The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
EQUALITY OFFICER'S DECISION DEC-E2011-197
PARTIES
Michal Przelonzy, Przemyslaw Gaweda & Laiswnas Jakstas
(Represented by Independent Workers Union)
AND
Glanbia - CMP Dairy
(Represented by Arthur Cox)
File reference: EE/2006/391
Date of issue: 26 October 2011
HEADNOTE
Employment Equality Acts, 1998-2008 Race - Equal Pay.
1 DISPUTE
1.1 This dispute concerns a claim by Michal Przelonzy and Przemyslaw Gaweda that they perform 'like work' in terms of section 7 of the Employment Equality Acts 1998-2008 with named comparators and are therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29(1) of the Acts. The claim is made on the grounds of race and the named respondent is Glanbia - CMP Dairy.
1.2 The complainants referred their claims to the Director of the Equality Tribunal on 16 October 2006. On 8 May 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation began. A similar claim was also made by Laiswnas Jakstas but I was advised at the preliminary hearing that Mr Jakstas was deceased and his claim was not being pursued. A preliminary hearing was held on 29 September 2009 to consider the issue of who was the correct respondent. Following which both parties made submissions and a substantive hearing took place on 5 May 2011.
2 PRELIMINARY ISSUE
2.1 The respondent contended that they were not the correct respondent as the complainants were at all times employed by Noel Recruitment, who were responsible for their pay. They relied on Equality Tribunal Decision No. DEC-E2004-019, 10 complainants v Rimec Limited and Dawn Meats.
2.2 The complainants contend that whilst they were employed through Noel Recruitment the respondent was responsible for their terms and conditions including pay.
2.3 In the cited case the complainants were employed by Rimec Limited, an employment agency, and worked in Dawn Meats. They claimed equal remuneration with comparators who were employed directly by Dawn Meats. The Equality Officer quoted section 8 (2) of the Acts which states; "For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated" and concluded that "the complainants in these claims cannot make a claim of discrimination in relation to pay while comparing themselves to an employee of one of the other named organisations". This means that an agency worker can only make a claim of equal pay with someone working for the same agency. In this claim both comparators had previously worked directly for the respondent but were working for Noel Recruitment during the period covered by these claims.
2.4 Section 2 (3) (c) of the Acts states; "in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer". This means that I have to decide if the respondent was responsible for the pay of the complainants or if it was set by Noel Recruitment. The original agreement to supply staff was made between Noel Recruitment and CMP Dairy who were owned by Dairygold C-Operative Society Limited until April 2005 when the respondent took over CMP Dairy. The agreement was allowed to run with the new owner until CMP Dairy closed in April 2006. The agency, who attended the preliminary hearing, stated they could not find a copy of the original written agreement regarding the sourcing of staff at CMP Dairy. They gave evidence that: "Initially pay rates of €7.80 for General Operatives and €10.75 for Forklift Drivers were agreed. In the event that a particular function would require someone to be paid extra (i.e. working evening/night shift or in the coldstore), an instruction would be given to us by CMP to pay that person a higher rate. The rate for general operatives was increased to €9.00 per hour when the national minimum wage was increased to €8.30 per hour as CMP did not wish to pay Staff at the minimum wage level." The also gave evidence that their fees were agreed as a percentage of the hourly rates.
2.5 The respondent gave evidence that they took over the original agreement for Noel Recruitment to supply staff as required. They had no role in setting the pay of staff supplied and Noel Recruitment was responsible for pay and set the hourly rates.
2.6 Noel Recruitment gave evidence that one increase in the hourly rate came about because the respondent did not want the General Operatives to be on the minimum wage. Also, Mr Gaweda gave evidence that he went to the respondent's Depot Manager after he had been working there for three months and his pay was subsequently increased by €1 per hour. Also, the respondent gave evidence that the two comparators were given enhanced rates because of their previous experience working directly for the respondent. I am also cognisant that Noel Recruitment invoices to the respondent showed the individuals and the hourly rate they were paid plus an agreed percentage fee.
