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-00021313-001

24/08/2018

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

CA-00021313-002

24/08/2018

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

CA-00021313-004

24/08/2018

The complainant commenced employment with the respondent on 30/11/2017 as a façade fitter.

He works 48 + hours per week and earns €593 gross.

The respondent paid him €16.66 an hour and not the Sectoral Employment Order rate for the construction sector despite repeated requests.

The respondent failed to provide him with terms and conditions of employment.

The respondent made pension deductions form his salary but failed to lodge them into the relevant pension fund.

His employment ended with the respondent on 3/8/2018

He submitted his 3 complaints to the WRC on 24/8/2108.

CA-00021313-001. Complaint under Section 41 of the Workplace Relations Act, 2015.

The complainant hangs metal shutters and facades for windows and buildings often at a height. The complainant is seeking the implementation of the Sectoral Employment Order rate for the construction industry.

The respondent pays him an hourly rate of €16.66 as a façade fitter. He states that as a façade fitter he comes within the category of skilled or semi-skilled worker and that he is entitled to the hourly rates which he believes to be €17.04 or €18.36, rates which are set out in the Sectoral Employment Order for the construction sector. Some colleagues doing the exact same work as him were earning €18.36 an hour. The complainant submitted pay slips.

He states that his complaint is that he was paid for the correct number of hours but at the wrong rate of €16.66 as opposed to the hourly rate for of €18.30 which he states is his due.

He submitted an email dated 28/1/2018 from the respondent stating that he is paid €16.66 an hour.

He requested the payment of the correct rate on many occasions. The respondent advised him that he would correct it but never did.

He states as well that he worked overtime frequently but was not paid the agreed Sectoral Employment Order rates.

He stated in evidence that he was a semi-skilled or skilled worker.

CA-00021313-002 Complaint under Section 41 of the Workplace Relations Act, 2015.

The complainant states that he was not provided with terms and conditions of employment though he had frequently requested same from the respondent.

CA-00021313-004.Complaint under section 6 of the Payment of Wages Act, 1991

The complainant states that the respondent failed to submit all of his pension contributions, already deducted from his wages, into the relevant pension fund. The respondent started to deduct the pension contributions at around €70 per week at the end of April 2018 to make backdated payments into the relevant pension fund.

The complainant submitted a copy of an email, dated 7/10/2018 from the pension provider which states that his fund stood at €857.51 in October 2018. This email discloses that up to October 2018, the respondent has only submitted 17 weekly contributions at the rate €19.50 per week, amounting to €331.50, instead of the 34 weekly contributions, amounting to the sum of €663 which had been deducted from his wages. The complainant’s pay slips submitted to the hearing confirm that these deductions were made from his wages. The complainant advises that the pension fund trustees have informed the Pensions Authority about the issue.

He maintains that the respondent unlawfully deducted €331.5 euro from his wages and failed to lodge it with the pension fund.

CA-00021313-001. Complaint under Section 41 of the Workplace Relations Act, 2015.

I am satisfied that the respondent was notified of the details of the hearing. He failed to attend or to communicate with the WRC.

CA-00021313-002 Complaint under Section 41 of the Workplace Relations Act, 2015.

I am satisfied that the respondent was notified of the details of the hearing. He failed to attend nor to communicate with the WRC.

CA-00021313-004.Complaint under section 6 of the Payment of Wages Act, 1991

I am satisfied that the respondent was notified of the details of the hearing. He failed to attend nor to communicate with the WRC.

CA-00021313-001. Complaint under Section 41 of the Workplace Relations Act, 2015.

I am required to establish if the respondent has failed to apply S.I. No. 455 of 2017, Sectoral Employment Order (Construction Sector), 2017 to the wages of the complainant. Section 41 (1) of the 2015 Act states

“An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5”.

The Minister has enacted S.1 455 under the authority of section 17 of The Industrial Relations (Amendment) Act 2015, itself comprehended by the Workplace Relations Act 2015.

