Complainant

Respondent

Anonymised Parties

A Plasterer

A Plastering Sub-contractor

Representatives

Operative Plasterers & Allied Trades Society of Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018376-001

09/04/2018

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

CA-00018376-002

09/04/2018

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

CA-00018376-003

09/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Sectoral Employment Order (Construction Sector) 2017 (SI 455/2017)

CA-00018376-004

09/04/2018

The respondent was a sub-contractor carrying out plastering and the installation of metal stud partitions on a construction site in East Wall in Dublin. The complainant is a plasterer and he accepted an offer of work from the respondent. He commenced on October 3rd 2017 and he finished up on December 14th, a period of just 10 weeks. Mr Wall said that the respondent agreed to pay the complainant €19.00 per hour and that his hours would be from 7.00am until 5.00pm Monday to Friday. The complainant claims that he has not received all the wages he is owed, that he did not receive a statement of his terms and conditions of employment and that he did not receive the benefit of the public holiday on Monday, October 30th 2017. In addition, Mr Wall complained that the respondent did not adhere to the provisions of the Sectoral Employment Order for the Construction Sector (SI 455/2017) (SEO) which resulted in the complainant being denied other benefits.

As it appears that the respondent intended the complainant to be a self-employed contractor, an issue arises about his status. The first issue to be considered is, if the complainant was an employee of the respondent.

The Complainant’s Position on the Employment Status Issue

For the complainant, Mr Wall argued that the complainant was offered work by the respondent on a specific site, to carry out plastering work where he installed metal stud partitions under the instructions of the respondent who was sub-contracted to another business. He was offered work at €19.00 per hour, from 7.00am to 5.00pm and he acted on the instructions of the respondent with regard to where and when the work was done.   Mr Wall said that the complainant reported to the respondent in the capacity of an employee in an industry where an SEO applied. Mr Wall said that the true nature of the employment relationship was that of a contract of service.

Case Law Presented on Behalf of the Complainant

In support of his position that the complainant was not a self-employed contractor, Mr Wall referred to the seminal case on this matter, that of Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34. In his judgement, Mr Justice Keane explored the relevance of the degree of control in the relationship between an employer and a direct employee and determined that Ms Mahon, who worked for Henry Denny & Sons as a supermarket demonstrator, was an employee and not a contractor.

The judge then went on to explore the effect on the worker’s “profits” by “better management of resources:”

“The amount of money she earned was determined exclusively by the extent to which her services were availed of by the appellant: she was not in a position by better management and employment of resources to ensure for herself a higher profit from her activities.”

This case was compared to that of Ó Coindealbháin v Mooney [1990] 1 IR 422 where the claimant, a manager in an employment office claimed to be an employee of the Department of Labour. He was the provider of the offices used by the employment centre, and he hired the staff who worked there. He was paid according to the number of unemployed people registered with his office. Placing particular emphasis on the claimant’s ability to influence his earnings and finding that the claimant was employed on his own account, Blaney J, in the High Court stated:

“…his profit is the amount by which his remuneration exceeds his expenses; the lower he can keep his expenses, the greater his profit.”

In the case under consideration here, Mr Wall submitted that the complainant was working for an hourly rate of pay and could do nothing to influence his earnings by increasing efficiency or the “better management of resources.” Considering the Denny case, he argued that the only difference is that in the case of the complainant here, the respondent did not provide a uniform, as, in the construction sector, employees provide their own boots and clothing.

Mr Wall referred to the case of Nethermere (St Neots) Limited v Gardiner [1984] ICR 612 which established the principle of the “irreducible minimum of mutuality of obligation.”     He argued that there was such a mutuality of obligation in existence in the case of this complainant as there was an obligation on the respondent to provide work and a corresponding obligation on the complainant to turn up and carry out the work. The complainant left the employment of the respondent due to the non-payment of wages, further demonstrating that the true relationship between him and the respondent was that of an employee under a contract of service.

Mr Wall said that there are similarities between the circumstances of this complainant and the claimant in Firthglow Limited (trading as Protectacoat) [2009] IRLR 365, where, in a decision favouring the claimant, Smith LJ said,

“Protectacoat wanted the ha’penny of treating their installers as employees when it came to attendance and control and also wanted the bun of not having to give them the rights they would enjoy as employees…”    

It is the union’s position that, for the time he was in business in Ireland, this respondent never employed workers as employees. When they arrived in Ireland, overseas workers were presented with no option, but to be self-employed. The ramifications are many, with a loss to the exchequer and the potential for exploitation, but particularly, the withholding of basic employment rights.

