LCR22728

1. (i) Payment Increase (ii) Site Allowance in recognition of extra workload.

BACKGROUND:

2. This matter 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 matter was referred to the Labour Court on 28 February 2023 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 28 March 2023.


UNION’S ARGUMENTS:

3. 1. The Union states that prior to December 2021 the professionally trained, highly regulated Members had not received a pay rise since June 2019. The Union request the Court to award their Members a retrospective pay increase of 40 cent per hour from 15 September 2021 to 3 December 2021 and 45 cent per hour from 29 August 2022.

2. The Union states their Members are claiming a premium increase of €2 per hour over their basic rate of pay, to reflect the list of extra duties performed by the Members, which adds value to the service being delivered to the Employer's client.

3. The Union states these issues were raised with the Employer at a TUPE consultation meeting on 2 September 2021 before the Employer took over the contract on 15 September 2021.

EMPLOYER'S ARGUMENTS:

4. 1. The Employer states the ERO for this industry is a matter that has been granted a High Court injunction since August 2022 and while other client’s sites have increased hourly pay rates, the client on this site in question has not.

2. The Employer states all allowances prescribed in the TUPE documentation received by the Employer from the previous employer are being paid to the members and no site allowance applies.

3. The Employer states that the contract with the specific client in not up for renegotiation until September 2024 but will bring the pay related issues to their client’s attention at a mid-term review meeting to be held in April 2023.

RECOMMENDATION:

The dispute before the Court concerns a claim on behalf of 8 Security Officers for (i) an increase in basic pay and (ii) payment of a site allowance. The security officers concerned are employed by Bidvest Noonan at the Law Library site. Five of the employees transferred employment to Bidvest Noonan in September 2021 following a transfer of undertakings.

Pay Claim

There are two elements to the pay claim before the Court. The Employer applied a pay increase of 40 cents per hour to the workers in December 2021. The Union seeks retrospection of that pay award back to September 2021.

In addition, the Union seeks that the employer award a 45 cent per hour pay increase backdated to 29 August 2022 to reflect increases that were proposed at that time but did not take effect. In August 2022 the commencement of a proposed Statutory Instrument giving effect to a new Employment Regulation Order (ERO) for the Security Industry was prohibited by a High Court injunction. As a result pay increases proposed as part of that ERO had no statutory effect. The Union submits that workers had a genuine expectation of an increase in pay at that time and many employers private sector applied the proposed increases voluntarily.

The Employer’s position is that it cannot award the increases sought in the absence of agreement from the public sector client to cover the costs involved. It acknowledges that in some private sector sites where it operates clients agreed to cover the increased costs arising from the suspension of the ERO. No such increase was agreed with the client involved in this case and concession of the claim would make the contract uneconomical. The contract is due for renewal in September 2024, with a mid-term review in April 2023.

Claim for a Site Allowance

The Union seeks payment of €2.00 per hour as a site allowance. It submits that the concept of a site allowance is well established in the industry. During the Pandemic the workers were deemed to be essential workers and carried out extra duties. They now seek an increase of €2.00 per hour to reflect extra duties that they continue to carry out which adds value to the service delivered to the client.

The Employer’s position is that all allowances prescribed within TUPE documentation received by the Company are paid to the employees and the “extra” work outlined by the union are not additional tasks.

The Court has given careful consideration to the written and oral submissions made by the parties.

Pay:

The first matter before the Court is a dispute relating to rates of pay on a particular site. The Court has considered carefully the submission of the Employer as regards the nature of the industry and its position on absorbing additional costs and has formulated its Recommendation taking that matter into account.

The Court does not accept that the existence of a statutory minimum rate of pay inhibits or impedes negotiation in respect of pay in particular employments in the industry. In all of the circumstances of this case the Court recommends concession of the Union’s claim for a 45 cents per hour pay increase backdated to 29 August 2022. The Court saw no basis for recommending concession of the Unions claim for retrospection of the 40 cents per hour pay increase awarded in December 2021 and that element of the claim is rejected.

Site Allowance:

The Court notes the lack of agreement between the parties about what constitutes additional duties undertaken by security officers, and the limited engagement on this matter at local level. The Employer told the Court that it is willing to engage with the union in relation to certain work, such as reception work, that may be deemed to be “additional work. In the view of the Court the parties would benefit from further engagement on this issue and so recommends that the parties engage, with the assistance of the WRC if necessary, with a view to reaching agreement on the matter of pay for “additional work” carried out by security officers.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
29 March 2023	Deputy Chairman