 for the BMU was that the existing shift patterns could not be changed, and management’s preference was for staff to continue working a 37-hour week. 

Cross-examination of Ms Leahy

Ms Leahy confirmed that the Complainant’s contractual working hours changed to 35 with effect from 6 March 2023 when the new agreement came into force. 

Ms Leahy confirmed that it was not the practice in the civil service to change individual contracts when a change in terms and conditions comes into effect.

Conclusion

The BMU was not in existence at the time of the Haddington Road Agreement (HRA) so a separate negotiation process was required in order to give effect to the unwinding of the HRA.  This agreement took effect from 6 March 2023. 

A collective agreement was put in place which altered the terms and conditions of all staff in the BMU.  This collective agreement was in line with the provisions of the Civil Service Regulation Act 1956.  It is not possible for an individual civil servant who is covered by a collective agreement to opt of any aspect of that collective agreement.

There is a distinction between the employment contract of a civil servant and that of an employee in the private sector. 

The Law

Section 5 of the Payment of Wages Act 1991 (the Act) provides as follows: -

5. Regulation of certain deductions made and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer should then consider whether that deduction was lawful.

Department of Public Expenditure and Reform (DPER) circular 14/2022 provided for the unwinding of the Haddington Road Agreement (HRA) with a reduction in working hours to the pre-HRA level and a change to flexitime arrangements.

It is well-established that the terms and conditions of Civil Servants may be amended as a result of a collective agreement between a union or a group of unions and the employer; the public pay agreements are probably the most well-known example of this practice.  In such situations, union members are balloted on an agreement between the union(s) and the employer concerning the pay of a cohort of workers.  If the outcome of the ballot is in favour of the agreement, the terms of the agreement are applied to all staff in the cohort including those who are not members of the union.

The BMU was not in existence at the time the Haddington Road Agreement was put in place.  Staff in BMU were recruited to work a 37-hour week and the rosters were constructed accordingly.  It is clear that the Respondent had serious concerns about the adverse impact that a reduction in working hours would have on the operation of the BMU.  Accordingly, the Respondent entered into negotiations with Fórsa, the relevant trade union, with a view to reaching an agreement on how to implement circular 14/2022 without affecting the operation of the unit.  Eventually an agreement was reached between the Respondent and Fórsa and voted on by the union membership.  This agreement included a provision that a retrospective payment of 2 hours per week (backdated to 1 July 2022) would be paid to staff at a flat rate plus shift allowance.

The Complainant did not accept this provision.  Instead, he was of the view that as a result of circular 14/2022 his contracted hours were reduced from 37 to 35 from the effective date of the circular – 1 July 2022 and that any hours he worked in excess of 35 from that date until the effective date of the collective agreement were to be paid at the overtime rate.  I note that the Complainant is happy to accept the provisions of the collective agreement relating to the period after the effective date of 6 March 2023. 

I am of the view that, due to the industrial relations norms that existed in his workplace, the collective agreement between Fórsa and the Respondent applied to the Complainant in its entirety.

I find, therefore, that the Complainant was paid the wages that were properly payable to him.  Accordingly, I find that his complaint is not well founded.

I declare this complaint to be not well founded.

Correct rate of pay for Civil Servant – DPER circular – unwinding of Haddington Road Agreement