FULL RECOMMENDATION
SECTION 23, INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2015 PARTIES : CLS RECRUITMENT GROUP LTD (REPRESENTED BY KEMPLE GORMLEY SOLICITORS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030000. The Adjudication Officer decided that the Complainant was employed as a Skilled Labourer, as defined in the Construction Industry SEO, and that the Respondent has failed to apply the correct terms of the Construction Industry SEO to him. The Adjudication Officer determined that the Complainant should have been paid the relevant statutory rate from 20 October 2017 up until the first week in March 2020. The Adjudication Officer assessed the loss to the Complainant arising from the Respondent’s failure to apply the terms of the SEO from October 2017 to March 2020 as amounting to €11,971.20. He decided that the Respondent should pay the Complainant the outstanding amount of €11,971.20 and apply the correct rate of pay on an ongoing basis. The Adjudication Officer found that the Respondent did not make any pension contributions on behalf of the Worker and further decided that the Respondent should make pension contributions payments based on the correct rate of pay to the Construction Industry Pension Fund within six weeks of the date of the Adjudication Officer’s decision. A Notice of Appeal was received by the Court on 15 June 2021. A remote case management hearing of the Labour Court was held on 7 January 2022, following which both parties provided supplementary submissions. A remote Labour Court hearing was held on 13 April 2022. For ease of reading, the parties are referred to in this Determination as they were at first instance. Hence, Mr Kuyewawa is referred to as the Complainant and CLS Recruitment Group Ltd is referred to as the Respondent. COGNISABLE PERIOD: The complaint was submitted to the WRC on 15 May 2020. Section 41(6) of the Workplace Relations Act 2015 imposes time limits for the lodging of complaints under the Act as follows: - “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” Therefore, the relevant period for consideration by the Court is the period from 16 November 2019 to 15 May 2020. SUMMMARY POSITION OF THE COMPLAINANT: The Complainant was employed as an Agency worker with the Respondent from 17 February 2017 until mid-February 2020. The Respondent is an employment agency within the meaning of the Protection of Employees (Temporary Agency Work) Act 2012 and provides workers to the Construction sector. The relevant Sectoral Employment Order for this claim is S.I. 234 of 2019 - the 2019 Construction Sector Sectoral Employment Order which sets the basic minimum rates of pay applicable to specific categories of workers employed in the Construction sector. The 2019 Sectoral Employment Order specifically includes reference to agency workers. As a General Operative in the Construction Sector the Complainant was covered by the terms of the Construction Industry Sectoral Employment Order, which sets the statutory minimum rates of pay and other conditions of employment for persons employment in the construction sector. During his employment with the Respondent, the Complainant worked as a General Operative in carpentry, labouring, digging of trenches and foundations, general labouring, ground levelling, and window fitting. The types of work undertaken by him fall under the definition of the Construction sector in the Sectoral Employment Order. The Complainant had two years’ experience as a General Operative in February 2019 and was a Category B Skilled Worker as per the 2019 SEO. During the cognisable period for the within complaint, the complainant was a Category B worker as per the 2019 SEO carrying out the installation of windows and his correct rate of pay should have been €17.50 per hour. He was not paid the correct statutory rate of pay by the Respondent. The complainant raised issues regarding his incorrect rate of pay with the company on several occasions and it was also raised with the respondent by SIPTU. The respondent did not engage with SIPTU, and the issues remained unresolved. The Complainant’s hourly rate of pay on commencing employment in 2017 was €13.75. The 2017 Construction Industry SEO came into law on 19 October 2017 and set a statutory rate of pay for a Category I Worker (with more than two years’ experience) at €17.04 per hour. The complainant should have been paid the statutory rate of €17.04 per hour from 20thOctober 2017 up until 30thSeptember 2019 by the respondent. During this period, the Complainant’s hourly rate of pay was €13.75 per hour, a difference of €3.29 per hour. The subsequent 2019 Construction Industry SEO, which came into law on 01 October 2019, set the statutory rate of pay for a Category B Worker (with more than two years’ experience) at €17.50 per hour. The complainant should have been paid the statutory rate of pay of €17.50 per hour from 1 October 2019. He was paid €13.75 from 1 October 2019 to 31st December 2019, a difference of €3.75 per hour. From 1 January 2020 to February 2020 the Complainant was paid €15.70 per hour, a difference of €1.80 per month. The Respondent is covered and should be bound by the terms of Sectoral Employment Orders and should pay the correct statutory rates of pay as set down by the SEO. The complainant worked an average of between 30-39 hours per week at various construction sites for the Respondent until March 2020. The overall approximate loss of earnings during his employment with the Respondent was €10,233.30. The Complainant seeks an award of appropriate compensation that is ‘just and equitable’ for the loss of earnings arising from the difference between the hourly rate he was paid and the statutory rates of pay that he was entitled to be paid as per the Construction Industry Sectoral Employment Orders for 2017 and 2019. The Respondent did not register the Complainant with the Construction Industry Pension Scheme or pay into the scheme on his behalf. The Employer’s Pension contribution as set out in the 2017 Construction Industry SEO came was €26.63 per week. The subsequent 2019 Construction Industry SEO increased that rate to €27.35 per week. The Complainant seeks to be registered with the Construction Industry Pension Scheme and that the Respondent pay the required amounts due under the 2017 and 2019 Sectoral Employment Orders. The Complainant also seeks that the Court issues an order to the Respondent to apply the correct rates of pay as set down in the Construction Sectoral employment Order. EVIDENCE OF THE COMPLAINANT: The Complainant told the Court that he initially was assigned by the Respondent to work for a client, Spring Facility Services, where his work entailed cleaning windows. He was assigned to work with Corran Carpentry in August 2017, where he worked as a general labourer on different construction sites in Rathgar, Dundrum, and North Strand. The work he carried out for Corran Carpentry was general operative work and he never cleaned windows. The Complainant told the Court that generally three people were needed to fit a window. He brought windows to locations, took windows off pallets, the other lads would fit the windows and he would then seal the windows when fitted. After March 2018 he was fitting windows himself, and he was often left on site on his own to repair windows. In November 2019, he approached the Respondent about his wages when a friend made him aware of the SEO rates. The Complainant told the Court that he left the role in mid-February 2020, when his hours were reduced, as he was only given one or two days’ work a week. Prior to this he had worked on average 26-28 hours per week. Under cross examination, the Complainant accepted that he had applied for a job with the Respondent as a ‘cleaner/unskilled operative’and was assigned to work for Spring Facility Services as a cleaner to clean windows. He said that he then worked for another client company of the Respondent for one month helping electricians. He denied that he worked as a cleaner while assigned to Corran Carpentry. He said that he was trained to fit windows while working with Corran Carpentry. When asked why he did not raise an issue about his rate of pay as a window fitter before November 2019, he said that he did not have any information about SEO rates, so could not have raised the matter before then. He accepted that he left the role without serving notice and said that he has not worked since. In response to questions from the Court, the Complainant said that the client company Corran Carpentry was the third job he had undertaken with the Respondent company. All three jobs were on construction sites. Other agency workers assigned by the Respondent to work on sites did the same job as him. The Complainant said that that the Respondent used the term ‘cleaner’, but they were not cleaners. They were general operatives. Corran Carpentry employed about eight workers, working on two sites. The workers were general operatives who also picked up and cleaned. He did not fit windows from day one but helped out holding windows while they were fitted. From November 2019 until he left employment he was based at a construction site at Strand Street fitting windows. He got his first Safe Pass in 2009 but had not applied for construction work at that time. The Complainant told the Court that the only document that he had received from the company was a contract of employment in 2019, which he had not signed. SUMMARY POSITION OF THE RESPONDENT: The Complainant responded to a job advertisement for a cleaner and was hired as “cleaner/unskilled operative” on 17 February 2017. The Complainant entered into a contract of employment with the Respondent as an agency worker to provide services as a “Cleaner/Unskilled Operative”to a client company,Spring Facility Services, which provides window cleaning services. He was paid a rate of €11.00 per hour, as per his contract of employment. When the Complainant completed his contract with that client, he took up a new position from 19 August 2017 with another client, Corran Carpentry, who required acleaner/unskilled operativeon site. The Complainant initially started work on a part-time temporary basis at a rate of €11.75 per hour. He received a new contract on the 19 February 2019, approximately 18 months after starting with the Client and his pay was increased to €13.75 per hour. The Complainant never raised any grievances or concerns over his job or his duties. He did not raise an issue with his pay until November/December 2019. The Respondent can only increase rates of pay with the permission and instruction of the client. The Respondent advised the Complainant that it would contact the client in relation to the matter. When it did so, the Client said that it could not justify a rate of pay of a skilled labourer due to the fact that the complainant was not a skilled labourer and was working as a cleaner/ unskilled operative on site. The client confirmed that the Complainant’s duties had not changed from his initial start date on site in August 2017. The Respondent asked the Complainant to confirm what duties he did differently on site that would warrant a pay increase. The Complainant couldn’t confirm what duties he was doing other than cleaning up on site. The client subsequently reverted to the Respondent to advise that they were happy with the complainant and to pay the rate of a semi-skilled operative of €15.75 per hour. The Complainant agreed to the increased rate of €15.75 per hour but walked off site three weeks later in mid-January 2020 without furnishing any notice to the company or the client. The Respondent submits that it is engaged by the client and accordingly takes its instructions from the client. In order for the Complainant to receive his wages, the client submits details of hours worked by the Complainant. The Respondent then pays wages to the Complainant. As the client has control over what work is carried out, it is very important that a worker uses the grievance procedures if issues arise. The Respondent made every effort to address the Complainant’s issues and dealt with them as expeditiously as possible. At no time prior to the issue raised in November 2019 was the company made aware that the complainant was in any way unsatisfied with the position. The Respondent submits that an obligation rests with an agency worker to notify the agency of any changes in his work circumstances. The Respondent submits that the Complainant in this case was contracted to work for a client as a cleaner. It is a requirement that workers have a SafePass in order to work on site, but his only duties are cleaning. His role was to clean windows on site work and to keep the site tidy. The Complainant’s duties did not change throughout his employment with the Respondent, and he was always assigned as a cleaner. His job title in his contract of employment states that he is a cleaner. The role of cleaner is not one that is encompassed by the SEO. The Respondent submits that it has not breached any section of law under the Industrial Relation Act. EVIDENCE OF MISS AINE LAWLOR: Ms Lawlor gave evidence on behalf of the Respondent. She told the Court that the Complainant registered with the company in 2017 and responded to a text seeking a “cleaner/unskilled operative”. Ms Lawlor undertook the normal recruitment process to check the Complainant’s Safe Pass, Manual Handling certification and referees. He had a Safe Pass but required manual handling training. His previous employer confirmed that he had worked as a cleaner. Ms Lawlor said that the Complainant was employed as a “cleaner/unskilled operative”. Ms Lawlor said that she completed the same recruitment process when the Complainant was assigned to Corran Carpentry in August 2017. The job was similar to work that the Complainant had undertaken for another client company, a window fitter, so she knew he would be a good fit. Ms Lawlor told the Court that the Complainant never raised a grievance or any workplaces issues until November 2019, when he contacted her to say that he was not happy with his pay rate. Ms Lawlor agreed to contact the client about the matter. The client would not agree to a pay rise as the Complainant was paid a cleaning rate for undertaking cleaning duties. Ms Lawlor said that she subsequently rang the client back to say that the Complainant was still not happy. She managed to secure a pay increase for him as a semi-skilled worker and he had accepted the revised rate. Ms Lawlor said that the Complainant was not employed as a skilled worker as per the SEO. The company did provide workers who were covered by the SEO, but in the Complainant’s case the client had requested a cleaner. In response to questions from Ms Shonagh Byrne, SIPTU, Ms Lawlor said that unskilled operatives on construction sites do not require any skill set outside of a Safe Pass. Workers assigned to a client company took direction from the client. Ms Lawlor accepted that in the Complainant’s case she did not have any knowledge about what happened on site or what the Complainant did on site. She assumed that he continued to do the cleaning job that he had been assigned to do, as he had never raised any issues. Ms Lawlor acknowledged that the Complainant was assigned to the client for more than two years. In her view, it was not possible to become a skilled worker on site in two years. Ms Lawlor said that the Respondent company only paid SEO rates to eligible workers who worked on construction sites. Responding to questions from the Court about how the Respondent satisfied itself about the nature of roles undertaken by workers assigned to construction sites, Ms Lawlor said that the client specifies the requirements for the role. She takes those requests in good faith. In this case, the Client had specified that they needed someone to carry out a cleaning role. Ms Lawlor said that it was a vague enough description of what was sought, and she was not provided with details. Other clients might request a general operative, but the client in this case had stressed that it was a cleaning role. Ms Lawlor said that she could not say if Corran Carpentry undertook work encompassed by the SEO. She accepted that it was important to know what a worker does on a construction site, which is encompassed by an SEO. Ms Lawlor said that she always clarifies what a client is looking for; in the case of Corran carpentry, they wanted a cleaner not a general operative. She said the client agreed to increase the Complainant’s rate of pay and reclassify him as a semi-skilled worker although they said that he was not doing anything on site other than cleaning. RELEVANT LAW: S.I No. 234 of 2019 is an order made in accordance with the provisions of section 17 of the Act. That order established minimum arrangements for certain terms and conditions of employment in the Construction Sector in accordance with the Act at Section 16(5) which sets out the terms that may be addressed in an SEO as follows:
The sector to which the Order should have application is defined as the sector of the economy comprising the following economic activity:
The matter for the Court to determine is whether or not the Respondent breached Section 23 of the Industrial Relations (Amendment) Act 2015 by failing to apply to the Complainant rates of pay set down in the Construction Industry Sectoral Employment Order S.I No. 234 of 2019 and by failing to allow him access to a pension scheme, as provided for under the terms of that SEO. There is no contention that the Respondent is an employment agency within the meaning of the Protection of Employees (Temporary Agency Work) Act, 2012, and that the Complainant is an agency worker who was assigned to work for a client company of the Respondent during part of the cognisable period encompassed by the claim. It is accepted by the Respondent that it is the relevant employer for the purposes of the Complainant’s contract of employment. SIPTU contends that the Complainant was a construction operative throughout his employment with the Respondent. The Respondent rejects that assertion. It accepts that the Complainant was assigned to work on construction sites, but it submits that he was assigned to work as a cleaner, and cleaning work is not encompassed by the 2019 SEO. The within appeal turns on whether or not the Complainant is a Worker for the purpose of the Construction Industry Sectoral Employment Order S.I No. 234 of 2019. As the complaint was lodged to the WRC on 15 May 2020, the relevant period for consideration by the Court is the period from 16 November 2019 until the Complainant left the employment of the Respondent in mid-February 2020. In order to determine if a breach of Section 23 of the Industrial Relations (Amendment) Act 2015 occurred it is first necessary to establish if the work activities in the Complainant’s workplace were encompassed by the Construction Industry SEO and, if so, was the Complainant a Worker encompassed by that SEO. Were the economic activities in the Complainant’s workplace encompassed by the Construction Industry SEO? The Construction Industry SEO applies to economic activities as defined in the SEO. That definition includes a firm whose principal business is the construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings. It is not disputed that the Worker was assigned to work for Corran Carpentry during the relevant period for the claim or that the business of that company is to fit windows on construction sites. While Ms Lawlor gave evidence that she could not confirm if Corran Carpentry undertook economic activity as defined with the Construction Sector SEO, she did not dispute that the Complainant was assigned to work on construction sites during his employment. The Complainant gave evidence that he was assigned to various construction sites during his employment with the Respondent and was assigned to work for Corran Carpentry at a site at Strand Street during the relevant period for the within claim. Based on the evidence submitted, the Court is satisfied that the Complainant was assigned, as an agency worker, to a client company engaged in the fitting of glass in buildings and economic activities as encompassed by the SEO. As a result, the Court finds that the economic activities in the Complainant’s workplace were encompassed by the Construction Industry SEO. Was the Complainant a worker as encompassed by theConstruction IndustrySEO? The Construction Industry Sectoral Employment Order S.I No. 234 of 2019 applies to “persons employed in the Construction Sector as craft persons, construction operatives and apprentices”.The question the Court must determine is whether or not the Complainant was a worker as encompassed by the SEO. In evidence to the Court, the Complainant said that from 16 November 2019 until he left the Respondent’s employment in mid-February 2020, he was assigned to a construction site at Strand Street where he carried out work fitting windows. Although the Court found the Complainant’s evidence to be vague on details regarding dates, he gave clear and cogent evidence about the work undertaken while on site. He was clear that the work he carried out for Corran Carpentry was general operative work and not work as a cleaner. He said that his role was to bring windows to locations, take windows off pallets, and fit windows on site. He did not fit windows initially but was trained to do over time on site. He said that he never cleaned windows. The Respondent confirmed that it provides workers to the construction sector and that it paid SEO rates to eligible workers. It submits that the Complainant was assigned to work as a cleaner, and cleaning work is not encompassed by the 2019 SEO. His role was to clean windows on site work and to keep the site tidy. These duties did not change throughout his employment, and he was always assigned as a cleaner. Ms Lawlor gave evidence of the importance of knowing what type of work is carried out by a worker on a construction site encompassed by the Construction Sector SEO, yet she told the Court that, in the Complainant’s case, she had accepted the client’s request for a cleaner role in good faith. She acknowledged that the verbal job description provided was vague enough and that she was not provided with further details. She did not ask for a job description in writing. Ms Lawlor accepted that she did not have any direct knowledge about the work undertaken by the Complainant on site. She assumed that he continued to do the cleaning job that he had been assigned, as he had never raised any issues. She said that cleaning duties are not activities encompassed by the SEO. Ms Lawlor could not provide an explanation as to why the client had reclassified the Complainant as a semi-skilled worker after he sought a pay rise, even though his duties had not changed. The Court notes that Ms Lawlor had no direct knowledge of the work undertaken by the Complainant while on the North Strand site. The Court was not provided with evidence from any party with direct knowledge of the duties that he performed while working on that site. Based on the evidence submitted by the Complainant, the Court is satisfied that he carried out work as a general construction operative while assigned to Corran Carpentry on the North Strand site. Accordingly, the Court finds that the Complainant was aconstruction operativeencompassed by the Construction Industry SEO. WHAT CATEGORY OF WORKER WAS THE COMPLAINANT? The SEO provides a basic minimum rate of pay to all Skilled General Operatives who have worked in the sector for more than 2 years. Such workers are classified as a Category B Worker. SIPTU submits that the Complainant was a Category B Worker, as he had acquired two years’ experience as a General Operative in February 2019, which was two years after commencing employment with the Respondent. Ms Lawlor acknowledged that the Complainant was assigned to the client Corran Carpentry for more than two years, however, she submitted that in her view it was not possible to become a skilled worker on site within two years. The Court has made a finding of fact that the Complainant was a worker encompassed by the Construction Industry SEO while assigned to work with Corran Carpentry. The Complainant was assigned to work with that client in August 2017. While it is not clear to the Court when the worker accrued in excess of two years’ service as a construction operative, the Court is satisfied based on the evidence presented that the Complainant carried out construction work/general operative duties for a period in excess of two years during the cognisable period for the within complaint. On that basis the Court finds that the Complainant was a Category B Worker for the purposes of the Construction Sector SEO. Having reached the conclusion that the Complainant was a Category B worker encompassed by the Construction Sector SEO, it follows that the Respondent as his employer is required to comply with its terms. The applicable rate of pay for a Category B worker during the relevant period encompassed by the within claim was €17.50 per hour. The Complainant was paid €13.75 from 16 November 2019 to 31 December 2019. He was subsequently paid €15.70 per hour from 1 January 2020 until mid-February 2020 when he left the employment of the Respondent. The Court finds that the Complainant was not paid the statutory rate of pay required under the terms of the 2019 Construction Sector SEO. The Construction Sector SEO requires that an employer provides a worker (encompassed by the SEO) with access to a pension scheme on no less favourable terms than those set out in the Construction Workers Pension (CWPS) in the industry and to make weekly pension scheme contributions on their behalf. The Court finds that the Complainant was not provided with access to a pension scheme and no weekly contribution were made on his behalf as required under the terms of the 2019 Construction Sector SEO. DECISION The Court finds that the Respondent assigned the Complainant to a client company whose economic business activity is encompassed by the Construction Industry Sectoral Employment Order S.I No. 234 of 2019, for the period from August 2017 to February 2020. The Court finds that the Complainant had accrued over 2 years’ service as a Category B Skilled General Operative during the cognisable period for the within complaint. The Court finds that the complaint that the Complainant was not paid the statutory rate of pay for a Category B Skilled General Operative as required under the terms of the 2019 Construction Sector SEO to be well founded. The Court finds that the complaint that the Complainant was not provided with access to a pension scheme, and that no weekly contribution were made on his behalf, as required under the terms of the 2019 Construction Sector SEO to be well founded. The Construction Industry Sectoral Employment Order S.I. No. 234 of 2019 sets out statutory terms and conditions of employment for workers encompassed by the Order. Having regard to the fact that the Complainant was a Category B Skilled General Operative for in excess of two years and did not receive his statutory terms and conditions of employment during this period, and taking account of the fact that the worker is no longer employed in the Construction sector, the Court requires that the Respondent pays to the Complainant compensation of €6,000. The Court considers this amount to be just, equitable and proportionate in circumstances where the Respondent failed to apply the statutory terms and conditions set down in Construction Industry Sectoral Employment Order S.I. No. 234 of 2019 . The Decision of the Adjudication Officer is varied accordingly. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to Shane Lyons, Court Secretary. |