2.7 The combination of these factors indicate to me that the respondent was "liable for the pay" of those working for them who were recruited by Noel Recruitment. This includes the complainants and I therefore conclude that the cited respondent is the correct respondent in these claims of equal pay.
3 Przemyslaw Gaweda
3.1 Mr Gaweda submits that he was recruited by Noel Recruitment to work for the respondent in April 2005. He worked as a general operative and his main tasks were to unload and load trucks, pick orders, park trucks count stock and take phone orders after 5 pm. He was initially paid €8 per hour and this was raised to €9 per hour after 3-4 months when he became experienced as a forklift driver. The complainant also submits that he worked longer hours than other workers and worked in the cold room but did not receive the cold room bonus.
3.2 He is claiming that he carried out the same work as Mr A who started work on the same day and was paid €10 per hour. He submits that Mr A did less picking of orders than him, spent more time sorting pallets and did not park the trucks.
3.3 The respondent submits that there are reasons other than race for any difference in pay between the complainant and Mr A. Mr A had previously been employed by the respondent as an MPI operator, which was classified as a medium skilled job. When Mr A was re-employed through Noel Recruitment he was given a rate to reflect the higher level of experience and skills that he had. He regularly and routinely took orders over the phone and processed them and also took orders to be picked from the order office without instruction. He was also an experienced forklift driver. The respondent submits that working in the cold room was an integral part of the work and a cold room bonus was not paid to anyone working through Noel Recruitment.
3.4 The respondent contested the evidence of the complainant that he parked trucks and took orders over the phone. They submit that he was not trained or directed to do that work.
4 Michal Przelonzy
4.1 Mr Przelonzy submits that he was recruited by Noel Recruitment to work for the respondent in April 2005. He worked as a licenced forklift driver and his main job was picking orders. He was initially paid €9 per hour and this rose to €10.75 per hour. He worked in the cold room but did not receive the cold room bonus.
4.2 He is claiming that he carried out the same work as Mr B.
4.3 The respondent submits that there are reasons other race for any difference in pay between the complainant and Mr B. Mr B was employed directly by the respondent until 3 March 2006. He was re-employed through Noel Recruitment from 13 March to 31 March 2006 before the plant closed. He was paid an agreed rate of €800 per week to reflect his years of experience working at CMP Dairy. The respondent submits that working in the cold room was an integral part of the work and a cold room bonus was not paid to anyone working through Noel Recruitment.
5 FINDINGS AND CONCLUSIONS
5.1 The issue for decision is whether the complainants have a claim for equal pay on the grounds of race. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
5.2 Przemyslaw Gaweda is claiming he did similar work to Mr A and should have been paid the same. The respondent contends that Mr A had worked for them previously and received a higher rate of pay because of his skills. The respondent submitted a Noel Recruitment time sheet which was filled in for staff working in CMP Dairy in which Mr A is listed as a Forklift Driver, which was a more responsible job than the complainant and received a higher rate of pay. Mr Gaweda provided no evidence to show that he was a qualified or licenced forklift driver. I accept the respondent's defence, in accordance with section 29 (5) of the Acts that there were grounds other than race for the difference in pay.
5.3 Michal Przelonzy is claiming he did the similar work to Mr B and should have been paid the same. Mr Przelonzy was listed on the time sheets as Forklift Driver and was paid the rate agreed between the respondent and Noel Recruitment for forklift drivers. His comparator Mr B was employed for most of the relevant time directly by the respondent. The only time he worked through Noel Recruitment was from 13 - 31 March 2006 when he was re-recruited for a short period and given a special rate because of his previous experience. I accept the respondent's defence, in accordance with section 29 (5) of the Acts that there were grounds other than race for the difference in pay.
6 DECISION
I have investigated the above claims and make the following decisions in accordance with section 79 of the Acts that:
I find that there are grounds other than race for the difference in pay between the complainants and the named comparators in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainants on the race ground contrary to section 29(1) of the Employment Equality Acts in relation to their remuneration.
___________________
Hugh Lonsdale
Equality Officer
26 October 2011