In the final part of his submission on the preliminary issue, Mr Wall referred to the Code of Practice for Determining Employment or Self-employment Status of Individuals.   This is produced by the Revenue Commissioners and resulted from the deliberations of the Employment Status Group established in 2000 under the Programme for Prosperity and Fairness.   It was updated in 2007 by the Hidden Economy Monitoring Group under the social partnership agreement, Towards 2016. The Code is a useful baseline of information as it sets out the criteria that can be used to determine the employee / self-employed status of a worker.

Consideration of the Preliminary Issue – Was the Complainant an Employee of the Respondent?

The issues to be considered in determining whether a person is an employee or a self-employed contractor are well set out in the determination of the Employment Appeals Tribunal (EAT) in the case of O’Hanlon v Ulster Bank Ireland Limited, UD 1096/2014. Here, the Tribunal followed the exhortation of Mr Justice McMenamin in the Supreme Court appeal of Barry and others v the Minister for Agriculture and Food, [Appeal number 86/2011], when he asked the parties to prepare an “issue paper” identifying the questions to be addressed by the Tribunal to assist its determination on the status of the claimant. In its determination on the O’Hanlon case, the Tribunal noted that:

“The parties agreed the following issues, as being relevant to the Tribunal’s decision: [was the claimant] in business on her own account and/or integration; relevant contracts; mutuality of obligation; the intention of the parties; control; actions of claimant; taxation. The Tribunal did not consider itself confined to the issues agreed between the parties and also indicated that it would have regard to the following: pension entitlements; sick pay; substitution; whether the profit which she derived was dependent on how she carried out her work; was she paid for holidays; did she have support staff; how and where she did the work; could she engage someone else to do the work instead of her. The Tribunal did not close its mind to other factors which might arise during the hearing of the case.”

The Barry case, referred to above, is described in the O’Hanlon decision as having had “an eventful legal journey” with two sittings before the EAT and two sittings in the High Court before being returned by the Supreme Court to the EAT for a third time. This 11-year saga shows how difficult it can be to determine on the issue of employment status. Ultimately, the Supreme decided that this responsibility must reside with the EAT.   As that institution ceased to exist with the enactment of the Workplace Relations Act in 2015, the responsibility at first instance, now falls to the adjudicator.

It is evident from the jurisprudence that there is no specific test for determining the status of an individual whose status is unclear. It is my view that the criteria set out in the O’Hanlon case, in circumstances where the Tribunal “did not close its mind to other factors” provide a starting point for an examination of the case under consideration here.

Mutuality of Obligation

This principle refers to the obligation of the employer to provide work and the obligation of the employee to carry out the work. These “mutual obligations” are considered not to exist at all, or to constitute only a minor component of the relationship between an employer and a self-employed contractor. In the first outing of Barry at the High Court, (Minister for Agriculture and Food v Barry [2008] IEHC 216), referring to the principle of mutuality of obligation, Mr Justice Edwards stated:

“If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service. It was characterised in Nethermere (St Neots) Ltd v Gardiner, [1984] ICR 612 as the ‘one sine qua non which can firmly be identified as an essential of the existence of a contract of service’. Moreover, in Carmichael v. National Power Plc, [1999] ICR, 1226 at 1230 it was referred to as ‘that irreducible minimum of mutual obligation necessary to create a contract of service.’ Accordingly, the mutuality of obligation test provides an important filter.   Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation, it is not necessary to go further. Whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.”  

Mr Wall has referred to the case of Nethermere (St Neots) Limited v Gardiner [1984] ICR 612 where the principle of the “irreducible minimum of mutuality of obligation” was established and he argued that there was an obligation on the respondent to provide work and a corresponding obligation on the complainant to carry out the work. I find myself in agreement with his argument as the complainant was obliged to report for work at a specific time and place and the respondent had taken on an obligation to provide work for him in that place at a consideration of €19.00 per hour. It is my view that a mutuality of obligation existed in the relationship between the complainant and the respondent in this case and therefore, following the direction of Mr Justice Edwards in the Barry case, I have to examine the relationship further.

Was the Complainant in Business on His Own Account?

This complainant was recruited by the respondent as a plasterer on an hourly rate of €19.00, with no other benefits such as sick pay or pension. He attended at a construction site as directed by the respondent, and started and finished work each day on the instructions of the respondent. He was not permitted to substitute another worker for himself. His earnings were fixed in relation to hours and he could not profit from carrying out the work in a more efficient or timely manner.

