ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000339

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 16/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 Complaint seeking adjudication by the Workplace Relations Commission and under Section 25 of the Protection of Employees (Temporary Agency Work) Act following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The Respondent submitted salary data. It was clear that a breech of the Act had taken place.

He attributed this to a break down in communications and misunderstandings of the Act at the level of the main employer.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012.

Issues for Decision:

Did a breach of the Act take place and, if so, what was the quantum involved?

Legislation involved and requirements of legislation:

PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT 2012

Section 6

Basic working and employment conditions of agency workers.

6.— (1) Subject to any collective agreement for the time being standing approved under section 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.

(2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—

(a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and

(b) in respect of the period between assignments and subject to—

(i) Part 3 of the Act of 2000, and

(ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay,

the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment.

(3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date.

(4) This section shall not operate to affect any arrangement provided for under an enactment, a collective agreement or otherwise whereby an agency worker is entitled to basic working and employment conditions that are better than the basic working and employment conditions to which he or she would be entitled under this section.

(5) In this section “permanent contract of employment” means a contract of employment of indefinite duration.

Decision:

Under Section 25 and Schedule 2 of the main Act PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT 2012 and having reviewed the evidence supplied both written and oral I find the complaint well founded.

Having reviewed the detailed calculations agreed between the Respondent and the Complainant I make an award of €3,881 in favour of the Complainant.

Dated: 26^th April 2016