Complainant

Respondent

Anonymised Parties

Chainboy

Construction.

Representatives

Ciara Galvin SIPTU

Richard Grogan Richard Grogan & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020095-001

29/06/2018

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

CA-00020095-002

29/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00020095-004

29/06/2018

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

CA-00020095-005

29/06/2018

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

CA-00020095-006

29/06/2018

The Complainant was employed from 6th February 2017 until the employment terminated on 15th April 2018. The Complainant was paid €14.25 an hour up to 8th March 2018 when it was increased to €17.04 an hour. The Complainant referred complaints and a dispute to the Workplace Relations Commission under the Payment of Wages Act, 1991, two complaints under the Organisation of Working Time Act, 1997 and a dispute under the Industrial Relations Act, 1969

Payment of Wages Act, 1991. SIPTU argued on behalf of the Complainant that he had been paid a lesser rate of pay of €14.25 until the rate was increased by the Respondent effective from 8th March 2018 to €17.04 an hour. The Complainant is claiming payment of his correct rate of pay of €17.04 an hour effective from October 2017 until March 2018 when he was paid the correct rate.

The Complainant worked on sites with the Respondent through an Agency and began full time work with the Respondent in February 2017. While working through an agency he did work as a Chainboy when as a direct employee he worked as a general operative. Under the instruction of a number of different Foreman. During this time he was paid €14.25 an hour. This was increased to €17.04 an hour – general operative rate – in March 2018 five months after the rates came into effect on 19th October 2017. Between February and October 2017 the Complainant was not provided with any payslips. Also the Complainant was not paid overtime for extra hours worked. If the correct rate of pay of €17.04 had been applied to the Complainant effective from October 2017 to 8/3/2018 then he would have been paid an additional €2184.04. Given Section 41(6) of the Workplace Relations Act, 2015 and applying the six month time limit the amount owing to the Complainant is €915.99

SIPTU argued that this calculation does not take account of overtime and premium rates properly payable to the Complainant. Between weeks 39 in 2017 and week 12 in 2018 the Complainant worked 118 hours in excess of 39 hours a week in line with the 2011 agreement between the Trade Unions and the CIF. The Complainant is claiming payment of €860.52 for 101 hours worked.

SIPTU argued that as the Complainant had not been provided with payslips for the duration of his employment and SIPTU argued the Adjudication Officer should find a breach of Section 4 of the Payment of Wages Act, 1991.

Organisation of Working Time Act, 1997 – 2015. The Complainant argued there had been two breaches of the Act. Firstly he worked in excess of 48 hours a week and the second complaint is that on 18/12/2017 his shift ended at 8.30pm and he commenced employment on 19/12/2017 at 6.30am, therefore he had less than his 11 hours.

Industrial Relations Act 1969. The Complainant stated that premium rates of pay should apply to unsocial hours worked. He was only paid overtime/premium rates after he had worked 50 hours a week.

Preliminary Issue. The Complainant was employed as a Chainboy and as such he is not covered by the Sectoral Employment Order (Construction Sector) 2017 S.I 475/2017.

Payment of Wages Act, 1991. The Respondent raised the issue of Time Limits as the Complainant is claiming payment from October 2017 to March 2018. The Respondent referenced the Decision of the High Court in Health Service Executive and John McDermott (2013) IEHC 331.

Industrial Relations Act, 1969. The Complainant’s hours of work on the site were from 8am to 6pm moving in January to 8am to 5pm and the SEO relates to site times.

Organisation of Working Time Act, 1997. The Respondent provided payslips which do not show the Complainant worked in excess of 48 hours in any 4 month reference period.

The Respondent also argued that if there was any issue under the SEO for the Construction Industry then the issue should be referred to the Labour Court for a determination as to whether a Chainboy is covered by the Sectoral Employment Order.

On the basis of the evidence from both parties and questioning by the Adjudication Officer at the Hearing I find as follows –

Payment of Wages Act, 1991. S.I. 455 of 2017 is effective from 19th October 2017. I note that the Complainant’s employment commenced on 6th February 2017 according to the Site Engagement Contract signed by both Parties on 6/2/2017. This clearly states that the Complainant is employed as a Chainboy and paid €14.25 an hour. The Complainant did not provide any evidence to the Hearing that the Complainant is now employed as a General Operative by the Respondent. The SEO does show what Categories of Workers are to be covered by this SEO and this does not include Chainboy.

However I do note that the Complainant’s hourly rate of pay was increased to €17.04 an hour effective from 8/3/2018. This is a General Operative Rate of Pay. I asked the Respondent at the Hearing the reason for the increase and they responded that SIPTU came to them and raised an issue and they did it as they didn’t want a fight. However the Respondent also stated that the Complainant was employed as a Chainboy up until 15/4/20218 when the employment terminated. I find this is a matter that should be referred to the Labour Court for clarification in relation to a position of Chainboy.

I have no jurisdiction under the Payment of Wages Act in relation to the provision of Payslips.

Industrial Relations Act, 1969. This issue again relates to the Complainant’s role as a Chainboy while I note that the Complainant and SIPTU are arguing that the actual work performed by the Complainant was that of a General Operative. This issue is also relevant for a decision of the Labour Court.

Organisation of Working Time Act, 1997. At the Hearing SIPTU on behalf of the Complainant accepted there was no complaint now under this Act in relation to working in excess of 48 hours a week and the 11 hour break on specified dates

Payment of Wages Act – complaints in relation to the application of the Sectoral Employment Order S.I. 455 of 2017 – Issues more appropriate to determination by the Labour Court.