Complainant

Respondent

Anonymised Parties

A Service Engineer

A Heating Manufacturer

Act

Complaint Reference No.

Date of Receipt

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

CA-00018792-001

29/04/2018

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

CA-00018792-002

29/04/2018

The Complainant is a qualified plumber and is employed by the Respondent as a Service Engineer. The Complainant contends that he should be paid in accordance with the rates of pay as set out in the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 (SI. No. 59 of 2018). The Respondent disputes the claim and contends that the Complainant does not fall within the definition or remit of this Sectoral Employment Order.

CA-00018792-001

The Complainant is a qualified time served plumber in possession of the Advanced Craft Certificate FETAC Award.

The Complainant commenced employment with the Respondent on 3 December, 2008 based on his qualifications which entitled him to obtain certification to work on gas installations (RGII accreditation). Since then the Complainant has received three contracts of employment. The Complainant submits that whilst his contract refers to a title of “Service Engineer” the work carried out by him is not only typical of that which a qualified plumber would do but the qualification of a plumber is one of only four statutory apprenticeships which enables workers to carry out work in line with the Register of Gas Installers of Ireland (RGII).

Following enactment of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 on 6 March, 2018, the Complainant lodged a claim with his employer for the terms of the Order. The Respondent has failed to apply the terms of the SEO and as a result the present complaint was referred to the WRC for adjudication.

The Complainant submits that he is a qualified plumber working for the Respondent company which supplies, services, maintains and installs domestic boilers. The Complainant contends that he is employed within the Mechanical Engineering Building Contracting Sector and draws reference to the definition within the SEO which provides as follows:

“For the purposes of this Sectoral Employment Order the Mechanical Engineering Building Services Contracting Sector means the sector of the economy comprising the following economic activity: —

The installation, alteration, fabrication, fitting, repair, maintenance, commission, removal and demolition in any building or its sites of articles, fittings, pipes, containers, tubes or instruments, storage facilities, etc. (including central heating apparatus, central plant apparatus, machinery and fuel containers connected thereto) for heating, cooling, including domestic hot and cold water systems, medical and process gases, process pipe services, utility pipe services and compressed and vacuum services of such buildings.”

The Complainant submits that despite the position of his employer, he is in no doubt that the work carried out by the company and him is in keeping with the sector definition, and therefore, his employment should be on the terms and conditions no less than those provided for in the SEO.

The Complainant is seeking an award in his favour that any shortfall in relation to his pay is addressed from the enactment of the SEO.

The Respondent is a leading heating manufacturer with a product portfolio that includes domestic gas boilers, light commercial gas boilers, water heaters, solar thermal collectors and air source heat pumps. The Company was established over 30 years ago and operates across the UK and Ireland. Its parent company is a leader in products and services for heating, air-conditioning and energy efficiency and manufacturers boilers.

The Respondent Company is the sales and distribution subsidiary that covers the Irish market. The Respondent offers customer support for the factory. The Respondent is not a gas service company, nor does it install boilers.

Where a customer requires repair or service for their gas fire, gas cooker or any other boiler other than the Respondent’s own boiler, the Respondent cannot assist the customer. Where the customer requires repair or service for one of the Respondent’s boilers the Respondent can provide the service. Where the call out requires anything outside the remit of the boiler such as plumbing or radiator system the Respondent cannot assist the customer and refers them to their local plumber.

The Respondent currently employs a total of 15 employees which includes approx. 5 Service Engineers. The Complainant was employed on 3 November, 2008 as a Service Engineer. His main duties and responsibilities are boiler servicing and repairs.

In response to the Complainant’s claims that his pay and conditions should be in accordance with the SEO and that of the Joint Labour Committee/ Registered Employment Agreement from 2008, the Respondent contends that the Complainant does not fall within the remit of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018.

The Respondent does not deny that the Complainant is a qualified plumber, however, it submits that these qualifications are not a necessity to fulfil his role. The Complainant is not required to perform plumbing duties and the Respondent does not undertake plumbing jobs.

