Complainant

Respondent

Parties

Ian  Byrne

Access Engineering Limited

Representatives

Hamilton Turner Solicitors

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-00053376-001

21/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00053376-002

21/10/2022

The Complainant’s claims related to alleged breaches of the Sectoral Employment Order (Construction Sector) of 2019 and 2021 which said claims were pursued in accordance with Section 41 subsection 3A of the Workplace Relations Act 2015 as amended by the Industrial Relations (Amendment) Act 2015. 

The matter was heard before me on the 19th of May 2023 at the offices of the Workplace Commission, Lansdowne House in the City of Dublin. The Complainant attended and was represented by Mr. Andrew Turner Solicitor of Hamilton Turner Solicitors. The Complainant gave his evidence under affirmation.

There was no appearance by or on behalf of the Respondent. The Respondent having been duly notified of the time, date and venue of the adjudication hearing I proceeded in the absence of the Respondent. 

The Complainant was employed by the Respondent as a General Operative/ventilation ductor from the 4th of January 2022 to the 12th of August 2022.

The Respondent is Access Engineering Limited having its registered offices at 38. Kilgobbin Heights, Stepaside, County Dublin D18 R5F9, and was at all material times the employer of the Complainant pursuant to a contract of service. The Complainant was working in the Construction Sector. On becoming aware that his rate of pay was less than that provided for by Sectoral Employment Orders applicable to his work, the Complainant instructed his trade union to write to the Respondent seeking to address these issues. These letters dated respectively the 15th of September and the 5th of October of 2022 did not secure engagement as between the Complainant’s trade union and the Respondent nor did the Respondent redress the underpayments identified in these letters. Due to this failure the Complainant left the employment of the Respondent on the 12th of August 2022 and sought in the present claims to recover all monies withheld from him arising from breaches of the Sectoral Employment Orders together with such further or other compensation was deemed just and equitable.   

There was no appearance by or on behalf of the Respondent.

I make the following findings on the basis of the submissions made on behalf of the Complainant and his uncontroverted evidence given on affirmation at the adjudication hearing.

The Complainant gave evidence supported by the submissions made on his behalf from which I accept in full.

I find that the work which the Complainant did when employed by the Respondent falls within the Construction Sector as defined in the Sectoral Employment Order (Construction Sector) of 2019 (S.I. 234/2019) as amended  by the Sectoral Employment Order (Construction Sector) of 2021 S.I. 234 of 2019 (hereafter collectively referred to as “The Sectoral Employment Orders”) and that each of these Sectoral Employment Orders applied successively to the Complainant’s employment  during the time periods and to the extent set out below.

I find that the Respondent breached the provisions of the Sectoral Employment Order as follows:

The Compliant was paid the hourly rate of €12 per hour throughout his employment with the Respondent which rate of pay was less than that provided for in the Sectoral Employment Orders as follows:

From the 4th of January 2022 to the 1st Of February 2022

The Complainant was paid at the rate of €12 per hour which is less than the hourly rate provided for during this time-period which was €14.52. The total sum underpaid was €393.12

Pension Contributions were not made on the Complainant’s behalf in the total sum of €109.40.

Death in Service Contributions were not made on the Complainant’s behalf in the sum of €4.56.

Sick pay contributions were not made on the Complainant’s behalf in the sum of €5.08.

From the 1st of February 2022 to the 8th of July 2022

The Complainant was paid at the rate of €12 per hour which is less than the hourly rate provided for during this time-period which was €14.93. The total sum underpaid was €2,513.94.

Pension Contributions were not made on the Complainant’s behalf in the total sum of €630.30.

Death in Service Contributions were not made on the Complainant’s behalf in the sum of €25.74.

Sick pay contributions were not made on the Complainant’s behalf in the sum of €27.94.

From the 8th of July 2022 to the 12th of August 2022

The Complainant was paid at the rate of €12 per hour which is less than the hourly rate provided for during this time-period which was €13.00. The total sum underpaid was €301.08

Pension Contributions were not made on the Complainant’s behalf in the total sum of €114.60.

Death in Service Contributions were not made on the Complainant’s behalf in the sum of €4.68.

Sick pay contributions were not made on the Complainant’s behalf in the sum of €5.08.

In summary the Complainant contended, and I find as a fact, that the following payments were not made by the Respondent to the Complainant or, where indicated, on the Complainant’s behalf.

1. Total Arrears of wages unlawfully withheld during employment in contravention of S.I. No 234 of 2019 and S.I. 598 of 2021 totalling: €3208.14
2. Pension Contributions not paid during employment in contravention of S.I. No 234 of 2019 and S.I. 598 of 2021 totalling €854.30.
3. Death In Service Benefit Payments not paid during employment in contravention of S.I. No 234 of 2019 and S.I. 598 of 2021 totalling € 34.98.
4. Sick Pay Contributions not paid during employment in contravention of S.I. No 234 of 2019 and S.I. 598 of 2021 totalling € 38.10

Grand Total re A-D inclusive above: €4,135.52

REDRESS

Section 23 of the Industrial Relations (Amendment) Act 2015 provides (where relevant) as follows:

“(1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

…(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies 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 to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977...”

Given that the employment relationship has ceased, I find an award of compensation to be the most appropriate means of just and equitable redress. The Complainant requested that I direct the Respondent to pay the sums unpaid in respect of his Pension, and Death-In-Service and Sick-Pay Contributions (B, C and D above) directly to the Construction Workers’ Pension Scheme Trustees Limited. However as the power conferred Section 23 (2) (c) is to require the employer to pay compensation “to the worker” I direct that the compensation awards below be paid directly to the Complainant and it will then be left to the Complainant’s discretion as to how he wishes to allocate those monies, whether by making his own contribution to the pension provider or otherwise. Accordingly, I will make an award of remuneration in respect of items A to D inclusive in the sum of €4,135.52. In addition to this sum, I make an award to the Complainant of non-remuneration related compensation for the inconvenience which he suffered arising from the breach of his rights under the relevant legislation in the sum of €2,500 which said sum shall not be liable to tax pursuant to Section 192A of the Taxes Consolidation Act 1997 as inserted by the Finance Act 2004.

CA-00053376-001 and CA-00053376-002

The Complaints pursuant to s.23 of Industrial Relations (Amendment) Act 2015 are well founded.

The Respondent shall make the following payments to the Complainant:

1. The sum of €4,135.52 by way of outstanding unpaid remuneration to be taxed subject to all just and lawful allowances.
2. The sum of €2,500 by way of non-remuneration related compensation for breach of the Complainant’s statutory rights.

Sectoral Employment Order (Construction Sector) of 2019 (S.I. 234/2019) - Sectoral Employment Order (Construction Sector) of 2021 S.I. 234 – Workplace Relations Act 2015 Section 41 subsection 3A - Industrial Relations (Amendment) Act 2015 Section 23