Complainant

Respondent

Anonymised Parties

Crew Leader / Fitter

Flooring Manufacturer / Supplier

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-00026189-001

10/02/2019

The complainant has been employed by the Respondent since July 2007 and works as a Crew Leader / Precast Fitter.  The complaint is in regard to the alleged non-payment of the rate of pay set out in the Sectoral Employment Order for the Construction Sector which came inti force with effect from 19 October 2017.

The complainant is employed in a job that is covered by the Sectoral Employment Order.

The Order came into effect on 19October 2017.

The complainant is paid less than the amount specified in the Order since that date.

All employees of the respondent who fall under the umbrella of the SEO were offered terms and conditions in line with the SEO in April 2018.

The terms of the offer were rejected by the complainant and other employees.

These employees insisted on remaining on their existing terms and conditions.

The respondent produces and fits precast concrete products for the construction industry.  In 2017 the Sectoral Employment Order (Construction Sector) 2017, S.I. No. 455/2017, came into effect with an implementation date of 19 October 2017.  Amongst its provisions it set down minimum rates of pay for workers employed in the sector.

The respondent’s workforce consists of about 35 employees some of whom work in the office, some in the factory and the remainder on site.  The respondent’s Financial Director stated that when he joined the company in 2018 there had been no previous financial controller and that one of the first issue that he had to address was the implementation of the SEO.  In April 2018 a set of proposals in this regard was sent to each employee whom the respondent deemed to be covered by the SEO.  Whilst advising of the new hourly pay rate the proposal also dealt with a number of other items including subsistence rates, clocking-in procedures, weekend rates, pension scheme contributions and a clause in relation to the lower rate of pay applicable if required to work in the respondent’s factory.  This proposal was rejected by the employees concerned as they believed that the combined effect of the proposals would be to reduce their income.  The Director in evidence stated that the respondent had provided calculations to show that this was not the case but that the employees had insisted on remaining on their existing terms and conditions.  The management took a decision not to implement the new hourly rates until all the issues were resolved.

The respondent then began to come under pressure from prospective clients who required an undertaking from the respondent that they were employing their workers in conformity with the SEO.  A slightly amended set of proposals dated 11 January 2019 was then put to the employees concerned.  The complainant signed acceptance of this proposal on 12 February 2019.  Some of the employees at the hearing said that they felt pressurised into signing the document as they were threatened with not getting any work if they did not do so.  The Director stated that a worker who had not accepted the proposals could not be employed on a site as that person was not in conformity with the provisions of the SEO.  The end result is that the complainant has been in receipt of the rate contained in the SEO since accepting the respondent’s proposals.

I note that the Director recognised the need to address the implementation of the SEO upon his appointment in 2018.  In doing so management attempted to address a number of issues as well as that of the rate of pay.  These were presented to the employees concerned as a package but were not agreed by them.  According to the evidence of the Director it was accepted that the respondent had an obligation to pay the rates contained in the SEO but a decision was made that this would not be done until agreement was reached on all matters.  This agreement was reached in February 2019.

The requirement to pay the rate contained in the SEO dates back to 19 October 2017 regardless of whether or not there were other issues that the respondent wished to address.  The complainant was in receipt of a rate of pay of €16.00 per hour.  As noted, the complainant’s rate increased to €18.93 per hour (craft worker rate) on signing the agreement on 12 February 2019.  I find that this rate of pay should have applied from 19 October 2017.

There is another matter that requires my consideration.  The agreement signed by the complainant includes a clause that states: “Should you be required to work in the factory due to lack of site work then your rate reverts to €16.00 per hour for that period.”  The establishment of Sectoral Employment Orders are governed by the provisions of Chapter 3 of the Industrial Relations (Amendment) Act, 2015.

Section 19 of the Act states:

(1)    A sectoral employment order shall apply, for the purpose 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 this order.

(2)    If a contract between a worker of a class, type or group to which the sectoral employment order applies and his or her employer provides for 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 was substituted for the contract rate.

In addition, Section 16 of the Act sets out the requirements necessary for making a recommendation to the Minister and in particular Section 16(2)(e) specifies “that the sectoral employment order should be binding on all workers and employers in the economic sector concerned”.  There is no provision within the SEO, therefore, for employers to decide that the application of the SEO to an employee is dependent on the location at which that worker performs their duties.  These duties are at all times related to the construction industry.  I therefore find that the complainant is entitled to the rate of pay contained in the SEO for all work performed for the respondent.

Complaint No. CA-00026189-001:

I find this complaint to be well founded.  I require the respondent to pay to the complainant the rate of pay specified in the SEO for a craft worker (€18.93 per hour) for all work performed for the respondent. Details of working hours were supplied by the complainant and respondent and based on these I further require the respondent to pay to the complainant the sum of €10,570.00.