AWD148

The Respondent is an employment agency. The Complainants were assigned to work for their client the Hirer, at Dublin Airport as Ground Handling Agents.

Initial complaint forms were submitted through the Workplace Relations Customer Services on 7^thMarch 2013 relating to seven of the Complainants and on 14^thMarch 2013 in relation to Mr Tomas Bal. Further claim forms were referred on 10^thSeptember 2013 alleging a similar breach of the Act in respect of the period 13^thMarch 2013 to 10^thSeptember 2013.

Position of the Parties

Mr Dermot Sheehan, B.L. instructed by O’Hanrahan & Company Solicitors, on behalf of the Complainants alleged that the Respondent breached Section 6 of the Act as the Complainant’s were paid anhourly rateof pay of€10.20 perhour, whereas direct
employeesof Ryanair performingidenticalduties arebeingpaid athigherhourlyrate. As evidence of this contention, Mr Sheehan provided payslips and written termsof
employment.

Mr Sheehan stated that direct employees of the Hirer appear to be paid an annual salary. He submitted a copy of a contract of employment issued by the Hirer to a new starter employee. This states that the annual salary will be as follows: - Basic €15,708; Shift €3,476 and Attendance €1,651.

Mr Sheehan submitted four payslips issued to four direct employees of the Hirer dated 28^thJune 2013, in “Ground Operations 'Pier A'”, which indicate that the basic rate varies from €10.65 to €13.52 per hour and on that basis he sought the application of an hourly rate of €13.52 per hour for each of the Complainants.

Mr Sheehan also submitted an example of written terms of employment issued to direct employees of the Hirer, which contains the following at Clause 6.3:

• “Your salary will be subject to annual review each April, only after successful completion of your Probationary Period, at the Company's absolute discretion. Salary reviews 'will be based on your performance and that of the Company. No automatic increments or salary increases apply to your employment and for the avoidance of doubt there is no automatic progression to a higher salary in your second or subsequent years of employment. "

• 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;

• (a) basic pay, and

  (b) any pay in excess of basic pay in respect of—

  (i) shift work,

  (ii) piece work,

  (iii) overtime,

  (iv) unsocial hours worked, or

  (v) hours worked on a Sunday,

In this case no collective agreement or legislation applies. Accordingly the Court must have regard to "any arrangement that applies generally" in determining whether the Respondent is complying with the Act.

Conclusion

It is not disputed that there are directly employed workers performing the same work as that performed by the agency workers. What is disputed is the rate of pay which applies to both. The Respondent submitted that the direct employees are paid less than the agency workers whereas the Complainants claimed that the direct employees are paid higher rates of pay. There is a requirement on the Complainants to prove the primary fact upon which they rely.

Payslip Evidence

The Court is not satisfied that the anonymised payslips furnished to the Court are probative of the contentions made by the Complainant. These payslips had the names of the employees redacted. Counsel for the Complainants stated that one of the Complainants could give evidence, stating that they were aware of the origin of the payslips and that they were reflective of directly employed workers performing the same work as that performed by the agency workers.

Counsel for the Respondent objected to such evidence being given on the grounds that it could properly be given by the person to whom the payslip belonged and if not then as that person was not present to be tested, such evidence was inadmissible.

The Court is required to act fairly and in accordance with the requirements of natural justice. It is of the view that the redacted payslips could not be relied upon by the Complainants. It is of the view that such evidence would be inadmissible hearsay evidence, as the person to whom the payslip was attributed to was not available to give evidence. Consequently the veracity of the information contained in them could not be tested nor could their true import be explored. In these circumstances the payslip evidence has no probative value and cannot be relied to prove the veracity of the contentions made by the Complainants.

Findings of the Court

Having examined the information supplied relating to the sample contract of employment for direct employees of the Hirer which both parties accept represents the basic pay and conditions of employment for comparable employees of the Hirer, the Court notes that directly employed workers are paid an annual salary made up of the following elements: -

Basic pay: €15,708
Shift Premium : €3,476
Attendance Payment: €1,651

In comparison the Complainants’ pay comprises of the following annual payments:-

Basic pay: €17,992
Shift Premium : €1580.80
Attendance Payment: €1,651

On examination of the details it is clear that there is a difference in the some of the elements, i.e. basic pay and shift premium. Attendance payments are contingent payments, and are paid depending on the employees’ attendance pattern. No difference in both the payment and the application of the attendance policy was in dispute. Therefore the Court must decide whether the remaining elements can be considered separately or whether they may be aggregated to determine if the Complainants are paid less than comparable direct employees for one element despite being paid more for another element.

The two remaining elements of pay the subject matter of these complaints all consist of sums paid as part of the Complainants and direct employees core pay despite being labelled differently. It is accepted by both sides that the liability to work shift, weekends and Sundays is identical for both sets of employees. In such circumstances the Court is satisfied that the pay elements must be combined to arrive at its decision on the claim.

In accordance with the definition of “pay” as contained in the Act, the Court is of the view that when the pay elements are aggregated the Complainants are paid the sum of €21,223.80 per annum whereas the direct employees are paid €20,835 per annum. Since the pay of the Complainants is greater than that of the direct employees for performing the same work, their claim must fail.

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 upheld and the appeal fails.

The Court so Determines.

Signed on behalf of the Labour Court



Caroline Jenkinson
CR______________________
24th November, 2014.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.