THE INDUSTRIAL TRIBUNALS 

	CASE REFS:		1446/12
        1453/12-1458/12

CLAIMANT:	Oliver Curran and Others			

RESPONDENT:	Down District Council			

DECISION

The unanimous decision of the tribunal is that the claimant and his named colleagues  suffered unlawful deductions from their wages made by their employer, the respondent.

Constitution of Tribunal:		

Chairman:		Mr P Cross

Members: 		Mrs T Hughes
			Mr H Fox

Appearances:

The claimant and his colleagues were represented by Mr John O’Neill Solicitor of Messrs Thompson McClure.

The respondent was represented by Mr N Richards Barrister-at-Law, instructed by Messrs Tughans, Solicitors.

The Facts

1.	The parties gave to the tribunal an agreed statement of facts. The chairman has reproduced most of this statement below. The case was listed under Mr Curran’s name but the parties agreed that the result would be binding on the other employees of the respondent listed below.

2.	The dates of commencement of employment of the claimant and his colleagues are as follows:

Oliver Curran 	          	1 July 2007     
	Gerard Doherty         	9 January 2006
Damien Mulholland  	24 August 1998
Gerard Mulholland    	4 April 2005
	Martin Gibney	    	1 November 2003     
Gerry Murray            	3 November 1986  
Paul Fisher		           4 April 2005

  3.	The claimants have a contractual right based on custom and practice to a 25% bonus payable in respect of their basic working hours. This is not payable in respect of overtime hours. However, the claimants do receive an overtime rate for any overtime worked.
  
  4.	Prior to the introduction of the Single Status Agreement in March 2011 (which does not apply to the claimants) the following bonus was paid to all staff in the following departments irrespective of the skills or qualifications required for their particular post:

	-	Building Services Section    		25%
	-	Garage Section				25%
	-	Refuse and Cleansing Section		25%
	-	Grounds Maintenance Section		33%

Pending agreement on the Single Status Agreement, the 25% bonus is still paid to the claimants who are in the Building Services Section. 
 
  5.	As a matter of custom and practice,  terms and conditions of the claimants in relation to rates of pay are those agreed by the Joint Council for the Building and Civil Engineering Industry (NI) (hereinafter “the Joint Council”) even though the respondent is not a member of the Joint Council.

  6.	By a Notice of Promulgation of 22 June 2001 (hereinafter called “the Notice”)   the Joint Council created two new categories of operatives including the new category of Skilled Operative which, subject to the relevant individual having an appropriate Construction Skills Register (CSR) card, would be paid in accordance with the terms set out in the Notice.

  7.	The Notice stated, inter alia, 

“To further improve standards in the Industry the Joint Council has:

(i)	Decided that the wage increases from August 2002 onwards will be conditional on operatives at all levels obtaining the appropriate card issued by Construction Skills Register.

(ii)    	Many operatives are already receiving enhanced rates for these various     
       	 levels of skills.  In such circumstances, the existing enhanced rate is NOT  payable IN ADDITION to the new promulgated Guaranteed Minimum   Earnings which take effect from Monday 30 July 2001 onwards for the  new grades of Skilled Operative, and from Monday 5 August 2002 for  the new grade of Advanced Craftsman.

(iii)	Where an operative is earning more than the Guaranteed Minimum        Earnings the current contractual earnings will not be reduced.” 

 8.	All of the claimants were employed from at least August 2003 or their date of commencement of employment, if later, as Building Services Skilled Operatives.  

 9.	The Personnel Specification of August 2003 does not require that the post holders have a Skills Card as a Skilled Operative issued by the Construction Skills Register.

 10.	The Personnel Specification of August 2003 does not require that the post holders have a  NVQ level 2.

 11.	Oliver Curran’s Personnel Specification of May 2007 requires that the post holder has a Skills Card issued by the Construction Skills Register. 

 12.	The claimants have held the following cards issued by the Construction Skills Register: 

Oliver Curran – 27/10/04 Craft Joiner, Renewed 2008 & 2012

Gerard Mulholland – 16/11/05 General Construction Operative, 2006 Skilled Construction Operative, Renewal 2008 & 2012

Damien Mulholland - 26/02/04 Skilled Construction Operative, Renewal 2008 & 2012

Martin Gibney - 07/02/2004 Skilled Construction Operative, Renewal 2008 & 2012

Gerard Murray -   26/02/2004 Skilled Construction Operative, Renewal 2008 & 2012

Gerard Doherty - 01/03/2004 Trained Operator (Plant), SCO 03/09/2004 – renewal 2008 & 2012, Plant Operative 2011 

Paul Fisher - 16/11/05 General Construction Operative, SCO 2008 renewed 2012 

13. 	At all relevant times since at least Monday 30 July 2001, the claimants have been paid on the basis of the rate for General (Building/Construction) Operatives plus the contractual 25% bonus for basic hours and have received an overtime rate for any overtime worked.

 14.	Martin Gibney raised a query about his rate of pay in 2004.  The Respondent took the position that where the enhanced rates apply (including bonuses) the new promulgated rate would not apply. Martin Gibney did not raise an appeal against this outcome. 

 15.	Gerry Murray raised a query about his rate of pay in 2009. The Respondent took the position that for employees receiving enhanced rates in excess of the “guaranteed minimum rate” the new skilled rate would not be payable.

