Complainant

Council

Anonymised Parties

A Local Authority

A Craftsman Painter

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-00029546-001

09/07/2019

The complainant is a painter and he has been employed by the Council since May 1999. He is entitled to various allowances related to his job, one of which is an allowance of €6.61 per day for working on a scaffold. His complaint is that, in November 2018, the Council stopped paying him the scaffolding allowance which was paid to him continuously for every day that he worked since August 14th 2013.

In his written submission, Mr Kelleher said that the complainant first received the scaffolding allowance in October 2010 and, from then on, it was paid every time that he worked where a scaffold was required. On August 14th 2013, Mr Kelleher said that the allowance was paid for every day that the complainant worked, even for days when he wasn’t required to use a scaffold. In his submission, he provided details of eight occasions between 2015 and 2018 when he did work without a scaffold. On one occasion, between the 8th of May and the 18th of June 2018, the scaffolder and scaffold were taken off the site where the complainant was working and sent to a different site. In November 2018, the housing maintenance manager stopped the allowance without the agreement of the complainant or his union.

Following a request to reinstate the allowance, the complainant received a letter from the senior staff officer in the human resources department who attended the hearing in which she stated that the complainant “received the allowance for erecting / dismantling scaffolding when the work / task he was working on necessitated the use of scaffolding.   As the work he is currently undertaking does not require the need for scaffolding he is therefore not being paid this allowance. However, when the work requires scaffolding, then this allowance will be paid to him.”

At the hearing, I was informed that, for the last four weeks, the scaffolding allowance has been paid.

A meeting took place on March 5th 2019 with the complainant and the housing maintenance manager. He attended with Mr Kelleher of the Connect Union and the senior staff officer who sent the letter referred to above also attended. The complainant made a case for reinstating the scaffolding allowance on the basis that, when he received the payment between 2013 and 2018, he was not always working on jobs involving the use of a scaffold.

The payment was not reinstated and the complainant submitted this complaint to the WRC for adjudication under section 6 of the Payment of Wages Act 1991.

For the Council, Ms Kane said that the scaffolding allowance is one of about 10 separate allowances paid to craftsmen in the Council. When the complainant commenced employment, he was assigned to internal housing work that didn’t require the use of a scaffold and, during this period, he didn’t receive the allowance. In 2010, he was occasionally assigned to external work on multi-storey housing, and from then, he received the allowance of €6.61 per day when he worked on a site where scaffolding was in use. The allowance was authorised by his supervisor at the time.

At the hearing, the housing maintenance manager explained that in August 2013, the complainant was assigned to a work on a two-storey housing development and that the work on this site continued for several years. During this time, the complainant was occasionally assigned to one-off jobs off this site, where scaffolding was not used; however, the scaffolding allowance was paid for the entire duration, because the complainant’s main work was on the two-storey houses.

In November 2018, the complainant was moved to a new site consisting of single-storey bungalows and scaffolding was not used. Since August 12th 2019, the complainant is again working on a site where scaffolding is used and, as he said at the hearing, he has been paid the allowance for the past four weeks.

Ms Kane referred to section 5 of the Payment of Wages Act 1991 which, at sub-section (6), addresses the issue of wages that are properly payable:

Where –

(a) the total amount of any 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 therefore 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 deductions as aforesaid) are paid to the employee,

then, except insofar 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 that occasion.

Ms Kane argued that, following the judgement of the High Court in the case of Dunnes Stores (Cornelscourt) v Lacey and O’Brien [2005], IEHC 417, my first task, as the adjudicator, is to decide if the allowance claimed by the complainant is properly payable. She said that the Council is satisfied that the complainant received all the amounts that were properly payable in respect of his wages and allowances. Ms Kane concluded that “the Council cannot be expected to pay the claimant a scaffolding allowance over periods of time when scaffolding is not required and therefore, he has no entitlement to the allowance.”

The issue for adjudication here is the question of whether the Council’s scaffolding allowance of €6.61 is properly payable to the complainant on days when he is not required to use a scaffold. He has argued for the allowance to be paid on an ongoing basis because, he claims it was paid from 2013 until 2018 for days when he was not working with a scaffold.   He provided examples of nine occasions when this occurred. The Council’s housing maintenance manager said that the reason the allowance was paid on these days was because the complainant was taken off his main job to do one-off jobs such as re-painting smoke-damaged interiors or to prepare a single property for re-letting.

Having considered this matter, it is my view that it was reasonable for the maintenance manager to pay the scaffolding allowance to the complainant, when, between 2013 and 2018, on less than a dozen occasions, he was asked to go from his main site to do a one-off job. Technically, and, from a legal perspective, the scaffolding allowance was not properly payable to the complainant on these occasions.

I note Ms Kane’s reference to the Dunnes Stores case in the High Court, but I am not convinced of its usefulness, here, as the as this appeal related to a dispute about whether an agreement had been reached between Dunnes Stores and the Mandate union regarding the payment of service pay plus a long-service increment. In a case at the Labour Court in 2016, Cork City Council and James Reid, PWD 1623, Mr Reid disputed the discontinuation of the payment of an “early morning allowance” of 10 hours’ pay per week that was paid to him between 2002 and 2014. He had stopped working additional hours in April 2002 and the Court found that the allowance was not properly payable after that date. The Court upheld the decision of the Rights Commissioner that Mr Reid’s complaint was not well-founded. Like the Dunnes Stores case, this Labour Court decision does not exactly reflect the circumstances of this complaint; however, it shows that the Court considers allowances to be other than wages. I find therefore, that the scaffolding allowance does not come within the definition of wages that are properly payable to the complainant in accordance with section 5(6) of the Act.  

While the Council paid the scaffolding allowance to the complainant on several occasions over five years when it was not due, I find that their decision, from November 2018, not to pay the allowance when he is not working on a site where scaffolding is in use, is not a breach of section 5 of the Act. I find also that the suggestion that the allowance should be continued in these circumstances has the potential to undermine the integrity of the allowances framework.

As I have concluded that the respondent has not infringed section 5 of the Payment of Wages Act 1991, I decide that this complaint is not well founded.

Payment of wages, allowance