The Complainant’s role mainly consists of servicing and repairing boilers. The Complainant does not install boilers. He is required to carry out maintenance on the boilers, specifically the Respondent’s products only. He is required to diagnose any issues with boilers and thereafter determine what work is to be done to the boiler.

The Respondent submits that the Registered Employment Agreements were struct down by the Supreme Court in 2013. The Respondent contends that the Complainant is not entitled to compensation for rates of pay in accordance with the Joint Labour Committee from 2008 to 2011.

The Respondent submits that the Complainant commenced employment on 3 November, 2008 and received €33.000 per annum. On 29 April, 2014 the Complainant’s remuneration increased from €34,333 to €35,374 per annum. On 1 November, 2015 the Complainant received an updated contract of employment wherein it states that his salary had increased to €35,905 per annum which would be paid to him in monthly instalments in arrears. The Complainant’s salary in 2018 increased to €37,539 per annum. As and from 1 July, 2018 the Complainant’s salary is €38,477 per annum which equates to €18.90 per hour.

The Complainant is required to work approx. 8.5 hours per day, 42.5 hours per week and receives a half hour rest break per day.

In summary, the Respondent submits that the Complainant does not fall within the definition of the SEO and therefore is not entitled to compensation since the implementation of same on 6 March, 2018.

CA-00018792-001

Jurisdictional Issue

The Respondent contends that the Complainant should have raised his claim in respect of pay under the Payment of Wages Act 1991. The Respondent submits that the WRC does not have any jurisdiction to consider the complaint under the provisions of the Industrial Relations Acts. The Respondent relied upon the EAT case of Paul Dolan -v- Lookers PLC t/a Audi South Dublin UD947/2013 in support of its contention on the issue of jurisdiction.

The Complainant disputes the Respondent’s contention on this issue and submits that his employment clearly comes within the scope of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018. The Complainant submits that the present complaint relates specifically to a claim that the Respondent has contravened the terms of this Order on the basis that he is not being paid the relevant rate of pay as provided for therein.

The Complainant further submits that he was unable to refer a specific complaint on the WRC’s online Complaint Referral Form in relation to a contravention of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018. The Complainant contends that, in the circumstances, he was required to tick the box in relation to the referral of a complaint seeking adjudication under Section 45A of the Industrial Relations Act 1946. The Complainant submits that notwithstanding the foregoing, it was perfectly clear from the narrative which he inserted into the Complaint Referral Form that his claim related to an alleged contravention by the Respondent of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 in relation to his rate of pay.

In considering this issue, it is firstly necessary to take cognisance of the relevant legislative provisions which the govern the referral of, and adjudication by, the Director General of the WRC in respect of a complaint relating to an alleged contravention of a Sectoral Employment Order.

In this regard, I note that Sectoral Employment Orders are governed by Chapter 3 of the Industrial Relations (Amendment) Act 2015 whereby workers of a particular class type or group as specified in an Order are entitled to the provisions of an order laid before the houses of the Oireachtas and passed by same. Section 17(1) of the Industrial Relations (Amendment) Act 2015 confers the power on the Minister to make a Sectoral Employment Order. The Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 was signed into law by the Minister with effect from 6 March, 2018. The purpose of this Order is to fix from the date of signing of the Order, the statutory minimum rates of remuneration and other conditions of employment for certain workers employed in the Mechanical Engineering Building Services Contracting Sector.

Section 41 of the Workplace Relations Act 2015 (as amended) makes provision for the presentation of complaints and the referral of disputes under employment legislation to the Director General of the WRC. Schedule 5 of the Act sets out details of the individual employment enactments under which a person is entitled to present a complaint or refer a dispute to the Director General of the WRC in accordance with the provisions of Section 41. Item 11 of Part 2 of Schedule 5 provides that: “A sectoral employment order within the meaning of Chapter 3 of Part 2 of the Industrial Relations (Amendment) Act 2015” is a relevant enactment for the purpose of the referral of complaints in accordance with Section 41 of the Act. The relevant redress provision in relation to a contravention of an SEO is provided for in Section 23 of the Industrial Relations (Amendment) Act, 2015 which states that “(1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of— (c) a sectoral employment order (within the meaning of Chapter 3).”

The Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 is a “sectoral employment order (within the meaning of Chapter 3)” and accordingly, a person seeking redress in respect of a contravention of the SEO shall, in the first instance, refer a complaint under Section 41 of the Workplace Relations Act 2015 seeking adjudication under Section 23 of the Industrial Relations (Amendment) Act, 2015.

Having regard to the foregoing, it is clear that legislative provision has been made by the Oireachtas which allows a person to seek redress in respect of an alleged contravention in relation to the pay and/or terns and conditions which are laid down in a Sectoral Employment Order. In the instant case, I note that the Complainant indicated in the narrative within his complaint on the online Complaint Referral Form that “My complaint relates to construction/ Service industry, Sectoral Employment Order 2018 for Mechanical Engineering Building Services Contracting Sector, Industrial Relations Act 1946, Industrial Relations (Amendment) Act 2012, Industrial Relations (Amendment) Act 2015, and other amendments relating to REA/JLC from 2008. I do not receive pay, terms and conditions relating to these orders and acts.”

In the circumstances, I am satisfied that the Complainant clearly articulated within the narrative section of the Complaint Referral Form that he was seeking redress in respect of an alleged contravention of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 on the basis that he was not being paid the correct rate of pay as set therein. Accordingly, I do not accept the Respondent’s contention that the instant complaint should have been referred under the Payment of Wages Act, 1991.

The question next turns to the issue as to whether the Complainant’s claim for redress was submitted under the incorrect legislative provisions, and if, so does the WRC have jurisdiction to allow him to amend the information contained on the Complaint Referral Form at this juncture in order to correct any such error or oversight which may have occurred in this regard.

In considering this matter, I have noted the judgement of the High Court in the case involving County Louth VEC –v- The Equality Tribunal [2009] IESC 370 where the question arose as to when proceedings before a statutory Tribunal can be amended. McGovern J. set out the following principle of law: “if it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same”.

It is clear that the Workplace Relations Commission’s Complaint Referral Form is not a statutory form, and therefore, a Complainant is not legally obliged to use this form when referring a complaint to the WRC. The Complainant contends that was he unable to refer a specific complaint on the WRC’s online Complaint Referral Form in relation to a contravention of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 and, that in the circumstances, he was required to tick the box in relation to the referral of a complaint seeking adjudication under Section 45A of the Industrial Relations Act 1946 (which is the relevant legislative provision that empowers an Adjudication Officer to award redress for a contravention of an Employment Regulation Order).

Notwithstanding the fact that the Complainant ticked the box on the online Complainant Referral Form to indicate that he was seeking adjudication under Section 45A of the Industrial Relations Act 1946, I am satisfied that the precise nature of the complaint and the Complainant’s intention to seek redress in relation to the alleged contravention of the SEO was clearly articulated and communicated to the Respondent in the narrative on the Complaint Referral Form. I am also satisfied that the granting of leave to allow the instant complaint to proceed to adjudication under the relevant legislative provisions which govern an alleged contravention of a Sectoral Employment Order, namely, Section 23 of the Industrial Relations (Amendment) Act 2015, does not result in an injustice or prejudice to the Respondent as it was fully aware of the general nature of the claim and the legislative basis underpinning the proceedings well in advance of the oral hearing.

For the sake of completeness, I will also address the submission on behalf of Respondent in relation to the relevance of the Dolan -v- Lookers PLC t/a Audi South Dublin case to the instant proceedings. In this case the claimant initially referred a complaint to the Labour Court under the Employee (Provision of Information and Consultation) Act 2006. Following the dismissal of this case by the Labour Court the claimant submitted a fresh complaint to the EAT under the Unfair Dismissals Acts and sought an extension of the relevant time limits for the purpose of this referral. In the course of the EAT hearing it was argued that the claimant filled in the claim form on the Website under the wrong Act, and that he was confused. However, the Tribunal noted that the organisation representing him had ample opportunity to correct the error, if there was an error. The Tribunal was not convinced that there was an error, and it seems that the claimant may have changed his position after his claim was dismissed by the Labour Court.

