ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015300
A Security Officer
A Security Company
Complaint/Dispute 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: 14/12/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing 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 Complainant commenced employment with the Respondent, a Facilities Service company, on 11 June 2011 in the role of a full-time Security Officer.
The Complainant submitted a claim, under the Payment of Wages Act, 1991 to the Workplace Relations Commission, on 18 June 2018. This complaint related to the non-payment of minimum shift/duty hours, which he claims he was entitled to, as per the Employment Regulation Order (Security Industry Joint Labour Committee, 2007, SI No 231/2017).
Summary of Complainant’s Case:
According to submissions made on behalf of the Complainant by his Trade Union representative, the Complainant’s Terms and Conditions of employment provided he would be paid according to the “the applicable JLC rate for the security sector at any given time in accordance with current Employment Regulation Order (ERO) in force for the security industry.”
According to the Complainant’s representative, there is no dispute as to the applicability of the ERO in question to the Complainant’s employment, as he is a “security operative” and the employer is a “security firm” within the meaning of the Security Industry Joint Labour Committee Establishment Order 1998 (SI No 337/1998).
It was submitted on behalf of the Complainant, that he was rostered to work 16 shifts of two hours duration (8:00am to 10:00am) at the premises of a financial institution, on dates between 9 January 2018 and 15 June 2018. The Complainant submitted that he was paid €353.60 for this work, representing 32 hours at the applicable hourly rate of €11.05.
It is contended on his behalf that an additional €353.60 was properly payable to the Complainant in respect of these 16 shifts by operation of Section 2 (20) of the ERO. It was submitted in this regard, that the aforementioned subsection is entitled – “Minimum Shift/Duty Hours” and provides that:
“When a security worker is called in to carry out a Shift/Duty comprising of less than four hours, this will attract a minimum of four hours pay.”
According to the Complainant submission, the Respondent’s position, as set out in their letter to the Complainant of 5 March 2018, is that the aforementioned subsection – “does not refer to rostered employees”.
In response, it was submitted by the Complainant Trade Union representative that the union position is that the subsection was not agreed to produce a pay differential between hours worked as part of a roster and hours worked on an ad hoc basis but was to provide for a minimum length of shift of four hours in the industry and to compensate a worker for any shorter period of work.
In this regard, the Complainant’s representative drew attention to the fact that the subsection is entitled “Minimum Shift/Duty Hours”. It was further stated that the subsection makes no provision for any minimum notice of hours to be worked which would trigger the requirement for a payment of a minimum of four hours pay.
In particular, it was submitted that Section 2 (20) makes no reference to section 2 (4), which provides for “all hours of work” to be rostered “other than in exceptional circumstances”. It was submitted on behalf of the Complainant that no “exceptional circumstances” were cited to him on any of the 16 occasions since. It was further submitted that there is no reason to read the subsection as applying only in “exceptional circumstances”
According to the Complainant’s submission, the Respondent places undue weight on the phrase “called in” in the subsection in order to achieve a construction convenient to its argument. In this regard, the Complainant’s representative drew attention to the employer’s letter of 5 March 2018, wherein the Respondent quotes the subsection with an unattributed underlining of that phrase. It was further submitted that the ERO makes no reference to any distinction between rostered and ad hoc hours of work, save in Section 2 (4) which requires that all hours of work should be rostered save in exceptional circumstances.
According to the Complainant submission, a roster is an instruction to an employee to work during particular times. It was submitted that there is no distinction of significance as to pay between hours worked on foot of an instruction to work made weekly and an instruction to work made on an occasional basis. It was further contended that, if this were the case, a significant administrative burden would be placed on employers in the security industry, whereby they would have to distinguish between hours worked on a “shift/duty comprising of less than four hours” on the basis of how much notice had been provided to the employee beforehand and in what manner.
It was submitted on behalf of the Complainant that Section 1 (1) of the Payment of Wages Act, 1991, defines wages as including “any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.
It was further submitted that Section 5 (6) of the 1991 act, provides that where the total amount of wages that are paid on any occasion by the employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, 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.
Finally, the Complainant cited Section 6 of the 1991 Act which provides that where an Adjudication Officer decides that a complaint is well-founded, he or she shall order the employer to pay the employee compensation of such amount as he or she thinks reasonable in the circumstances not exceeding the net amount of wages that would have been paid had the deduction not been made.
