Complainant

Respondent

Anonymised Parties

A Crane Operator

An Agency Company

Representatives

Tom Fitzgerald Unite the Union

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00019947-001

22/06/2018

The Respondent is a licensed agency company, supplying labour to client companies. The Complainant commenced employment with the Respondent on 1 September 2016, as a Crane Driver. The Complainant was placed with a Hirer company between July and December 2017.

The Complainant’s employment with the Respondent ceased on 7 January 2018.

On 22 June 2018, the Complainant submitted a complaint, under the Protection of Employees (Temporary Agency Work) Act, 2012, to the Workplace Relations Commission.

Background:

Submitting on behalf of the Complainant, his Trade Union representative stated that the Complainant worked for the Respondent from September 2016 until 1 January 2018, with his contract ending on 7 January 2018.

It was submitted that the Complainant was employed as a Tower Crane Operator. According Complainant’s submission, he was employed on the site of a Company (hereafter referred to as the Hirer), with whom he had been placed by the Respondent from around May 2017.

It was submitted on behalf of the Complainant that, during the period between May and December 2017, he advised both the Respondent and the Hirer that he should be in receipt of a “greasing allowance” and appropriate overtime rates for early starts on the project.

According to the Complainant’s submission, in late 2017 and early 2018, his Trade Union representative engaged with the Hirer in relation to the application of the greasing allowance and appropriate overtime rates. It was further stated that the Trade Union representative followed up these verbal discussions with correspondence in March 2018.

According to the Complainant’s evidence, the matter was advanced to the Workplace Relations Commission on 22 June 2018, when he submitted a complaint under the Protection of Employees (Temporary Agency Work) Act, 2012. It was further submitted that the did not receive a written contract of employment from the employer.

Greasing Allowance:

According to the submission on behalf of the Complainant, the greasing allowance has existed in the construction sector for crane operators since the 1990s. It was further submitted that the greasing allowance emerged as a way to provide crane operators with a plus payment beyond sector pay rates.

According to the Complainant’s representative, historic payment of the greasing allowance tended to be sporadic and was impacted by the nature of each project. It was submitted that over the period of the construction and general downturn in the Irish economy, the greasing allowance disappeared completely. In April 2017, the Unite Trade Union lodged a claim on the employers in the sector seeking, inter alia, that the greasing allowance would be housed in a Registered Employment Agreement (REA). It was further submitted that, in May 2017, the employers, the Construction Industry Federation (CIF) reached a collective agreement with SIPTU regarding the payment of a greasing allowance in the sector.

According to the Complainant’s Trade Union representatives, Unite Trade Union and its members advanced their claim to the Labour Court, who in their recommendation [LCR21606], advised that greasing allowances should apply to Unite members. It was further submitted that, since then, both Unite and SIPTU have engaged with the employers to have, inter alia, the greasing allowance enshrined in a REA. According to the Complainant’s submission, the greasing allowance is paid to all crane operators in the sector since then. It was further clarified that the claimant was currently in receipt of the greasing allowance.

Overtime rates:

According to the Complainant’s submission, overtime rates are provided for in the construction REA. It was further stated that while the agreement is not enshrined in law and the hourly pay rate is now provided for in a Sectoral Employment Order (SEO), the CIF remain signatories to the former REA, now sector EA.

The Complainant’s contentions:

The Complainant submitted that, as the Hirer is a CIF member, they are bound by the terms of the greasing collective agreement and sector EA, which requires them to pay any directly employed crane drivers the terms attached to base and, therefore, the same should apply to agency workers on the Hirer’s projects.

According to the Complainant’s submission, while he was working on the Hirer’s project between May and December 2017, the Hirer employed a directly employed crane operator on one of its other projects. It is submitted that the Hirer paid the other crane operator the greasing allowance of two hours per day and double time for all hours worked before 8:00 am.

Consequently, based on the above, the Complainant contends that he was underpaid in the amount of €7,285.35, covering both the greasing allowance (€4,856.90) and the double overtime payment   (€2,428.45).

The law and arguments:

It was submitted, on behalf of the Complainant, that Section 6 of the Protection of Employees (Temporary Agency Work) Act, 2012, provides the principle provision of equal treatment of agency workers. In addition, it was submitted that Section 2 of the Act defines basic working conditions to include pay and overtime.

According to the Complainant’s submission, the Hirer is a member of the Construction Industry Federation and, as such, is covered under the terms of the construction sector SEO, as their principal business is within the definition as detailed in the order.

