Complainant

Respondent

Anonymised Parties

An agency worker

An Employment Agency

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012531-001

16/07/2017

The Complainant was employed by the Respondent, an employment agency, on 03rd January 2017. Her contract of employment was of a fixed – term nature commencing on the above date and expiring on 1st December 2017, a period on 11 months. The Complainant was employed in the capacity of an AML Specialist for a financial institution (the hirer).

Sometime after the commencement of her employment the Complainant discovered that employees of the hirer were provided with a pre-paid annual ticket for those who used public transport to travel to and from work, such a ticket can be used on Bus Eireann, Irish Rail, Dart, Luas or Dublin Bus. A monthly version of this ticket was provided to employees on fixed-term contracts.

When the Complainant raised this issue with the Respondent she was informed that this scheme only applied to employees who were in the direct employment of the hirer. Being an agency worker she was not entitled to this benefit.

The Complainant was offered and accepted a position with the Hirer in August 2017 on a starting salary of €48,000 per annum.

The Complainant believes that the Respondent has contravened sections of the Protection of Employees (Temporary Agency Work) Act 2012. Section 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 the 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”.

The hirer’s policy outlines that employees are entitled to an annual ticket and that fixed-term contract holders will be issued with a ticket on a monthly basis. As a fixed-term contract holder the Complainant believes she was entitled to be treated in the same fashion as holders of fixed-term contracts issued by the hirer.

The Complainant is also unhappy that it took almost one month to provide her with a final reply to her query in relation to this matter.

I have summarised the background to the procedure in the Respondent summary.

The Complainant commenced work with the Respondent on 3rd January 2017 on a salary of €50,000 per annum. Comparable permanent employees directly hired by the Hirer receive on average €44,571 per annum. The Complainant’s salary is enhanced as it is inclusive of all benefits and compensation that could be received by a direct hire employee, including travel tickets. The Complainant was at all times welcome to join the Respondent Company’s Tax Saver travel scheme on top of her enhanced salary.

The Complainant was subsequently offered a role with the Hirer which she accepted in August 2017 on starting salary of €48,000, €2,000 below her previous salary with the Respondent company. The starting salary for an AML specialist is €39,000. With experience in a supervisory role, AML specialists in the Hirer earn on average €44,157. The Complainant received a higher than average salary as she gained 7 months’ in-house experience with the Hirer.

Background to the Claim.

The Complainant emailed the Company on 19 June 2017 to query the Travel Ticket policy contained in the Hirer handbook. The Complainant asserted that she had not received this benefit. The policy is as follows:

2.6.7 Travel Ticket policy

As part of your total compensation, HSBC will provide a prepaid annual ticket for

those who use public transport to and from their place of work on Bus Eireann, Irish

Rail, Dart, Luas, or Dublin Bus through the TaxSaver Ticket Plan for the duration of

your employment. A monthly ticket will be provided for those on a fixed-term contract.

The Company queried this matter with the Hirer by way of email dated 19 June 2017. Specifically, the Company inquired as to whether the policy applies to agency workers. The Company also informed the Hirer that they operate the Tax Saver monthly commuter ticket which is deducted out of the employee’s payroll and the employee receives the tax saving.

The Hirer responded to the Company by way of email dated 20 June 2017 to inform them that agency workers (not on Hirer payroll) are not eligible for this benefit. As compensation, the Hirer increases the basic pay of agency workers. The Hirer further explained that, considering the Complainant receives an enhanced salary, no cost should be incurred by the Hirer should she wish

to join the Company’s Tax Saver scheme.

The Company communicated the information to the Complainant by way of email dated 22 June 2017. The Complainant was informed that agency staff are paid a higher rate to cover such a benefit. The Company further informed the Complainant that she could join the Company Tax Saver scheme in which the Company would buy her weekly/monthly travel ticket and deduct the amount from her salary before tax.

