ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002043

Complaints for Resolution:

Date of Adjudication Hearing: 13/07/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant has been employed by the Respondent from 9^th June 2015. He has been registered with SOLAS as an Electrical Apprentice effective from 9^th November 2015. He has been paid €6.22 an hour effective from the date of commencement of the employment and he works a 39 hour week.

The Complainant referred a complaint to the Workplace Relations Commission on 22^nd February 2016 alleging the Respondent had breached The National Minimum Wage Act, 2000

The Complainant also referred a complaint to the Workplace Relations Commission on 22^nd February 2016 under the Payment of Wages Act, 1991 – 2015 alleging the Respondent had breached Section 5 of the Act.

Summary of Complainant’s Position. CA – 00002758-001 and CA-00002758-002

The complaints relate to the rate of pay paid to the Complainant during his employment with the Respondent from 9^th June 2015 until his registration for the statutory apprenticeship as an Electrician with SOLAS on 9^th November 2015. The Complainant was paid €6.22 an hour equal to the rate of pay prescribed for a 1^st Year Apprentice by the National Collective Agreement for the Electrical Contracting Industry at that time. The Respondent did not register his apprenticeship with SOLAS until 9^th November 2015 contrary to the Provisions of the Industrial Training Act, 1967 and the SOLAS Apprenticeship Code of Practice and the Respondent’s obligations in relation to same.

The TEEU entered into a dispute with the Respondent on 6^th August 2015 and on 10^th August 2015 the dispute was resolved and a written agreement was signed between the Respondent and the TEEU on 12^th August 2015 which provides at Section 1 as follows: Any shortfall in rates of pay accrued as a result of delay/failure to register will be addressed by a payment of €2.43 on the hourly rate as a back payment to their start date”. This would have brought the Complainant’s rate of pay up to the National Minimum Wage of €8.65

The TEEU also argued that the failure of the Respondent to implement the agreement signed by the Parties on 12^th August 2015 constitutes a breach of the Payment of Wages Act, 1991 – 2015

The Complainant is seeking payment of €2,526.47 being wages due from 9^th June 2015 to the commencement of his apprenticeship on 9^th November 2015.

Findings

On the basis of the uncontested evidence of the Complainant presented at the Hearing I find as follows: 1. The Complainant has been employed since 9^th June 2015. The evidence from SOLAS shows that the Respondent did not register the Complainant as an Apprentice Electrician until 9^th November 2015

2. Subject to subsection (3) and Sections 17 and 18, where an employee who has attained the age of 18 years undergoes a course of study or training authorised by the employer within the workplace or elsewhere during normal working hours, such courses or training to be prescribed in regulations made by the Minister, the employee shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at a rate of pay that on average is not less than the following percentages of the national minimum hourly rate of pay: (a) in respect of the first one-third period (but not exceeding 12 months) of the total study or training period, 75 per cent”
3. This Code of Practice is intended to assist both employers and apprentices to understand their duties and responsibilities relating to the apprenticeship programme. Apprentices and employers must accept this Code of Practice as part of the employer approval and apprentice registration processes. The Code goes on to state under Employer Obligations as follows: Employers must comply with the statutory provisions imposed by the Industrial Training Act, 1967 as amended, the Labour Services Acts, 1987-2009 (as amended from time to time), Further Education and Training Act, 2013 and any Apprenticeship Rules (which may apply from time to time) in relation to apprenticeship. Employers are required to: (1) Notify SOLAS within two weeks of the apprentice commencing employment and ensure the apprentice meets the minimum entry requirements specified by SOLAS”. The evidence from SOLAS shows that the Respondent did not register the Complainant as an apprentice within two weeks of commencing employment on 9^th June 2015. The Respondent did not register the Complainant as an apprentice until 9^th November 2015, some 5 months later. The Respondent however paid the Complainant the Apprentice Rate for these five months from 9^th June 2015 to 9^th November 2015.
4. ^th August 2015 and following a dispute an agreement was signed by both the Respondent and the TEEU on 12^th August 2015 which provided that all apprentices, including the Complainant, would be registered as Apprentices with immediate effect and that any shortfall in the rate of pay would be addressed by the payment of the differential of €2.43 and hour. This agreement was not implemented by the Respondent. The Complainant was not registered as an Apprentice until 9^th November 2015 and secondly he was not paid the hourly difference of €2.43 an hour to bring him to the national minimum rate of €8.65 an hour effective from 9^th June 2016.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

National Minimum Wage Act, 2000 – 2015 – CA-00002758-001

On the basis of my findings above I declare the complaint under the National Minimum Wage Act, 2000 – 2015 is well founded. The Respondent has breached the National Minimum Wage Act, 2000 – 2015. I direct the Respondent to pay the Complaint the sum of €2526.47 within six weeks of the date of this Decision.

Payment of Wages Act, 1991- 2015 –CA-00002758-002

This complaint relates to the same issue as the complaint under the National Minimum Wage Act, 2000-2015 but refers to the Collective Agreement dated 12^th August 2015 between the TEEU and the Respondent which provided that all apprentices, including the Complainant, would be paid the differential of €2.43 an hour as a back payment to their start date, in this case the 9^th June 2016. On the basis of the evidence and my findings above, I declare the complaint under the Payment of Wages Act, 1991 – 2015 is well founded. I have already directed the Respondent to pay the Complainant the sum of €2526.47 under the NMW Act.

Rosaleen Glackin

Adjudication Officer

Date: 19^th September 2016