ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013548
A Maintenance Fitter
A Manufacturing Company
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 25/05/2018
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complaint is based on the complainant’s non-participation on a ‘call-out and standby’ roster, which is in operation in the company and has an allowance payable to those on the roster. He claims that he was placed on the roster for one week and got paid the allowance, however he has since been taken off the roster and is no longer getting the allowance.
The respondent states that the claim arises under the Payment of Wages Act 1991 is not well founded as there has been no deduction from the complainant’s pay, authorised or otherwise. The operation of the call-out and standby roster is based on an agreement between the company and the Trade Union. The complainant is not entitled to the payment of an allowance for a roster that he is not rostered to work.
Summary of Complainant’s Case:
The complainant is a Maintenance Fitter with the respondent and is employed there for over 11 years.
He said that there is an on-call system in the maintenance workshop. The workshop consists of three fitters - himself and two others - and two electricians. He claims that the on-call and standby roster includes the other two fitters and the two electricians. He is the only member of the maintenance workshop not on the roster.
He claims that he asked to be included in the on-call and standby roster since he started with the respondent. He said that after numerous requests the company finally decided to add him to the roster on 4 September 2017 and he was paid the allowance for one week. He claims that he was then subsequently removed from the roster thereafter and not paid the allowance. The complainant said that he has in the past been called out, outside of normal working hours to do work and has been paid for it.
He claims that he has gone through an internal grievance procedure and multiple grievance appeal procedures with the company but to no avail. He said the company have now finally agreed that he could take the complaint to the Workplace Relations Commission. He said that he is looking to be re-instated to the on-call and standby roster and be paid the weekly allowance of €70.27 as of 22 September 2017.
Summary of Respondent’s Case:
The respondent said that the operation of the on-call and standby roster is based on a set agreement between the company and the Trade Union. This, it claims, is a dispute between the complainant and his work colleagues/ Trade Union.
The respondent said that the process of how individuals are added to the call-out and standby roster has been in place for a long period of time – approx. 20 years - and has become an established custom and practice within the company. The way it works is that there are four maintenance employees on the roster, if someone leaves or moves role, the next on the list is added to the roster.
The complainant raised a request with the Plant Manager to be added to the call-out and standby roster and following a brief conversation the Plant Manager agreed to the complainant’s request and implemented the change. However, following a discussion with the Shop Steward for the Maintenance Team, the Plant Manager was forced to reverse his decision as it was not in line with the Trade Union agreement. The respondent said the agreement to establish and manage the call-out and standby roster was arrived at by management and the Trade Union. The respondent said that the complainant raised concerns in September 2017 and a formal grievance in October 2017.
The respondent’s claims that its original position is that the call-out and standby allowance is discretionary, and it was the company’s decision to make changes to the call-out and standby allowance, including whether additional people are added or not. However, when the original decision was made to include the complainant on the roster, other issues regarding past practices in adding people to the roster were highlighted by the Trade Union. While it is the company’s decision to make changes to the call-out and standby procedure, the current procedure has been in place for a long period and therefore it has become the established custom and practice and, as with other similar work practice type changes, the Trade Union would need to be consulted. The respondent said that as the complainant is aware there was no agreement with the Trade Union for this change.
The respondent said it tried to resolve this, and that it submitted a proposal to the Trade Union to change the system to allow an additional person to join the roster. However, the Union held a ballot of its members and the proposal was rejected. Thus, the current agreement remains in place by decision of the complainant’s Trade Union. The respondent said that the custom and practice should be followed with respect to the call-out and standby roster and to change this practice there needs to be an agreement with the Trade Union.
The respondent said that the original decision by the company to include the complainant in the roster, while made in good faith, did not take account of the establish custom and practice in place. On foot of representations from the Trade Union, it was found necessary to continue the custom and practice. It said that this sequence of events does not fall under the provisions of the Payment of Wages Act, and no unauthorised deduction has been made from the complainant’s wages.
Findings and Conclusions:
I have carefully considered all the submissions and facts presented to me. I have taken note of all the evidence adduced at the hearing.
The relevant Law
Section 5 of the Payment of Wages Act, 1991
Regulation of certain deductions made and payments received by employers.
5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
(2) An employer shall not make a deduction from the wages of an employee in respect of—
(a) any act or omission of the employee, or
(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—
(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
(II) in any other case, notice in writing of the existence and effect of the term,
(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and
(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and
(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.
(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.
(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.
(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).
(5) Nothing in this section applies to—
(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—
(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—
(I) any overpayment of wages, or
(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,
made (for any reason) by the employer to the employee, and
(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,
(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or
(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or
(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—
(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or
(ii) to which the employee has otherwise given his prior consent in writing,
and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or
(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or
(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or
(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.
(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.
Section 5 of the Act sets out the regulations governing certain deductions and payments received by employers. None of the parties made any significant legal submissions with regards to the provision of this section of the Payment of Wages Act, 1991. The submissions tended to concentrate on the actual events that are ongoing in the respondent’s company regarding the call-out and standby roster rather than any real discussions on the legal entitlements as set out under the legislation.
I am satisfied that as a matter of goodwill towards the complainant the Plant Manager decided that he could elevate the complainant on to the on-call and standby roster. I note that the complainant had been asking to be placed on the roster for some time. I note that he had been called out a few times and was paid accordingly. I note that the agreement as to how the composition of the roster is by established custom and practice and any changes would require agreement between the respondent and the Trade Union. I note the respondent, having taking instructions from the Trade Union, had in fact breached that agreement by adding the complainant to the roster. I note that the respondent decided to return the situation to the status quo prior to 4 September 2017, therefore removing the complainant from the roster and withdrawing the payment of the allowance. The rights and wrongs on that decision and the internal politics of the respondent, management and its staff were presented to me during the hearing. These discussions and deliberations appears to be more akin to an Industrial Relations dispute. However, I am satisfied that such a dispute is not before me, the only case that I can consider is in relation to the Payment of Wages Act, 1991.
I am satisfied that the on-call allowance is not part of the complainant’s original contract. I note that those placed on the on-call and standby roster are paid an allowance and are expected to be available when required. I note that the complainant was placed on the roster on 4 September 2017 and paid the allowance accordingly. I note that he was subsequently removed from the roster and was not paid the allowance after just one week, once the Trade Union appeared to have gotten involved and raised objections. The question as to whether the complainant is entitled to be placed on the roster is not for me for consideration, that is for the respondent. The question for me to consider is whether the deduction of the complainant’s wages is a breach of Payment of Wages Act 1991. I am satisfied that he was placed on the on-call and standby roster by mistake, or at least contrary to an agreement between the company and the Trade Union, and he was removed from the roster when that error came to light. He is no longer on the roster or expected to make himself available for roster duties accordingly. I see no reason why such an error would place an onus on the respondent to pay the complainant an allowance for ever more for a roster he will not be expected to work on or fill. Accordingly, I find that the complaint made pursuant to the Payment of Wages Act is not well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties to this complaint and all of the evidence adduced, I declare that this complaint is not well founded.
Dated: 20th September 2018
Workplace Relations Commission Adjudication Officer: James Kelly
Payment of Wages Act 1991 - on-call and standby roster – allowance - complaint is not well founded