Complainant

Respondent

Anonymised Parties

A security officer

A security solutions company

Representatives

Citizens Information DNWCIS Citizens Information Service

Aisling McGowan, Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00013996-001

18/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00013996-002

18/09/2017

The Complainant in this case is a Security Officer and was employed by the Respondent from 31st March 2015 to his resignation on 2nd April 2017. The Complainant was deemed to be a Door Supervisor and therefore did not receive the Terms and Conditions of Employment as outlined in the Security Industry Employment Regulation Order (SI No 231 of 2017). The Complainant’s rate of pay was €9.15 per hour which is considerably less than Security Officers under the Employment Regulation Order (SI 231 of 2017).

The Complainant is seeking the rates payable under the ERO.

The complaint referred under Section 24 of the National Minimum Wage Act, 2000 was withdrawn prior to the hearing.

The Complainant has listed his duties as follows:

·         Manage and organise the queue of customers at the tills.

·         During the course of employment, the Complainant was required to deal with dangerous incidents involving drug users using syringes in the customer toilets. The Complainant was directed by management of the restaurant to engage with, and remove, such persons from the restaurant, and to contact An Garda Siochana as required to assist in the process.

·         Completion of written reports at the end of shifts to record relevant security incidents.

When the Complainant’s representative contacted the Respondent company in relation to the rate of pay and the non-application of the Employment Regulation Order they received a reply quoting and containing the Labour Court Recommendation on the ‘Applicability of Security Industry ERO to Door Supervisors decision [DEC 101] CD/09/830.

Summary of Complainant’s case:

·         The Complainant worked as a security officer for the Respondent.

·         The Respondent has erred in asserting that the Complainant was employed as a door supervisor and not subject to the relevant ERO.

·         The decision of the Labour Court in DEC 101 is inapplicable to the circumstances of the Complainant’s employment as a security operative as outlined.

·         The Complainant’s responsibilities in his role for the Respondent when compared to both definitions of ‘door supervisor’ and ‘security operative’ are most comprehensively covered by the latter.

·         It is submitted that this position is commonly held within the security industry.

The Complainant was employed as a Door Security Personnel (DSP) based at a fast food restaurant in Dublin. The Complainant remained at that facility until his resignation in 2017.

Some of the Complainant’s duties and responsibilities amongst others consisted of:

·         Checking the toilets of the restaurant

·         Monitoring activities within the restaurant

·         Monitoring customers in the restaurant

·         Managing and organising queues in the restaurant

·         Taking appropriate action when required and contacting An Garda Siochana and

·         Writing reports at the end of each shift

The Respondent respectfully submits that the restaurant site is a DSP site, not requiring a Static Guard and therefore does not fall within the definition of the Security Industry ERO.

It is submitted in the present case; the Complainant does not fall within the meaning of the ERO as the Complainant holds a DSP licence as issued by the Private Security Authority (PSA) meaning that the Complainant can only perform work as determined by virtue of the licence held and the specific nature of the work being performed.

While the Complainant was based at a DSP site, the Complainant was not responsible for dealing with theft, or monitoring cash. It is respectively submitted that it is a reasonable function of a DSP to take appropriate action in the event of anti-social behaviour. The Complainant was not required to perform additional duties more akin to those of a static guard.

Case quoted at hearing – Labour Court (DEC 101).

The subject of the hearing has been raised many times in discussions within the Security Industry – do the terms and conditions contained in the Employment Regulation Order (ERO) apply to Door Security Personnel.

As pointed out by both parties present at the hearing of this instant case the Labour Court has made a determination on this subject albeit that was in 2010.

It is important to look at the wording of the Employment Regulation Order that the Labour Court based their decision on.

The current Employment Regulation Order provides the following definitions. It should be noted that these definitions contained within the Schedule to the Establishment Order have been replicated in all ERO’s since the first ERO in 2000 (S.I.20 / 2000).

Security Firm: - means a firm that employs one or more security operatives.

