Complainant

Respondent

Anonymised Parties

A Construction Worker

A Construction & Labour Supply

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00019481-001

29/05/2018

The Complainant submits that he commenced employment with the Respondent on 9th October 2017 as a General Operative. He claims that the Respondent did not comply with the provisions of the Sectoral Employment Order (Construction Sector) S.I. 455 of 2017. The Complainant claims that he was not afforded an occupational pension, sick pay, death in service benefit, overtime or a minimum rate of pay as provided for in the Order.

The Complainant noted that he referred his claim to the WRC on 29th May 2018 under Section 7 of the Terms of Employment (Information) Act, 1994. In the “Complaint Specific Details or Statement” the Complainant outlined his complaint as follows: “I did not receive the provisions as laid out in S.I. 455 of 2017 Sectoral Employment Order Construction Sector. As there is no option to refer this matter to the Commission on the complaints portal, I will refer the matter in hard copy also. I refer this matter under section 23 of the Industrial Relations (Amendment) Act 2015. Please ensure that my complaint is heard under the relevant legislation.”

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

In relation to the preliminary matter I find that the WRC Complaint Form is not prescribed by statue. I note that the WRC Complaint Form at the time the referral had no option available to refer the claim under the appropriate legislation.

Moreover, I note that the Complainant has addressed the matter in the “Complaint Specific Details or Statement” where he specifically referred to section 23 of the Industrial Relations (Amendment) Act 2015 and S.I. 455 of 2017 Sectoral Employment Order (Construction Sector).

In considering the matter I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370. In that case McGovern J held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ He went on to say "the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I am satisfied that this matter was brought to the Respondent’s attention at an early juncture in these proceedings and I am thus satisfied that the Respondent was on notice of the claim. I am satisfied that the Respondent’s defence of the claim has not been prejudiced 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. In the circumstances, I am satisfied that the present complaint is admissible.

The Complainant’s representative submits that the Complainant was originally offered work as an apprentice plasterer by the Respondent, an employer engaged in construction in the construction sector. The union submits that the Respondent failed to register the Complainant with SOLAS as an apprentice therefore rendering the Complainant as a General Operative.

The Complainant claims that no statement was given to him outlining the main terms and conditions of employment. The Complainant submits that he was never afforded a payslip, nor presented with timesheets. The Complainant claims that the Respondent instructed him to carry out duties appropriate to a general operative on building sites. The Complainant argues that he remonstrated with the Respondent regarding the promise of an apprenticeship. However, the Respondent ignored the claim. This carried on until the Complainant was informed that there was no more work with the Respondent. The dismissal date is 1st December 2017.

The Complainant argues that he was entitled to a minimum rate of pay of €13.77. The Complainant claims that the rate of pay applicable for the duration of his employment was at variance with the rate applicable within the SEO. Payslips were exhibited at the adjudication hearing. The Complainant indicated that these were obtained following an inspection of the Respondent’s records by the WRC Inspector.

The Complainant outlined the shortfall as follows:

The Complainant claims that the Respondent failed or neglected to provide to the Complainant the provisions of a pension scheme, sick pay scheme and death in service benefit as provided in the SEO. No pension contributions were deducted from the wages of the Complainant during the employment.

The Complainant’s representative notes that a number of factors need to be taken into consideration. The age of the Complainant and the promise of an apprenticeship made by the Respondent. The fact that the Respondent failed or neglected to respond to the Union when it wrote to the Respondent seeking confirmation on who the employer was as it was unclear at the time without a payslip or a statement of the main terms of employment.

