AWD1512

In this Determination Mr Furlong is referred to as the Claimant and Paul Doyle Hire Services Limited is referred to as the Respondent.

The facts

The facts of the case are not in dispute and can be summarised as follows: -

• • The Claimant was employed by the Respondent as an agency worker from 25^thJune 2012 and 22^ndApril 2014. He was paid €9.00 per hour while working as a helper on a refuse truck and €11.50 per hour while employed as a driver. At all material times he was assigned to a waste collection company, Greenstar (the Hirer)

    The Claimant contends that the rate he received was less that that paid to direct employees of the Hirer who are engaged in like work. However, he received traveling time and subsistence at a higher rate than that paid by the Hirer.

    The Claimant submitted a claim under the Act to a Rights Commissioner on 20^thMarch 2014.

  
  
  

The Claimant contends that pursuant to a collective agreement in force between the Hirer and SIPTU the appropriate rate, at all material times, was €12.50 per hour for a driver and €9.15 per hour for a helper. In reliance on s. 6 of the Act, the Claimant, through his Union, claimed that he should be paid the difference between the rate that received and that provided for in the collective agreement for the duration of his assignment to the Hirer.

The Respondent accepts that there was a collective agreement in place with the Hirer and that the Claimant was underpaid relative to the rates payable by the Hirer for comparable work. However, the Respondent takes two points in defending the Union’s claim. Firstly, it contends that the Claimant can only recover in respect of the six month period ending on the date that he presented his claim (20^thMarch 2014) in accordance with paragraph 1 of the Second Schedule of the Act and that, contrary to the conclusion reached by the Rights Commissioner, reasonable cause does not exist for any enlargement of that period.

Secondly, the Respondent contends that the Claimant received higher substance and travel time than that provided by the collective agreement on which he relies. The Respondent submitted that these additional payments should be offset against any arrears to which the Claimant would otherwise be entitled.

Time Limit

The Claimant’s Union representative told the Court that the Hirer had been in receivership and that the collective agreement relied upon in the case had been concluded with the receiver on behalf of the Hirer. The receiver was seeking to sell the business as a going concern and the Union had decided not to pursue claims under the Act until a sale was completed. The Court was told that the within claims were accordingly delayed until after the sale of the business was completed.

Conclusions of the Court

Extension of Time

The test for determining if the time limit for the lodgement of a claim such as this can be extended for reasonable cause shown is well settled in a number of decisions of the Court starting with the decision inCementation Skanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -

• It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

  The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

In this case the Union contends that it did not make claims against the Respondent because the then receiver of the Hirer was in the process of trying to sell that business as a going concern. At the time in question the Hirer was paying the rates that form the subject matter of this claim. In these circumstances it is difficult to see how the pursuance of a claim under the Act against the Respondent could have impeded the sale of the Hirers business. The Court was told that the receiver of the Hirer asked the Union to desist from pursuing a claim against the Respondent. However, the receiver was not called to give evidence and the Court cannot speculate on what his evidence might have been had he been called. In so far as the Union purported to tell the Court what was said by the receiver, that is clearly hearsay and has no probative value.

The explanation offered by the Claimant for the delay is also of central importance. The Claimant did not attend the hearing and consequently offered no explanation for the delay.

Having regard to all the circumstances disclosed in evidence the Court cannot accept that the delay in making the within claim was either explained or justified. Accordingly the Court cannot hold that an extension of time is allowable in this case. It follows that the cognisable period for this claim is the six-month period ending on the date on which the complaint was presented, namely, from 21^stSeptember 2013 to 20^thMarch 2014.

Basic Working and Employment Conditions
Section 6 of the Act prescribes the entitlements of an agency worker to the same pay and working and employment conditions as those applicable to a comparable employee of the hirer to which he or she is assigned.

Section 2 of the Act defines what is meant by the expression ‘Basic Working and Employment Conditions’ as follows: -

• “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 hirer, 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,

  but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

• The arrangements referred to in this paragraph shall be in conformity with Community legislation and shall be sufficiently precise and accessible to allow the sectors and firms concerned to identify and comply with their obligations. In particular, Member States shall specify, in application of Article 3(2), whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions referred to in paragraph 1. Such arrangements shall also be without prejudice to agreements at national, regional, local or sectorial level that are no less favourable to workers.

It is clear from s.2 of the Act that the Oireachtas has, in accordance with this provision of the Directive, specified that entitlements as to pensions and sick pay schemes are not included in the notion of basis working and employment conditions to which an agency worker is entitled under s.6 of the Act. Consequently an award made under the Act cannot make provision for the application of such conditions to an agency worker. It is also clear that meal allowances do not come within the statutory meaning of either pay or employment conditions and likewise cannot be provided for in an award made under the Act.

The Respondent told the Court that the Claimant was in receipt of a higher rate of subsistence payments and traveling time relative to that applicable to direct employees, and that these additional payments should be off-set against any arrears accruing to the Claimant by reason of having been paid a lower hourly rate. It was submitted that the Court should look at the totality of the Claimant’s remuneration. In advancing that argument the Court was referred to section 7(2) of the Protection of Employees (Fixed Term Work) Act 2003, which provides: -

• Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofsection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

The Court cannot accept that submission. The Act must be interpreted by applying the plain and ordinary meaning of the language used by the Oireachtas. The statutory definition of pay, for the purpose of the Act, is contained at s.2 thereof and it is that definition alone that must be applied by the Court. That definition does not include either subsistence payments or traveling time. The plain fact is that the Oireachtas did not provide, as it could easily have done, that the totality of an agency workers remuneration is to be taken into account in determining if s.6 of the Act has been complied with. Such a provision cannot be imported into the statute as it is a well-established principle of law that a Court cannot add to or take from the language used by the Oireachtas under the guise of interpretation in order to produce what it might consider to be a fair result. To do so would involve an impermissible trespass on the legislative domain.

For these reasons the Court cannot accept that any form of off-set can be made against the amount due to the Claimant by way of arrears of wages under the Act.

Outcome

It is the determination of the Court that the Claimant is entitled to recover the difference between the rate of pay (as defined by s.1 of the Act) that he received and that paid to comparable employees of the Hirer in respect of the time worked between 21^stSeptember 2013 and 20^thMarch 2014. For the avoidance of doubt the Court wishes to point out that entitlement as to meal allowances, sick pay and pension entitlements do not come within the statutory meaning of basic employment and working conditions and cannot be provided for in an award under the Act.

The decision of the Rights Commissioner is amended accordingly.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
27th May, 2015Chairman



NOTE

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