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FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : NOONAN SERVICES GROUP LIMITED
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED,) - AND - MR JOHN LYONS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No. ADJ-00015300. This matter comes before the Court as an appeal by Bidvest Noonan (the Appellant) against a decision of an Adjudication Officer in a complaint made by John Lyons (the complainant) against his employer under the Payment of Wages Act, 1991 (the Act of 1991). The Adjudication Officer, in his decision, identified the parties as Noonan Services Group Ltd and John Lyons. It is the Court’s understanding from its submission, that the Appellant was previously known as Noonan Services Group Ltd. The Court therefore allows the Appellant to pursue this appeal against a decision involving Noonan Services Group Ltd. The Adjudication Officer decided that the complaint was well founded and awarded the Complainant compensation in the amount of €353.60. The Case. The factual matrix of the matter before the Court was not in dispute. The Complainant is a security operative within the meaning of the Employment Regulation Order (Security Industry Joint Labour Committee) 2017 [S.I No.231 of 2017] (the ERO). The Appellant is a security firm within the meaning of the same statutory instrument. By operation of the law the Complainant was, at the material time for the within complaint, entitled to receive, at a minimum, wages at the level set out in the ERO. The Complainant’s contract of employment provides that he will be paid “the applicable JLC rate for the security sector at any given time in accordance with current Employment Regulation Order in force for the security industry”. The Complainant submitted that he had worked sixteen shifts of two hours’ duration at a customer’s premises between January 2018 and June 2018. The Complainant received €354.80, which was 32 hours pay, for this work. He claims that the terms of the applicable Employment Regulation Order in force at that time, S.I No.231 of 2017, provided for a minimum payment of four hours per shift attendance and consequently entitled him to receive four hours payment for each of the sixteen two hour shifts he worked in the period. He submitted that the wages properly payable to him therefore were 64 times his hourly rate rather than the 32 times his hourly rate which was actually paid. He submitted therefore that he was paid an amount less than the amount properly payable to him and that the difference between what was properly payable and what was actually paid amounted to a deduction within the meaning of the Act. He submitted that the deduction was unlawful and consequently sought compensation in the amount of €354.80. The Appellant submitted that the ERO makes no provision for a minimum shift payment of four hours when the shift being worked is a rostered shift. The Appellant contended that the ERO does make provision for a minimum four hour payment when a worker covered by the ERO is called in for a shift. The Appellant therefore contends that the Complainant received the wages which were properly payable to him at the material time and consequently no deduction within the meaning of the Act has taken place. The clause of the ERO at issue between the parties is clause 2(20) of the order which states as follows:
The law The Industrial Relations Act, 1946 (as amended) (the Act of 1946) makes provision for the enforcement of Employment Regulation Orders as follows: Enforcement of employment regulation orders.
The Workplace Relations Act, 2015 (the Act of 2015) at Section 41(1) makes provision as follows for a complaint to the Director general of the Workplace Relations Commission in any instance where it is contended that an employer has, as is alleged in the within appeal, contravened a provision of an Employment Regulation Order:
An Employment Regulation Order is specified in Part 2 of Schedule 5 of the Act of 2015. The within Complaint is presented under the Payment of wages Act, 1991 (the Act of 1991). That Act makes unlawful certain deductions from wages properly payable to an employee. Section 5 of that Act in relevant part provides as follows:
Discussion and conclusions The parties are agreed on the factual matrix of this dispute. They agree on the quantum of hours worked during the material time and they are agreed on the amount paid to the Complainant in wages in respect of those hours. The matter before the Court turns on the meaning of clause 2(20) of the ERO. The Court is asked to make a finding as to whether the Respondent contravened the ERO at the material time and to determine, as a consequence of that decision, the quantum of wages properly payable to the Complainant at the material time; and as a consequence of that decision to determine whether a deduction within the meaning of the Act occurred as alleged and whether that deduction, if it occurred, was lawful. It is noteworthy that officers of the Trade Union representing the Complainant before the Court and of the Respondent company were and are members of the Joint Labour Committee for the Security Industry. It is that Joint Labour Committee which exercised its statutory capacity under the Act of 1946 to adopt proposals for an employment regulation order which in due course were adopted by this Court exercising its statutory function under the same Act and which ultimately were accepted by the Minister such that he made Employment Regulation Order (Security Industry Joint Labour Committee) 2017 [S.I No.231 of 2017] exercising his statutory function under the Act of 1946. It is noteworthy also that no evidence has been presented to the Court of the Joint Labour Committee having met to consider or discuss the fact that two members of the Committee which formulated the text and content of the ERO at issue before the Court dispute the meaning of that text. The Court is afforded no explicit statutory function of interpreting Employment Regulation Orders. An Employment Regulation order is a legal instrument brought into being by the Minister under Section 42C (2) of the Industrial Relations Act, 1946. Section 45A of that Act sets out the jurisdiction of an Adjudication Officer of the Workplace Relations Commission under Section 41 of the Act of 2015 in relation to a complaint of contravention of an Employment Regulation Order. Any decision of an Adjudication Officer in relation to an alleged contravention of an Employment Regulation Order made under Section 41 of the Act of 2015 can be appealed to the Labour Court under Section 44 of that Act. It is these legislative provisions which afford this Court a statutory function of determination of alleged contraventions of an Employment Regulation Order. The within dispute is based on the proposition that, by not making the payment contended for by the Trade Union, the Appellant contravened the ERO. No complaint of a contravention of the order has, to the understanding of the Court, been made to the Workplace Relations Commission under Section 41 of the Act of 2015 in respect of the sixteen shifts worked by the Complainant between January and June 2018 and which are at issue in this complaint made under the Payment of Wages Act, 1991. The alleged failure to make payments required under the ERO is contended to amount to a breach of the Act of 1991 rather than a breach of the Order itself which is a statutory instrument. It is not for this Court under the Act to interpret this legal instrument and neither is it for the Court, outside of the jurisdiction conferred upon it by Section 44 of the Act of 2015 in relation to an appeal of a decision of an Adjudication Officer in a complaint of an alleged contravention of an Employment Regulation Order; to purport to make a determination that the terms of the ERO have been contravened. In the view of the Court, the legislation surrounding the making of Employment Regulation Orders has established the means to address disputes where a party considers the terms of such an order to have been contravened. Those means reside in the legislative provisions outlined above. The Complainant cannot ask the Court to draw jurisdiction upon itself under the Act to make a finding that an Employment Regulation Order has been contravened and to find such a contravention to amount to breach of the Act rather than a contravention of the Order itself. In circumstances where the Court is not, for the reasons outlined, at liberty to determine an alleged contravention of an Employment Regulation Order under the Act, the Court must find, on the basis of the submissions before it, that the Complainant has not established that the wages which were paid to him were other than those properly payable to him between January and June 2018. The within appeal must therefore succeed. Determination The Court determines that the within appeal succeeds and the decision of the Adjudication Officer is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