On that basis, the Complainant seeks an order under Section 6 of the 1991 Act.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant was assigned to the financial institution contract and one of the rostered shifts he had to cover was a two-hour shift in the morning, 8:00am to 10:00am, before the premises opened to the public and then from 4:00pm to 9:00pm, during the week. It was further submitted that, in addition, staff would also be rostered to work at weekends covering the site from 8:00am to 9:00pm.
The Respondent submitted that this shift was not constantly covered by the Complainant and that he no longer works on the site as he was reassigned to a new location where he is working a different shift pattern.
According to the Respondent, the Claimant has now made a claim that he should be paid a minimum of four hours pay for any time he is required to work less than four hours. The Respondent submitted that the basis of this claim relates to the Complainant’s contention that Section 20 of the Security JLC provides for such scenario.
It was submitted that the Respondent, whose HR Director is a member of the Joint Labour Committee, does not agree that Section 20 refers to rostered working hours as it specifically refers to when a “worker is called in….”.
The Respondent submitted that to be “called in” is distinct from being “rostered” and rostered hours are dealt with in a separate, earlier section of the ERO i.e. Section 4.
According to the Respondent, it is well accepted in the industry that situations arise where a person will be called in to cover for an officer who may have failed to report for duty or may have had to leave early and cover was required. It is further submitted that such officers would not be “on call” but would be contacted, at short notice, to see if they were available to “come in” to cover.
In this regard, the Respondent referred to Section 4 of the Order where it states:
“(4) Hours of/rosters
Completed rosters setting out all hours of work for a minimum period of one week will be made available to workers in writing. Other than in exceptional circumstances completed rosters will be issued and made available to the worker a minimum of three days in advance of commencement. Rosters are subject to flexibility relating to operational and business needs”.
In addition, the Respondent referred to Section 14 of the Order, which states as follows:
(14a) Minimum Hours of Employment
Workers who enter the industry will be offered a contract of employment with a minimum of 24 hours per week after six months service. If it is required for operational purposes that the contract hours available are less than 24 hours per week, and it is demonstrably so, then this clause will not apply and new workers may be employed for hours that are less than provided for in the ERO”.
The Respondent submitted that this clearly shows that, in relation to rostered hours, except for demonstrable operational requirements, once an officer has completed their six-month probation period, they are entitled to be rostered for a minimum of 24 hours per week.
The Respondent contends that, had it been the intention of the JLC to have all rostered hours subject to a minimum, then it would have been appropriate to include this in either of Section (4) or (14) and not to have dealt with it separately under the title of “called in” working.
The Respondent further submitted that, in their view, it is very clear that a person who is “called in” is someone who:
· is not on duty at the time, and
· who has not been rostered to work those hours.
The Respondent submitted that, in the case of the complainant, the hours in question were required to be covered by the client and also forms part of a shift which in fact is seven hours in total. It was stated that such working arrangements would not be uncommon in the industry and in many cases would suit officers who have other commitments but wish to work some hours.
In response to the Complainant’s submission with regard to the applicability of the Payment of Wages Act, the Respondent submitted that further to be a legitimate claim that an unlawful deduction has been made, the Complainant must establish that there was a natural deduction from his wages for the non-payment of money due to him. In this regard, the Respondent cited the case of Sullivan v Department of Education [1998 – E.L.R. 217] and made specific reference to the Court’s finding that the word payable means “properly payable”, consequently, it must be a payment which the employee must be properly entitled to.
The Respondent argued that in the within case, the Complainant was paid for all hours he worked and to which he was entitled. It was further submitted that the Employment Regulation Order has not created a minimum shift period for roster workers. Therefore, the Respondent contends that there is no legal entitlement and the non-payment of an increase to the Complainant is not a deduction.
In conclusion, the Respondent submitted that there is no entitlement for a minimum payment for rostered hours and that the only time there is an entitlement will be where an officer is called in when not on duty. It was further submitted that were any other interpretation to be placed on this, then this would result in a significant change in how the industry operates and would have significant repercussive effects of both employers and employees.
On that basis, the Respondent requested that the Complainant’s claim be rejected.
