Complainant

Respondent

Anonymised Parties

Scaffolder

Scaffolding company

Representatives

OPATSI

 Representatives of the respondent company.

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-00033169-001

17/12/2019

The complainant commenced employment as a scaffolder with the respondent on 8 April 2017 and finished his employment on the 16 August 2019.

His average working week amounted to 39 hours.

 His complaint is that the respondent is in breach of the pension provisions of S.I. 455 of 2017.

He submitted his complaint to the WRC on 17 /12/ 2019.

The complainant states that the respondent has failed to implement the pension provisions of S.I 455/ 2017 –Sectoral Employment Order (Construction Sector), 2017.

The complainant is employed as a Scaffolder since 2017. S.I. 455/ 2017 specifies the type or group of workers for whom the terms and conditions set out in the Order apply. The Order lists scaffolders as one such group of workers and classifies them as General Operative Grade A. 

S.I. 455/ 2017 stipulates that employers provide no less favourable pension terms than those available in the Construction Workers Pension Scheme, (CWPS). The order requires the employer to implement an occupational pension scheme which is registered with and regulated by the Pensions Authority, which must be portable, and which must have death in service benefit. Both employer and employee are obliged to make contributions to the scheme. In addition to pension benefits, S.I. 455/ 2017 requires that there should be a sick pay scheme within the construction sector.

The complainant wrote to the respondent on 4 December 2019 asking the respondent to demonstrate that the provisions of a pension scheme referred to in the complainant’s contract comply with the requirements of the SEO. The respondent replied on 12 December referring the complainant to the terms of his contract. The respondent further advised the complainant that as he was no longer in their employment, they could not provide a pension to him.

The complainant’s representative requested confirmation at the hearing that the PRSA referred to in the complainant’s contract of employment contained a death in service element, plus the obligation to have worker nominees sit on the Board of Trustees of the pension scheme administered by the PRSA provider. While the respondent always asserts that the complainant had access to a pension scheme with no less favourable terms than those set out in SI 455 / 2017, the respondent has refused to provide details to the complainant of the scheme and requested that the complainant write to him.

The respondent never mentioned a pension scheme at any stage during the complaint’s employment.

The complainant ‘s representative stated that the respondent’s refusal to provide confirmation that the scheme which they state the complainant is contracted to contains a death in service provision and provides for union- nominated members to sit on the Board of Trustees of the pension scheme, proves that that the respondent has failed to comply with the terms of S.I 455 / 2017.

He asks that the complainant be awarded compensation as per section 23 of the Act of 2015.

The complainant was employed as a Scaffolder with the respondent’s construction company since 8 April 2017. He signed a contract with the respondent on 15 December 2017. Section 11 of that contract facilitated access to a PRSA Scheme details of which were available through Payroll.

On 18 April 2019 the complainant met the Managing Director to review his salary.  He did not mention his pension scheme.

The complainant informed the respondent manager of his intention to resign in an email on 16/8/2019.

On 4 /12/2019 the complainant made a verbal and email enquiry to the Managing Director and the respondent Safety Advisor regarding pension provision. The Safety Advisor replied on 12 /12/2019 and referred the complainant to his terms and conditions of employment, supported his interest in membership of a pension scheme but advised that as he was no longer employed by them, they could not accede to his request and could not enter him into a pension scheme.

The respondent’s Manager stated at the hearing that the terms of the pension scheme available to the complainant at all times during his employment were no less favourable than the terms required by the S.1/ 455. He chose not to seek entry to the scheme until 4 /12/2019, after he had left the employment.

 Contrary to what the complainant asserts, he did not notify the respondent of his referral of a complaint to the WRC

The Safety Advisor gave evidence and stated that at no stage did the complainant seek access to the pension scheme or enquire about its details. Regard should be had to the fact that he made no contribution to the pension scheme. The complainant is not an employee.

 S.I 455/ 2017 was not in force when he joined the company on 2 April 2017.

I have been asked to confirm that the terms of employment including pension provisions contained in S.1 455/ 2017 apply to the complainant and that the respondent has failed to apply these terms.

The respondent states that as the worker is no longer employed with them, they are no longer liable for any claim brought against them under the Act of 2015. Section 5 of the 2015 Act states in “Definitions” (Part 2), that a  

“worker” has the same meaning as it has in Part III of the Act of 1990.”