In his submission, Mr Wall referred to the Supreme Court findings in the Denny case, where Henry Denny and Sons lost an appeal against the determination of the EAT that Ms Sandra Mahon was an employee and not a self-employed contractor, as set out in her “General Terms and Conditions” document. Setting out his reasons for dismissing the appeal, Mr Justice Keane stated:

“…while each case must be determined in light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

In the case under consideration here, the complainant was engaged as a plasterer for the respondent and not for himself. He did not provide any equipment, he did not invest in the respondent’s business, he did not employ any other person and he gained nothing from working quickly or efficiently. In the O’Hanlon case, finding that the claimant “drifted” from being a contractor to being an employee, the Tribunal said that she “could not have earned extra money by working harder or conducting the business differently.” The complainant here is in the same predicament and, on this basis, he cannot be considered to have been in business on his own account.

Integration

The extent to which a person whose employment status is in question is integrated into their employer’s business, has been considered by the courts and the EAT as one of the issues to be considered to determine their status. “Integration” describes the degree to which the person is immersed in the workplace, from the perspective of where they turn up every day, their use of equipment, their engagement with other employees and from whom they take direction. The complainant in the case under consideration here was part of a team of workers engaged on a job on a specific site. He used the equipment and materials provided by the respondent, collaborated with his colleagues and followed the orders of the respondent, who he understood to be his boss. He was not independent in any respect and had no discretion over any matter concerning the work he was engaged to do. In this respect he had the status of an employee.

Other Factors

Unlike the claimants in the precedent cases cited, the complainant in this case was not issued with a contract of employment. All we know is that the respondent told the complainant that he was self-employed, and from this, we can assume that his intention was not to employ him directly.   He had no information about his entitlements to sick pay, holidays or pension, and there was no mention of the SEO in place for construction workers. The intention of the complainant was to get a job and make some money. As a Romanian national, not fluent in English, newly arrived in Ireland and with no experience of dealing with employers or Revenue, he was at a disadvantage when he was offered a job by this respondent. It seems to me that the respondent exploited the complainant’s lack of knowledge and experience by failing to set him up as an employee.

Revenue’s Code of Practice for Determining Employment or Self-employment Status of Individuals was submitted by Mr Wall as a guideline for determining on the employment status of individuals. The introduction to this document states that its objective is to “eliminate misconceptions and provide clarity. It is not meant to bring individuals who are genuinely self-employed into employment status.” The code provides a list of criteria which the Revenue Commissioners consider indicate that an individual is an employee and states that “an individual would normally be an employee if he or she:

Is under the control of another person who directs as to how, when and where the work is to be carried out.

Supplies labour only.

Receives a fixed hourly/weekly/monthly wage.

Cannot subcontract the work. If the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on.

Does not supply materials for the job.

Does not provide equipment other than the small tools of the trade. The provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case.

Is not exposed to personal financial risk in carrying out the work.

Does not assume any responsibility for investment and management in the business.

Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements.

Works set hours or a given number of hours per week.

Works for one person or for one business.

Receives expense payments to cover subsistence and/or travel expenses.

Is entitled to extra pay or time off for overtime.

While this document makes no reference to legislation or precedents, or to the presence or absence of a contract of employment, in the form of a check-list, it provides clear guidance for employers to properly determine the status of prospective employees. In the case of this complainant, I find that no further investigation is required to reach a conclusion that he was an employee.

Conclusion

Having examined the case law and the facts of this case, it is my view that the complainant was a direct employee of the respondent. I have reached this conclusion having considered his engagement as a plasterer, employed to carry out manual work on a construction site on an hourly rate of pay of €19.00. I find that there was a mutuality of obligation in the relationship between the complainant and the respondent and that the relationship ended when the respondent failed to keep his part of the deal and did not pay the complainant the wages agreed between them. The complainant then had no work. It is evident therefore that he was not in business on his own account and that he could not benefit from doing things differently or more efficiently.

Having established that the complainant was an employee of the respondent, I will proceed to consider his complaints under the relevant statutes.

While he was working for the respondent the complainant was left short of wages. When he left his employment after 10 weeks, he didn’t receive any holiday pay.

The complainant had no success trying to resolve this matter with the respondent and he contacted the Operative Plasterers and Allied Trades Society of Ireland. The General Secretary, Mr Wall, spoke with the respondent and outlined his responsibilities to him with respect to the SEO and his unpaid wages. When they got no satisfaction from this intervention, Mr Wall wrote to the respondent, who then agreed to pay the outstanding wages. He made one payment to the complainant, but he left him short of pay for 168.5 hours and pay for holidays he was not able to take while he was employed.

The respondent did not attend the hearing.

In the absence of contradictory evidence, I find that the complainant was not paid wages due to him in the amount of €3,200, equivalent to 168.5 hours’ work.

