Equality Officer’s Decision
DEC-E2008-053
Ivan Dikov
(represented by P.C. Moore and Co.)
versus
SAP Landscapes Ltd.
File reference: EE/2006/105
Date of issue: 17th September 2008
1. Dispute
1.1 This case concerns a complaint by Mr. Ivan Dikov, a Lithuanian national, against his former employer SAP Landscapes Ltd. in relation to his conditions of employment on the grounds of race in terms of 6 (2) (h) of the Employment Equality Acts 1998-2008. He maintains his conditions of employment were adversely affected by the respondent not being a party to the Construction Industry Registered Employment Agreement. Section 86 (1) of the Employment Equality Act 1998 (as amended) [hereinafter referred to as ‘the Act’] a person who is affected by a collective agreement who claims that a provision of that agreement is discriminatory may refer the question of that agreement to the Director.
1.2 Through his legal representative, the complainant referred a complaint under the Act to the Director of the Equality Tribunal on 28 March 2006. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 1 February 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties. As required by Section 79 (1) of the Act a joint hearing was held on 8 May 2008. A further submission was received from the respondent on 21 May 2008.
2. Summary of the complainant’s submission
2.1 The complainant submits that he commenced employment with SAP Landscapes Ltd. on 22 June 2005 and was dismissed on 19 February 2006. He was employed as a general operative on a number of sites including Waterford and Lucan. He maintains that his role in Waterford included paving of footpaths in parks. While working on the Lucan site, the complainant says that he was also involved in the laying of paving. The complainant submits that his work constituted what is described in the first schedule of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) Variation Order 2005:
1 (c) (i) the clearing and laying out of sites for buildings
…….
(v) the making of roads and paths within the boundaries of such sites.
2.2 The complainant submits that the respondent’s assertion that the Construction industry REA does not apply to it as it is not ‘a building firm’ or a ‘civil engineering firm’ for the purposes of the REA is misleading. The complainant refers to the Horan Home (Castlemaine) Ltd -v- Building and Allied Trade Union[1] where the Labour Court held in relation to the Construction Industry REA that:
The REA was written not by lawyers but by industrial relations practitioners. It is addressed to building employers, workers and their trade unions. Its purpose is clear and there can be no doubt that the parties to the agreement intended it to have general application to the industry.
2.3 The complainant refers to the SAP Landscapes website which advertises both soft and hard landscaping services.
2.4 The complainant also makes reference to Campbell Catering Limited –v- Aderonke Rasaq[2]. A Company v a Worker[3] was also cited where the Labour Court held that:
The Court strongly recommended that companies employing non-nationals recognise the difficulties that may arise, provide proper induction courses and that they make resources available to enable them to deal with any social and cultural differences which may arise in these situations.
2.5 The complainant maintains that he was underpaid as he was paid €8 an hour which was lower than the construction craftsman’s (which would include bricklayers) REA rate of €16.85. As a non-Irish national, the complainant submits that he had limited knowledge of Irish employment law. The complainant suggests that an Irish employee would be unlikely to be involved in construction work that was paid less than the Construction Industry REA rate.
3. Summary of the Respondent’s submission
3.1 The respondent submits that its core activity is landscaping and grounds maintenance and therefore the appropriate collective agreement is the Agricultural Workers Employment Regulation Order. Mr. Dikov was paid in excess of the minimum rate outlined in S.I. No. 375 of 2005 Employment Regulation Order (Agricultural Workers Joint Labour Committee) 2005.
3.2 The respondent maintains that Mr. Dikov’s employment was terminated on 10 February 2006 rather than 19 February as submitted by the complainant. His position was as a general operative. The respondent contends that the complainant’s duties were tidying up the site, operating a wheelbarrow, bark mulching, carrying materials and other miscellaneous operative-level duties. He participated in an induction course on his second day which included an explanation of his terms and conditions of employment. During Mr. Dikov’s employment, the respondent submits that the complainant was given 4 verbal warnings in relation to unauthorised driving of a site dumper. The respondent also says that Mr Dikov was reprimanded for being absent from the site without leave. According to the respondent, while driving a site dumper without permission, Mr. Dikov crashed into an electrical box. The Health and Safety Officer on the site requested SAP Landscapes Ltd. to remove Mr Dikov from that working environment. As the respondent regarded this action as gross misconduct, Mr. Dikov was given two weeks notice of termination.
3.3 The respondent rejects the complainant’s allegation of discrimination on the grounds of race. SAP Landscapes Ltd maintain that Mr. Dikov had the same terms and conditions of employment as the other 87 General Operatives. Employees were recruited from a range of ethnic backgrounds (8 nationalities). 82% of General Operatives were foreign nationals. There were three payscales based on the period of service. 45 operatives were on the lower payscale for employees with less than a year’s service, 34 were on the medium payscale for employees with over a year’s service but less than two years and 9 were on the maximum payscale as they had over two years service with the company.
