New Employment Regulation Orders (ERO) in the Contract Cleaning and Security Industries-the Essentials

contract-cleaner-employment-regulation-order

Are you in the contract cleaning or security industries?

Good news if you are an employee: from October 1st, 2015 new Employment Regulation Orders (ERO) were signed into law.

Previously, in 2011, the JLC (Joint Labour Committee) system of setting pay and conditions was struck down by the Supreme Court as unconstitutional.

Contract Cleaning Workers

From 1st October, 2015 contract cleaner workers are entitled to be paid a minimum of €9.75 per hour for the 1st 44 hours.

The 1st four hours of overtime should be paid at time and a half with any further overtime being paid at double time.

Sunday hours will attract double time.

The contract cleaning ERO also provide terms and conditions for

  • Annual leave
  • Sick pay
  • Maternity leave
  • Disciplinary procedures

S.I. No 418 of 2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee) 2015

The contract cleaning ERO applies to workers employed by undertakings engaged in whole or in part on the provision of cleaning and janitorial services in, or on the exterior  of,  establishments  including hospitals, offices, shops, stores, factories, apartment buildings, hotels, airports and similar establishments.

Security Industry Workers

Workers in the security industry will see their basic pay rise to €10.75 per hour minimum. All overtime over 48 hours attract pay at a rate of time and a half.

S.I. 417 of 2015 Employment Regulation Order (Security Industry Joint Labour Committee) 2015

The security industry ERO provides terms and conditions in respect of:

  • Annual Leave,
  • Sick Pay,
  • Training,
  • Hours of Work.

It applies to ‘security operatives’ meaning  a person employed by a security  firm  to  provide a security service for contract clients of that firm,  or  a  service  of a security or surveillance nature, the purpose of which is to protect persons and property.

Any breaches of an Employment Regulation Order may be referred to the Workplace Relations Commission for appropriate action.

Companies  may  be  able  to  derogate  from  EROs  in  cases  of financial difficulty, subject to meeting certain criteria.

Employment Regulation Orders and Registered Employment Agreements-What You Need to Know in Plain English

Employment regulation orders (ERO) were held to be invalid by the High Court in 2011.

Registered employment agreements (REA) were struck down by the Supreme Court in 2013.

registered employment agreement

What are the implications of these decisions?

What has the government done?

What do they mean for employers and employees?

Let’s take a look.

Registered employment agreements (REA)

The parties to any agreement on pay and/or conditions of employment of any class or group of workers may apply to the Labour Court to have the agreement registered.

Once registered, it becomes legally enforceable, under civil and criminal law, and is directly applicable to every worker and his employer of the type, class, or group to which it applies-this includes those employers and employees who would not have been parties to the agreement.

The Labour Court will register it when it is satisfied that both employer and employee representatives want it registered.

Registered employment agreements were held to be invalid from May 2013 as a result of a Supreme Court case, McGowan and Others v the Labour Court, Ireland and the attorney General. (See the statement from the Department of Jobs, Enterprise and Innovation).

Part III of the Industrial Relations Act of 1946 was declared unconstitutional by the Supreme Court.

There are approximately 70 registered employment agreements registered with the Labour Court covering industries such as contract cleaning, construction, electrical, retailing.

Employees who enjoyed terms and conditions under an REA up to 9th May, 2013 will continue to enjoy those terms and conditions thanks to their contract of employment. After that date employees who commence work are not covered by an REA but the ordinary employment legislation such as for minimum wage, rest periods, etc.

Joint Labour Committees and Employment Regulation Orders (ERO)

Joint labour committees can be set up by the Labour Court thanks to the Industrial Relations act, 1946. The purpose of JLCs was to regulate minimum rates of pay and conditions of employment in in a particular sector of industry or trade.

Once a JLC was approved by the Labour Court the JLC can submit proposals for an employment regulation order (ERO) setting down proposals for minimum rates of pay and terms and conditions.

The Labour Court, if it approves, can make an employment regulation order (ERO). The wages and terms and conditions in the ERO then become the legal minimum permitted in that trade or industry, regardless of whether or not they took part in the process.

There was EROs setting minimum pay and conditions of employment in sectors such as cleaning, hotels, hairdressing, security, catering, cleaning, retail, etc.

However, this system of the making of employment regulation orders was ruled to be unconstitutional as of 7th July, 2011 in the High Court case involving John Grace Fried Chicken-John Grace Fried Chicken Ltd. & Others v The Catering Joint Labour Committee and others. (See statement from the Department of Jobs, Enterprise and Employment, 2011).