The Sectoral Employment Order provides for statutory minimum pay, unsocial hours premiums, pensions, death in service benefit, and sick pay entitlements for those employed in the construction sector. It obliges employers to implement its terms. The rates for different categories of construction workers in S.I 455 of 2017 are as follows:

Hourly Rates

•             New Entrant Workers: €13.77

•             Category 1 Workers (General Operatives with more than 1 years’ experience): €17.04

•             Category 2 Workers (Skilled General Operatives): €18.36

•             Craft Workers (Includes: Bricklayers, Carpenters, Plasterers): €18.93

The complainant argued that he was entitled to at the very least the €17.04 rate if not the €18.36 hourly rate.

The category 2 Workers, a grade which attracts the rate of €18.93 per hour, consists of Skilled General Operatives (Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks operative, Steel Fixers; Crane Drivers and Heavy Machine Operators). I do not find that the complainant’s job comes within this category.

I find that the complainant falls into the Category 1 worker. The agreed hourly rate for this cohort is €17.04. I find that the complainant is entitled to the difference between €16.66 the rate he was paid and €17.04 the rate to which he was entitled.

Section 41. (6) of the Workplace Relations Act, states

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The complaint was presented to the WRC on 24/8/2018.

The referable period for calculation of what he is owed is therefore 25/2/2018 –10/8/18, a period of 23.7 weeks.

The complaint’s P45 for 2018 reveals that he earned €17,092 for the period 1/1/2018-10/8/2018. He stated very clearly at the hearing that his pay slips were calculated on the correct number of hours but on an incorrect rate of €16.66 per hour. That being the case, the gross reveals that he worked on average of 34 hours a week yielding an average of €566.44 per week. The correct rate of €17.04 would deliver a weekly wage of €579.36.

Based on the uncontested evidence of the complainant I find that he is entitled to the difference which amounts to €316.

Two pay slips indicate overtime rates. The complainant did not make out a case as to when he worked overtime- days etc and the amounts owed to him.

.

CA-00021313-002 Complaint under Section 41 of the Workplace Relations Act, 2015.

Based on the uncontested evidence of the complainant, I find that he was not offered terms and conditions of employment in accordance with section section 3(1) of the Terms of Employment (Infrormation ) Act , 1994.

Section 41 (1) of the 2015 Act states

“An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5”.

The provision alleged to have been contravened is section 3(1) of the Terms of Employment (Information) Act, 1994.This statute is included in the list of statutes in schedule 5 of the Act of 2015. The complaint was highlighted in the complaint form submitted to the WRC.

Based on the uncontested evidence I find that the respondent has breached section 3(1) of the Act of 1994 in its entirety. In accordance with section 7(2) (d) of the Terms of Employment Information Act, 1994, I find that the complaint is well founded, and I direct the respondent to pay 3 weeks wages amounting to €1779 to the complainant.

CA-00021313-004.Complaint under section 6 of the Payment of Wages Act, 1991

The complainant contends that the respondent has breached section 5 of the Act of 1991.

Based on the uncontested evidence I find that that the pension contributions amounting to €663     were deducted from the complainant’s wages and that only € 331 of this sum was lodged with the pension fund. Section 5 (6) of the Payment of Wages Act, 1991 states

“Where the total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) , or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then. except in so far as the deficiency or non- payment is attributable to an error of computation, the amount of the deficiency or non- payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The pension deductions of €331, classified as an unlawful deduction by the complainant owing to the failure of the respondent to lodge them in the pension fund were not wages which were properly payable to the complainant but were deductions which were authorised, and which were destined not for payment to the complainant but for onward lodgement into the pension fund. The fact that these pension deductions were not paid into the pension fund, according to the uncontested evidence of the complainant, does not make them wages which are properly payable. The fact that they may been diverted elsewhere does not make them wages which are properly payable. I note that the trustees of the pension fund have reported the matter to the Pension Authority

I do not find for the reasons advanced above that this complaint is well founded.

CA-00021313-001. Complaint under Section 41 of the Workplace Relations Act, 2015.

I find this complaint to be well founded. I direct the respondent to pay the complainant the sum of €316 subject to all lawful deductions

CA-00021313-002 Complaint under Section 41 of the Workplace Relations Act, 2015.

I find this complaint to be well founded. I direct the respondent to pay the complaint redress of €1779.

CA-00021313-004.Complaint under section 6 of the Payment of Wages Act, 1991.

I do not find this complaint to be well founded.

Sectoral Employment Order; Diversion of pension contributions and Payment of Wages Act, 1991