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FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LIMITED DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No. ADJ-00014780 CA-0001895-002 Ms. Laisa, ‘the Complainant’ was an employee of ISS Facilities Ltd. when a transfer of undertakings arose in 2010 and, as a result, she became an employee of Bidvest Noonan, Ltd., ‘the Respondent’. The Complainant is one of a number of people in a similar position whose pay at the time of transfer exceeded the rates provided for in the industry Employment Regulation Order, ‘ERO’ and who contend that there was a contractual obligation on the new employer, the Respondent, to increase their rate of pay in line with increases in the ERO rates, as, it is contended, this contractual commitment was created by the previous employer who adopted a practice of increasing their pay rates in line with increase in the ERO rates. The Complainant made a series of complaints on the same set of facts under a number of Acts to the Workplace Relations Commission, ‘WRC’. This is an appeal by the Complainant of the Decision of an Adjudication Officer, ‘AO’, under s.45 (a) of the Industrial Relations Act, 1946 that a complaint regarding an alleged breach of an ERO was not well founded. The Applicable Law Industrial Relations Act, 1946 Decision of adjudication officer under section 41 of Workplace Relations Act 2015 45A. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the employment regulation order, or (c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. Decision of Labour Court on appeal from decision referred to in section 45A 45B. A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 45A, shall affirm, vary or set aside the decision of the adjudication officer. Deliberation For a complaint under s.45A of the Act to succeed, it would be necessary for the Complainant to show that she was paid below the applicable rate set out in the ERO applicable in that time. The Complainant makes no such argument. Her argument relates to what she claims was an obligation on the Respondent to pay her above the ERO rate. Therefore, the very basis of her complaint makes evident that her employer, the Respondent, did not pay her less than the ERO rate and, accordingly, a complaint under this section cannot succeed. Determination The Decision of the AO is upheld.
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