Complainant

Respondent

Anonymised Parties

A Scaffolder

A Construction Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00031738-001

22/10/2019

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

CA-00031738-002

22/10/2019

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

CA-00031738-003

22/10/2019

The complainant commenced his employment with the respondent on April 18th, 2017 and it terminated on August 31st, 2019 when he resigned.

He alleges of a breach of his entitlement to the pay rates under the Sectoral Employment Order for the construction industry in respect of basic wages, and as a consequence a loss of annual and public holiday entitlements.

The complainant is a ‘Category A’ worker for the purposes of the Sectoral Employment Order (SEO) and which governs the terms of his employment.

This entitles him to a payment of €17.04 per hour.

In fact, the complainant was paid €11.43 per hour.

His payslips show a payment of €446.00 per week instead of €664.00. Details were submitted of his losses.

This then had an impact on payments for annual and public holiday leave.

He seeks payment of the monies due to him.

The complainant began working for the respondent on April 8th, 2017 on the basis of a gross weekly payment for thirty nine hours of €555.00.

This was made up of wages of €350.00 and an additional payment of €205.00.

A year later, on the same date the parties met to discuss the complainant’s remuneration and with a view to bringing it into line with the terms of the SEO.

The respondent says that the complainant told him that this would result in the loss of his medical card and other social welfare benefits ad he requested that his remuneration be adjusted to give him a gross payment of €626.00, to comprise wages of 446.00 and an additional payment of €180.00.

The respondent reluctantly agreed to this proposal. It resulted in the complainant’s take home pay being greater than his net income had the SEO rates been applied.

The complainant resigned from the company on August 16th, 2018.

In respect of all complaints the respondent’s position is that it offered the complainant the SEO rates and he declined to accept them. In fact, his net income exceeded what his SEO take home pay would have been by €23.73 per week

There was no dispute at the hearing as to the arrangement entered into between the parties, nor that it was at the complainant’s request.

Equally, there is not a dispute about the fact that the respondent did not pay the gross rates as required by the SEO.

Had he done so, the complainant’s net income would have been lower, and it appears he would have lost his entitlement to certain social welfare benefits which, up to that point, he had been receiving.

The complainant submitted his complaint on October 22nd, some two months after his employment terminated on August 31st, having been complicit in the arrangement made at his request for the duration of his actual employment; some two years and four months.

Therefore, while he may have been denied the application of the strict terms of the SEO I take into account that not only was he at no loss, but he was better off than had the strict terms of the agreement been applied to him.

In the submission to the hearing made on his behalf it is asserted that;

‘as a consequence of the employment the claimant is at a loss in terms of wages, annual leave and entitlement to public holidays’.

From the above it will be clear that this is demonstrably not true.

Section 23(1) of the Industrial Relations (Amendment) Act contains the remedies open to an Adjudication Officer and they include;

A declaration that the case is either well founded or not (section 23 (2) (a))

A power to require the employer to comply with the provision in respect of which the complaint arose (section 23 (2) (b)), and finally,

The Adjudicator may require the employer to pay compensation of such amount (if any) as may be just and equitable. (section 23 (2) (c)).

I do find that all the complaints are well founded on the basis of a strict interpretation of the Order.

However, it would be incompatible with any concept of justice and equity to award compensation to the complainant in these circumstances and I decline to do so.

This would result in him gaining a greater benefit than he was entitled to and would be entirely unjustified. Contrary to the assertion in his submission he has been at no loss.

The respondent would be well advised to resist the temptation to enter into such arrangements in the future, whatever pressures it might be put under to do so, and to ensure that it is fully compliant with all relevant employment and taxation law.

I declare complaints CA-00031738-001, 002 and 003 to be well founded.

For the reasons set out above no order of compensation arises.

Sectoral Employment Order