Complainant

Respondent

Anonymised Parties

A Plasterer (2)

A Contractor

Representatives

OPATSI

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00030634-001

03/09/2019

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

CA-00030634-002

03/09/2019

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

CA-00030634-003

03/09/2019

The case is one of three involving workers employed as plasterers in the construction sector for which a Sectoral Employment Order (SEO) is in place since the 19th October 2017.

The complainant worked for the respondent between June 27th and July 19th 2019; a period of just over three weeks.

The complainant has referred a number of complaints.

It is submitted that the respondent failed to provide a pension with death in service and a sick pay scheme that complies with the order, that wages are unpaid and that for the period of employment none of the complainants were given annual leave entitlements.

The complainant was employed by the respondent on a school building site in County Wicklow at a rate of €180 per day for an 8 hour day.

His role was to carry out the external render of the building.

When the work was offered to the complainant it was on the basis of being a self-employed worker. He was incorrectly designated as an independent contractor primarily to evade the respondent’s obligation to comply with the Sectoral Employment Order S.I. 455 of 2017.

The complainant was due wages which the respondent failed or neglected to pay. After requesting the wages a second time without success the complainant (and his co-workers) decided not to attend work any longer.

From the date the employment ended and for a number of weeks thereafter, the complainants sought payment of their wages without success. Their union became involved and on the 13th August the Union made contact with the respondent demanding the wages owed to the complainants.

The parties met with on August 21st and the respondent gave a commitment to pay the wages owed to each of the workers by Wednesday August 28th. The Union made the respondent aware of its obligations under a Sectoral Employment Order (SEO). The respondent failed to honour this commitment.

He then committed to pay the outstanding wages on August 30th but did not do so.

Following from that date the respondent sent a text message to the union seeking a further meeting on Thursday the 5th September. In a further text message, he confirmed that he would have the wages owed.

Forms of precarious employment have increased in years and this is very evident in the construction sector in the form of self-employment or false self-employment or as the media refers to it Bogus Self Employment.

The Government in January 2018 released a report titled “The use of intermediary-type structures and self-employment arrangements: Implications for Social Insurance and Tax Revenues January, 2018”.

The report makes the point at 20.13 that

“employers are responsible for ensuring that their workers are correctly classified for PRSI when they commence employment”

The report also identifies the tests applicable when considering as to the true employment relationship and mentions the code of practice agreed by the hidden economy monitoring group set up in 2001.

To determine whether the true contractual relationship is that of a “contract of service” or a “contract for services” one must look at the facts of the day to day relationship during the employment.

The category a worker falls into depends on what they actually do, the way they do it and the terms and conditions under which they are engaged, whether written, verbal or implied. It is not simply a matter of what an employer calls the engagement to suit its case.

The Superior Courts have identified a number of tests that can be used to identify the true nature of the employment. The in-business test, the control test, the integration test are just some titles put on the tests that can go to distinguish the employment relationship however no one test can be applied as to determine the relationship as the relationship needs to be looked at as a whole.

Market Investigations Ltd v Minister for Social Security [1969] 2 QB 173applied the in business test importing it from United States v Silke (1946) 331 US 704.

The case involved market researchers whereby it was argued by the company that the workers could not be considered as employees due to the lack of direct control on assigned tasks and that they were not integrated into the business.

Cooke J rejected the suggestion that this was the fundamental characteristic of an employee:

“[T]he fundamental test to be applied is this: Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If the answer to that question is yes, then the contract is a contract for services. If the answer is no, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task." There have been a number of Superior Court cases which have given direction which goes to establish a workers employment status.”

In this case the complainant was asked to carry out work personally on a building site for the respondent. The main contractor was awarded the contract and they sub-contracted the plastering package. In turn, the respondent employed workers to carry out the works.

The respondent is engaged by the main contractor’s sub-contractor to supply materials, carry insurance, employ workers, pay wages not owing more than one month, comply with all employment law and comply with further requirements set out in the contract supplied to the main contractor by the awarding authority.

The complainant submits that the complainant is a worker to whom a SEO relates and where such orders are in place the employer or the individual offering work must be viewed as their employer and must employ these workers as employees in order to comply with the SEO.

