Complainant

Respondent

Anonymised Parties

General Operative

Recruitment Agency}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008879-001

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008879-002

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008879-004

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008879-005

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008879-006

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00008879-007

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00008879-008

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008879-009

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00008879-010

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008879-011

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00008879-012

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00008879-013

19/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00008879-014

19/12/2016

The Complainant was employment by the named Recruitment Agency on a Contract of Indefinite Duration from 20^th May 2016 until he terminated the employment on 22^nd January 2017. The Complainant was paid €10.04 an hour and he worked between 35-40 hours a week on assignment to a named client. The Complainant was provided with a written statement of his Terms and Conditions of Employment as an employee on a Contract of Indefinite Duration signed and dated by the Respondent on 8^th June 2016. This Contract between the Parties is in accordance with Section 6 (2) of the Protection of Employees (Temporary Agency Work) Act, 2012.

The Complainant referred the following complaints to the Workplace Relations Commission on 19^th December 2016 – a complaint under the Terms of Employment (Information) Act , 1994 that the Contract does not comply with Section 3 of the Act – a complaint under the Payment of Wages Act, 1991 that the Complainant should be paid for travel time – complaints under the Organisation of Working Time Act, 1997 in relation to payment for annual leave, a complaint in relation to payment for Public Holidays and a complaint in relation to payment of Sunday Premium, - a Complainant under the Protection of Employees (Temporary Agency Work) Act, 2012 in relation to employment conditions - , a complaint under S.I. 36 of 2012 in relation to night working, - a complaint under the Employment Equality Act, 1998 in relation to equal pay with a named comparator and a complaint alleging discrimination on the basis of race in relation to employment and conditions of employment lodged on 18^th December 2016.

The complaint under S.I. 36/2012 was withdrawn at the Hearing CA-00008879-010

Terms of Employment Information) Act, 1994 The Complainant stated that the Company name was not correct – the hours of work not set out – the incorrect annual leave year is quoted – there is no mention of access to PRSA – there is no mention of the national minimum wage under 3(ga) of the Act as required.

Payment of Wages Act, 1991 The Complainant stated that he lived in a specified location and travels to work in the same location each day. It takes him 45 minutes each way every day he works to travel this distance to work and he is claiming payment for this travel time.

Organisation of Working Time Act, 1997. The Complainant stated the he is not paid the correct amount in relation to both his annual leave and public holidays as it does not take into account the 45 minutes travel time each day worked when he has to travel between his home and his depot location. The Complainant also stated that he is not paid a Sunday Premium

Protection of Employees (Temporary Agency Work) Act, 2012. The Complainant stated that he was not paid the same wages as four direct hire employees also working as General Operatives with the Client Company where he is assigned to.

Employment Equality Act, 1998 – 2015. The Complainant stated that he was not paid the same as four named comparators who are hired directly by the Hirer and where he has been assigned to work. He is claiming equal pay

The second element of the complaint relates to alleged discrimination on the basis of his race on the basis that named Polish Workers were taken on as direct hires by the Hirer when the Complainant was already working there as an Agency Worker.

Terms of Employment (Information) Act, 1994. The Respondent stated that the name of the Respondent was correct – hours cannot be set out as hours are the same each week and the Complainant has worked the same shift for the last 9 months – there is a reference to access to a pension scheme in the contract – the annual leave year is the Company annual leave year and the Complainant has suffered no disadvantage – the Respondent accepted there was no reference to Section 3(ga)

Payment of Wages Act, 1991The Complainant has been assigned to the same fixed location for the last nine months and he works the same shift and has not been moved. The Respondent stated the “Tyco” case does not apply.

Organisation of Working Time Act, 1997. The Respondent stated that the “Tyco” decision does not apply. In relation to payment of a Sunday Premium the Respondent stated that this reflects Section 6(2) of the 2012 Act in relation to permanent contracts with a Recruitment Agency.

Protection of Employees (Temporary Agency Work) Act, 2012. The Respondent stated that the Complainant has a Contract of Indefinite Duration with the Respondent Company and is therefore governed by Section 6 (2) of the Act, therefore a comparator is not required under this section of the Act. The Respondent stated that “pay” is defined under Section 2 of the Act. The Complainant worked between 38-40 hours a week. He also worked nights and one in every four Sundays. The Complainant has worked seven Sundays in the last nine months. The Respondent is therefore the Employer for the purposes of the Act. The Complainant was issued with both his Terms and Conditions of Employment and also a letter dated 23^rd May 2016 setting out Section 6 (2) of the Act and explaining the reference to Section 6 (2)

Employment Equality Act, 1998. In relation to the claim for Equal Pay the Respondent stated they were relying on Section 6 (2) of the Act of 2012. In relation to the complaint of discrimination on the basis of Race the Respondent stated that they were a recruitment agency and assigned Agency workers, like the Complainant to Hiring Companies and therefore they were not in a position to give permanent jobs to the Agency Workers in client companies.