16.	In July 2012, a formal collective grievance was initiated by Oliver Curran on his own behalf and on behalf of Gerard Doherty, Damien Mulholland, Gerard Mulholland and Gerry Murray. Martin Gibney and Paul Fisher did not raise a grievance at this time. The Respondent took the position that as the Joint Council General (Building/Construction) Operative rate plus 25% bonus was more than the new Joint Council Skilled Operative rate which did not attract bonus, the earnings were in excess of the Guaranteed Minimum Earnings, in keeping with the Promulgation Notice provisions of 17 July 2001. [This is the date the Notice issued to the Respondent. The actual date of Notice was 22 June 2001.]

 17.	Appeals were brought by Oliver Curran, Gerard Doherty and Gerry Murray. Damien Mulholland and Gerard Mulholland did not appeal. The Respondent maintained the position set out at paragraph 15 above. 

 18.	The tribunal find as an additional fact, that the group of men involved in this case, were, at the time the new scheme came into effect, of different skills ranges. At all times these men were paid their wages together with the 25% bonus. It is the view of the tribunal that the correct wage of each man in the group includes, as a basic amount the so called bonus of 25%. The so called bonus of 25% was not a bonus for the purposes of sub clause (ii) of the Notice, which is set out in Paragraph 7  above.  The tribunal hold, as a fact that the 25% Bonus had, by custom and practice, become a constituent part of the contract of employment, as though written into the original contract. Consequently this increased the basic wage  paid to each man to show the said wage as being, the first stated sum and the 25% uplift as a composite sum.

19.    The tribunal found as a fact that the claimant and his colleagues listed above, who did all hold the grade of skilled operative, as set out in 12 above, were the subject of the Notice which was incorporated into their contracts of employment. This entitled them to the skills based rates of pay from 22 June 2001, provided that they held the Skills Card referred to above. The argument between the parties revolves around whether the new wage agreed for the skilled operative should have the historic 25% bonus added to it, to create the new wage for that group, or whether as the respondent contends, the new skilled operative wage takes no account of the historic bonus, and is calculated on the so called basic wage. As that sum would be lower than what had previously been paid to the claimant and his colleagues, the employees continued to be paid at the old rate, consequently getting no benefit from the new arrangements. 

The Law

20.	The claimants claim that the respondent has, since the new scheme came into place, wrongfully deducted moneys from them when paying them their wages. This claim is made under Article 45 of The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). This provides that an employer shall not make a deduction from wages of an employee, unless the deduction is authorised by statute or contract, or the employee has signified his consent to the deduction in writing. The article goes on to state in sub clause (3) that, “where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

21.	In order to give guidance to the tribunal as to how many years back it can travel, in giving the claimant redress in the event of it finding that the respondent in this case has made a wrongful deduction from wages, the tribunal can find no guidance from the 1996 Order and it is therefore reliant on the time limit imposed in The Limitation (Northern Ireland) Order 1989, which provides that  in an action founded on simple contract, that “an  action may not be brought after the expiration of six years from the date on which the cause of action accrued from”, Article 4.  

The Decision 

22.  	The tribunal has studied the agreed facts and has read the Notice. The key matter for decision by this tribunal is what was the wage that was paid to the claimants, prior to the new arrangements coming into place on 22 June 2001? Was it a weekly wage, with a bonus attached, if certain objectives or targets were reached by the individual claimants? In which case, under Sub clause (ii) of the Notice, it would not be paid in addition to the new promulgated guaranteed Minimum Earnings. Or was the sum paid each week to the employee, regardless of whether or not he had any of the required skills set out above, which included the so called bonus, in reality a complete sum, although bearing a strange and meaningless title, as the bonus was always paid and bore no reference to the conduct or achievement of the individual member of staff.

23.	The tribunal after considering the agreed facts, holds, that the bonus had been payable for many years as a matter of course and required no special achievement on the part of the employee. The so called bonus bore no reference to the set of skills laid down for the new grade of skilled operator, as some employees, who had not achieved the relevant skills card when the new scheme came in, were paid the said bonus, along with the other men in the group, who did hold the skills card. This bears out that this bonus was not considered by the respondent to be dependent upon the men holding the card. The tribunal come to the decision, that the bonus was indeed a constituent part of the basic pay of each employee. Nobody seems to have a recollection of when this so called bonus was first paid, but it may have been the means, in a particular year, to overcome some difficulty in raising the basic pay by an amount that the parties had agreed at that time. To overcome the problem, the additional amount was called a bonus. Thereafter in any pay related discussions the bonus was always taken into account, the name bonus becoming completely superfluous.

24.	The tribunal finds that by long usage and custom the bonus became part of the employees’ basic pay. As the claimants have not been paid a sum by way of wages, which reflects the newly agreed rate, based on the inclusion of the so called bonus, since the new pay structure was imposed in 2001, the claimants are entitled to claim the unpaid amount due to them as an unauthorised deduction from wages. The tribunal hold that the period of time during which these unpaid sums can be recovered will be six years working back from the date of the issuing of these proceedings.

25.  	The parties indicated to the tribunal that if given the decision as to whether there had been an unauthorised deduction from wages under the 1996 Order that the parties could themselves calculate the money due to the employees concerned.  

Chairman:

Date and place of hearing:  31 January 2013, Belfast

Date decision recorded in register and issued to parties: