ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00028847
Parties:
| Complainant | Respondent |
Anonymised Parties | A construction worker | A construction firm |
Representatives | Billy Wall | Self-represented |
Complaints:
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-00038101-001 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00038101-002 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00038101-003 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038101-004 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038101-005 | 20/06/2020 |
Date of Adjudication Hearing: 19/03/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 20th June 2020, the complainant referred complaints to the Workplace Relations Commission pursuant to the Industrial Relations (Amendment) Act and the Terms of Employment (Information) Act. The complaints were scheduled for adjudication on the 19th March 2021.
Following the designation of the Workplace Relations Commission per section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, the adjudication was held remotely. The complainant attended the adjudication and was represented by Billy Wall. Two representatives of the respondent attended.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked for the respondent between August and December 2019. He was paid €741 per week. The complaints relate to contraventions of the Construction Industry SEO (SI 234/2019) and the Terms of Employment (Information) Act. The respondent denies the claims. |
Summary of Complainant’s Case:
At the outset of the hearing, the complainant withdrew complaint reference CA-00038101-001, which was pursuant to the Industrial Relations (Amendment) Act. In respect of complaint reference CA-00038101-002, the complainant outlined that he had not received overtime in the terms required by the Sectoral Employment Order (SEO). While the ordinary rate of pay was €19 per hour and the applicable SEO rate was €18.86, the SEO required overtime to be paid at a higher rate than the ordinary rate of pay. The complainant outlined that he was owed €317 in overtime. The complainant outlined that complaint reference CA-00038101-003 arose out of the failure of the respondent to provide access to a pension scheme and to sick pay and death in service benefit. This was required by the SEO and the complainant sought compensation per section 23(1)(c) of the Act. Complaint references 004 and 005 related to the complainant not being given a statement of his terms and conditions of employment. Complaint reference 004 was made pursuant to the Terms of Employment (Information) Act and related to the statement of terms of employment required by section 3 of that Act. Complaint reference 005 related to the requirement for a statement of core terms to be provided to the employee within 5 days of the commencement of the employment (section 3(1A) of the Terms of Employment (Information) Act. The complainant outlined that his employment commenced in August 2019 and ended on the 20th December 2019. He did not receive any statement in writing. He submitted that it was presumed that the Sectoral Employment Order remained constitutional pending the appeal to the Supreme Court. He outlined that the SEO provides that the normal working week is 39 hours, so any hour worked over 39 hours constituted overtime. He said that hours worked were recorded on the pay slip and that overtime was due at time and a half. He outlined that he worked 40 hours of overtime. The complainant outlined that the first SEO for the Construction industry (SI 455/2017) had not addressed what constituted a ‘normal working week’. This was clarified in the second SEO for the Construction sector (SI 234/2019) which came into force on the 1st October 2019. This provided for the payment of overtime premium rates. |
Summary of Respondent’s Case:
In respect of complaint reference 001, the respondent outlined that the hourly rate was above the SEO rate. In relation to 002, the respondent said that the complainant worked the contracted hours and was not due overtime. It submitted that the High Court had deemed the relevant part of the Industrial Relations (Amendment) Act to be unconstitutional, so the SEO was no longer enforceable. The respondent outlined that its foreman would have issued the complainant with a statement in writing of his terms and conditions of employment. They did not have a record of the statement and the complainant had not raised this as an issue during his employment. |
Findings and Conclusions:
Three of the complaints were made pursuant to the Industrial Relations (Amendment) Act 2015. As discussed by the parties, on the 23rd June 2020, the High Court held that the legislative basis for SEOs set out in Part 2, Chapter 3 of the Act was invalid having regard to the Constitution. In setting out the Court’s final orders on the 31st July 2020, the declaration of invalidity was suspended pending the outcome of any appeal. In its reasoning, the High Court outlined at paragraph 27 of the July 2020 judgment that to make a declaration with immediate effect ‘would be to cast doubt on the validity of other sectoral employment orders’. In its judgment of the 18th June 2021, the Supreme Court overturned the finding that the relevant statutory provision was repugnant to the Constitution, albeit that the Electrical Contracting SEO was to be remitted to the Labour Court for fresh consideration. In respect of these complaints, it is clear that the Construction Industry SEO remained in force as the High Court had suspended the legal effect of the declaration of invalidity. The reason for the suspension was to preserve the status quo for employers and employees pending the appeal to the Supreme Court. The finding of invalidity was reversed by the Supreme Court. It is also worth noting that the Electrical Contracting SEO was enacted by SI 703/2021 and came into force on the 1st February 2022. CA-00038101-001 The complainant withdrew this complaint pursuant to the Industrial Relations (Amendment) Act. CA-00038101-002 This is a complaint pursuant to section 23 of the Industrial Relations (Amendment) Act in respect of overtime. The SEO provides that hours worked over 39 hours per week constitute overtime and are paid at time and a half. The SEO came into operation on the 1st October 2019. The complainant states that he is owed €317 for overtime worked in weeks 40 to 48. Week 40 was the week commencing Monday, 30th September 2019. The SEO provided that as of the 1st October 2019, overtime is payable for hours worked above 39 hours per week, at time and a half. The clause dealing with pay sets out ‘basic hourly rates of pay’, i.e. minimum rates of pay. There is a separate clause dealing with overtime and this refers to ‘time and a half’ et cetera. The overtime clause refers to overtime being a premium payment but does not say that this is only in respect of the basic or minimum hourly rate of pay. I, therefore, interpret the SEO as meaning that overtime is calculated according to the contractual or actual rate of pay, and not on the basis of the basic or minimum rate of pay. I, therefore, find that the complainant was not paid all the overtime due, and the complaint is, therefore, well-founded. The complainant is due the €317 that ought to have been paid to him as overtime in weeks 40 to 48. CA-00038101-003 This complaint relates to access to a pension and death-in-service scheme as well as a sick pay scheme. No such access was available to the complainant. This access was set out in the 2017 Construction SEO and its terms made clearer in the 2019 Construction SEO, in force during the course of the complainant’s employment. The complainant ought to have had access to both schemes, whereby both he and his employer would make contributions, and the complainant would have the ongoing benefit as he continued his career in construction. The complaint is, therefore, well-founded. In assessing redress, I note that there was a contravention and the short duration of the complainant’s employment with the respondent, reducing any direct, negative consequence on the complainant. The complainant’s employment with the respondent last some 19 weeks, whereby pension/death in service and sick pay contributions of about €49 per week ought to have been made. I award redress of €950 as just and equitable compensation. CA-00038101-004 This is a complaint pursuant to the Terms of Employment (Information) Act regarding the section 3 requirement to provide an employee with a statement of the terms of their employment. It also requires that the document is signed by the employer and retained on file for at least a year after the ending of that employee’s employment. It is a requirement that transposes EU law, the Written Statement Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). The requirement set out in section 3 has been law since the 16th May 1994. I accept that the respondent may have thought that the complainant was provided with a statement of terms of employment; they explained that a foreman would have done this. The complainant, however, says that this did not take place. I also note that there should have been a document on file with the respondent and there is no such document. It follows that there is insufficient evidence that the obligation in section 3 was complied with. There was a contravention of the Act, and the complaint is, therefore, well-founded. In assessing redress, I note the importance of the written statement in informing employees of the key terms of their employment. It arises from EU law so redress must be ‘effective, dissuasive and proportionate’. The complainant received weekly pay of €741 and the Act sets out that the maximum award for a breach of section 3 is four weeks’ pay. In these circumstances, I award redress of €1,500. CA-00038101-005 This is a complaint pursuant to the Terms of Employment (Information) Act in respect of the statement of core terms required by section 3(1A) of the Act. This came into force on the 4th March 2019, i.e. the same year that this employment began. This requires that an employee be furnished with a statement of the key terms of their employment within five days of its commencement. Again, I accept that the respondent believed that this had been complied with. There is no supporting documentary evidence, and the complainant says that he did not receive the statement of core terms. I, therefore, find that the complainant was not provided with a statement of core terms and there was a contravention of the Act. In these circumstances, I award redress of €500. |
Decisions:
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.
CA-00038101-001 This complaint pursuant to the Industrial Relations (Amendment) Act 2015 was withdrawn by the complainant. CA-00038101-002 I decide that this complaint pursuant to the Industrial Relations (Amendment) Act 2015 is well-founded and I award redress of €317. CA-00038101-003 I decide that this complaint pursuant to the Industrial Relations (Amendment) Act 2015 is well-founded and I award redress of €950. CA-00038101-004 I decide that this complaint pursuant to the Terms of Employment (Information) Act is well-founded and I award redress of €1,500. CA-00038101-005 I decide that this complaint pursuant to the Terms of Employment (Information) Act is well-founded and I award redress of €500. |
Dated: 07-02-22
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Industrial Relations (Amendment) Act / Construction Sectoral Employment Order Terms of Employment (Information) Act |