3.4 The respondent rejects the complainant’s assertion that he should have been paid rates as set out by the Construction Industry Registered Employment Agreement while in the employ of SAP Landscapes Ltd. The respondent maintains it is not a building or a civil engineering firm for the purposes of the Construction Industry REA. According to their memorandum of association, the principal business of SAP Landscapes Ltd. is the planting of trees and shrubs, the cultivation of soil, the sowing of grass seeding and the maintenance of landscaped areas. These activities are not included in the first schedule to the Construction Industry REA. SAP Landscapes Ltd. is categorised by Bord Bia as an agricultural/horticultural entity.
3.5 Due to an increase in demand for hard landscaping, SAP Urban Landscapes Ltd., a subsidiary company of SAP Landscapes Ltd., was created on 27 October 2005. It provides a paving and decking service as well as supply and fitting of lighting and ducting. This company is classified as a civil engineering company and the respondent maintains that all employees engaged in SAP Urban Landscapes Ltd. involved in construction work are paid in accordance with the Construction Industry REA.
3.6 Although Mr. Dikov’s employment within the SAP group overlapped with the formation of SAP Urban Landscapes Ltd, the respondent maintains that the complainant remained an employee of SAP Landscapes Ltd. Neither does the respondent accept his assertion that he was primarily engaged in construction work.
3.7 In the year prior to the incorporation of SAP Urban Landscapes Ltd, the respondent contends that 5.4% of SAP Landscapes Ltd’s turnover could be categorised as hard landscaping. A significant proportion of this hard landscaping was conducted by a civil engineering company who was compliant with the construction industry REA. Therefore, SAP Landscapes Ltd submits that what could be construed as construction work was a small fraction of their total works.
3.8 In relation to the SAP group’s website, the respondent states that the current website does offer soft and hard landscaping services but that is since the incorporation of SAP Urban Landscapes Ltd.
4. Conclusions of the Equality Officer
4.1.1 The main issue for me to decide is whether or not Mr. Dikov was discriminated directly or indirectly on the grounds of race by SAP Landscapes Ltd. in terms of Section 6 of the Act and contrary to Section 8 (1) of the Act.
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Section 6 (1) of the Act provides that:
Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favourably than another is, has been or would be treated.
Section 6 (2) provides that as between any two persons, the discriminatory grounds are inter alia:
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).
4.3 It should be noted that the complainant did not refer a claim of discriminatory dismissal. Nor does he dispute the facts leading up to his dismissal. The major contention is in relation to his terms and conditions of employment with SAP Landscapes Ltd.
4.5 Regarding the primary facts, Mr. Dikov was on the lower payscale for general operatives in accordance with his short period of service. 44 other General Operatives (including 6 Irish Nationals) were paid the same rate. Therefore, I am satisfied that Mr. Dikov was not treated differently by SAP Landscapes Ltd. than an Irish National would have been in similar circumstances. Accordingly, I find the complainant fails to establish a prima facie case in relation to direct discriminatory treatment regarding his conditions of employment on the race ground.
4.6 Section 9 (2) of the Act states:
If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination to any of the matters in paragraphs (a) to (e) of section 8 (1) then, subject to subsection (4), that provision shall be null and void.
4.7.1 This includes employment regulation orders as well as registered employment agreements. Under Section 86 (1) of the Act a person, who is affected by a collective agreement who claims that a provision of that agreement is null and void by virtue of section 9 of the Act, may refer the question of that agreement to the Director. In accordance with the powers delegated by the Director to me, I must investigate the agreement and, for that purpose, hear all persons appearing to be interested and desiring to be heard. However, these powers are restricted. The only power I have is the power to declare one or more specific provisions(s) to be null and void and, if I think appropriate, to give advice on how to devise alternative provisions. I have no power to replace the provisions with other non-discriminatory provisions nor do I have power to make it mandatory to comply with any guidance I consider appropriate. No argument was made by the complainant that a provision in either collective agreement was discriminatory.
4.8 The complainant submits that his work constituted what is described in the first schedule of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) Variation Order 2005 and that he should have been paid accordingly:
1 (c) (i) the clearing and laying out of sites for buildings
…..
(v) the making of roads and paths within the boundaries of such sites.
However, SAP Landscapes Ltd. maintain that the Agricultural Workers Employment Regulation Order is applicable to their employees. The minimum wage under this ERO is lower than that contained in the Construction Industry REA.
4.9 Under Section 33 of the Industrial Relations Act 1946 (as amended), the Labour Court has jurisdiction on any question as to the interpretation of registered employment agreement or its application to a particular person. Therefore, it is the Court’s role to investigate whether the Construction Industry REA is applicable to Mr. Dikov’s work while in the employment in SAP Landscapes Ltd. I have no jurisdiction in the matter and, accordingly, I make no finding of discriminatory treatment in this regard.
4.10 As the complainant has adduced no evidence of a discriminatory provision in the collective agreements referred to above, I find that the complaint referred under Section 86 of the Act is unfounded.
Decision
Having investigated the above complaint, I hereby make the following decision. In accordance with Section 79(6) of the Act, I find that the SAP Landscapes Ltd. did not discriminate directly or indirectly against Mr. Dikov contrary to the provisions of the Employment Equality Act 1998 (as amended).
______________
Orlaith Mannion
Equality Officer
17th September 2008