Complainant

Respondent

Parties

Wojciech Krajewski

ISM Recruitment

Representatives

  Self

David Kearney, HR Brief

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00051140-001

10/06/2022

The Respondent is an employment agency.  It provides drivers, on an agency basis, to the Hirer.  The Complainant claims that the Respondent has breached the provisions of the Protection of Employees (Temporary Agency Work) Act, 2012 (‘the Act’) which confers the right to equal treatment in basic employment conditions on agency workers.

The Complainant submits as follows:

1.      The Hirer’s drivers get subsistence pay.  The Respondent’s drivers do not get subsistence pay.

2.      The Hirer’s drivers get a mobile phone allowance of €350 per year paid half yearly.  The Respondent’s drivers do not get a mobile phone allowance.

3.      Unlike the Hirer’s drivers, the Respondent’s drivers do not get bereavement pay.  Instead, they are told to use their holidays.

4.      The Hirer’s drivers get a bonus payment of €5,500 in November.  The Respondent’s drivers do not get a bonus payment.

5.      All of the Hirer’s drivers got a 3.25% pay rise in 2022 which was back-dated to 1 June 2021. They also got a 3.25% pay rise on 1 June 2022.  The Respondent’s drivers did not get either of these pay increases.

6.      All of the Hirer’s drivers get their safe passes, CPC and manual handling courses paid for by the Hirer.  The Respondent’s drivers have to pay for their safe passes, CPC and manual handling courses themselves.

The Respondent submits as follows:

The Complainant started employment with the Respondent on 17 May 2021.  He was placed with the Hirer on 23 May 2021 in the position of rigid truck tipper driver. 

The Respondent takes it responsibilities under the Act very seriously.  To this end, the Respondent has agreed terms of business with the Hirer which detail the Hirer’s responsibilities under the Act.  Section 7.4 of the terms of business document sets out the requirement on the Hirer to provide the Respondent with all such information as the Respondent requires to enable the Respondent to comply with its obligations under the Act.  This contract was signed by both parties in 2019 and was in force at the time of the claim.  It was the Respondent’s understanding that the rates for permanent drivers in the Hirer company had not changed for some years and the Respondent had no knowledge of any other terms and conditions that applied during the placement.

On receiving the complaint in relation to the rates of pay, the Respondent immediately contacted the Hirer to put the Complainant’s allegations to it.  The Respondent communicated with the Complainant on 22 July 2022, to confirm that the matter had been raised with the Hirer and that he would be kept updated.   Following confirmation of the increases from the Hirer, the Respondent applied the same rate of pay to its drivers as the rate the Hirer was paying to its drivers with effect from 1 August 2022.  An email was sent to the Complainant on 8 August 2022 confirming the new rates of pay and their effective dates.  

The Respondent calculated that back pay owning to the drivers placed with the Hirer, including the Complainant, amounted to €45,000 plus VAT.  The Respondent submits that it cannot afford to pay retrospection and then seek to recover the payment from the Hirer.  On 6 January 2023, the General Manager of the Respondent company sent an invoice to the Hirer seeking a commitment to pay the back pay owing to the Complainant.  The invoice remains outstanding at the date of the hearing.

The Respondent fully accepts that the Complainant’s claim in relation to outstanding back pay is well founded.  The Respondent submits, however, that the Complainant does not have any evidence to support the other elements of his claim, as detailed in his complaint form to the WRC.  On 17 August 2022, the Respondent emailed the Hirer to ask if it would address the elements of the Complainant’s claim that did not relate to pay. The Hirer’s response was in the negative. 

Conclusion

The Respondent is seeking the assistance of the WRC to ensure that the Hirer is held liable for payment of retrospection and not the Respondent.  The Respondent submits that it has demonstrated its compliance with the Act as it has made all reasonable efforts on behalf of the Complainant to ensure that the Hirer meets its obligations under the Act. 

Section 15 of the Act sets out the duty of a hirer to provide information to an employment agency:

“(1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker.