Security Operative: - means a person employed by a security firm to:

         I.            Provide a security service for contract clients of that firm, and

       II.            Perform one or more of the primary functions set out below.

Primary functions of security operatives:

         I.            The prevention or detection of theft, loss, embezzlement, misappropriation or concealment of merchandise, money, bonds, stocks, notes or other valuables.

       II.            The prevention or detection of intrusion, unauthorised entry or activity, vandalism or trespass on private property either by physical, electronic or mechanical means.

     III.            The enforcement of rules, regulations and policies related to crime reduction

    IV.            The protection of individuals from bodily harm.

But excluding

         I.            Workers affected by an Employment Agreement, that is an agreement relating to remuneration or the conditions of employment of workers of any class, type or group made between a trade union of workers and an employer or trade union of employers or made at a meeting of a registered joint industrial council between members of the council representative of workers and members of the council representative of employers.

       II.            Workers to whom an Employment Regulation Order made as a result of proposals received from another Joint Labour Committee applies.

     III.            Managers, assistant managers and trainee managers.

The Labour Court also considered the definition of a “Door Supervisor” as it appeared in the Private Security Services Act, 2004:

“door supervisor” means a person who for remuneration, as part of his or her duties, performs any of the following functions at, in or in the vicinity of any premises or any other place where a public or private event or function is taking place or is about to take place:

a)      controlling, supervising, regulating or restricting entry to the premises or place,

b)      controlling or monitoring the behaviour of persons therein,

c)       removing persons therefrom because of their behaviour.

On 10th May 2012 the Private Security (Licensing and Standards) Regulations 2012 became operational, these regulations substantially changed the 2004 Regulations.

In their submission the Respondent clearly states (point 16 of the submission):

“it is therefore submitted from the outset that the same conclusion that was reached by the Labour Court in ISIA -V- NERA should apply to these present proceedings, namely that the claimant does not fall within the remit of the Security ERO by virtue of his DSP status. Mr xxxx xxxxxx, of the Private Security Authority has confirmed the definition of a Door Supervisor as being:

“a person who provides a security service at or in the vicinity of a licensed premises. A licensed premises is defined by the Private Security (Licensing and Standards) Regulations 2012 (S.I. No. 144/2012) as –

a)      a premises licensed for the sale of intoxicating liquor under the Licensing Acts,

b)      a premises licensed under the Public Dance Halls Acts,

c)       a premises licensed under the Gaming and Lotteries Acts

d)      a club registered under the Registration of Clubs Acts

e)       food premises, stall or vehicle within the meaning of Food Hygiene Regulations”.

On reading the Private Security (Licensing and Standards) Regulations 2012 (S.I. No 144/2012) I seethat it reads as follows:

“a person who provides a security service at or in the vicinity of a licensed premises. A licensed premises is defined by the Private Security (Licensing and Standards) Regulations 2012 (S.I. No. 144/2012) as –

a)       a premises licensed for the sale of intoxicating liquor under the Licensing Acts,1833 to 2011

b)      premises licensed under the Public Dance Halls Acts 1935 to 2003

c)       premises licensed under the Gaming and Lotteries Acts 1956 to 2003

and includes –

         I.            a club registered under the Registration of Clubs Acts 1904 to 2004

       II.            food premises, or a food stall or food vehicle, within the meaning of the Food Hygiene Regulations 1950 to 1989.

This definition is different to the one presented by the Respondent at the hearing of the complaint.

Clauses l and ll apply when at least one of a), b) or c) shown above are applicable.

These Regulations changed the definition of a “door supervisor” to “door supervisor (licensed premises). The Respondent’s contract at the fast food restaurant in question is not a “Door Supervisor” contract.

The definition of duties carried out by the Complainant are close to the definition contained within the Employment Regulation Order (Security Industry Joint Labour Committee) 2017 (S.I.No. 231 of 2017).

The Complainant has calculated that his payment during his period of employment was €4,114.33 short of what he would have earned had he been paid the correct amount i.e. the ERO rate of pay.

The Employment Regulation Order (S.I. No. 231 of 2017) should have been applied to the Complainant’s rate of pay and I recommend the payment of €4,114.33 to the Complainant.

Such payment should be made within 42 days of the date of this Recommendation.