It was submitted that the terms and the text of the SEO are largely provided for in terms of the Registered Employment Agreement (REA) that existed in the sector between 1967 and 2013, with much of the wider terms of the sectors generic contract of employment being housed in the former REA, no collective agreement or EA between the parties.

According to the Complainant submission, Section 6 of the Act guarantees equal treatment on basic working conditions to an agency worker as if he or she were directly employed by the Hirer, that the basic working conditions of the Hirer include those contained in the greasing collective agreement and sector EA. Consequently, it was stated that these basic conditions apply for the purposes of pay and conditions of the claimant while employed by the Respondent.

According to the submission made on behalf of the Complainant, the 2012 Act does not provide for where the probative burden of proof rests in the first instance, as is the case in many other statutes. In this regard, the Complainant referred to the case of Mulholland v QED Recruitment [2015 IEHC 151], in which Kearns, P sets out that the claimant must first establish the rate of pay which applies generally to directly employed comparable employees. It was further pointed out that although Kearns, P did not uphold the employees claims in the Mulholland case, he did endorse the approach taken by the Labour Court in Elizabeth Stafford v Ernest Isaacson & Others [AWD142] and Team Obair v Robert Costello [AWD 134] in relation to the burden of proof concerning applicable pay rates.

It was submitted on behalf of the Complainant that the generally applicable arrangements in this case are those provided for in the construction SEO, the greasing collective agreement and the sector EA. Consequently, the Complainant contends that, based on this and on the determinations in the above referred cases, the probative burden of proof shifts to the employer to establish that the rate of pay would not have applied to the agency worker had he been directly employed by the Hirer.

Time Limits:

The Complainant’s Trade Union representative accepted that the case was submitted to the WRC outside the six months’ time limit as provided for in schedule of the 2012 Act. However, it was further submitted that Schedule 2 of the Act also provides that, if an Adjudication Officer is satisfied that the failure to present the complaint was due to reasonable cause, then he/she can accept a complaint up to 18 months from the contravention date.

It was submitted, on behalf of the Complainant, that he had mandated his Trade Union representative to advance the matter on his behalf. It was further stated that the Union representative took the view that as the matter was in process with the Hirer, it was reasonable to exhaust that process in the first instance.

It was further submitted that, in the circumstances, the prudent thing for the Trade Union representative to have done would have been to advance the matter to the WRC before the six-month timeline ended and continue his efforts to resolve the matter locally. However, the Complainant’s Trade Union representative at the Hearing submitted that as the Complainant was unaware of this oversight by his representative, who was originally handling his case, he cannot be fairly held responsible for that oversight.

Conclusion:

In concluding his submission on behalf of the Complainant, his Trade Union representative submitted that the claimant was entitled to be paid a greasing allowance and appropriate overtime pay rates for early starts while working on the Hirer’s project between June 2017 and January 2018.

It was further submitted that it would be just and equitable to have the Complainant’s claim upheld and the associated payments to be awarded.

Preliminary Point:

At the commencement of the hearing, the Respondent raised an issue in relation to time limits. The Respondent submitted that the Complainant had made a claim in respect of losses alleged to have occurred while he was employed by the Respondent between the dates of July 2017 and December 2017. The Respondent submitted that, as they first received notification of the claim in excess of six months following the alleged loss, none of the losses claimed arose within six months from the date of the claim.

In support of the position in this regard, the Respondent referred to Schedule 2, subsection 4 of the Employment Equality Act, which states that the claims must be made within six months of the date of the loss claimed. In addition, the Respondent referred to subsection 5 of Schedule 2, which states that the WRC can extend this time limit to 12 months if reasonable cause is shown.

The Respondent submitted that Reasonable Cause has been interpreted by the Labour Court and the Courts generally. The Respondent referred to the submissions made on behalf of the Complainant in this regard wherein, the Complainant Trade Union representative offers by way of explanation for the delay, that the Complainers representative had been engaging with the Hirer in relation to the matter. However, the Respondent submitted that, in correspondence with the Hirer, the Complainers representative asserts quite clearly that the Complainant was employed by the Respondent. Consequently, the Respondent submitted that there was no misunderstanding as to the identity of the Complainant’s employer.

In addition, the Respondent submitted that the Complainant’s representative is suggesting that the claim was not submitted because of the claim made to the Hirer. The Respondent submitted that no claim had been made against the Hirer and the only claim which could be made was against the Complainant’s direct employer, i.e. the Respondent. It was further submitted by the Respondent that there was no engagement or correspondence with them in relation to a claim on behalf of the Complainant.

