ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030000

Parties:

	Complainant	Respondent
Anonymised Parties	Construction Operative	Recruitment Agency

Representatives

Shonagh Byrne SIPTU

Paul Vaughan

Complaints:

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-00036187-001	15/05/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00036187-002	15/05/2020

Date of Adjudication Hearing: 08/03/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

The Complainant is employed as a General Operative Cleaner since 1st January 2017. He is paid €15.70. per hour. He has claimed that he was not paid in accordance with the Sectoral Employment Order (SEO) for the Construction Industry, he was not included in the Construction Industry pension scheme and he did not receive the correct holiday pay and Public Holiday pay.

1)Industrial Relations (Amendment) Act 2015 CA 36187 -001

Summary of Complainant’s Case:

1) SEO rate

The Complainant has claimed that he did not receive the correct rate of pay 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. For the purpose of this definition apprentice and apprenticeship has the same meaning as it has in the Industrial Training Act 1967

Redress sought.

The claimant is seeking appropriate compensation for his loss of earnings arising from the difference between his hourly rate of pay paid by the respondent 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.)

Background:

The claimant has been employed as a Skilled Labourer by the Respondent since 2016. The claimant has more than two years’ experience in the Construction sector. The Claimant is a Category B Skilled Worker (2017 referred to as Category 1 Worker) as set down in the SEO. The respondent provides skilled workers to the Construction sector. When the claimant commenced employment with the respondent, he was paid €13.75 per hour. (payslips provided). In January 2020, the claimant’s hourly rate of pay increased to €15.70 per hour. (Payslip provided)

The claimant raised the issue regarding his incorrect rate of pay with the company on several occasions and it was also raised with the respondent by his union. The respondent did not engage with the union and the issues remained unresolved.

Until early March 2020, the claimant worked an average of 30 hours per week for the respondent in the Construction sector at various sites. The Claimant is currently out of work due to the COVID-19 restrictions in the sector.

The 2017 Construction Industry Sectoral Employment Order, which came into law on 19th October 2017, set the rate of pay for a Category 1 Worker (Skilled Operative with more than two years’ experience) at €17.04 per hour. The 2019 Construction Industry SEO, which was signed into law on 1st October 2019, sets the rate of pay for a Category B Worker (Skilled Operative with more than two years’ experience as €17.50 per hour. The claimant should have been paid the statutory rate of €17.04 per hour from 20th October 2017 up until 30th September 2019.

The claimant was paid €13.75 per hour. He worked an average of 30 hours per week in that period. The differential is €3.29 per hour: 101 weeks 30 hours x €3.29 = €9,968.70.

The claimant should have been paid the statutory rate of pay of €17.50 per hour from 1/10/19. The difference from 1/10/19 -31/12/19 = 13 weeks x 30 hours x €3.75 = €1,462.50

The Claimant should have been paid €17.50 from 1st January 2020. The claimant’s rate of pay increased to €15.70 per hour. The Difference is €1.80 x 30 hours by 10 weeks up to first week March = €540

Total due €: 11,971.00

Pension Contribution

He has claimed that no pension contributions were made on his behalf. The claimant is seeking to be registered with the Construction Industry pension scheme, as set out in the Sectoral Employment Orders and that the respondent pay the contributions owed to the claimant.

The Construction Industry Pension Scheme as set down in the SEO states the following. “A pension scheme with no less favourable the terms, including both employer and employee contribution rates, than those set out in the Construction Workers Pension Scheme be in place in the industry. That scheme must provide for entry into the scheme at age 18 and must provide a facility for payment of a daily contribution rate which is a fifth of the weekly rate specified in the scheme. The respondent in this case did not register the claimant for the Construction Industry Pension Scheme or pay into the scheme on his behalf. The Employer’s Pension contribution, as set out in the 2017 SEO, was €26.63 per week. The 2019 SEO set the rate for the employers’ contribution at €27.35 per week from 1 October 2019.

Summary of Respondent’s Case:

The Respondent stated that the Complainant was employed as a Cleaner not a Skilled Labourer as claimed. The rates that he has claimed do not apply to his grade. He rejected that he works 39 hours per week. He is a student, and he is not permitted to work these hours.

