Complainant

Respondent

Anonymised Parties

A painter

A Painting Company

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-00026325-001

16/02/2019

The Complainant was employed by the Respondent as a painter from 20th August 2018 until 4th February 2019. The complaint relates to non-payment of the appropriate pay rate as set out in the Construction Industry Sectoral Employment Order(‘SEO’).

The Complainant contends that he began his employment with the Respondent on 20th August 2018. The Complainant argues that he worked as a painter. His hourly rate was €10. The Complainant claims that, as per the SEO the statutory minimum wage for craftsmen, including painters is €18.93 and for new entrants €13.77.

The Complainant claims that he worked a total of 827 hours during his employment.

The Respondent submits that it engages in the painting and decorating of residential homes, factories etc. The Respondent currently does not have any employees.

As a preliminary matter, the Respondent argues that the Sectoral Employment Order (SEO) makes specific reference to the dispute resolutions procedure and states:

“If a dispute occurs between worker to whom the SEO relates and their employers no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with. All sides are obliged to fully comply with the terms of the dispute procedure.

Individual dispute

a)      The grievance or dispute shall in the first instance be raised with the employer at local level with a requirement to respond within 5 working days. Notice in writing of the dispute shall be given by the individual concerned or his trade union to the relevant organisation representing employers or to the employer directly.

b)      If the dispute is not resolved it shall be referred to the Adjudication Service of the WRC.

c)       Either party can appeal the outcome of the Adjudication Hearing to the Labour Court. “

The Respondent argues that the Complainant has not followed the mandatory dispute resolutions procedures. The Respondent never received notice in writing of a dispute from the Complainant.

The Respondent submit that the Complainant was obliged (hence the word “shall”) to follow the procedures as outlined in the SEO. The Complainant did not do so. The Respondent submits that the WRC does not have the jurisdiction to adjudicate the Complainant’s claim as he has failed to exhaust the first avenue in an obligatory resolution procedure.

In respect of the substantive matter, it is not accepted that the Complainant was hired as a painter i.e. fully qualified. The Respondent claims that it was told that the Complainant did not have any experience as a painter. He did not have any qualifications which would class him as a fully qualified painter. The Respondent submits that the Complainant was hired as an apprentice painter. The Respondent claims that the Complainant’s daily duties included learning how to mix paint, learning how to properly sand down walls and door, sticking wet paint signs to walls etc.

The Respondent submits that it is incorrect that the Complainant’s hourly rate of pay as a painter should be €18.93. The Respondent argues that, as an apprentice painter in his first year the Complainant is entitled to 33.3% of the craft rate. The Respondent submits that this is calculated to be €12.63 per hours.

In relation to the Respondent’s submission on preliminary matter of the WRC jurisdiction I find as follows: I note that the SEO provides for the dispute resolution procedure, as outlined by the Respondent. This is in line with Section 16(6) of the Industrial Relations (Amendment) Act, 2015 which states as follows:

“A recommendation under this section shall include procedures that shall apply in relation to the resolution of a dispute concerning the terms of a sectoral employment order.”

The provision, in my view, is construed to relate to a trade dispute in respect of the terms of the SEO. However, it should not be taken to exclude, limit or be in any way inconsistent with the rights of any employee under any statutory enactment. The provision cannot supplant the provisions of the primary legislation. The Industrial Relations (Amendment) Act, 2015 provides that complaints of a contravention of a sectoral employment agreement (within the meaning of Chapter 3 of the Act) are to be referred for a decision of adjudication officer under Section 41 of the Workplace Relations Act, 2015 (Section 23). I therefore, find that I do have jurisdiction to hear this complaint.

In relation to the substantive matter, I find as follows:

The Complainant argues that he was employed as a painter and should be paid accordingly. The Respondent, on the other hand, claims that the Complainant was employed as an apprentice painter and therefore should be paid the apprentice rate, which is 33.3% of craft rate (€18.93), which totals €6.30 per hour and not €12.63 as claimed by the Respondent.

The Respondent gave evidence in relation to the registration of the Complainant’s apprenticeship. It was confirmed that the Complainant has never been registered as an apprentice and, in fact, it appears that it has never been contemplated until the complaint was submitted to the WRC. I find that the Complainant was not an apprentice and the apprentice rate of pay is not applicable in the circumstances.

I note that by the Complainant’s own evidence he arrived in Ireland from his home country and secured employment with the Respondent. The Complainant confirmed that he had no experience in the industry and, as far as painting is concerned, his experience was limited to painting his own and some of the family members’ homes. I therefore find that the Complainant at the time of the commencement of his employment with the Respondent would be categorised as a “new entrant”. New entrant’s rate is defined as rate of pay that applies to all new entrants general operatives with less than one year’s service working in the sector. The applicable rate in the circumstance is €13.77.

The evidence before me shows that the Complainant worked 827 hours during the course of his employment and was paid €10 per hour.

Having carefully considered the Parties’ submissions, I declare this complaint well-founded and I require the Respondent to pay the Complainant €3,117.79 in respect of the contravention of the SEO.

Construction SEO, non-payment of correct rate of pay,