The consequence of this decision is that employers were no longer obliged to offer these terms and conditions to employees starting work after 7th July, 2011, although existing employees would enjoy the terms and conditions as a matter of contract, notwithstanding the striking down of the ERO which gave them those rates of pay and terms and conditions in the first place.

New legislation-Industrial Relations Amendment Act, 2012

These decisions prompted the decision to introduce new legislation in this area.

The government, in order to overhaul the JLC/ERO and the Registered Employment Agreement wage setting systems, and to make them fit for purpose, introduced the Industrial Relations (Amendment) Act 2012 which came into law in August, 2012.

The Industrial Relations (Amendment) Act 2012 provides, inter alia, for

  • The JLCs considering rates of unemployment and competitiveness when setting wage rates
  • Employers may seek an exemption, due to financial difficulty, from paying REA or ERO rates
  • JLCs have the power to set a basic adult rate and 2 other higher rates

In January, 2014 the Minister for Jobs, Enterprise and Innovation signed Orders which abolished the Joint Labour Committees for

  1. Dublin hotels and
  2. Law clerks.

The establishment orders re

  • Contract cleaning
  • Hairdressing
  • Hotels (non Dublin and Cork)
  • Security

were amended.

The list of JLCs now:

Agricultural workers

  • Catering (Dublin and Dun Laoghaire)
  • Catering (Other)
  • Contract cleaning
  • Hairdressing
  • Hotels (Other excluding Cork)
  • Retail, grocery, and allied trades
  • Security industry

According to the Department of Jobs, Enterprise and Innovation Such legally supported frameworks are recognised under European Union law and they ensure, in accordance with the Posted Workers Directive, that contractors from outside the jurisdiction, who may be using employees from lower wage economies, do not obtain an advantage over local contractors in terms of wage costs.

 

The above is a summary and is for information only-it is not legal advice. If you need advice in this area, contact a legal professional.

Trade Unions | Trade Disputes | Industrial Relations Law-What Irish Employers Should Know

industrial-relations-law-ireland

What follows is a general overview of industrial relations and trade dispute law in Ireland.

It looks at issues like

  • overview of industrial relations law,
  • trade disputes,
  • how employers deal with trade unions and
  • how all these issues interact with employment/contract law/civil law in Ireland.

Irish Employment Law

Irish employment law is still based on the individual contract and trade dispute law is no exception.

In practice many terms and conditions of employment are negotiated between employers and trade unions on a collective basis.

Industrial Relations Acts and Industrial Relations Generally

Dispute resolution in Ireland is based on the structures created by the Industrial Relations Acts, 1946-1990 and is based on the concept of the parties voluntarily seeking to resolve their differences with the machinery being provided by the State.

However various public servants, members of the Defence forces, Gardai, officers of VECs, and teachers are not covered by the Industrial Relations Acts as they have their own conciliation and arbitration schemes being excluded as “workers” for the purpose of the Industrial Relations Acts.

Two common questions arise:

1. What is the legal position re collective agreements?

2. Can individual contracts of employment be varied by negotiations between trade union and employer?

Legality of Collective Agreements

The test to be applied as to whether a collective agreement between trade union and employer is legally enforceable or not is the objective test of whether the parties intended to create legal relations. (O’Rourke v Talbot (Ireland) Ltd [1984]

The alternative is that the parties did not intend to create legal relations but came to an agreement based on optimistic aspirations to regulate their interaction on an orderly day to day basis.

Each case would be judged on its particular circumstances to ascertain what the intention of the parties was.

However the predominant view is that a collective agreement arising out of collective bargaining is not legally enforceable as Barrington J accepted that “generally speaking” such agreements did not contemplate legal relations. (However see Registered Employment Agreements below)

Individual Contracts of Employment

Individual contracts of employment can be varied or added to through negotiations and collective bargaining unless individuals have made it clear that they did not intend or wish to be bound by the change/addition.(Goulding Chemicals Ltd v Bolger, Supreme Court[1977])

Registered Employment Agreements

Registered employment agreements are negotiated between trade unions and employer in a particular industry and are provided for in the Industrial Relations Acts. They can be registered with the Labour Court and once registered they are legally enforceable on employer and employees in the particular class of worker the subject of the agreement.