Terms of Employment (Information) Act, 1994. The evidence was that the Complainant was provided with a written statement of his Terms and Conditions of Employment by the Respondent signed and dated on 8^th June 2016 – the Complainant commenced employment on 20^th May 2016. This statement provides that the Complainant is employed on a Contract of Indefinite Duration under Section 6 (2) of the Act of 2012. The Complainant was also provided with a letter of appointment dated 23^rd May 20`16 setting out the fact that he was employed on a permanent contract under Section 6 of the Act of 2012. The Contract does name the correct Employer on the Contract and this is confirmed on the CRO notice provided by the Complainant at the Hearing. In relation to hours of work the statement provides as follows “your normal hours of work will be notified to you weekly in advance of roster being completed by Friday pm. The Roster is established by the Hirer Company the Complainant is assigned to and complies with Section 3(i) of the Act. The Complainant stated that the Respondent is using the incorrect annual leave year i.e. from January to December rather than April to March. The Statement provides that the annual leave year in the Respondent Company runs from January to December. I find this complies with Section 3(j) of the Act. In relation to a pension scheme the statement does provide information in relation to the Company Pension Scheme. I find there is no breach of Section 3 (1)(k)(ii) of the Act. The Complainant stated that there was no reference to Section 3 (1) (ga) of the Act and the Respondent confirmed this. This section relates to the provisions of the national minimum wages. The evidence was that the Complainant is paid €10.04 an hour which is in excess of the national minimum wage I find that this is a breach of the Act by the Respondent

Payment of Wages Act, 1991. The evidence was and confirmed by the Complainant that he has been assigned to the same named Depot of the Hirer since the commencement of his assignment until he terminated the employment in January 2017. The Complainant is relying on the TYCO case to support their argument that the Complainant was entitled to payment for 45 minutes travel time each way each day he worked. This is disputed by the Respondent. Case C-266/14 “Tyco” delivered by the Court of Justice of the European Union on 10^th September 2015 involved an employee who travelled in a specified geographical area in relation to the fitting and maintenance of security systems. The Court held as follows: …certain aspects of the organisation of working time must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’ within the meaning of that provision”. The evidence from both parties was that the Complainant travelled from his home to the same location each day he worked and travelled home from the same location each day. I find that the decision of the CJEU does not apply in this case.

Organisation of Working Time Act, 1997. The Complainant sought the application of the CJEU Decision in the ‘Tyco’ case to the payment of annual leave and public holidays. As I have found that the decision of the Court of Justice does not apply to the current complaint as set out in the Payment of Wages above I declare these two complaints are not well founded.

The third element was the payment of Sunday Premium. The evidence from the Respondent was that the Complainant worked 7 Sundays in the last nine months. The Complainant had a Contract of Indefinite Duration with the Respondent Company under Section 6 (2) of the Act of 2012 – TAW -. This provides that “Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by the employment agency under a permanent contract of employment”. Pay is defined in Section 2(1) of the Act of 2012 as follows – Pay means (a) basis pay and (b) any pay in excess of –(i)shift work (ii) piece work (iii) overtime (iv) unsocial hours worked or (v) hours worked on a Sunday. I find that this complaint is not well founded.

Protection of Employees (Temporary Agency Worker) Act, 2012 The Complainant had a Contract of Indefinite Duration under Section 6 (2) of the Act therefore he cannot maintain a claim under Section 6 (1) of the Act in relation to his complaint of not being paid the same as four named Direct Hire employees of the Hirer Company.

Employment Equality Act, 1998.

Equal Pay Claim. I find that the Complainant as an Agency Worker is precluded from maintaining a complaint under Section 7 of the Employment Equality Act, 1998 by reason of Section 9 of the Protection of Employees (Temporary Agency Work) Act of 2012.

Discrimination on the basis of Race. On the basis of the evidence I find that the Complainant has not established a prima facia case of discrimination on the basis of race as required by Section 85A of the 1998 Act. The evidence was that the Complainant was informed of vacancies in the Hirer Company by the Respondent The Complainant in an undated letter provided to the Hearing did apply for a permanent position with the Hirer. The evidence also was that the Complainant attended a pre-employment medical assessment with the Hirer on 22^nd September 2016 and was placed on a Panel for Agency Workers seeking appointment but he left before he could be appointed. There was no evidence whatsoever presented by the Complainant to support an allegation of discrimination on the race ground. Furthermore the Respondent Company as the Employer of the Complainant was not in a position to offer any position in another named Company to the Complainant.

Terms of Employment (Information) Act, 1994- 2015 CA-00008879-001.

On the basis of the evidence and my findings above I declare the complaint is well founded in part. The Respondent has breached Section3(1)(ga) of the Act. However I also found that the Complainant was paid in excess of the National Minimum Wage at the time and therefore he suffered no disadvantage. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded in part. I do not award compensation. Also as the Complainant has left the Employment I do not direct the Respondent to issue an amended statement to the Complainant that complies with Section 3 (1)(ga) of the Act of 1994.

Payment of Wages Act, 1991- 2015-.CA-00008879-006 In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of m findings above I declare this complaint is not well founded.

Organisation of Working Time Act, 1997 CA-00008879-002-005. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and my findings above I declare this complaint is not well founded.

Protection of Employees (Temporary Agency Work) Act, 2012. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare these complaints are not well founded.

Employment Equality Act, 1998 CA-00008879-004

Equal Pay Complaint. In accordance with Section 79 of the Act I declare I do not have jurisdiction to hear this complaint as the Complainant is precluded by virtue of Section 9 of the Protection of Employees(Temporary Agency Work) Act, 2012 from maintaining this complaint

Discrimination on grounds of Race.

In accordance with Section 79 of the Employment Equality Act, 1998 and in view of my findings above I declare this complaint is not well founded as the Complainant has failed to establish a prima facia case of discrimination by the Respondent Company.

TE – Not well founded

Payment of Wages Act – TYCO/CJEU Decision

OWTA – TYCO/CJEU Decision

Temporary Agency Work Act – Section 6(2)

Equal Pay Claim Section   9 of Act of 2012 precluded

Discrimination on grounds of RACE – Section 85A not satisfied.