Complainant

Respondent

Anonymised Parties

A Façade Fitter

A Construction Sub-contractor

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015.

CA-00021347-001

27/08/2018

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

CA-00021347-003

27/08/2018

The respondent company installed windows and façades on buildings under construction. The complainant submitted a P60 in evidence, which indicates that his employment commenced on August 20th 2017.   A payslip submitted in evidence indicates that he started before August 18th, as he was paid for 16 hours on that day. The complainant said that his employment was terminated when the company closed down on August 3rd although his P60 indicates that his last day was August 10th 2018. On his complaint form, the complainant stated that his weekly pay was €641.00 gross.   He said that from August to December 2017, he worked 46 hours per week, but in 2018, he generally worked about 39 hours per week. He said that in 2018, he sometimes he did one or two hours of overtime.

These complaints relate to the non-payment of the correct hourly rate of pay and overtime and the non-application of the conditions of employment set out in the 2017 Sectoral Employment Order for the Construction Sector (SEO). The complainant also said that he was not paid for untaken holidays.

Hourly Rate of Pay

From the date he commenced employment with the respondent in July 2017, the complainant said that he was paid €16.50 per hour. His payslip of August 18th 2017 shows that he was paid €264 for 16 hours, equivalent to €16.50 per hour.

From September 2017, the payslips presented by the complainant show different gross weekly payments and there is no indication of the hourly rate of pay. The gross weekly pay is indicated in the correct column, but gross weekly pay is also indicated in the column for “hours of work.”   As a result, in addition to no information about his hourly rate, the complainant has no record of the hours that he worked each week.

The SEO for the Construction Industry became effective on October 19th 2017. As a façade fitter, the complainant’s job is classified in the SEO as a category 2 worker, which includes skilled operatives such as steel fixers. With effect from October 19th 2017, in accordance with the SEO, the rate of pay for this category of worker is €18.36 per hour.

The complainant said that, from mid-February 2018, he was paid €18.36 per hour. He claims that he was entitled to be paid this rate from October 19th and that he is owed the shortfall of €1.86 per hour for the hours he worked from October 19th 2017 until February 17th 2018.  

Overtime

As I have set out in the “Background” section above, the complainant said that from July to December 2017, he worked 46 hours per week. From January 2018, he said that sometimes he did one or two hours of overtime. He complaint is that he was paid the basic hourly rate for overtime and he was not paid the premiums for “unsocial hours” in the SEO.

Terms and Conditions of Employment Provided for in the Sectoral Employment Order

At the hearing, the complainant said that he did not get a copy of his terms and conditions of employment. He said that in January 2018, his employer registered him as a member of the Construction Workers Pension Scheme, as provided for in the SEO, and 17 weeks of contributions were made to his pension. From October 19th 2017 until the termination of his employment on August 3rd 2018, the complainant worked for the respondent for 42 weeks. As he said that contributions were submitted to the pension scheme for 17 weeks, there is a shortfall in contributions of 25 weeks.

The complainant said that he is not aware if contributions have been submitted by his employer on his behalf with regard to the construction workers’ sick pay and death-in-service benefits.

The respondent did not attend the hearing.

Hourly Rate of Pay

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 rate of pay in the SEO is applicable to employees in the construction sector as a minimum rate, regardless of the existence or otherwise of a contract of employment.

The complainant said that in 2017, he worked 46 hours each week. On the basis of his uncontested evidence, from October 19th until December 1st, a period of 10 weeks, I estimate that he worked a total of 453 hours (assuming that no overtime was worked from December 24th – 31st).

For the seven weeks from January 1st until February 17th 2018, when he was paid the correct hourly rate of €18.36, I estimate that the complainant worked 39 hours each week, and that for three of these weeks, he worked two hours’ overtime, resulting in a total of 279 hours.

The complainant was paid €16.50 per hour for the hours he worked from October 19th 2017 until February 17th 2018, a total of 732 hours. The correct rate was €18.36. As he suffered a shortfall of €1.86 per hour, the total shortfall is €1,361.52.

