FULL RECOMMENDATION
SECTION 25 (2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012 PARTIES : STAFFLINE RECRUITMENT LTD (REPRESENTED BY IRISH BUSINESS EMPLOYERS' CONFEDERATION) - AND - JOHN FITZGERALD DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00005481.
BACKGROUND:
2. The Complainant appealed the the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 5 September 2018. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr. John Fitzgerald against the Decision of an Adjudication Officer in a claim against his employer, Staffline Recruitment Limited, under the Protection of Employees (Temporary Agency Work) Act 2012 (“the Act”). The Adjudication Officer found that the claim was not well-founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. John Fitzgerald will be referred to as “the Complainant” and Staffline Recruitment Limited will be referred to as “the Respondent”.
The Complainant referred his complaint to the Workplace Relations Commission on 6thOctober 2016.
The Respondent is an employment agency. As part of its business it supplies agency workers to Green Isle Foods, Portumna (hereafter “the Hirer”). The Complainant commenced employment as an agency worker with the Respondent on 20thApril 2014 as an Engineer and was assigned to the Hirer.
The Complainant alleged that the Respondent did not comply with the Act, as he did not receive the same basic working and employment conditions as a direct hire employee with regards to “pay”.
The Respondent submitted that the Complainant was issued with a permanent contract on 24th October 2014 and that this contract was in compliance with Section 6(2) of the Act, also known as “the Swedish Derogation”.
The Respondent referred the Court to Clauses 2.2, 7.2 and 7.3 of the Complainant’s contract of employment which it submitted fulfilled the terms of the derogation contained in Section 6(2) of the Act.
- Clause 2.2
This Agreement and all relevant Assignment Details Forms constitute a permanent contract of employment. During the currency of this Agreement and any such Assignment Details Form, you shall have no entitlement to the rights conferred by Regulation 6 of the Regulations insofar as those rights relate to “pay”. This Agreement and any Assignment Details Forms do not affect any other rights and entitlements you may benefit from under the Agency Workers Regulations”
Clause 7.2
Subject to the Company’s right to terminate this Agreement on notice under clause 13, from 16 May 2012 when you are not carrying out an assignment but are available to do so you will be entitled to Minimum Pay (as defined in clause 7.3) for each complete Between Assignment Week so spent. Subject always to you being available for work on Assignment during any such periods, Minimum Pay will accrue with effect from the commencement of the Between Assignment Week immediately following the end of the Assignment and shall be payable in accordance with clause 7.4 for an aggregate period of not less than four Between Assignments Weeks during your employment under this Agreement, unless you give notice to terminate your employment under this Agreement before payment for such aggregate period has been satisfied. You are not entitled to receive Minimum Pay for periods of less than one Between Assignments Week spent out of assignment and as such Minimum Pay will not be pro-rated.
Clause 7.3
“Minimum Pay” for the purpose of this clause 7 shall not be less than 50% of the highest weekly Basic Pay paid to you at any point in the 12 weeks immediately preceding the end of your most recent Assignment via the Company or during your most recent Assignment via the Company if it lasted for 12 or fewer weeks and in any event shall be not less than the sum total of the number of hours you worked on Assignment during the week for which you received the highest weekly Basic Pay at the prevailing national minimum wage rate under the National Minimum Wage Act 2001.
Article 5 of Directive 2008/104/EC of the European Union on Temporary Agency Work is given effect in the Act by Section 6(2), which provides that the principle of equal treatment shall not apply to a permanent agency worker in respect of basic pay. The entitlement to equality of working conditions is unaffected.
There are a number of conditions contained in this subsection which must be fulfilled before it takes effect. They are: -
- •The agency worker must be employed by the agency on a contract of indefinite duration.
- •Before the agency worker enters into the contract the agency must notify him or her in writing that the right to equal pay with comparable workers in the end user undertaking will not apply to him or her
- •The statement in writing must specify that during periods between assignments the agency worker will be paid not less than half the basic pay applicable to him or her in the most recent assignment, provided that the amount paid is not less than the national minimum wage or to such greater amount specified in any enactment or collective agreement applicable to him or her.
- Section 6 (2) provides: -
- (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
- (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,
(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.
- (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—
Having considered the oral and written submissions of both parties, the Court notes that the Complainant stated that the copy of the contract supplied to him did not contain Clause 2.2, as a page was missing. He accepted that Clauses 7.2 and 7.3 were included in his contract, which clearly outlined that he will be paid between assignments. The Court is satisfied that the contract furnished to the Court by the Respondent which contains all the relevant clauses was signed by the Complainant. In his submission to the Court he said that he had read the contract and did not find anything disadvantageous in it, he signed it and returned it to the Respondent.
The Respondent stated that it is their practice to only issue contracts to agency workers which provide for the “Swedish Derogation”. The contract supplied to the Complainant is headed “Terms and Conditions of Employment (Regulation 10 Complaint Contract, Also Known as “Swedish Derogation” ) for Employees”. This heading is contained on each page of the contract.
The Court is satisfied that the conditions outlined at Section 6(2) have been fulfilled by the Respondent in the contract of employment furnished to Complainant dated 24thOctober 2014. Accordingly, the Respondent is entitled to rely on the derogation contained therein.
Therefore, the Court concurs with the Decision of the Adjudication Officer and the Complainant’s appeal is rejected. The Decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
18 September 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.