The SEO governing the construction sector has application to all workers of the particular class to whom the order applies; they are classed as craft workers as the work they carry out is that of plastering. The order does not require these workers to hold qualifications, it merely requires them to be craft workers.

An employer working in the construction sector is required as a matter of law to provide a pension scheme for his workers. The pension scheme must be an occupational pension scheme, whereby it has a provision for death in service benefit, he or she cannot circumvent those provisions by merely designating those workers as self-employed workers.

As held in the case of Building and Allied Trades Union & Anor v. Labour Court [2005] IEHC 109 (15 April 2005)the term ‘worker’ is wide enough to cover self-employed workers. All the law requires is that the people carrying out that work are doing so as workers of a particular class type or group.

In support of that Section 16 (2)(e) requires that the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.

The complainant seeks a finding that he is a ‘worker’ for the purposes of the Sectoral Employment Order SI 455 of 2017 Construction Sector and that his employer, the respondent failed to comply with the relevant sections of the order and with the relevant sections of the Industrial Relations (Amendment) Act 2015.

In accordance with section 23 of the Industrial Relations (Amendment) Act 2015 it is submitted that the complaint is well founded, and the employer should be required to pay to the workers compensation of such amount as is considered just and equitable.

The complainant also seeks annual leave payment based on 8% of the hours worked and a further day for payment of the October Public Holiday.

Finally, the complainant is at a loss of wages of €1,000 as a consequence of the employment and the complainant seeks an order that the respondent pay the wages owed in accordance with section 6 of the Payment of Wages Act 1991.

The respondent did not attend the hearing. No explanation was received for the failure to do so.

The first issue arising is the contractual status of the complainant.

As the complainant submitted there are a number of tests to determine whether a person is engaged on a contract of employment (‘of service’) or alternatively is what is generally referred to as ‘a contractor’ (engaged on ‘a contract for services’).

Some are decisive in either direction, some are more indicative. There is no single pass/fail type test which will determine a complainant’s status.

In the leading UK case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number of tests were formulated.

1)      Does the person performing the services supply his own equipment?

2)      Can he hire his own helpers?

3)      Does he carry any financial risks and to what extent?

4)      What opportunity does he have to make a profit?

5)      To what extent does he carry the responsibility for investment/management.

The Revenue Commissioners of Ireland have outlined similar tests in their Code of Practice for Determining Employment or Self Employment. These relate to whether the employee;

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

2)      Supplies labour only,

3)      Received a fixed wage

4)      Cannot subcontract the work

5)      Does not supply materials for the job

6)      Does not provide equipment other than small tools of the trade

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

8)      Works set hours or a given number of hours

While determining the status of a contract of service has given rise to much legal difficulty it will be obvious from applying the Revenue Commissioner indicators to the complainant that he comfortably meets each of the criteria required for a contract of service.

He received a fixed payment for fixed hours and nothing he could do would alter his earnings. The respondent supplied all the necessary materials, he could not ‘sub-contract’ further.

Conversely, the indicators in the Market Investigations case which go to define a contract for services are all conspicuously inapplicable. Therefore, I find that the complainant is a worker on a contract of service and so is entitled to the benefits of both the SEO and the relevant employment statutes.

I accept the evidence that the complainant is owed €1000.00 in wages and make my award below.

I also find that, on the basis of the hours worked he is owed approximately ten hours annual leave. (I am at a loss to understand the claim for payment for the October public holiday when the employment terminated on July 19th.)

I also make an award in respect of the failure to apply the SEO and I take into account the relatively short period of the employment.

I find complaint CA-00030634-001 to be well founded and award the complainant €750.00. This is for the breach of his rights under the Act and is not subject to tax or other deductions.

In respect of the following awards normal PAYE and statutory deductions apply.

I find complaint CA-00030634-002 to be well founded and award the complainant €1000.00.

I find complaint CA-00030634-003 to be well founded in respect of that part of it which relates to annual leave only and award the complainant €220.00.

Sectoral Employment Order (SEO), Employment Status