LCR22436

FULL RECOMMENDATION

SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990

PARTIES :

SYNERGY SECURITY SOLUTIONS LIMITED

- AND -

7 SECURITY OPERATIVES
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1. Pay Claim, Calculation Of Overtime, Loss Of Earnings Due To Covid 19 Changes In Work Practices

BACKGROUND:

2. This dispute could not be resolved at local level and was the subject of Conciliation Conferences under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 12 March 2021 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 2 June 2021.

UNION’S ARGUMENTS:

3. 1. The Workers went without a pay increase from 2008 to 2019.

2. Overtime is working time and no element of the workers’ break should be deducted when calculating over time.

3. 6 members contracted hours were reduced by a reduction of one 12-hour shift per fortnight due to unilaterally implemented COVID-19 protocols.

EMPLOYER'S ARGUMENTS:

4. 1. If the Union wants to see an increase in the pay and terms of conditions of its members, they should use their influence at Joint Labour Committee level.

2. The Union members are compensated for their ‘on-call’ breaks in the form of a bonus payment. Payment of overtime is in line with the ERO.

3. Alternative locations were offered to the officers, as an option to make up hours lost as a result of Covid 19 protocols. Only 2 officers accepted an additional shift.

RECOMMENDATION :

The Court has given very careful consideration to the written and oral submissions of the parties.

The Trade Union claims that the workers concerned should:

Receive pay increases so as to maintain what they contend is an agreed ‘differential’ above the rate set out in an Employment Regulation Order (ERO). They seek the implementation of a 30 cent per hour increase with effect from June 2017, 30c per hour w.e.f June 2018 and 30c per hour w.e.f. June 2019.

That an hour’s paid on-call break in the roster should be counted as time at work for the purposes of calculation of overtime payment threshold.

That a loss of a 12-hour shift per fortnight from what they contend is their contract hours from March 2020 to February 2021 should be compensated in full.

The employer contends that

 it is unaware of an entitlement on the part of the workers to a ‘differential’ above the ERO rate and in any event would be unable, for contract and competitive reasons, to concede the claim made by the Trade Union. The employer accepts that the workers were paid at a rate higher than the traditional ERO rate at the time they became employees of this employer in 2015 but was not advised by the previous contract holder of a collective agreement affording these workers a ‘differential’.

the hour’s paid break on call reflects the requirements of the client on the site and it would not be affordable to include that time when calculating the threshold for overtime calculation purposes.

while the workers did suffer a loss of one 12-hour shift per fortnight from March 2020 to February 2021, the result reflected the impact on Covid 19 on working arrangements and the requirements of the client in that respect. In February 2021 the employer did offer the workers a shift in an alternative site to allow them to recover lost earnings and only two workers availed of that opportunity.

The Court notes that it has not been provided with a copy of any collective agreement underpinning the contention that a previous employer had agreed to maintain a differential over ERO rates for the workers concerned. Similarly, the Court has not been provided with a copy of a contract of employment guaranteeing the workers a particular quantum of hours’ work each week or dealing with the paid on-call break in the context of calculation of overtime.

Finally, the Court has been unable to establish why, if there is an issue arising from the transfer of these workers from one employer to another, that the matter was not dealt with at the time under relevant legislation if necessary or why this matter comes before the Court six years approximately after the transfer.

In all of the circumstances, the Court recommends that:

An increase of 30 cents per hour should be applied to the rate of pay of these workers with effect from June 2019. The parties should engage further locally, and through procedures if necessary, to share any documentation or agreement dealing with the pay of these workers which might support a contention that an increase should have been applied in 2017 and 2018.

They should also in that process seek to agree how the matter of pay of these workers will be determined into the future. The practice in the industry in terms of pay arrangements of workers paid above the ERO rate should be established as part of this engagement.

The hour’s paid break on call should form part of the calculation of the threshold for payment of overtime purposes.

The loss of a 12-hour shift per fortnight from March 2020 to February 2021 should be compensated at the rate of 50% of the loss suffered.

The Court so recommends

NOTE

Enquiries concerning this Recommendation should be addressed to Orla Collender, Court Secretary.