Earlier this month we provided an update on the introduction of the Security ERO and the Contract Cleaning ERO. In this update, we look at the practical implications of the EROs and some possible pitfalls that employers in those industries ought to be aware of. From the outset, the most important point to note is that the EROs are not the only document that industry employers need to be aware of; the EROs still need to be viewed in light of other pieces of employment legislation.
Both EROs: Updating Contracts of Employment
The EROs specify a host of new terms that employer must now comply with. In addition, the Terms of Employment (Information) Act 1994 specifies that an employee must be issued with a contract of employment and that this must include “reference to any collective agreements which directly affect the terms and conditions of the employee's employment”. It is therefore strongly recommended that each employer in both industries update their contracts of employment to take into account the requirements of the EROs and to make reference to the EROs themselves.
Both EROs: Sunday Premiums
The EROs have not provided any minimum Sunday Premium rate. Importantly, employers are reminded that they are still required to provide employees with a Sunday Premium due to the Organisation of Working Time Act. This Act does not set out what the minimum premium is, but it does state that the premium must be “reasonable”. From a review of Labour Court decisions on the matter, it would seem that anything below time and a third would not be deemed reasonable and employers should be mindful of this. There is also the added complication of TUPE potentially applying to a security/cleaning company taking over a site from another security/cleaning provider. In such circumstances you may find that the TUPE employees are on a differing Sunday premium rate to your existing employees which may lead to some difficulties.
Security ERO: Uniform and Training Deduction Clauses
The Security ERO contains two useful clauses which allow employers to deduct the costs of training and/or the costs of providing uniforms in particular circumstances. What is important to note is that the Payment of Wages Act 1991 governs deductions from employee wages and therefore employers need to ensure the meet the requirements set out in that Act. The main requirement is that an employer must provide the employee with one week’s notice in writing of the deduction. Even though the ERO allows for these deductions, if an employer does not provide this written notice then the employee can lodge a Payment of Wages claim and win the money back.
Importantly, the ERO does not apply to “managers, assistant managers and trainee managers”. Therefore, you cannot use the ERO as a justification for making such deductions from persons in those roles. If an employer wishes to make deductions from such employees then you would need to either (a) get the employee to sign a separate agreement or include a deductions policy in their contract, or (b) secure the employee’s consent on each occasion you wish to make the deduction.
Security ERO: Overtime and Working Time Rules
The new ERO has applied a common sense approach to the treatment of overtime. The ERO states that “all hours worked in excess of an average 48 hours per week in the roster cycle will be paid at a rate of time and a half.” The ERO goes on to state that a roster cycle can be a maximum of 6 weeks. In considering this, employers still need to be mindful that working time rules apply.
This area is also governed by the Organisation of Working Time Act which states that “an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours”. In the security industry, a 6 month reference period applies. This means that if an employee works more than 48 hours per week on average over a 6 month period then the employer will be in breaching working time rules. In a separate article in this Bottom Line Express we have highlighted how an employer breaking the 48 hour rule resulted in a €20,000 award.
Therefore, employers in the security industry are advised to monitor the frequency with which an employee receives the overtime rate for hours worked over 48 in a week. If this is a frequent occurrence then you may also be breaking working time rules which can result in a costly claim.
Security ERO: Working Hours, Rest Periods & Breaks
The ERO states that sections 11, 12 and 13 of the Organisation of Working Time Act do not apply to security employers/employees. This essentially means that the general rules on the daily rest requirement of 11 hours, the rest breaks during work rules, and the weekly rest requirement of 24 hours, do not apply. However, employers need to be mindful that whilst you may be able to justify not giving these rest periods to employees, you are still required to give those employees “compensatory rest”. The rules on “compensatory rest” are governed by the Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998). The LRC created a useful code of practice on this area to which employers can refer.
Contract Cleaning ERO: Terms of Employment
The ERO sets out suggested terms of employment which must be issued to employees. It is very important for employers to be aware that if a contract were to be issued to an employee containing just these terms then the employer will be at risk of a claim under the Terms of Employment (Information) Act 1994. This is because the terms in the ERO do not meet the requirements of the 1994 Act and as such employers should take advice on drafting contractual terms. It is worth noting that the ERO itself specifically states that an employer must “provide each employee with a written statement of the employee’s terms of employment in compliance with the Terms of Employment
(Information) Act, 1994
If you have any questions on this article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.
