Complainant

Respondent

Parties

Ciaráin  Dignam

ISM Recruitment

Representatives

SIPTU

 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-00051119-001

10/06/2022

The complainant is a lorry driver employed by the respondent, which is a recruitment agency. The respondent provides drivers, on an agency basis, to the hirer.  The complainant lodged a complaint under the Protection of Employees (Temporary Agency Work) Act, 2012 claiming a number of breaches of his rights  as an agency worker to be treated similarly to an employee of the hirer.

The complainant commenced employment as a rigid truck tip driver with the respondent, a recruitment agency, on 13 January 2020. He was placed in employment with Roadstone Ltd (the hirer) on the same date. The complainant asserts that the drivers employed directly by the hirer enjoy superior conditions of employment to those applying to him.

The complainant states that in or around March 2022, he observed a notice announcing proposed pay increases including retrospective backdating, from the hirer to its employees on a notice board. The notice announced 3 pay increases over a 36 month period:

Year 1 - 3.25% from 1 June 2021 to 31 May 2022 (retrospective)

Year 2 – 3.25% from 1 June 2022 to 31 May 2023

Year 3 – 3.25% from 1 June 2023 to 31 May 2024

The complainant submitted a list of benefits which were claimed by him to be better for the hirer’s directly employed drivers than for the complainant and his colleagues who were agency workers.  In this regard, the complainant asserts that hirer drivers work a 39-hour week whereas respondent drivers work a 40-hour week. The complainant states that hirer drivers get the following benefits which he does not.

·       Subsistence payment

·       Better premium payments

·       A mobile phone allowance €350 a year paid half yearly, respondent drivers get nothing

·       A bonus is paid to hirer drivers in November of €5500, respondent drivers get nothing

·       All hirer drivers get their Safe passes, CPC and manual handling courses paid for by the hirer, respondent drivers are told to pay it themselves.

In summary the complainant submits his claims are as follows:

(i)                  The value of the retrospective pay increase of €5071.47

(ii)                Christmas Bonus 2021 €997.42

(iii)               Christmas Bonus 2022 €997.42

(iv)               Attendance Bonus 2021 €1591

(v)                 Attendance Bonus 2022 €1591

(vi)               Safety Bonus 2021 €750

(vii)             Safety Bonus 2022 €750

(viii)           Subsistence allowance between 10 December 2021 and 10 June 2022 €1029.48

(ix)               Subsistence allowance between 10 December 2022 and 10 June 2023 €1688.46

(x)                 Proper recalculation of overtime and double-time entitlements €3063.24

(xi)               Total value of claims for 10 December 2021 – 18 April 2023 €17,529   

The complainant’s union has stated that since 2 June 2023, the respondent has been on actual notice of the full terms and conditions enjoyed by the directly employed drivers contained in a collective agreement and have no excuse in future to not apply those benefits in full to the complainant in line with their obligations under the Act.

The respondent states that the Agency takes its responsibilities under this Act very seriously and has always endeavoured to establish equitable parity with a comparable full-time driver in Roadstone.

The company has terms and conditions in place with its client Roadstone that draw attention to the client/hirer’s responsibilities under the Protection of Employees Temporary Agency Workers Act 2012. (Terms of business submitted).

In section7.4 of the contract, the requirements to advise the agency of basic pay and conditions as they apply to their direct comparable drivers are set out. This contract was signed by both parties in 2019.

As understood by the respondent, the rates for permanent drivers in Roadstone had not changed for some years. The respondent had no peculiar knowledge of any other terms and conditions that applied during the placement.

The respondent asserts that on receiving the complaint by the complainant, it immediately contacted the client to put these allegations to them for their comment (and evidence was submitted). In particular, note the email dated 9 June 2022, seeking clarification on the new rates, sent prior to the claim being served.

The company communicated with the complainant to advise the matter had been raised with the client and he would be kept updated. (The chain of emails advocating for the complainant and sent directly to the client and their responses was submitted in evidence.  The respondent put the questions raised by the complainant in his WRC complaint form to the client, its response to each of the questions asked was "no".

The respondent calculated the back pay owed to the drivers placed with the client Roadstone including the complainant, this claim was now in the hands of the ISM General Manager. This represented the pay deal element of the local agreement with Roadstone, and their direct comparable drivers backdated to June 2021, the claim from the agency amounted to €45,000 plus vat.