(2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.”

The Respondent is seeking the protection of section 15 of the Act, namely that the Hirer did not advise the Respondent of the pay increases which were paid to its own drivers at the material times and this was only discovered by the Respondent’s drivers through reading a notice on the Hirer’s notice board.  Once the Respondent became aware of the situation, it has tried to have the matter addressed to the satisfaction of its drivers who are placed with the Hirer company.  While the pay increase has been applied with effect from 1 August 2022, the retrospective element of the claim has not been resolved.

Before finalising my decision in this case, I wrote to the Respondent on 22 February 2023 in relation to its submission at the adjudication hearing that the Respondent was seeking the protection of section 15 of the Protection of Employees (Temporary Agency Work) Act 2012. 

In my correspondence, I pointed out that Schedule 2 of the Act grants me the power to adjudicate and issue a decision under the Act.  The relevant part of Schedule 2 is as follows:

1.  Decision under section 41 of Workplace Relations Act 2015

(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 6, 11, 13(1), 14, 23 or 24 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 or hirer, as the case may be, to take a specified course of action (including reinstatement or reengagement of the employee or agency worker in circumstances where the employee or agency worker was dismissed by the employer or hirer), or

(c) require the employer or hirer, as the case may be, to pay to the employee or agency worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years' remuneration in respect of the employee's or agency worker's employment.

I noted that, as evident from the provisions cited above, section 15 of the Act was not within my jurisdiction.

I confirmed that I would be making my decision under section 6 of the Act which provides that:

6. Basic working and employment conditions of agency workers

(1) Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

I requested submissions from the Respondent in relation to the following Labour Court precedents:

·        Team Obair Ltd v Costello AWD 4/2013 (reported at [2014] E.L.R. 76)

·        Noel Recruitment (Ireland) Ltd v McGrath AWD 1/2016

The Respondent submits that the question before the Adjudication Officer in relation to this matter is whether the Agency is responsible for the breach of the Act.  In this regard, it is incumbent upon the Adjudication Officer to consider whether the Agency has reasonably discharged its duties in respect of the Complainant.   The Respondent concludes that, in this instance, it has been argued that the Respondent Agency took all reasonable precautions to ensure no breach of the Act would occur, and then took all reasonable actions once a breach occurred as set out in the Respondent’s earlier submissions and during the course of the hearing. 

In relation to the Labour Court determinations cited by the Adjudication Officer, the Respondent submits as follows:

In Team Obair Limited v Robert Costello AWD134 the Labour Court found that the rate of pay must be “grounded on reliable evidence rather than by mere speculation or assertion”.  Following this ruling of the Labour Court, it is submitted that only the information within the workplace notice can be considered by the Adjudication Officer, as this constitutes actual evidence.  Any enhanced arrangement or conditions being claimed by the Complainant is a mere assertion and therefore cannot be considered. Only the retrospective element of the rate of pay is at issue and the Adjudicator is confined to ruling on this amount only. 

In Noel Recruitment (Ireland) Ltd v McGrath AWD 1/2016 the Labour Court, while expressing sympathy for the Respondent with regard to its position of not being fully in command of all of the relevant facts and yet liable for the consequences, found that while the Respondent was in breach of Section 6 of the Act, at the same time no evidence was presented to the Court that the Respondent requested either the Hirer nor its client, the Hospital to attend.  The instant case is distinguished from the Noel Recruitment determination in so far as the Respondent was in command of the facts and did everything it could to discharge its obligations to the Complainant.  The Respondent immediately invoiced the Hirer so as to afford it the opportunity to pay the outstanding amount.  The Respondent invited the Hirer to attend the adjudication hearing but it did not attend.  It is submitted that the Respondent did everything it could to demonstrate that it took its duty to the Complainant seriously and discharged that duty in every way it could within its control.  