However this  situation has now changed with the decision of the Supreme Court 9th May, 2013 ruling such registered employment agreements (REAs) unconstitutional.

UPDATE 2015

Please refer to the updated 2015 post about registered employment agreements and employment regulation orders.

Trade Unions

The Trade Union Acts 1871-1990 regulate the rules of trade unions and provide for a system of registration of trade unions. In return trade unions are protected from prosecutions for economic torts including anti-competitive practices such as attempting to fix wage rates.

Union Recognition

An employee has a constitutional right to join a trade union; however he/she cannot insist that his/her employer recognise the union as the right to join is a personal right. An employee also has a right not to join a trade union under European law as the European Convention on Human Rights has been held to contain a ‘negative right of association’.

Even if the contract of employment does not contain a specific contractual provision that the employee’s trade union will be recognised there may be an implied right recognition where the employer is dealing with, or had dealt with, that trade union.

Recognition of the trade union could also be implied as a result of a course of dealing between the employer and trade union or as a result of custom and practice in that workplace.

Right to Strike

In Ireland there is no general right to strike; rather, there is a freedom to strike in certain circumstances which confers immunities from legal restrictions on industrial actions and strikes.

Trade Disputes

Trade disputes are provided for under the Industrial Relations Acts and are very broadly defined but Irish employment law is still based on the individual contract and trade unions are seen as supporters and advisers rather than leaders of collective action.

The Section 3 Industrial Relations Act, 1946 defines a trade dispute as:

the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;

Section 4 of the Industrial Relations Act, 1946 defines a worker very broadly.

This was amended by the Industrial Relations Act, 1990:

“worker”.

23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(d) an officer of a local authority,

(e) an officer of a vocational education committee, or

(f) an officer of a school attendance committee.

(Industrial Relations Act ,1990)

The Industrial Relations Acts confer immunity on workers and their representatives only if they are acting “in contemplation or furtherance of a trade dispute”. This is known as the Golden Formula.

The preconditions to lawful industrial action are:

  • the immunities only apply to members and officials of authorised trade unions
  • if the dispute relates to an individual worker, any agreed procedures in the workplace or procedures normally availed of by custom or practice must be availed of first
  • if the industrial action or strike is to be supported by a trade union, a secret ballot must be held first.

The Acts also go on to set out various provisions re picketing, where picketing can take place, placards and documentation, secondary picketing, inducing or threatening a breach of contract, balloting and other matters.

The Labour Court can investigate disputes at the request of the parties-section 20 Industrial Relations Act, 1969– but the recommendations are not binding although both parties can undertake to accept the recommendation. If this occurs either party can sue the other to enforce the agreement on foot of a breach of contract. If the employer does not undertake to accept the recommendation it is not binding on them.

Section 20:

20.(1) Where the workers concerned in a trade dispute or their trade union or trade unions request or requests the Court to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the Principal Act in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.
(2) Where the parties concerned in a trade dispute request the Court to investigate a specified issue or issues involved in the dispute and undertake, before the investigation, to accept the recommendation of the Court under the said section 68 in relation to such issue or issues then, notwithstanding anything in the Principal Act or in this Act, the Court shall investigate such issue or issues and shall make a recommendation under the said section 68 in relation thereto and, for the purposes of this subsection, subsection (1) of the said section 68 shall have effect as if the references therein to a trade dispute included references to an issue or issues involved in a trade dispute.
(3) Notwithstanding anything contained in section 8 (1) of this Act, an investigation under this section shall be conducted in private and shall be given such priority over the other business of the Court as the Court considers reasonable.

Section 20 is often used when an employee is unfairly dismissed but does not have the requisite 12 months’ service under unfair dismissal legislation, and in disputes concerning union recognition.

The Industrial Relations (Amendment) act 2001 and the Industrial Relations (Miscellaneous Provisions) act 2004 introduced a departure into Irish law from the voluntarist system of resolving disputes by giving the Labour Court the power to make binding determinations on pay and conditions of employment regardless of the views of the parties.

However the Supreme Court decision in Ryanair v The Labour Court [2007] has resulted in far fewer cases being taken under this new legislation. However it does provide a mechanism for employees who are not represented by a trade union to vindicate their employment rights.

The Labour Court

As the Labour Court is an industrial relations tribunal and not a court of law recommendations are not legally binding in relation to industrial relations matters (although they are empowered to make legally binding decisions when deciding appeals from equality officers under the Employment Equality Acts.)