I am satisfied that the circumstances of the instant case can be clearly distinguished from the Dolan case. In the instant case, it is clear that the Complainant referred his complaint to the WRC within the requisite 6-month time limit provided for in Section 41 of the Workplace Relations Act 2015. As I have already indicated in my findings above, I am satisfied that the precise nature of the complaint and the Complainant’s intention to seek redress in relation to the alleged contravention of the SEO was clearly articulated and decipherable from the content of the narrative on the Complaint Referral Form. Therefore, I am satisfied that neither the requirement for the Complainant to submit a fresh complaint nor any issue in relation to an extension of the time limits arises in the context of the instant complaint.

Accordingly, I find that I have jurisdiction to inquire into the Complainant’s claim that the Respondent has contravened the provisions of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 in relation to his pay.

Substantive Issue

The Complainant is a qualified plumber and contends that his employment falls within the scope of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018. The Complainant claims that the Respondent has contravened the terms of the SEO on the basis that he is not being paid the relevant rate of pay as set out in the Order. The Complainant submits that he is currently being paid at a rate of €18.90 per hour which is below the relevant rate of €23.60 per hour as laid down in the SEO.

The Respondent accepts that the Complainant is a qualified plumber but disputes that his employment falls within the remit of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018. The Respondent submits that his qualifications as a plumber are not a necessity to fulfil his role and that he is not required to perform plumbing duties and the Respondent does not undertake plumbing jobs.

Therefore, the question which I must decide in the instant case is whether or not the Complainant’s employment falls within the scope of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018.

In considering this issue, I note that the Mechanical Engineering Building Services Contracting Sector is defined for the purpose of the SEO as follows:

“For the purposes of this Sectoral Employment Order the Mechanical Engineering Building Services Contracting Sector means the sector of the economy comprising the following economic activity: —

The installation, alteration, fabrication, fitting, repair, maintenance, commission, removal and demolition in any building or its sites of articles, fittings, pipes, containers, tubes or instruments, storage facilities, etc. (including central heating apparatus, central plant apparatus, machinery and fuel containers connected thereto) for heating, cooling, including domestic hot and cold water systems, medical and process gases, process pipe services, utility pipe services and compressed and vacuum services of such buildings.”

The scope of the SEO is confined to: “the following categories of worker who are directly employed or employed through an employment agency within the meaning of the Employment Agency Act 1971and or the Protection of Employees (Temporary Agency Work) Act 2012in the Mechanical Engineering Building Services Contracting Sector:-

Qualified Plumbers and Registered Apprentice Plumbers (Craftsperson) and Qualified Pipefitters and Registered Apprentice Pipefitters (Craftsperson) working in the Sector.”

It was not in dispute that the Complainant is a qualified plumber and that he is employed on a contract of service by the Respondent. I am satisfied that the Complainant is a “worker” within the meaning of the SEO. The key issue of contention between the parties is whether or not the actual work carried out by the Complainant galls within the remit of the SEO. Having regard to the evidence adduced, I have found the Complainant’s evidence on this issue to be more compelling and I find that he is employed within the Mechanical Engineering Building Services Contracting Sector and that he carries out the duties as laid within the SEO.

Section 19 of the Industrial Relations (Amendment) Act, 2015 provides as follows:

“19. (1) 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.

(2) 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.”

Having regard to the provisions of Section 19 of the Industrial Relations (Amendment) Act 2015, I find that the Complainant is entitled to be paid in accordance with the relevant rate of remuneration set out in the SEO and that this rate should apply to his contract of employment with effect from the 6 March, 2018.

CA-00018792-001

In accordance with the provisions of Section 23(2) of the Industrial Relations (Amendment) Act 2015, I declare that the complaint is well founded. I require the Respondent to apply to the Complainant the relevant rate of remunerations as set out in the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 to the Complainant with effect from 6 March, 2018.

Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 – Plumber – Rate of Pay