Complainant

Respondent

Anonymised Parties

A General Operative

A Recruitment Agency

Representatives

Dave Curran SIPTU

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036649-001

12/06/2020

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

CA-00038455-001

30/06/2020

The complainant commenced employment, with the Respondent working as a General Operative with a construction company in late October 2019. His employment ended 3 January 2020.  He was paid €13.75 per hour for the duration of this employment. He worked for 39 hours per week. He has claimed that he was not paid in accordance with the Sectoral Employment Order (SEO) for the Construction Industry.  The complainant has claimed that he did not receive the correct rate of pay, i.e. €17.50 per hour, for a Category B General Operative. 

Section 23 Industrial Relations Amendment Act 2015-Sectoral Employment Order: The Class, type of group of workers to whom the SEO applies is as follows. Persons employed in the Construction Sector as craft persons, construction operatives and apprentices.

For the purpose of a Sectoral Employment Order a worker to whom such order has application is defined as any person aged 15 years or more who has entered into or works under a contract with an employer, (including through an employment agency within the meaning of the Employment Agency Act, 1971 and / or the Protection of Employees (Temporary Agency Work) Act, 2012 ), whether the contract be for manual labour or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour.

The complainant is seeking appropriate compensation for his loss of earnings arising from the difference between his hourly rate of pay paid by the employer and the statutory rates of pay he was entitled to be paid as stipulated in the Construction Industry Sectoral Employment Orders for 2017 and 2019. (Section 23 of the Industrial Relation (Amendment) Act 2015.)

The complainant submits that following his recruitment in October 2019 by the respondent, he worked as a Category B worker with a construction company covered by the Construction Industry SEO.  Although working as a Category B worker he was only paid an hourly rate of €13.75 per hour, the New Entrant rate, as opposed the Category B rate of €17.50 per hour.

The complainant stated that during his time working for the construction company he did work that was without doubt skilled worked which merited Category B rates of pay.  He also stated that although he had taken the job knowingly as a New Entrant, he felt he had been conned as from the outset he was doing the work of a far more experienced worker.

The complainant also stated that he had called the respondent’s office to discuss his situation vis-à-vis his work and pay but he could not recall what was said but the problem was not resolved.

 The complainant submits that he worked for 39 hours per week for 12 weeks amounting to 429 hours plus one week when he only worked for 23 hours bringing the total hours he worked during his employment to 452 hours.  As he was underpaid by €3.75 per hour, he now submits that he is due a total of €1,695.00. 

The complainant also put forward that if it was not accepted that he was a Category B worker for the duration of this employment he was still paid less than he should have been as the New Entrant rate increased form 1 November 2019 to €14.40 per hour, yet his hourly rate remained at €13.75 per hour a shortfall of 75c per hour, for the period from 1 November 2019 until his employment ended on 3 January 2020.

The complainant’s union submits that it contacted the respondent in February 2020 in an effort to have the matter resolved, without success.

The complainant submits that he should receive compensation for this loss.

The respondent stated that the complainant was not employed as a Category B worker. The Complainant had answered an advertisement for a New Entrant position which clearly stipulated an hourly rate of €13.75 per hour, which was what he was paid for the duration of his employment. The employer provided a copy of the advertisement subsequent to the hearing.

The employer stated that he had no knowledge of any complaints having been made by the worker regarding his rate of pay.  

The respondent stated that if there was money due to the complainant he was happy to pay it.

I find that the complainant entered into an agreement to work as a New Entrant at a rate of €13.75 per hour of his own volition and knowing the rate of pay on offer.  Insufficient evidence was adduced in support of his contention that he did the work of a Category B Operative to persuade me to find for him on that aspect of his claim.

However, S.I. No. 234 of 2019, increased the hourly rate for New Entrant operatives to €14.14 from 1 October 2019, therefore for the entirety of his employment, that is 452 hours, the complainant was underpaid by 39c per hour.

This should not have happened.  The respondent should have increased the hourly rate as soon as the SEO increase came into operation.  

I find that the complainant worked a total of 452 hours while being underpaid by 39c per hour, resulting in a total loss of €176.28.

Construction Sector SEO, hourly rate, S.I. No. 234 of 2019.