The Respondent submits that culpability for the retrospective pay claim lies firmly with the Hirer.  It is a serious lacuna in the legislation that does not attach any means of directly involving the Hirer as a co-respondent in respect of a section 6 claim.  Agencies should have the entitlement to attach hirers as co-respondents in order to vindicate the intentions of section 15 of the Act.  The Respondent submits that if the Adjudicator is minded to find for the Complainant in respect of the retrospective pay, then culpability for this breach should clearly be attributed to the Hirer. 

Section 6(1) of the Protection of Employees (Temporary Agency Work) Act, 2012 (the Act) stipulates that an agency worker should be entitled to equal treatment in respect of their basic working and employment conditions:

“Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.”

I note that the Respondent supports the Complainant’s claim to be paid the same rate, including back pay, as is paid to the Hirer’s own drivers.  I find that the Complainant did not provide any evidence to support the other elements of his claim.  I find, therefore, that with the exception of the pay claim, all the other elements of the Complainant’s claim are not well founded.

Section 15 of the Act places a duty on a hirer to provide information to an employment agency from whom it is hiring staff:

“(1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker.

(2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.”

I note the Respondent’s submission that its failure to pay the Complainant the same rate of pay as was paid to the Hirer’s drivers was due to the failure of the Hirer to provide the Respondent with the necessary information in relation to the pay of its own drivers in breach of the Hirer’s obligations under section 15 of the Act. I note that when the discrepancy was brought to the Respondent’s attention by the Complainant, the Complainant’s rate of pay was increased with effect from 1 August 2022 so that it is now in line with the rate of pay which is paid to the Hirer’s own drivers.  However, the retrospective element of the claim is still outstanding.  There was no dispute between the parties that the outstanding payment due to the Complainant amounted to €4,336.07. 

I note the Respondent’s evidence that it is unable to pay the retrospection unless it is reimbursed the cost by the Hirer.  The Respondent has adduced evidence to show it has made numerous attempts to get the Hirer to fund the payment of retrospection to the Complainant.  Despite this, the matter was still unresolved at the date of the hearing.

I must now determine if section 15 of the Act is within my jurisdiction.  In this regard, I note that the part of the Act which grants me the powers to adjudicate and issue a decision under the Act is section 25 and Schedule 2.

The relevant part of those provisions states as follows:

“Complaints in respect of certain contraventions of Act.

25.— Schedule 2 shall have effect for the purposes of this Act.

…

SCHEDULE 2

Redress for certain contraventions of Act

Section 25.

Decision under section 41 of Workplace Relations Act 2015

1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 6, 11, 13(1), 14, 23 or 24 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 or hirer, as the case may be, to take a specified course of action (including reinstatement or reengagement of the employee or agency worker in circumstances where the employee or agency worker was dismissed by the employer or hirer), or

(c) require the employer or hirer, as the case may be, to pay to the employee or agency worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s or agency worker’s employment.”

As evident from the provisions cited above, section 15 of the Act is not within my jurisdiction. 

I note that the Respondent relies on the fact that, unlike the Respondent in Team Obair, it requested the Hirer to attend the adjudication hearing and that this in some way acts as a defence.  From my reading of Team Obair, however, it would appear that the Labour Court made a reference to the Hirer in terms of giving evidence, not in terms of assigning responsibility for an alleged breach of the Act. 

For me, the key passage in the Team Obair determination is:

“The Court notes the difficulties outlined by the Respondent but does not accept them as a valid basis on which to defeat the Complainant’s entitlements under the Act.  The Act is designed to protect the Complainant’s right to no less favourable terms and conditions of employment than comparable workers in the user undertaking.  The Complainant is an employee of the Agency.  Accordingly it is a matter for the Agency to be aware of the deployment of its own employees so as to ensure that they receive their entitlements under the Act.”

Based on all of the foregoing, I find that this complaint is well founded and that liability for redress attaches to the Respondent.

I find that this complaint is well founded and I require the Respondent to pay the Complainant the sum of €4,336.07 in respect of the outstanding monies that are due to him. 

Rights of agency workers and responsibility for breaches of the Act