Case Number: ADJ-00026634. Workplace Relations Commission

Docket NumberADJ-00026634
Date14 October 2020
CourtWorkplace Relations Commission
Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 45A of the Industrial Relations Act, 1946 following the referral of the complaint / dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint / dispute.

Background

The parties are in dispute in relation to a provision in the Security Industry ERO regarding minimum shifts.

Summary of Complainant’s Case:

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.

Summary of Respondent’s Case:
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