He also stated that there is a Supreme Court challenge to the constitutionality of the Sectoral Employment Orders. No decision should be issued until the Supreme Court issues its decision.

Findings and Conclusions:

1) Constitutionality of SEO for Construction Industry

I find that the Supreme Court appeal concerns the SEO for the Electrical Trades and not the Construction Industry.

Therefore, the constitutionality of the SEO for the Construction industry is not in question. So, I reject that argument.

2) SEO rate of pay

I find that the Complainant was employed as a Skilled Labourer as defined in the SEO.

I find the Claimant should have been paid the statutory rate of €17.04 per hour from 20th October 2017 up until 30th September 2019.

I find that he was paid €13.75 per hour. He worked an average of 30 hours per week in that period. The differential is €3.29 per hour: 101 weeks X 30 hours x €3.29 = €9,968.70.

I find that the claimant should have been paid the statutory rate of pay of €17.50 per hour for the period 1/10/19 -31/12/19 = 13 weeks x 30 hours x €3.75 = €1,462.50

I find that the Claimant should have been paid €17.50 from 1st January 2020 to 1st week in March a period of 10 weeks. The Difference is €1.80 x 30 hours by 10 weeks up to first week March 2020 = €540

I find that the Claimant is owed a total €: 11,971.20

3) Pension contributions

I find that the Respondent did not make any pension contributions on behalf of the Claimant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Application of the terms of the SEO

I have decided that the Respondent has failed to apply the correct terms of the SEO to the Claimant.

I have decided that the Respondent should pay the Claimant the outstanding amount of €11,971.20 on the basis as set out above.

I have decided that the Respondent should apply the correct rate of pay on an ongoing basis, within six weeks of the date below.

Pension Contributions

I have decided that the Respondent should make the pension contributions as set out above, within six weeks of the date below.

2) Organisation of Working Time Act CA 36187 -002

Summary of Complainant’s Case:

The claimant was also entitled to have his annual leave entitlement calculated at the correct statutory rate of pay of €17.50 per hour from 1st October 2019. The case was referred on 15th May 2020. The claimant is seeking to have his annual leave entitlement for the 6 months prior to the lodging of the claim calculated at the correct hourly rate of pay of €17.50 per hour. The claimant worked an average of 30 hours per week.

Annual leave calculation:

He stated that he was paid €550 in 2019 instead of €681.60 and €102 in 2020 instead of 114.80 he is due €144.00

Public Holidays

He was paid €110 in 2019 instead of €280 and €376.80 in 2019 instead of €840. He is due €633.20

He is also seeking compensation for break of his rights under this Act.

Summary of Respondent’s Case:

The Respondent rejected this claim.

Findings and Conclusions:

Annual Leave

I have found in the above decision CA 36187 - 001 that the Claimant should be paid according to the SEO for the Construction Industry.

This claim was presented to the Commission on 15th May 2020 therefore the period that may be investigated is 16th November 2019 to 15th May 2020.

I find that the holiday year is defined in the Organisation of Working Time Act as running from 1st April to 31st March.

I find that the period of this claim encompasses the holiday years 1st April 2019 to 31st March 2020 and 1st April 2020 to 31st March 2021.

At the time of the presentation of the claim the holiday year 1st April 2020 to 31st March 2021 was still running and may not be considered.

I find that the Claimant is owed the difference in holiday pay for the holiday year 1st April 2019 to 31st March 2020.

Public Holidays

I find that in respect of Public Holidays the period that may be consider is 16th November 2019 to 15th May 2020, which encompasses Dec 25th & 26th, January 1st, 2020, March 17th Easter Monday and May Day a total of 6 days

I find that the Claimant is owed the difference in pay for the above named six Public Holidays.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Annual Leave

I have decided that the Respondent should pay the Claimant the difference in holiday pay for the holiday year 1st April 2019 to 31st March 2020, within six weeks of the date below.

Public Holidays

I have decided that the Respondent should pay the Claimant the difference in pay for the six Public Holidays, within six weeks of the date below.

Dated: 17-05-2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Application of the Sectoral Employment Order for the Construction Industry and annual leave and holiday pay