The complainant worked for 10 weeks for the respondent and he said that he worked for 46 hours each week. He is therefore entitled to 8% of the hours he worked as holidays. As he left his job before he had the opportunity to take holidays, he is entitled to pay in lieu of holidays for 36.8 hours, equivalent to €699.20.

I have decided that the respondent is to pay the complainant a sum of €3,899.20 gross in respect of unpaid wages and holidays related to his employment from October 3rd 2017 to December 14th of that year.

This is a complaint that the respondent did not comply with section 3(1) of the Terms of Employment (Information) Act 1994 as he failed to provide the complainant with a written statement of his terms and conditions of employment.

The respondent did not attend the hearing.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they must get a written statement setting out their terms and conditions of employment. Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The date that the employees commences in the job;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details of any collective agreement which affects the employee’s terms and conditions of employment.

From the evidence of the complainant and his union representative, it is apparent that the respondent in this case ignored his legal responsibilities to this employee with regard to his entitlement to a written statement setting out his terms and conditions of employment. At a minimum, the respondent should have given the complainant a copy of the SEO which applies to employees in the construction sector. The effect of not doing so is to tarnish the employment relationship with uncertainty and to make it difficult for the employee to assert his rights during, and at the termination of his employment. This is precisely what the enactment of the Terms of Employment (Information) Act 1994 is intended to avoid.

As he worked for the respondent for 10 weeks, the duration of the illegality was therefore two weeks.   I decide that the respondent is to pay the complainant compensation of €874, equivalent to one week’s pay.

The complainant worked for the respondent for the period which included the public holiday on the last Monday of October 2017 and he was not paid for the public holiday.   In his submission to the hearing, Mr Wall said that one day’s pay is equivalent to €152.  

The respondent did not attend the hearing.

In the absence of evidence to the contrary, I find that the complainant is entitled to one day’s pay, in respect of the public holiday that fell on Monday, October 30th 2017.

I decide that the respondent is to pay the complainant €152 gross, in compensation for the non-payment of public holiday pay on October 30th 2017.

The Application of the Sectoral Employment Order (Construction Sector) 2017

The enactment of the Industrial Relations (Amendment) Act 2015 provided a mechanism for trade unions to request the Labour Court to examine pay and terms and conditions of employment in certain sectors and to make a recommendation on these matters to the Minister at the department of Business, Enterprise and Innovation.   The preamble to the Act sets out its objective:

“An Act to make further and better provision for promoting harmonious relations between workers and employers and, in particular, to make provision for a system of registered employment agreements and sectoral employment orders…”

An SEO providing for agreed terms in the construction sector, was signed into law by the minister on October 20th 2017 (SI 455 0f 2017).

Section 16(2)(e) of the Industrial Relations (Amendment) Act provides that the Labour Court, in its recommendation to the minister on rates of pay and conditions of employment in a particular sector, must have regard to the fact that,

“…the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.”

The complainant is a qualified plasterer and his job was the installation of metal stud partitions on a building site. This is the craft of plastering, as described by SOLAS, the Further Education and Training Authority:

“The work of a plasterer involved the application of protective and decorative coats of cement-based material to external surfaces of buildings. The work includes the preparation of surfaces by fastening metal or plasterboard to form a key or background for plastering. Individual crafts persons often specialise in particular skills such as mould-work, slating and tiling, suspended ceilings and metal systems.   They also prepare surfaces to fix mosaic, chemical resistant tiles, marble tiles, natural stone and terracotta.”

The union’s case is that the complainant is a worker and the respondent is an employer in the construction sector and on this basis, the SEO enacted in SI 455/2017 is binding on both.

Definition of Worker and Employer

The Act of 2015 adopts the same definition of “worker” as that provided for at section 23 of the Industrial Relations Act 1990:

“…’worker’ means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour…”

The definition provides for a number of excluded categories, but plasterers are not excluded.

The union submitted that the respondent’s status is set out at section 8 of the 1990 Act, which provides that “employer” means,

“…a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person…”

Mr Wall referred to the Labour Court case of McKevitt and the Building and Allied Trades Union, REA 0595, where, dealing with a complaint about a breach of a Registered Employment Agreement (REA), the Labour Court concluded:

“Those working for the Respondent provide their services personally. Even if they are engaged on a contract for service, as contended for by the Respondent (and not on a contract of service as claimed by BATU) they are nonetheless workers within the meaning of the Industrial Relations Acts 1946 to 2004 and are thus encompassed by the Agreement. It follows that the Respondent, to whom they provide their services, must be regarded as their employer for the purposes of the Agreement and is thus liable to provide the workers with the benefits prescribed by the said Agreement.”

