Complainant

Respondent

Anonymised Parties

Agency Worker

Employer

Representatives

 SIPTU

 IBEC

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-00021513-001

31/08/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 and has submitted that he did not receive a payment (relocation/disturbance fee) which other non-agency staff members received and in addition he was not paid the same rate of pay as directly employed staff (CA- 00021513-001).

The Complainant commenced employment with an employment agency as a general operative on the 19th December 2017. He was based in a retail outlets warehouse operations in Dublin 22 and his rate of pay was €9.55 per hour. The Retail store took the decision to outsource part of their warehousing operations to a different company (Company A) and location in Dublin in June 2018.

Accordingly, on the 7th August 2018 a transfer of undertakings took effect which meant the employment agency’s employees transferred to the Respondent Company.

It was submitted that the Complainant worked alongside directly employed staff also employed as general operatives and there was no distinction between the employees of both the Respondent Company and the Retail Outlets in terms of duties.

In or about this time, SIPTU negotiated with the Retail Outlet for a compensatory payment to their direct employees in relation to the move in operations and a relocation settlement was agreed which was the cost of one year’s public transport ticket (€1,620) and a gift voucher for €500.00 from the Retail Outlet.

It was submitted that all general operatives directly employed by the Retail Outlet who moved to the new site in Dublin received this “continuity of service, one off ex gratia non-pensionable payment”, however, agency staff who were also moved did not receive this payment.

In the course of his employment, the Complainant was informed that directly employed staff were on a higher hourly rate. Discussions between the Retail Outlet and SIPTU confirmed that no general operatives were earning more than €10.00 per hour. However, documents ultimately obtained from the hirer outlined the relevant pay scales for directly employed general operatives. The new hourly rate from the 1st February 2018 for basic rate working from 6am with no experience was €10.29 and for basic rate working from 6am with experience was €12.58.  

Ultimately, the Complainant left this employment on the 24th August 2018 and took up employment as a customs service agent on or about the 30th October 2018.

On the 21st October 2018 the Complainant received a payment from the employment agency of €416.54 (€571.00 minus the agency fee) under the heading of back pay. It is submitted that this was an acknowledgement by the employment agency and the Retail outlet that the correct rate of pay was €10.00 per hour and accordingly the Complainant had been underpaid by €00.45 per hour.

It is submitted, in relation to the relocation/disturbance settlement and pursuant to Section 6 of the Protection of Employees (Temporary Agency work) Act 2012 and the definition of “basic working and employment conditions”, the Complainant did not enjoy the same basic working and employment conditions as the   directly employed general operatives.

In referencing Section 14 of the aforementioned Act, it is submitted that the act seeks to ensure that agency employees enjoy the same facilities and amenities as directly employed staff, beyond pay and conditions and including transport services.   Further, it is submitted, for the agency employees to miss out on this payment would be contrary to the spirit as well as letter of the Act.

In relation to the rate of pay, it is submitted that it is the responsibility of the hirer and employment agency to ensure that the correct rate applies and in the circumstances of this case, the Complainant did not receive the same rate of pay as would be appropriate and is seeking compensation retrospectively.

This Complaint was received by the Workplace Relations Commission on the 31st August 2018.

Following the transfer of undertakings, and as part of the TUPE process, the Respondent Company undertook a due diligence review of terms and conditions. The information supplied demonstrated that the employment agency’s employees were in receipt of €9.55 per hour. The Respondent Company undertook a parity exercise with Company A and it was determined that the rate of pay post transfer should be €10.00 per hour in line with Company A’s direct employees. Accordingly, the Complainant was issued with a contact of employment and assignment details which outline this rate of pay as €10.00 per hour.

It is submitted that the Complainant alleges that he did not receive the same basic working and employment conditions to which a comparable worker would be entitled namely that he did not receive a payment which non-agency staff allegedly received, and he was not paid the same rate of pay as directly employed staff. The Respondent Company refutes these claims in their entirety as the Complainant received a rate of remuneration in line with those of Company A.

In particular, in referencing Section 6 (Basic working employment and conditions of agency workers) and the definition of “hirer”, it is submitted that the Complainant as an employee of the Respondent Company was assigned to work for Company A. It is suggested that the Hirer can only be Company A and therefore comparators must be drawn from this particular company. The Respondent Company undertook a parity exercise with Company A and determined that the €10.00 per hour was the appropriate rate of pay and this is in line with directly hired employees and accordingly no breach in the act has occurred in this regard.

In relation to the relocation/disturbance payment or the payment which non-other non-agency staff received it is submitted that as ‘pay’ does not include any one-off payment made by a hirer to staff this element of the Complaint is precluded from seeking recompense under the act.

It is submitted that Schedule 2 of the aforementioned Act provides for time limits in relation to the lodgement of such a complaint herein. The complaint herein was received by the Workplace Relations Commission on the 31st August 2018, accordingly this claim can only be considered from the 1st March 2018 to the 31st August 2018 and any other incidents outside of the time period should be set aside unless the Complaint has put forward reasonable cause which prevented the Complainant from lodging the claim within the required time period    

In the course of this hearing, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

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 …

“Hirer” means a person engaged in economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first -mentioned person or any other person

“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.

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 legislations (Payment of Wages Act 1991 and 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.

Article 3 of Directive 2008/104/EC defines basic working and employment conditions as those

‘laid down by legislation, regulations, administrative provisions, collective agreements and/or binding provisions in the user relating to pay.

In the circumstances of this case, the Retail Outlet specifically treats this relocation payment as a continuity of service, once off ex gratia payment and not as basic pay. It is noted that SIPTU negotiated with the Retail Outlet in relation to this payment to the directly employed individuals.

Accordingly, I conclude that there is no entitlement to payments which are in addition to basic pay such as those claimed by the complainant.

In relation to the issue of whether the Complainant was paid the appropriate rate of pay, I would agree with the Respondent Company’s submissions that as per the definition of hirer, as above, the Complainant was assigned to work for Company A. Accordingly, the hirer for the purposes of this Act was Company A and therefore comparators must be drawn from Company A and not the Retail Outlet.

Accordingly, I conclude that the Complainant was paid the appropriate rate of pay in line with the employees of Company A.  

I find that the Complaint (CA-00021513-001) made pursuant to Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 fails.

Agency