And section 23 of the 1990 Act, as amended, states the following in relation to the definition of a “worker”.

23.— (1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “ worker” means a member of the Garda Síochána referred to in subsection (1A) and ] any person aged 15 years or more who has entered into or works under  (or, where the employment has ceased, worked under)  a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing.”

I find that the complainant meets the definition of a “worker”. I find that the respondent is statutorily liable for any breaches of S.I 455/ 2017 that may have arisen.

The categories of worker whose terms of employment are governed by S.I. 455/ 2017, include a scaffolder, who is listed as a ‘Category A’ worker for the purposes of the Sectoral Employment Order. The sector to which the SEO applies is the construction sector which incorporates building services in which the respondent is engaged.

I find that the complainant is a class of worker whose terms of employment are governed by S.1 455. Appendix 1 of the Order states that

“Every employer to whom the SEO applies shall participate in an SEO pension scheme that meets the requirements of the SEO”.

An employer operating in the construction sector is required to provide a pension scheme containing a provision for death in service benefit, a provision for employee representation on the Board of Trustees of the pension scheme and a sick pay scheme. The respondent was unable to confirm that the optional PRSA Scheme contained the latter, mandatory requirements set out in SI.455/2017. Employers and their employees working in the construction sector must contribute to an SEO pension scheme. Employers must pay a minimum pension contribution of €27.35 per week and a minimum death in service contribution of €1.14 per week.

Section 19(3) of the Industrial Relations (Amendment) Act, 2015 states that

“If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for conditions in relation to a pension scheme or a sick pay scheme (in this subsection referred to as the “contract conditions”) less favourable than the conditions (in this subsection referred to as the “order conditions”) fixed by the order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order conditions were substituted for the contract conditions.”

I find that the starting pension scheme, in force prior to the enactment of S.1. 455/ 2017, was required to adapt its terms to meet the requirements of the SEO.

It was accepted at the hearing that the complainant had not been enrolled in a pension scheme. The respondent facilitated his access to a PRSA scheme.

A PRSA (Personal Retirement Savings Account), advanced as an equivalent to the CWPS, is not an occupational pension, is optional and does not require the employer to contribute to it. The respondent was unable to confirm that the optional PRSA Scheme contained the mandatory requirement to have a death in service benefit or that the Board of Trustees of the scheme administered by the PRSA provider included representatives of the workers.

 I find that the respondent contravened the SEO by failing to provide the specified pension and sick pay benefits to which the complainant was entitled.  Where there is a contravention of a SEO, section 23 of the Industrial Relations (Amendment) Act, 2015 provides that

 “(2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

 (a) declare that the complaint was or, as the case may be, was not well founded,

 (b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

 (c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977”.

The SEO hourly rate for scaffolders in 2018-19 was €18.93.

In accordance with section 23 (2) (a) of the Act of 2015, I find the complaint to be well founded.

In accordance with section 23(2)(b), of the Act of 2015, I require the respondent to comply with the Pension Contribution, Death in Service Contribution and Sick Pay Contribution elements of SI.455/2017 which specify that the following amounts should be paid into the Construction Workers Pension Scheme CWPS:

Total Standard Contribution for the employer as follows:

Pension Contribution: €26.63

Death in Service Contribution: € 1.11

Sick Pay Contribution: € 1.27

Total: €29.01.

The complaint was lodged on the 17 /12/2019. The complainant resigned on the 16 August. The complainant was deprived of the benefit of a weekly contribution of €29.01 x 8 weeks which amounts to €232. I require the respondent to contribute the sum of €232 to the Construction Workers Pension Scheme.

In accordance with section 23 (2) (c) of the Act of 2015, I require the respondent to pay the complainant €1500 as being a just and equitable sum in compensation for the breach of his rights under the Act.

I find the complaint to be well founded.

In accordance with section 23(2)(b), of the Act of 2015, I require the respondent to contribute the sum of €232 to the Construction Workers Pension Scheme.

In accordance with section 23 (2) (c) of the Act of 2015, I require the respondent to pay the complainant €1500 in compensation for the breach of his rights under the Act of 2015.

Non - compliance with SEO pension provisions.