The union’s position is that, as a qualified plaster employed in the construction sector, the complainants’ terms and conditions are governed by the SEO. The respondent, to whom he provided his services, was his employer and was therefore liable to provide the complainant with the benefits of this SEO, including sick pay and pension entitlements.

The respondent did not attend the hearing.

The Application of theSEO

Section 19 (1) of the Industrial Relations (Amendment) Act sets out the application of an SEO in a particular sector:

“A sectoral employment order shall apply, for the purposes of this section, to every worker of the class, type or group in the economic sector to which it is expressed to apply, and his or her employer, notwithstanding that such worker or employer was not a party to a request under section 14, or would not, apart from this subsection, be bound by the order.”

The effect of this provision is that the SEO applies to the respondent and the complainant and the respondent is bound to ensure that the terms and conditions of the SEO apply to the complainant. Sub-section (2) refers to the effect of the SEO on a contract of employment:  

“If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for the payment of remuneration at a rate (in this subsection referred to as the “contract rate”) less than the rate (in this subsection referred to as the “order rate”) provided by such order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order rate were substituted for the contract rate.”

The complainant in this case was not issued with a contract of employment. However, the effect of this provision is to make the rate of pay in the SEO applicable to employees in the sector, as a minimum rate, regardless of the existence or otherwise of a contract of employment.   At €19.00 per hour, this complainant was on a slightly higher hourly rate than that which is set out in the SEO of €18.93, so, apart from the non-payment of wages which has been addressed earlier, no issue arises here.

Sub-section (3) of section 19 refers to a pension scheme and sick pay:

“If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for conditions in relation to a pension scheme or a sick pay scheme (in this subsection referred to as the “contract conditions”) less favourable than the conditions (in this subsection referred to as the “order conditions”) fixed by the order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order conditions were substituted for the contract conditions.”

The effect of this section is that a contract of employment, whether expressly written or implied, that does not contain a provision for a pension scheme or a sick pay scheme as set out in the SEO, must be amended to provide for these specific terms.

As the complainant in this case no longer works for the respondent, the opportunity to amend his contract is no longer available.

Breaches of the SEO

I am satisfied that, apart from the non-payment of his wages, the hourly rate of pay agreed between the complainant and the respondent was in accordance with the minimum hourly rate for craft workers of €18.93 set out in the SEO.

Hours worked outside 8.00am to 4.30pm on Monday to Thursday and 8.00am to 3.30pm on Fridays are considered in the SEO to be “unsocial hours” and attract a premium payment. No record of actual hours worked were presented by the complainant; he simply said that he started work at 7.00am and finished at 5.00pm every day and that he worked 46 hours each week. He did not say that he worked on Saturdays, Sundays or public holidays.

The unsocial hours payment for an early start is double time and, for a late finish, time and a half.   The complainant worked for the respondent for 52 days. Taking account of the provisions of the SEO in respect of his entitlement to payment for unsocial hours, I find that he was underpaid as follows:

52 days’ early start hours @ double time:   52 hours @ €19 per hour = €988

52 days’ late finish hours @ time and a half: 52 hours @ €9.50 per hour = €494

Appendix 1 of the SEO provides that:

“Every employer to whom the SEO applies shall participate in an SEO pension scheme that meets the pensions requirements of the SEO.”

A contribution of €26.73 per week is to be remitted to the scheme by employers with employees contributing €17.76. It is apparent that no contributions were made to a pension scheme on behalf of the complainant.

Appendix 2 of the SEO provides for death in service and sick pay schemes to be established. In respect of a death in service benefit, both parties are to remit €1.11 per week and in respect of sick pay, the employer is to contribute €1.27 with the employee contributing €0.63. It is apparent that no payments in respect of these benefits were remitted for this complainant.

Conclusion

Having examined these matters and in the absence of evidence to the contrary, I have concluded that this complainant was a “worker” as defined by section 23 of the Industrial Relations Act 1990, whose job as a plasterer was governed by the provisions of SEO 455/2017, the Sectoral Employment Order (Construction Sector) 2017. I also conclude that the respondent contravened the SEO by failing to provide the unsocial hours pay, sick pay, pension and death-in-service benefits to which the complainant was entitled.

In accordance with section 23(2)(a) of the Industrial Relations Act 2015, I decide that this complaint is well-founded. In accordance with section 23(2)(c) of the Act, I decide that the respondent is to pay compensation to the complainant of €3,500, equivalent to approximately four weeks’ pay.

SEO, payment of wages, public holidays, terms of employment