In addition, the Respondent submitted that it could not have been assumed by the Complainant’s Trade Union representative or indeed by the Complainant himself, that the Hirer was addressing the Complainant’s claim for losses as they did not respond to any of the correspondence. The Respondent submitted that the last letter from the Complainant’s representative was on 19 April 2018, a full two months before the date when the six-month limitation expired and some three months before the claim was made to the WRC.,

In supporting the position in this regard, the Respondent referred to the case of O’Donnell v Dun Laoighaire Corporation and to the determination that the reasons for the delay must: (a) explain the delay and (b) afford a justifiable excuse for the delay.

In addition to the aforementioned case, the Respondent placed heavy reliance on the Labour Court decision in the case of Salesforce.com v Ali Leach [EDA 1615], where the Court prescribed the test for defining Reasonable Cause as follows:

“is a reasonable diligent person in the same circumstances as the complainant and having the same state of knowledge of the material facts for the reasons advanced.”

The Respondent submitted that the Complainant fails the above test on the following grounds:

1.       The Complainant’s representative initiated a claim against a third party whom he (the Complainant’s representative) knew or was aware had no responsibility to the Complainant for the losses claimed or otherwise.

2.       The Complainant received no intimation from the third party that the losses claimed were admitted or that the Complainant would be compensated for the losses claimed which might otherwise justify the claimant not pursuing the claim to the WRC.

3.       Neither the Complainant nor his representative offered any justification or reasonable excuse in relation to the delay between final correspondence with the Hirer and the end of the six-month period.

The Respondent submitted that the reality is, as admitted in the Complainant’s representative submission, that a mistake was made, on behalf of the Complainant, by his Trade Union representative in failing to submit the claim within the time. The Respondent notes that the Complainant’s representative makes the plea that the Complainant should not be prejudiced by reason of the failure on his behalf of his Trade Union representative to file the submission within the prescribed time.

However, the Respondent submitted that failure on behalf of the Complainant’s representative to submit the claim within the time period prescribed by the legislation, is a matter between the Complainant and his representative and does not afford a justifiable excuse for the delay or satisfy the test laid by either the court or the Labour Court in the aforementioned cases.

The Respondent submitted that there are not grounds justifying the extension of the time limit for the submission of the Complainant’s claim and that it be dismissed as no losses have been claimed for the six-month period immediately prior to the date that the claim was submitted.

In this regard, the Respondent further submitted that, in respect of the losses claimed and those that are submitted for the period since 1 January, the claim, as submitted, is in respect of losses claimed by the Complainant between July and December 2017 – not January 2018 as included in the most recent submission on behalf of the Complainant. The Respondent further submitted that the losses now claimed in respect of January 2018 cannot be considered by the WRC as they have been submitted outside the periods (six months from date of loss). According to the Respondent, the Complainant has not sought this period to be extended and has just submitted the claim without explanation or attempt to justify same.

Response to substantive claim:

Notwithstanding their position with regard to time limits, as set out above in the preliminary arguments, the Respondent proceeded, without prejudice basis, to respond to the substantive claim made by the Complainant with regard to the greasing allowance and overtime.

1) Greasing Allowance:

With regard to the greasing allowance, the Respondent submitted that crane drivers are general operatives and along with all other general operatives in the construction industry have traditionally been represented by SIPTU. It was further submitted that, historically, crane drivers received an informal allowance for greasing. However, in the late 1990’s, this allowance was negotiated between CIF and SIPTU and paid to crane drivers who regularly greased the crane prior to operating it. According to the Respondent, greasing is no longer required on a daily basis and, by the early 2000’s, this allowance was generally phased out.

According to the Respondent’s submission, in 2016/2017, SIPTU lodged a claim on the CIF for the payment of two hours greasing allowance per day for crane drivers in membership of that Trade Union. It was further submitted that, in May 2017, agreement was reached with SIPTU on the basis that all crane operators in membership of that union would receive a two hour daily greasing allowance.

It was further submitted by the Respondent that, in April 2017, the Unite Trade Union wrote to the CIF advising that they also represented crane drivers and lodged a claim on behalf of their members substantially in excess of the agreement reached with SIPTU. The Respondent submitted that, at a meeting between the CIF and Unite Trade Union, on 31 May 2017, the union were offered the same agreement that was reached with SIPTU, i.e. two hours greasing allowance per day. According to the Respondent this offer was rejected. It was further submitted that the offer was made on a number of occasions subsequently, including at the WRC and the Labour Court, however, on each occasion it was rejected by Unite.

According to the Respondent’s submission, Unite engaged in industrial action throughout the months of June, July and August 2017, which resulted in substantial disruption to work on construction sites. It was further submitted that at two hearings at the WRC (on 20 July and 28 September 2017) the United Trade Union rejected the offer of two hours greasing allowance per day.

