AWD146

Background
The Claimant was employed by the Respondent as a Driver. His employment commenced in or about 23^rdApril 2009 and terminated in or about April 2014.

The Respondent is an Employment Agency within the meaning of the Act. At all times material to this claim the Claimant was assigned to work under the direction and control of Greenstar Limited (hereafter the Hirer). The Hirer carries on business as a waste disposal company situated at Millennium Business Park, Naas, Co Kildare.

The Claimant was paid at the rate of €11.50 per hour for a 39 hour week. He was paid overtime at the rate of time-plus-one-half for hours worked in excess of 44 per week. He contends that Drivers employed directly by the Hirer were paid €12 .50 per hour although those with long service are paid up to €20 per hour. It is also contended that those directly employed by the Hirer are paid overtime at the rate of time-plus-one-quarter for hours in excess of 39 per week. The Claimant also contends that direct employees of the Hirer received a daily meal allowance of €7.62.

The Claimant referred a complaint to a Rights Commissioner under the Act on 8^thNovember 2012 claiming parity of basic employment conditions with comparable direct employees of the Hirer. The Rights Commissioner allowed an extension of time and determined that the cognisable period for the purpose of the within claim ran from 5^thDecember 2011 (when Section 6 of the Act took effect) and the date on which the claim was presented (8^thNovember 2012). The Rights Commissioner went on to find that the complaint was not well-founded. It is against that Decision that the Claimant appealed to this Court.

Position of the Parties
The positions taken by the parties can be summarised as follows: -

The Claimant

The Claimant grounds his claim on Section 6 of the Act. He was assigned to the Hirer on the date on which Section 6 of the Act came into effect, namely 5^thDecember 2011. He contends that from that date his basic working and employment conditions should have been brought into line with those of comparable direct employees of the Hirer. He sought a declaration that basic working and employment conditions should be adjusted to those applicable to comparable employees of the Hirer. He also claims arrears of pay and allowance for the period between 5^thDecember 2011 and 8^thNovember 2012.

The Respondent

The Respondent submitted that it sought information from the Hirer as to the basic working and employment conditions that the Hirer would have applied to a Driver employed on or after 5^thDecember. It received a statement from the Hirer, pursuant to Section 15 of the Act, dated 5^thDecember 2011 (wrongly dated 5^thDecember 2012) setting out a schedule of rates, allowances and other working and employment conditions. A copy of this letter was put in evidence. The Respondent contends that the basic working and employment conditions of the Claimant were in line with those notified to it by the Hirer.

The Respondent further submitted that the Hirer had acquired a number of similar businesses by way of a transfer of undertakings and that pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131/2003) former employees of the acquired businesses retained their pre-existing rates of pay and conditions of employment. The Respondent submitted that the Claimant has failed to show that the basic and employment conditions for which he contends were generally applicable within the Hirer at the time material to his claim.

The Respondent further contends that the Claimant’s employment contract was tainted with illegality by reason of his medical incapacity to drive a truck during the currency of his employment. In advancing that submission the Respondent relied on the Decision of the High Court inHussein v the Labour Court[2012] 2 IR 704. This is denied by the Claimant.

The Evidence

The Court heard oral evidence from the Claimant and from Mr Mark McElroy who was formally employed by the Hirer as a Driver at the same location as the Claimant. Evidence was also given by Mr Owen Reidy and Mr David Lane, both of whom are officials of SIPTU. Evidence on behalf of the Respondent was given by Mr Joe Kearns and Mr Pat Fennell.

It is clear from the evidence given by Mr Lane that historically the Respondent did not recognise SIPTU for collective bargaining purposes although the Union did have members in that employment. The Hirer was placed in receivership and the Receiver sought to conclude a collective agreement with SIPTU on new standard rates and conditions of employment to facilitate selling the business as a going concern. The Receiver engaged the services of an Industrial Relations Consultant who prepared a draft collective agreement. This agreement was subsequently accepted by SIPTU on behalf of its members and the terms of the agreement became generally applicable within the Hirer with effect from 15^thApril 2013. An unsigned and undated copy of the agreement was put in evidence. The Court accepts the evidence of Mr Lane that this document is an accurate reflection of the terms of the collective agreement concluded between the Hirer and SIPTU and that the terms contained therein were of general application within the Hirer from 15^thApril 2013 onwards.

This agreement prescribed the following in relation to rates and conditions of employment: -

• “Driver rate - €12.50 per hour to reduce to €11.90 in 12 months

  Service pay – built into rate, no bonuses

  Meal allowance - €7.62 per day subject to working 5 miles from base and working 5 continuous hours

  Annual leave – 21 days

  Sick pay – Registered Employment Agreement

  Pension – REA”

Mr Mc Elroy told the Court that his rates of pay and other allowances were reduced in or about April 2013 in line with the collective agreement that had been concluded with SIPTU. He was not a member of that Union.

Mr McElroy had no direct knowledge of the rates paid to other Drivers but he accepted that there were different rates applicable to different Drivers.