The client hirer replied on December 5, 2022, but this did not resolve the matter.

The General Manager of the respondent sent another email to the client in December 2022 directly again seeking clarification and confirmation of the payment due. Unfortunately, this remains unresolved by year 2022.

The agency applied the new pay rates as advised by the client hirer, Roadstone, on August 1, 2022. The basis of the claim is a 3.25% increase from June 2021-May 2022 (52) weeks and a further 3.25% increase from June 2022-August 1st, 2022. (9 weeks)

The General Manager of the respondent sent an invoice to the client seeking the complainant’s payment or commitment to pay the amount due to the complainant but the respondent maintains that the issue remains unresolved.

Legal Submissions.

Section 41 of the Workplace Relations Act 2015 provides that an Adjudication Officer may hear a complaint of an alleged contravention of section 6, 11, 13(1), 14, 23 or 24 of the Protection of Employees (Temporary Agency Work) Act, 2012, specifically in this case.

a.         Section 6: The right to parity of basic working and employment conditions for agency workers to those of directly employed staff.

The Minister, Richard Bruton TD, when introducing the legislation in both Houses of the Oireachtas, Dail and Seanad explained section 15 and the redress section under section 25 and Schedule 2 explained as follows:

"Section 15 outlines the relative responsibilities of the employment agency and the hirer, the obligations of both parties and the necessary flow of information to comply with the Bill. Subsection (2) is designed to allow the employment agency to be compensated in the event that the hirer fails to comply with the terms of subsection (1).

Section 25 provides for the manner in which complaints in respect of the contravention of provisions included in the legislation will be dealt with and must be read alongside Schedule 2 to the Bill.

Schedule 2 contains standard complaints and redress provisions applicable and the procedures to be followed by the various parties where there is a breach of the right to equal treatment.

The employment agency will be responsible for dealing with any breach of a right/or which it is responsible such as liability in aspects other than access to employment notices, collective facilities and penalisation by the hirer. These aspects fall solely on the hirer as the agency has no role in this regard. The redress provisions in the Schedule are modelled on the provisions in existing employment protection legislation such as in respect of fixed-term work. I commend the Bill to the House."

The respondent submits that the Minister's intentions were to ensure culpability to the party responsible for any contraventions of the Act. The Act provides for the respondents in respect of complaints to be either the Agency or the Hirer.

The legislation also provides for the indemnification of Agencies from Hirers in cases where culpability lies with the Hirer.

Section 15 of the Protection of Employees Temporary Agency Workers Act 2012, entitled "Duty of hirer to provide information to employment agency'' provides as follows:

15.- (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 on 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,

It is clearly the intention of the legislative drafters to recognise that culpability may lie with other parties than with the respondent agency especially where the agency acted in good faith at all times.

The client hirer should be deemed to be in breach of the act and must indemnify the agency, the respondent is seeking to invoke that protection of section 15 of the act, namely that the client did not advise the agency of the pay increases at the material time.

In fact, the changes in rates of pay were only discovered by the agency drivers due to a note placed on the company notice board. Once the agency became aware of the change in rates of pay, it discharged its duty to have this matter addressed to the satisfaction of its drivers placed with the company.

The respondent states that the question before the Adjudicator is whether the agency is responsible. For a breach of responsibility to be found, it is incumbent upon the Adjudicator to consider whether the agency has reasonably discharged its duties in respect of the agency worker/complainant.

In this instance it is submitted that the respondent agency took all reasonable precautions to ensure no breach would occur, and then took all reasonable actions once a breach possibility was engaged.

The respondent submits that 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 respectfully submitted that only that information within the "Workplace Notice" can be considered by the Adjudicator, 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.

The respondent submits that in the case of Noel Recruitment (Ireland) Ltd v McGrath AWD1/2016 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 of pay and did everything it could to discharge their obligations to the complainant. The respondent immediately invoiced the hirer to afford them the opportunity to pay the amounts.

The respondent invited the hirer to attend the hearing and in a previous similar case the hirer 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 asserts that there 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. It was submitted that agencies should have that entitlement to attach hirers as co-respondents to vindicate the intentions of Section 15 of the Act.

