Complainant

Respondent

Parties

Jan  Brocki

ISM Recruitment

Representatives

David Kearney HR Brief Ltd

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-00051145-001

10/06/2022

The respondent is an employment agency which provides drivers to a third party (hereafter; ‘the hirer’).

The complainant asserts that the drivers employed directly by the hirer enjoy superior conditions of employment to those applying to him. He says this is a breach of the Protection of Employees (Temporary Agency Work) Act 2012 which entitles an agency worker to the same conditions as those enjoyed by his co-workers who are directly employed by the hirer.

The Complainant started employment with the agency on February 10th, 2020. Contract of Employment submitted. He was placed as a rigid truck tipper driver with Roadstone from that date.

The complainant submitted a list of benefits which were claimed by him to be better for the hirer’s directly employed drivers that for the complainant and his colleagues who were agency workers.

1. He works a 40-hour week, directly employed drivers work a 39-hour week.
2. They also get the following benefits which he does not.
   1. Subsistence payment,
   2. Better premium payments
   3. A mobile phone allowance €350 a year paid half yearly.
   4. Bereavement pay,
   5. A bonus is paid to the hirer drivers in November €5500, ISM drivers get nothing.

f.     All Roadstone fleet drivers get their Safe passes, CPC and manual handling courses paid for by the company, ISM drivers are told to pay it themselves.

All Roadstone workers got a 3.25% pay rise in 2022 back dated to June 1st, 2021. They also got a 3.25% increase on June 1st, 2022.

The respondent 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/hirers responsibilities under the Protection of Employees Temporary Agency Workers Act 2012. (Terms of business submitted).

In section7.4ofthecontract,therequirementstoadvisethe agencyofbasicpayandconditionsastheyapplytotheirdirectcomparable drivers are set out. Thiscontractwassignedbybothpartiesin2019.

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.

On receiving the complaint by the complainant, we immediately contacted the client to put these allegations to them for their comment (and evidence was submitted). In particular, note the email dated June 9th, 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 5th, 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.

The agency applied the new pay rates as advised by the client hirer, Roadstone, on August 1st, 2022. (Pay slip attached confirming pay increase as per local agreement and as advised to the Complainant)

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)

Finally, 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.  Unfortunately, this 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:

treatment.

"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 Bilf. 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 ore 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 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) ft 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 isseeking to invoke that protection ofsection15of theact, namely thatthe clientdidnotadvisetheagency ofthepayincreasesat thematerial 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 our drivers placed with the company. This is evidenced by the email thread cited above.

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/Claimant.

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.

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 Claimant 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 of pay and did everything it could to discharge their obligations to the Claimant. The Respondent immediately invoiced the Hirer so as to afford them the opportunity to pay the amounts.

The respondent invited the hirer to attend the A 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 Claimant seriously and discharged that duty in every way it could within their control.

Responsibilityfor theretrospectivepayclaimlieswiththe 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 that entitlement to attach Hirers as Co-Respondents in order to vindicate the intentions of Section 15 of the Act.

IftheAdjudicatorfindsforthecomplainantinrespect oftheretrospectivepay,thenclearculpability for thisbreachshouldbestatedasbeingthat of the hirer.

The agency cannot afford to front load the cost of the claim overall as it representsacostof€55,458,61,thisrepresentsanumberofclaimscurrently beingprocessed bytheWRCinrespectofthesameclaimfromseveralcomplainants.

It isanuntenable situationthattheagencyisliableasrespondentwhentheyhavemadesignificantattempts todischargetheirresponsibilitiestothecomplainant.

The best they 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 company believes that that the client is 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 met their obligations under the Act.

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.”

The respondent is supportive of the complainant’s claim to be paid the same rate, including back pay, as is paid to the hirer’s own drivers.

However, evidence to support other elements of his claim was lacking.  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.”

The respondents says 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.

When the discrepancy was brought to the hirer’s attention his rate of pay was increased with effect from 1 August 2022 to bring it in line with that paid to the Hirer’s own drivers.  The respondent has submitted that ‘culpability’ in respect of any breach of the Act should be attached to the hirer.

An issue arises in relation to retrospection and the outstanding amount due to the complainant is €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.

The respondent has submitted that it was clear 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. This turns on the interpretation of section 15vof the Act.

In an earlier case heard by the WRC involving a co-worker of this complainant in which the facts were identical, my colleague considered whether section 15 of the Act was within her jurisdiction.

She concluded as follows.

‘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.

Krajewsky v ISM ADJ 39447 per Marie Flynn, Adjudication Officer.

Having considered the submissions and the wording of the Act I agree with these conclusions and apply them in this case. All Roadstone workers got a 3.25% pay rise in 2022 back dated to June 1st, 2021. They also got a 3.25% increase on June 1st 2022. Drivers employed by the respondent got neither of these increases.

For that reason, liability for the outstanding claim lies with this respondent and the complaint is well-founded.

I find that complaint CA-00051145-001 is well founded, and I require the respondent to pay the complainant the sum of €4,336.07 in respect of outstanding wages due to him.

Agency workers, parity of conditions