The evidence tendered by the witnesses who gave evidence on behalf of the Respondent was to the effect that certain rates were paid by businesses that had been acquired by the Hirer but they were not of general application within the Hirer. Mr Kearns told the Court that he was unaware of the collective agreement on which evidence had been given by Mr Lane. He said that the only information available to him was that provided to the Respondent by the Hirer in its letter of 5^thDecember 2011. The Hirer had declined to provide and elaboration on the content of that letter.

Conclusion of the Court
Section 6 of the Act provides: -

• 6.— (1) Subject to any collective agreement for the time being standing approved underSection 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

• “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hire, and that relate to—
  • (a) pay,

    (b) working time,

    (c) rest periods,

    (d) rest breaks during the working day,

    (e) night work,

    (f) overtime,

    (g) annual leave, or

    (h) public holidays;

• It is clear from the opening words of this provision[section 2 of the Act]that in order to constitute ‘basic working conditions’ for the purpose of the Act the conditions in issue must be provided by virtue of “any enactment or collective agreement, or any arrangement that applies generally in respect of employees or any class of employees, of a hirer”. It seems clear from a reading of this provision as a whole that it is the enactment, collective agreement or arrangement that must be of general application rather than the rate of pay or conditions of employment that results from the utilisation thereof.

  There will be little difficulty in practice in identifying conditions of employment derived from an enactment or a collective agreement. But the term “any arrangement” is less certain. It seems that the use of this term was intended to give Section 6 of the Act a wide ambit so as to encompass conditions of employment established within a hirer by systems used for that purpose in employments where collective bargaining does not take place. It can also include less formal arrangements established by custom and practice. However the term connotes an objective modus operandi for determining conditions of employment rather than a subjective assessment of individuals.

• Unlike other similar employment rights statutes the Act does not require a claim for equal pay to be grounded by reference to an actual comparator. Nevertheless, the rate that is paid to employees of the hirer who are engaged in the same type of work is an important evidential tool. Where a rate of pay is generally applicable to all workers performing the same work as that performed by the agency worker it may readily be inferred that if the agency worker was employed by the hirer he or she would be similarly paid. However, it may be that the relevant rate paid by the hirer is in whole or in part attributable to factors that do not apply to the agency worker. Or it may be that rates generally applied by the hirer have or would have changed since the rate relied upon was established. In such eventualities the Court could reasonably infer that had the agency worker been employed by the hirer at the time the assignment commenced (or was deemed to have commenced) he or she would have been paid a different rate of pay than that claimed.

  However, these are questions of fact that can only be established on reliable evidence, which in most cases, will be within the peculiar knowledge or power of procurement of the Respondent and beyond a Claimant’s capacity of proof. Hence, it would appear that the onus of proving that a rate of pay established within the hirer employment would not have applied to an agency worker had he or she been directly employed by the hirer rests with the party making that assertion.

However, inRobert Costello v Team Obair Limitedthere were established working and employment conditions of general application within the Hirer. The point taken by the Respondent in that case was that those rates would not have been applied by the Hirer to employees employed on or after 5^thDecember 2011. It was in that context that the Court held that the requirement of effectiveness dictated that the assertions of the Respondent to that effect had to be proved in evidence. That case cannot be relied upon to relieve a Claimant from the requirement to prove the primary fact that at the time material to his or her claim the Hirer had in place established working and employment conditions of general application and what those working and employment conditions were.

In this case the Court has no doubt that a collective agreement came into being between SIPTU and the Respondent which established standard working and employment conditions of general application within the undertaking. However, that agreement commenced or about 15^thApril 2013. The within claim was made on 8^thNovember 2012 and the state of affairs that came into being after the claim was initiated cannot avail the Claimant in his present claim.

The Court is also satisfied that some employees of the Hirer were paid significantly higher rates than those paid to the Claimant. But the Court cannot be satisfied that those rates were of general application within the Hirer. The evidence tendered by Mr McElroy, on behalf of the Claimant, was to the effect that different rates applied to different Drivers. There was no evidence as to what those different rates were.

On the evidence adduced the Court is forced to the conclusion that the Claimant has failed to show, as a matter of probability, that the working and employment conditions for which he contends were established by virtue of any enactment or collective agreement, or any arrangement that applied generally in respect of employees, or any class of employees, of the Hirer at the time material to his claim. In these circumstances his claim cannot succeed.

Illegality

While the Court’s findings as set out above are sufficient to dispose of this case, for the sake of completeness the Court should comment on the Respondent’s submissions that the Claimant’s contract of employment was tainted with illegality and therefore unenforceable in law. This point was fully canvassed in the course of the appeal and oral evidence was tendered by both parties. Suffice it to say that the Court is fully satisfied that the Claimant was not engaged in any form of illegality and it found the evidence and submissions to the opposite effect to be unsatisfactory and wholly unreliable.

Determination

For all of the reasons set out herein the Court must find that the within complaint is not well-founded. The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
9th July, 2014______________________
JFChairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.