ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001525

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              24/01/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker has a dispute with the Employer in relation to new rules introduced by the Employer regarding break entitlements.

Summary of Workers Case:

The Company has introduced new rules regarding paid breaks which involve those who commenced employment prior to the 15th of June 2022, remaining on their current rest break arrangements and those who commenced after 15th June 2022 not being entitled to paid breaks. The Worker stated that the arbitrary cut-off point has directly discriminated against him who commenced employment just 9 days after this cut-off point. 

He believes to allow one group of employees to continue with paid breaks, and not another group by use of a guillotined cut-off date has done serious and unnecessary harm to trust and confidence and is an act of bad faith on the part of the management. Even the employees who continue to enjoy paid breaks, while under unpaid break contracts, believe the company has treated those affected negatively in an unfair, unreasonable and irrational manner. The only sensible way to restore trust and confidence would be to rescind the cynical, arbitrary, retrospective cut off date of the 15 June 2022.

The Worker believes that, in this case, the establishment of “custom and practice” is proven by virtue of the enormous scale of the application of the paid break, the volume of employees involved, nationwide. The frequency of application of the paid break, literally every day for years. The notoriety and certainty of the application. The regular publication of the rotas, put on display showing the application of paid breaks for all to see, including senior management, area management and any bystander, officious or visiting. Rotas were regularly shared via staff WhatsApp groups. The fact the company did not make any objection or assert remedies in good time, or at any time, for whatever reason, led to employees inferring, and reasonably so, that this paid break had crystalised into a term of their contract. He believes the retrospective cut-off date of 15 June 2022 is unfair and unreasonable in the context of the established custom and practise.

Summary of Employer’s Case:

The Complainant commenced employment with the Respondent as a Service Assistant on 24 June 2022. He is contracted to work 16 hours per week and earns an annual basic salary of €10,128.96.

In November 2022 a review of the Respondent’s breaks policies across the business revealed that there were discrepancies in many stores whereby the Respondent’s Rotafix system was not recording 15-minute breaks. Consequently these un recorded breaks were designated as paid working time resulting in an overpayment of wages. At the time the only breaks being recorded on the Rotafix system were the 30- minute breaks of those working in excess of 6 hours. Following the review and a full consultation process the Respondent rectified the situation and discontinued the unofficial practice of paying employees for their 15-minute breaks.

Prior to implementing the change the Respondent’s workforce was advised of the pending changes by way of cross departmental input and briefings along with a FAQs sheet. Briefings took place throughout April/May 2023. The relevant information was available to all employees at every level.

The Respondent contends that the Adjudication Officer does not have jurisdiction to rule on this claim due to the constraints of Section 13 of the Industrial Relations Act.

Section 13 (2) of the Industrial Relations Act, 1969 provides:

Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

Under the changes implemented by the Respondent the length of some workers shifts has increased to take account of the unpaid paid breaks.

It appears that the issues raised by the Complainant relate to ‘a dispute connected with hours or times of work of ….a body of workers’. The Complainant has referenced the impact of the realignment of breaks, implemented by the Respondent on 15 May 2023, on the body of workers who commenced employment with the Respondent after 15 June 2022. At the time of writing approximately 213 employees are affected.

It is submitted that as the Complainant only works four-hour shifts he is not legally entitled to a break so therefore cannot be deemed to be ‘a party to the dispute’ as required under the Act.

Notwithstanding the fact that the Complainant is not a party to the dispute, it is respectfully submitted that the claim, as framed, involves a body of workers and is connected to hours or time of work, as the unpaid 15-minute break now extends the affected workers shift by 15 minutes. Such matters do not come within the ambit of Section 13 of the Industrial Relations Act, 1969, and therefore the adjudicator does not have jurisdiction to hear the matters referred under this claim.

Conclusions:

Recommendation:

As provided for in Section 13 of the Act, as this dispute has implications for a body of workers, I cannot recommend resolution in this case.

Dated:   01-03-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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