The Respondent submitted that the dispute culminated in a Labour Court hearing on 6 November 2017, at which the Court recommended, inter alia, that the two hours greasing allowance per day should also apply to crane drivers in membership of Unite Trade Union. However, the Respondent submitted that, following a ballot of their members, Unite rejected the Labour Court recommendation.

2) Overtime:

With regard to the Complainant’s overtime claim, the Respondent submitted that both the Complainant and the individual identified as his comparator for the purposes of his claim, who was working on another site operated by the Hirer, were both paid by their respective employers in accordance with the previously registered employment agreement.

According to the Respondent’s submission, the basic working week in the construction industry is 39 hours, which are structured as follows:

·         Monday – Thursday: 8 hours

·         Friday:                         7hours

It was further submitted that hours worked in excess of the above basic working week attract a premium as follows:

·         Monday – Friday:            normal finishing time to midnight – 1.5

·         Saturday:                            first 4 hours – 1.5 with double time thereafter.

·         Sunday:                               double time

According to the Respondent’s submission, the Complainant and his comparator were paid in accordance with the above rates.

In addition, the Respondent stated at the Hearing that working hours are set by the individual sites and all timesheets are assigned by the site supervisors.

Preliminary Point:

The first aspect to be considered in relation to the Complainant’s complaint relates to the preliminary point raised by the Respondent in relation to timeframes and whether or not I have the jurisdiction to hear the complaint, as submitted.

The Complainant submitted his complaint to the Workplace Relations Commission on 26 June 2018. In his original complaint form, the Complainant stated that, as an agency worker, he did not receive the same basic working and employment conditions as a comparable worker, during his employment with the Respondent covering the period between July and December 2017.

In the submission, presented by his Trade Union representative, it was stated that the Complainant’s contract with the Respondent ended on 7 January 2018 and, as a result, the claim was extended to cover the period up to and including the latter date.

In their submission, the Respondent contended that by lodging the complaint with the WRC on 22 June 2018, the Complainant was not in compliance with the requirement to submit complaints within a period of six months from the date of the contravention.

Section 41 (1) of the Workplace Relations Act, 2015, provides that:

41(1) “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 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39 , refer the complaint for adjudication by an adjudication officer”.

Schedule 5 (Part 1) of the 2015 Act covers, inter alia, contraventions of Sections 6, 13(1) and 23 of the Protection of Employees (Temporary Agency Work) Act, 2012. Consequently, I am satisfied that the Complainant’s within claim is covered under the 2015 Act.

With regard to timeframes, Section 41 (6) of the 2015 Act states as follows:

41 (6) “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”.

On the basis of the evidence adduced, I am satisfied that by submitting his complaint on 22 June 2018, the Complainant’s complaint was submitted after the expiration of the period of six months beginning with the last date of the contravention being alleged, irrespective of whether that data refers to 31 December 2017 or 7 January 2018.

Notwithstanding the above, I must consider the implications of Subsection 8 of the 2015 Act, as referred to   subsection 41 (6) above, which states as follows:

41 (8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

In their submission on behalf of the Complainant, his Trade Union representative stated that when the Complainant raised his situation with the Union, they initially approached the Hirer with a view to having the matter resolved. In this regard, the Complainant’s representative provided evidence of the matter having been raised with the Hirer in correspondence dated 6 March 2018, with follow-up correspondence on 29 March and 19 April 2018. This evidence indicated that the matter had been raised verbally with the Hirer prior to the first letter of 6 March 2018. However, no evidence was provided as to when these informal discussions may have taken place.

The evidence presented on behalf of the Complainant indicates that the Trade Union’s engagement in this regard with the Hirer, both informally and in correspondence, was conducted by one of their regional organisers. Evidence submitted at the Hearing indicates that once it became clear to this individual that their correspondence was being ignored by the Hirer, the matter was escalated internally within the Union with a view to having it advanced to the WRC by way of a complaint.

In their submissions relating to the preliminary point, the Respondent contended that the Trade Union and the Complainant should have been aware that the Hirer was not the Complainant’s direct employer and, as a result, they should have raised the issue directly with the Respondent.

In addition, the Respondent contended that the Trade Union have acknowledged that the failure to submit the Complainant’s complaint within the required six-month period was due to an oversight on their behalf. In response, the Respondent contended that this was clearly a matter between the Complainant and his Trade Union and, as such, it   had nothing to do with them. Further, in this regard, the Respondent submitted that it would be unreasonable to have the Complainant’s complaint heard, as this would penalise them (the Respondent) as a result of an oversight by the Complainant’s Trade Union representatives.