The Complainant’s representative also asks to consider Chapter 3, Section 22 of the Industrial Relations (Amendment) Act, 2015 whereby it requires every employer to whom a SEO relates to keep at the site in which the worker is working records to show compliance with the above order. The Complainant’s representative argues that from the payslips provided by the Respondent it is clear that it failed or neglected to pay the contributions owed to a pension scheme as provided for in the order which would indicate that it could not keep proper records of compliance at a place where the worker was working.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

The enactment of the Industrial Relations (Amendment) Act 2015 provided a mechanism for trade unions to request the Labour Court to examine pay and terms and conditions of employment in certain sectors and to make a recommendation on these matters to the Minister at the Department of Business, Enterprise and Innovation.   The preamble to the Act sets out its objective:

“An Act to make further and better provision for promoting harmonious relations between workers and employers and, in particular, to make provision for a system of registered employment agreements and sectoral employment orders…”

A Sectoral Employment Order (SEO) providing for agreed terms in the construction sector, was signed into law by the Minister on October 19th 2017 (S.I. 455 of 2017).

Section 16(2)(e) of the Industrial Relations (Amendment) Act provides that the Labour Court, in its recommendation to the Minister on rates of pay and conditions of employment in a particular sector, must have regard to the fact that,

“…the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.”

Section 19 provides for the adaptation of contracts of service consequential upon sectoral employment orders.

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.”

Based on the uncontested evidence of the Complainant I find that the Respondent is an undertaking which falls within the definition of the SEO.

The Complainant is not qualified, he confirmed at the adjudication hearing that he is 19 years of age and has not worked before. The Complainant confirmed that he was initially offered an apprenticeship with the Respondent. This, however, never materialised and he was instructed to carry out duties appropriate to a general operative on a building site. On the uncontested evidence of the Complainant, I find that the Complainant falls within the category of a “New Entrant General Operative”.

In relation to the claim that the Complainant did not receive the appropriate rate of pay as per the SEO I find as follows. The Complainant submitted at the hearing that he started his employment with the Respondent on 9th October 2017. The Complainant confirmed at the hearing that he was paid on Friday for the previous week i.e. his first payslip was dated 20th October 2017 and related to period from 9th to 13th October 2017. The Complainant stated at the hearing that his employment was terminated on or around 1st December 2017. The SEO came into effect on 19th October 2017.

The Complainant submitted in the WRC Complaint Form that he worked 39 hours a week. He confirmed that at the adjudication hearing. I note that the calculations, as outlined in the table above are based on 40 hours working week. Based on the Complainant’s referral form and the evidence at the hearing I find that the Complainant worked 39 hours a week.

The Complainant’s payslips show payments of €541.17 on 20th October 2017 (for 9th-13th October 2017), 27th October 2017 (for 16th-20th October 2017), 3rd November 2017 (for 23rd – 27th October 2017) and 10th November 2017(for 30th October – 3rd November 2017). Thereafter, the payment was increased to €588.24. The Complainant claimed an underpayment of €0.25 per hour for the period from 19th October 2017 to 3rd November 2017. Based on the evidence before me I find that the Complainant was paid €541.17 for 39 hours work. Therefore, his hourly rate of pay was €13.88 which is higher than the rate of pay set out in the SEO of €13.77. I find that the issue of underpayment in respect of the hourly rate of pay does not arise in this instance.

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 €26.63 per week is to be remitted to the scheme by employers with employees contributing €17.76. It is apparent that no contributions were made to a pension scheme on behalf of the complainant.

Appendix 2 of the SEO provides for death in service and sick pay schemes to be established. 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.

There was no submission made or evidence offered in respect of the Complainant’s claim that he was not afforded overtime pay.

Having examined these matters and in the absence of evidence to the contrary, I have concluded that the Respondent contravened the SEO by failing to provide the sick pay, pension and death-in-service benefits to which the Complainant was entitled.

In accordance with section 23(2)(a) of the Industrial Relations Act 2015, I decide that this complaint is well-founded in part. In accordance with section 23(2)(c) of the Act, I decide that the Respondent is to pay compensation to the Complainant of €588.24, equivalent to one week’s pay in the latest week before the date of the dismissal.

Construction SEO- pension-death in service-sick pay-