The respondent asserts that if the Adjudicator finds for the complainant in respect of the retrospective pay, then clear culpability for this breach should be stated as being that of the hirer. The respondent states that it cannot afford to front load the cost of the claim overall as it represents a cost of €55,458,61,this represents a number of claims currently being processed by the WRC in respect of the same claim from several complainants. It was submitted that it is an untenable situation that the agency is liable as respondent when they have made significant attempts to discharge their responsibilities to the complainant.

The respondent states that the best it can hope for is that if the Adjudicator finds for the complainant, then they will issue an invoice in respect of the claim and hope that they recover these amounts from the client in order to discharge their duty to make the payment.

The respondent maintains that it is the client that should be held liable for this payment and not the agency, it has demonstrated compliance with section 25 as having made all reasonable efforts on behalf of the complainant to ensure that the client hirer meet their obligations under the Act.

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:

1.- “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer and that relate to –

(a)    pay,

(b)    working time,

(c)     rest periods,

(d)    rest breaks during the working day,

(e)    night work,

(f)      overtime,

(g)    annual leave, or

(h)    public holidays

“pay” means –

(a)    basic pay, and

(b)    any pay in excess of basic pay in respect of –  

(i)      shift work, (ii) piece work, (iii) overtime, (iv) unsocial hours worked, or (v) hours worked on a Sunday,  

but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

Application of Act.

3.- This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.

Basic working and employment conditions of agency workers.

6. – (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.

Obligations of hirers to agency workers.

14. – (1) A hirer shall, as respects access to collective facilities and amenities at a place of work, treat an agency worker no less favourably than an employee of the hirer unless there exist objective grounds that justify less favourable treatment of the agency worker.

(2) In this section “collective facilities and amenities” includes –

(a) canteen or other similar facilities,

(b) childcare facilities, and

(c) transport services.  

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 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 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 complainant submitted that the retrospective element of the claim amounted to €5,071.47. 

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. 

I am cognisant of the recent Labour Court decision in ISM Recruitment V Jan Brocki, AWD 231 wherein the Court refers to the case of Paul Doyle Hire Services Ltd. V Raymond Furlong, AWD 1512 where the Court held the following;

“For the avoidance of doubt, the Court wishes to point out that entitlement as to meal allowances, sick pay and pension entitlements do not come within the statutory meaning of basic employment and working conditions and cannot be provided for in an award under the Act. No argument was put to the Court that would allow it to re-consider this determination. In exhaustive lists in the Act of what is covered by the term ‘pay’ and the term covering employment conditions, the matter of meal allowances is not included in either. Accordingly, the aspect of the complainant’s appeal relating to meal allowances must fail.”   

In the case of ISM Recruitment V Jan Brocki, AWD 231, the Labour Court stated that “The purpose of the Act is to ensure that an agency worker is treated no less favourably than a comparable employee working as an employee for a hirer, in respect of those matters comprehended by the Act. Nowhere in the Act is it provided that an agency worker can seek directly under the Act to have themselves classified as a worker covered by a Sectoral Employment Order. The Act offers the protection to an agency worker that if a comparator happens to be covered by such an Order, then the matters covered under the Act such as basic pay that arise from the Order, are equally applicable to the agency worker. However, in the instant case, the hirer’s employees who are engaged in the same work as the complainant are not, apparently, covered by the Construction Industry Sectoral Employment Order. No evidence was put to the Court that they were so covered. Accordingly, the Court lacks any jurisdiction to direct the respondent to apply the terms of that Order to the complainant.”

Having carefully examined the findings of the Labour Court in the above decision, I am satisfied, in respect of the within matter, that with the exception of the pay claim, all the other elements of the complainant’s claim are not well founded.

Based on all of the foregoing, I find that complainant’s claim in respect of arrears in basic pay due to the belated application to him of pay increases given to hirer drivers is well founded and that liability for redress in this regard lies with the respondent.

I find that the complainant’s claim (in respect of arrears in basic pay due to the belated application to him of pay increases given to hirer drivers) is well founded. In this regard, I require the respondent to pay the complainant €5071.47 in respect of outstanding wages that are due to him.

Agency workers, parity of conditions