Findings and Conclusions:
The Complainant’s complaint is that on 16 separate occasions when he worked for two hours, he was entitled to be paid for four hours at his normal hourly rate for each of these shifts. The Complainant is basing his complaint on his interpretation of Section 20 of the Employment Regulation Order (ERO) pertaining to his industry. The Complainant is contending that the Respondent’s failure to pay him in accordance with this Section of the ERO represents a deduction from his wages as per Section 5 (6) of the Payment of Wages Act, 1991.
The Respondent contests the Complainant’s interpretation of Section 20 of the ERO, on the basis that, in their view, it only relates to emergency situations and not to those where employees are rostered to work the hours in question, as is the case with the Complainant’s claim. On that basis, the Respondent contends the payments being sought by the Complainant are not properly payable and, therefore, do not constitute a deduction under the 1991 Act.
On the basis of the positions of the parties, as set out above, it is clear that the decision in relation to the Complainant’s claim rests with determining which interpretation of Section 20 of the ERO is the more correct or valid.
The relevant Order is the Employment Regulation Order (Security Industry Joint Labour Committee, 2007, SI No 231/2017). Section 20 of the Order states as follows:
(20) Minimum Shift/Duty Hours:
“When a security worker is called in to carry out a Shift/Duty comprising of less than four hours, this will attract a minimum of four hours’ pay.”
The issue in dispute between the parties relates to the phrase “called in”. According to the Respondent, this provision relates to a situation where an employee, who is not rostered to be on duty at the time, is required to attend at short notice, in what the Respondent contends represents, in effect, an “emergency situation”.
The Complainant, on the other hand, is contending that, as there is no reference in the provision to whether the shift is rostered or not and that there is no reference to “exceptional circumstances” or “emergency situations”, the only interpretation of Section 20 there can be that it applies in all shifts or duties where an employee is required to work less than four hours.
At the Oral Hearing, evidence was presented by two expert witnesses on behalf of the Complainant. Both of these witnesses are senior officials with the Complainant’s trade union, SIPTU, who had significant involvement in the drafting of the ERO in question as well as a detailed knowledge of the security industry sector.
I found the evidence presented by these two witnesses to have been credible and logical in nature. It was clear from that evidence that a lot of work went into the drafting of the ERO and that each clause would have received significant attention and scrutiny from all parties to the process. On that basis, I find it lacks credibility to suggest that Section 20 and its application would have been left open to interpretation, to the level which the Respondent is now claiming.
In further evidence from these witnesses, it would appear that the Complainant’s and his Trade Union’s interpretation of Section 20 is shared by the majority of operators in the security sector and is being widely implemented in a manner consistent with the Complainant’s interpretation.
Evidence was also submitted on behalf of the Complainant which suggests that, on implementation of the ERO, some prominent industry players in commenting on Section 20 referred to it as a “Minimum Day Rate”, which they suggested could be expected to feature in future EROs in other industries, given that it had been a big focus from unions in recent years.
Having carefully consider the arguments put forward on behalf of the Respondent in relation to the relevance of Sections 4 and 14 and their suggested impact on the interpretation of Section 20, I find that the Respondent’s position in this regard is somewhat lacking in credibility. I am satisfied, particularly based on the evidence presented by the expert witnesses, that had the authors of the ERO intended Sections 4, 14 and 20 be linked to the extent that they should be read in conjunction with one another, then that would have been more clearly set out in the Order.
Taking all of the above into consideration, I find the Complainant’s interpretation of Section 20 of the ERO to be the more credible and, as a result of that interpretation, I also find that he has an entitlement to a payment for four hours at his normal hourly rate for the 16 occasions on which he was required to work two hours, as detailed in his complaint.
On the basis of the above finding, I am satisfied that the Respondent’s failure to make payment to the Complainant in this regard represents a deduction from his wages in line with the provisions of Section 5 (6) of the Payment of Wages Act, 1991. Consequently, I conclude that the Complainant’s claim is well-founded and that the Respondent is in breach of Section 5 (6) of the 1991 Act.
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 carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint is well-founded. Therefore, on the basis that they made an unlawful deduction from the wages of the Complainant, I order that the Respondent now make a payment of €353.60 (gross) as representing the amount that should have been paid to the Complainant in line with Section 20 of the Employment Regulation Order (Security Industry Joint Labour Committee, 2007, SI No 231/2017)..
Dated: 21st August 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Payment of Wages Act
Employment Regulation Order (Security Industry JLC Si No 231/2017)