Overtime

In the absence of any evidence from the respondent, I have estimated that, between October 19th and December 31st 2018, the complainant worked for the respondent for 453 hours. Taking 39 hours as the standard working week, this means that 390 hours (39 x 10) were payable at the basic rate and 63 hours (453 - 390) were payable at the appropriate overtime rate.

From January 2018, the complainant said that he occasionally worked two hours of overtime.   For the purposes of this inquiry, I will estimate that, in the 32 weeks from January 1st until the termination of his employment on August 10th 2018, the complainant worked two hours’ overtime in 10 of these weeks, a total of 20 hours of overtime.  

The SEO provides that unsocial hours or overtime is paid as follows:

Monday to Friday normal finishing time to midnight:   Time plus a half.

Monday — Friday midnight to normal starting time:   Double time.

Saturday - First four hours from normal starting time:   Time plus a half.

Saturday - All subsequent hours after the first four hours until midnight: Double time

Sunday - All hours worked: Double time.

Public Holidays - All hours worked: Double time plus an additional day’s leave.

The complainant submitted no evidence of the days of the week on which he worked overtime, and I will assume therefore, that the hours worked as overtime are payable at time plus a half.

Therefore, in respect of overtime at time plus a half, I find that the complainant suffered a shortfall of €9.18 per hour for 83 hours, which amounts to €761.94.

Terms and Conditions of Employment Provided for in the Sectoral Employment Order

Pension Scheme

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.”

With effect from October 19th 2017, a contribution of €26.73 per week is to be remitted to the pension scheme by employers with employees contributing €17.76.   The complainant submitted 19 weekly payslips in evidence, out of 42 weeks for which contributions should have been submitted (October 19th 2017 – August 10th 2018). None of the payslips show any indication of a deduction for pension contributions, or the remittance of pension contributions by the employer. However, the complainant’s evidence is that pension contributions were submitted on his behalf for 17 weeks, leaving no contributions being made for 25 weeks

The amount that should have been remitted to the pension scheme by the employer is €668.25.

Sick Pay Scheme

Appendix 2 of the SEO provides for employer and employee contributions to death-in-service and sick pay schemes. 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. The combined total sum not remitted to the schemes with effect from October 19th 2017 is €99.96.

Conclusion

From the evidence of the complainant, 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. The fact that the complainant is not Irish and not a member of a union makes it difficult for him to navigate his way around Irish employment regulations. The concealment from him of information about his rights appears to me to amount to taking advantage of a foreign worker. At a minimum, the respondent should have given the complainant a copy of the SEO that applies to employees in the construction sector.   The effect of not providing him with details of his terms and conditions 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.

I have concluded that the complainant was not paid the correct hourly rate of pay as set out in the Sectoral Employment Order for the Construction Sector and his complaint in this regard is upheld. Having reached this conclusion, I decide that the respondent is to pay the complainant the shortfall of €1,361.52 gross.

I have concluded that the complainant was not paid the correct unsocial hours or overtime rate as set out in the Sectoral Employment Order for the Construction Sector and his complaint in this regard is upheld. Having reached this conclusion, I decide that the respondent is to pay the complainant the shortfall of €761.94 gross.

I have concluded that the complainant did not receive his entitlements under the 2017 Sectoral Employment Order for the Construction Sector and his complaint in this regard is upheld. Having reached this conclusion, I decide that the respondent is to pay the complainant compensation of €1,500, equivalent to approximately twice the value of the benefits foregone.

The complainant said that, at the termination of his employment, he had two days’ annual leave not taken. His complaint is that he was not paid in lieu of these days in his final pay.

The respondent did not attend the hearing.

Based on the uncontested evidence of the complainant, I find that he is entitled to payment for 16 hours holidays, equivalent to two days’ pay.

I have concluded that this complaint under the Organisation of Working Time Act 1997 is upheld. I decide therefore that the respondent is to pay the complainant €293.76, equivalent to two days’ pay.

CA-00021347-001:

€1,361.52     Reason:   Failure to pay the correct hourly rate

€761.94       Reason: Failure to pay overtime

€1,500.00     Reason:   Failure to pay the SEO pension and sick pay benefits

CA-00021347-003:

€293.76         Reason: Failure to pay holiday pay

Total award:             €3,917.22

Terms and conditions of employment, Sectoral Employment Order for the Construction Sector