Having carefully considered all of the evidence adduced in relation to this matter, I am satisfied that the Complainant genuinely and legitimately raised his issue with his Trade Union during a period of time which satisfied the requirements as set out in Section 41 (6) of the 2015 Act. I am also of the view that, in line with normal industrial relations practice, it would be reasonable for the Trade Union to seek to have the matter resolved locally/informally before resorting to the submission of a formal complaint to the WRC.

Taking all the above into consideration, I find that the manner of the Trade Union’s progression of the Complainant’s issues, with regard to his working conditions, was not unreasonable, at least not to the extent that the Complainant should, as a result, be prevented from making his complaint to the WRC and having it duly investigated. Therefore, I find there are to be reasonable cause as to why the Complainant’s complaint was not submitted prior to the expiry of the six-month period specified in Section 41 (6), to the extent that I exercise my discretion as set out under Section 41 (8) of the 2015 Act and thereby entertain the Complainant’s claim as submitted on 22 June 2018.

On that basis, I now proceed to consider the substantive element of the Complainant’s complaint.

Substantive claim:

Section 6 (1) of the Protection of Employees (Temporary Agency Work) Act, 2012, states as follows:

6 (1) “Subject to any collective agreement for the time being standing approved under section 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment”.

Section 2 of the Act defines working and employment conditions, inter alia, as:

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to— (a) pay,……… and f) overtime,

Having reviewed all the evidence adduced, I’m satisfied that both aspects of the Complainant’s claim, i.e. the greasing allowance and the overtime payment, are covered by the Act.

With regard to the greasing allowance and having carefully considered all the evidence adduced, I find there to be merit in the Complainant’s claim in this regard. It is clear from the evidence that, from May 2017, an arrangement/agreement exists whereby the Construction Industry Federation recognise that “two hours greasing time per day will be paid to Crane Operators with effect from Monday, 5 June 2017.”

While I accept that this arrangement/agreement relates to the members of one specific Trade Union (i.e. SIPTU), I am obliged to consider the complaint before me in line with the provisions of the appropriate legislation, in this case the Protection of Employees (Temporary Agency Work) Act, 2012. This Act clearly applies to “an agency worker” on “assignment with a Hirer”, both of which conditions apply in the within case. Therefore, I must consider the Complainant’s claim on that basis and that basis only.

The addition, I also found the Labour Court recommendation (CD/17/310), as submitted in evidence, to have been informative in this regard. In this recommendation the Court recommended that “the agreement to afford two hours greasing allowance per day to Crane Drivers should apply to those crane drivers represented before the Court.” It is noted that the Crane Drivers represented before the Court on that occasion included members of the United Trade Union. Consequently, I find that the Complainant in the within case was covered by that recommendation.

Having carefully considered all of the evidence adduced, I am satisfied that the Complainant did not receive the greasing allowance which was his statutory entitlement, in line with Section 6 (1) of the 2012 Act, during the periods claimed. Consequently I find that the Complainant is entitled to receive payment for the amount of €4,856.90, as submitted, covering two periods between 26 June 2017 and 7 January 2018.

With regard to the Complainant’s overtime claim, I find that, having carefully considered all the evidence adduced, his complaint in this regard is not well founded. I find that the evidence as presented by the Respondent with regard to the calculation of overtime is consistent with that contained in the Sectoral Employment Order (Construction Sector) 2017, (S.I. No.445/2017)

In addition, the Respondent provided payslips for the Complainant covering the weekly payment periods 27 to 52 of 2017. The review of this evidence shows that, in all bar a small number of the periods in question, the Complainant received overtime payments. The Respondent also submitted weekly time sheets for the Complainant, which are signed off by the Hirer’s site supervisor. The evidence contained in this documentation does not support the Complainant’s contentions in relation to start times in the morning, on which he is basing his claim in relation to overtime.

Finally, in this regard I have also noted the Respondent’s evidence that the Complainant and the directly employed employee of the Hirer, who was used by the Complainant as a comparator for the purposes of the Act, were paid the same overtime.

Therefore, taking all of the above into consideration I find that the Complainant’s claim in relation to overtime is not well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows:

With regard to the Complainant’s claim in relation to the greasing allowance, I find that his claim under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012, is well-founded and, as a result, I award him an amount of €4,856.90 as a just and equitable award having regard to all the circumstances. This amount is subject to the normal statutory deductions in relation to remuneration.

With regard to the Complainant’s overtime claim, I find that his complaint in this regard is not well founded and is, therefore, rejected.

Protection of Employee (Temporary Agency Work) Act

Allowances

Overtime