The Complainant responded by way of email dated 22 June 2017 to query a line in the policy which states that a “monthly ticket will be provided for those on a fixed-term contract” to which the Company responded that the fixed-term contract employees refers to direct hire fixed-term employees and not agency employees. The Complainant was not satisfied with this response and requested further research to be made. The Company suggested that the Complainant contact the Hirer HR department directly to gain clarity to which she refused

The Complainant responded to the Company by way of email dated 27 June 2017. In particular, the Complainant queried Section 6 and Section 14 of the Act and whether or not the Company were in violation of same.

Following the Complainant’s email of 27 June 2017, the Company made further research into this query which included seeking information from NRF (National Recruitment Federation), ISME (Irish Small and Medium Enterprises Association), and the WRC. The Company remained in contact with the Complainant as the research was undertaken. The Company wrote to the Complainant on 5 July 2017 to outline the Company position that they are in compliance with the Act in all regards but would continue to research the matter. The Company reminded the Complainant that she was welcome to avail of the Tax Saver travel scheme should she wish to do so.

The Complainant was dissatisfied with this response and, in her email of 5 July 2017 raised an issue with the time of response, some 5 working days after raising the initial query on 27 June 2017. The Complainant outlined that she needed a definitive answer so she could “progress my query from my

side to the relevant body”. The Complainant further outlined that “If I am happy with the confirmation, I will not pursue any further”.

The Company responded on Friday 7 July 2017 to explain that they were awaiting confirmation from a number of correspondences but would get back with the final response early the following week. The Complainant was dissatisfied with this response as well and sent an email on the following Tuesday 11 July 2017 to outline that if she did not receive a response by Friday 14 July 2017, she would “pursue the matter further”.

The Company issued the final response to the query on 13 July 2017. In relation to the Complainant’s query regarding Section 6 of the Act, the Company outlined that the travel ticket is not considered as basic pay by either the Company or the Hirer and therefore does not fall within the scope of “basic

working and employment conditions”. Regarding Section 14 of the Act, the Company found that a travel ticket does not constitute a collective facility or amenity. Upon examination of the Workplace Relations guidance document on the Protection of Employees (Temporary Agency Work) Act, 2012, “transport facilities” are described as “local pick-up and drop-off transport services or transport between sites but does not include e.g. benefit – in – kind type entitlements or contributions towards company cars”. In relation to the wording of the Hirer policy and its relation to fixed-term workers, the Company reiterated that the fixed-term workers referred to related to direct hire employees and not agency employees.

The Complainant was again dissatisfied with this response and wrote to the Company by way of email dated 13 July 2017 to request another final response. In particular, the Complainant was not satisfied of the Company’s response to the application of the travel ticket policy to direct hire employees only. The Company responded yet again on 13 July 2017 to reaffirm their position, and the Hirer’s position, that the policy did not apply to agency workers.

The Complainant lodged the instant claim with the WRC on 16 July 2017.

As of 1 August 2017, the Complainant has commenced employment with the Hirer in a full time permanent capacity. The Complainant is in receipt of a salary of €48,000, some €2,000 lower than her previous salary with the Company, but can sign up for the travel ticket benefit if she wishes.

Company’s Arguments

The Company refutes this claim in its entirety as the Complainant has enjoyed an enhanced salary inclusive of benefits upon joining the Company and that she has been treated no less favourably than a directly hired employee. The Company contend that the Complainant is not entitled to any travel ticket benefit and that she has received a comparable financial benefit as compensation. Furthermore, the Complainant has failed to provide any details of a directly hired comparator in which it could be inferred that the principle of equal treatment has not been applied.

In order for a claim under the Act to succeed, the Complainant must show that they did not receive the “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”. Specifically, the Complainant must show that:

a)       as an agency worker, she was entitled to the travel pass ticket;

b)      b) she would have received a comparable benefit should she have been directly hired by the Hirer.

