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-00021517-001

02/09/2018

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

CA-00021517-002

02/09/2018

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

CA-00021517-003

02/09/2018

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

CA-00021517-004

02/09/2018

The respondent company installed windows and façades on buildings under construction. Payslips presented by the complainant at the hearing show that he commenced employment in the first week of May 2018. He said that his employment was terminated when the company closed down on August 16th 2018. It appears therefore, that he was employed by the respondent for 15 weeks.   On his complaint form, the complainant indicated that his weekly pay was €711. He said that he generally worked about 42.5 hours per week, but that sometimes he worked up to 50 hours.

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 did not receive a statement of his terms and conditions of employment and he was not paid for holidays.

From the date he commenced employment in May 2018, the complainant said that he was paid €16.66 per hour.

At the hearing, the complainant presented eight payslips, corresponding to seven weeks out of the 15 that he was employed. One week, he was issued with two payslips. Each payslip has a different gross weekly sum and there is no indication of the hourly rate of pay. The complainant’s 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, apart from no information about his hourly rate of pay, the complainant has no record of the hours that he worked each week.

Three of the eight payslips submitted by the complainant at the hearing show that he was paid €671.46 gross for the calendar weeks 21, 27 and 28. If I accept the complainant’s evidence that he worked 42.5 hours most weeks, as he was paid €671.46 for three weeks, his hourly rate was €15.80. However, his case is that his hourly rate was €16.66 and, in the absence of more precise information, I will base my decision on his evidence that he was paid €16.66 per hour.

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 claims that he was entitled to be paid this rate and that he is owed the shortfall of €2.70 per hour for all the hours he worked when he was employed by the respondent.

The respondent did not attend the hearing.

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.

On the basis of the uncontested evidence of the complainant, I find that, for the duration of his employment with the respondent, a total of 15 weeks, he was not paid the correct hourly rate of pay of €18.36 that applies to a Category 2 worker in the SEO. In the absence of records of his hours of work, I will accept the complainant’s evidence that he worked 42.5 hours most weeks and that he worked overtime of up to 7.5 hours in some weeks. I have based my findings on the complainant’s evidence that, most weeks, he worked 42.5 hours and I will estimate that, he worked 50 hours per week for eight weeks. This results in a total of 697.5 hours for the duration of his service with the respondent ((42.5 x 7) + (50 x 8) = 697.5).

As he suffered a shortfall of €2.70 per hour for 697.5 hours, the total shortfall in respect of the complainant’s hourly rate of pay is €1,883.25.

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 €1,883.25 gross.

At the hearing, the complainant said that he did not get paid the overtime rate of pay when he worked overtime on weekdays and Saturdays. He said that when he worked on Saturdays, he finished around 3.00pm and he worked overtime on one Sunday.

The respondent did not attend the hearing.

In the absence of any evidence from the respondent, I have estimated that the complainant worked for the respondent for 697.5 hours during the 15 weeks that he was employed.   Taking 39 hours as the standard working week, this means that 585 hours (39 x 15) were payable at the basic rate and 112.5 hours (697.5 – 585) were payable at the appropriate overtime rate.

The complainant said that he worked overtime on one Sunday until 3.00pm. Assuming that he commenced at 9.00am, I have decided that he worked for 5.5 hours on that day. I therefore have to assume that he worked 107 hours’ overtime (112.5 - 5.5) on Saturdays and weekdays.

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.

I find that, in respect of Sunday overtime, the complainant suffered a shortfall of €18.36 per hour for 5.5 hours, which amounts to €100.98.

The complainant said that he worked overtime on some Saturdays and that he finished around 3.00pm on these days. I accept that overtime after four hours on Saturdays is payable at double time.   However, in the absence of records, I will assume that, for the remaining 107 hours (112.5 – 5.5) worked as overtime, these hours were payable at time plus a half. On this basis, the correct rate of pay was €27.54 per hour. Therefore, in respect of overtime at time plus a half, I find that the complainant suffered a shortfall of €9.18 per hour for 107 hours, which amounts to €982.26.

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 €1,083.24 gross.

At the hearing, the complainant said that he did not get a copy of his terms and conditions of employment and his employer did not pay the benefits he was entitled to under the SEO.

The respondent did not attend the hearing.

Pension Contributions

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.”

A contribution of €26.73 per week is to be remitted to the scheme by employers with employees contributing €17.76. An examination of the complainant’s payslips shows that, on July 20th, the 12th week of his employment, the accumulated sum of €123.20 had been deducted from his wages in respect of his pension contribution.   The amount that should have been deducted is €266.40. No contributions are shown for the employer. The amount that should have been remitted to the pension scheme by the employer is €400.95.

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 is €63.30.

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 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 €1,000, equivalent to approximately twice the value of the benefits foregone.

While he was employed by the respondent, the complainant said that he took two weeks’ holidays, but that he was not paid for any holidays. At the termination of his employment, he was not paid in lieu of holidays accrued.

The respondent did not attend the hearing.

The complainant worked for the respondent from the beginning of May until August 16th 2018, a total of 15 weeks. He said that he took two weeks’ holidays, but that he was not paid any wages while he was on holidays. The absence of payslips for some of the weeks that he was employed indicate that there is substance to this contention.

At the termination of his employment, if he had not taken any leave, he would have been entitled to just under six days’ pay in lieu of holidays.

As I have concluded that the complainant was not paid for his entitlement to holidays, I decide that the respondent is to pay him €862.96, equivalent to six days’ pay.

CA-00021517-001: €1,883.25       Reason: Failure to pay the correct hourly rate

CA-00021517-002: €1,083.24       Reason: Failure to pay overtime

CA-00021517-003: €1,000.00       Reason: Failure to pay the SEO pension and sick pay benefits

CA-00021517-003: €862.96           Reason: Failure to pay holiday pay

Total award:             €4,829.45

Sectoral employment order