The Company contend that a travel pass ticket is a benefit afforded to certain directly hired employees by the Hirer and is neither automatically extended to agency workers, nor directly hired employees. The Company further contend that this benefit does not form part of basic pay as defined by the Act and therefore does not fall under the scope of Section 6. The Company acknowledge that there is no

definition of basic pay in the Act and therefore wish to draw the Adjudicator’s attention to Nurse on Call v Geraldine Mahon (AWD131) in which the Labour Court stated that:

As there is no definition of basic pay set out in the Act, the Court must determine what

constitutes basic pay in this case, as a matter of fact, based on the evidence before it

(…)

In determining whether a payment forms part of basic pay the Court would normally have

regard to the manner in which the parties themselves regard it.

The Hirer specifically treats the travel ticket as a benefit and not as basic pay and is granted as a means to incentivize retention. The Hirer grants travel tickets depending on where the employees live (relative to travel to and from work) and do not grant tickets to employees working within walking distance of the office. The employees do not pay tax on these travel tickets and all costs are absorbed by the Hirer.

The Company contend that the travel ticket is also not considered a collective facility or amenity under Section 14 of the Act as defined by the Workplace Relations guidance document on the Protection of Employees (Temporary Agency Work) Act,2012.

The Complainant benefited from the enhanced salary by receiving a higher rate for

annual leave and public holiday entitlements whereas directly hired employees

received these entitlements based on a lower salary.

The Complainant failed to raise a grievance throughout her employment and afterwards with the Company. On the contrary, the Complainant suggested in her emails of 5 July 2017 and 11 July 2017 that she would proceed directly to the WRC if she did not receive the response she wished. The Company are of the belief that such matters are best progressed in the first instance by utilising the internal grievance procedure and were disappointed with the Complainant’s ultimatums issued.

Conclusion

In light of the above arguments, the Company respectfully request that the Adjudicator finds in favour of the Company as the Complainant has been treated no less favourably than a comparable directly hired employee by her receipt of an enhanced salary inclusive of benefits. Without prejudice to the above, the issuing of a travel ticket is a benefit that does not fall within the scope of the Act as a basic working and employment condition and, therefore, the Complainant has no entitlement to such a benefit.

At hearing both the Complainant and Respondent referred to various sections of The Protection of Employees (Temporary Agency Work) Act 2012. Section 2 of this Act provides definitions and the following should be noted:

“Agency Worker”. – means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

“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 employee, 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;

“Contract of Employment” means –

(a)    a contract of service, or

(b)    a contract which an individual agrees with an employment agency to do any work for another person (whether that other person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing.

We must establish what is meant by pay. Under this legislation “pay” is defined as follows:

(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

I note that this definition of pay is significantly narrower than that provided in other equality legislations, most notably the Employment Equality Acts 1998 – 2015.

It should be noted that sick pay and pensions are expressly excluded from the definition of pay. It would appear that bonus payments (other than production related bonus), expenses, travelling time, profit sharing schemes, pay during maternity leave and any benefits in kind are not included in the notion of pay and are not therefore basic working conditions for the purposes of the Act. While these items are not expressly excluded, it is an established principle of statutory interpretation that where a statute makes express particular provisions it is to be assumed that the particular excludes the general. Hence, by including specific elements of pay within the statutory definition the legislature must have intended to exclude anything not listed.

In this instant case the Hirer specifically treats the travel ticket as a benefit and not as basic pay and is granted as a means to incentivize retention. The Hirer grants travel tickets depending on where the employees live (relative to travel to and from work) and do not grant tickets to employees working within walking distance of the office. The employees do not pay tax on these travel tickets and all costs are absorbed by the Hirer.

Core to the Respondent’s arguments is the fact that the Complainant received an enhanced salary inclusive of benefits upon joining the Respondent company and that she has been treated no less favourably than a directly hired employee. Based on the figures presented at the hearing I am unable to disagree with this argument.

Having carefully considered the arguments presented by both the Complainant and Respondent I am unable to consider the complaint as being well found and therefore it fails.

Basic Working and Employment Conditions: Pay: Agency Worker.