AWD231

1.Appeal of Adjudication Officer Decision No(s) ADJ-00039468 CA-00051145-001.

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 8 September 2023. The following is the Court's Determination:-

DETERMINATION:

Background.

Mr. Brocki, ‘the Complainant’, is a lorry driver employed by ISM Recruitment, ‘the Respondent’, which is a recruitment agency. He is placed in work with a third party company.

The Complainant lodged a complaint under the Protection of Employees (Temporary Agency Work) Act, 2012, ‘the Act’, with the Workplace Relations Commission, ‘WRC’, claiming a number of breaches of his rights as an agency worker to be treated similarly to an employee of the hirer.

The Adjudication Officer, ‘AO’ decided that pay awards to employees of the hirer had not been applied to the Complainant and directed that a payment of €4336.07 in respect of arrears due be made to the Complainant.

The Complainant appealed to this Court regarding the amount awarded.

Preliminary Matter.

The AO Decision was dated 26 May 2023. The relevant extract from the Workplace Relations Act 2015, ‘the 2015 Act’, regarding appeals to this Court reads as follows;

44.

(3) Subject tosubsection (4), a notice undersubsection (2)shall be given to the Labour Court not later than 42 days from the date of the decision concerned.

(4) The Labour Court may direct that a notice undersubsection (2)may be given to it after the expiration of the period specified insubsection (3)if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

7 July 2023 is 42 days from 26 May 2023. The appeal was received on 10 July 2023.

The Respondent argued that the appeal was statute barred.

The Court set out its view on what constituted ‘exceptional circumstances’ in the case of Joyce Fitzsimons-Markey v. Gaelscoil Thulach na nOg EET034, as follows;

• The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The Complainant produced to the Court evidence of failed attempts to email his appeal to the relevant email address in the Court on 6 July 2023. For some technical reason, even though the Complainant had used the correct email address for appeals to the Court, the Court’s system had rejected the emails. This evidence was not disputed by the Respondent.

The Court considered if this could be regarded as an exceptional circumstance within the meaning of the 2015 Act. While noting that the Court has rejected in the past arguments for an extension of time where appeals were posted within the required 42 days but were not received until after that time, the Court took account of the fact that the failure of the Court’s system to accept an appeal is so exceptional as to be unheard of previously and of the fact that it could not be said with certainty that the fault for the failure of the communication lay with the Complainant rather than with the Court’s technology. In that light, the Court accepted that this was an exceptional circumstance that prevented the Complainant from lodging his appeal within the required time and, therefore, the Court agreed to exercise its discretion under s. 44 (4) of the 2015 Act to allow the appeal to be heard.

Issues raised and arguments made.

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  1. The Complainant argued to the Court that the value of the pay increases paid to the employees of the hirer would have entitled him to an amount in excess of €4900. This was denied by the Respondent who stated that they were happy to comply with their obligations but had not received full information from the hirer that would have enabled them to do so without the necessity for these proceedings. The Complainant was unable to provide the Court with any documentary evidence to substantiate this figure.

  The Respondent advised the Court that a sum of €3593.16 had been paid to the Complainant in recognition of the AO Decision. It was stated that the AO award was the full invoice amount from the Respondent to the hirer and included VAT and PRSI. The Respondent accepted that this did not represent the full award of the AO and they put themselves in the hands of the Court in respect of the amount due.

  2. A number of bonuses are paid to employees of the hirer. These are as follows;

  • 
    Christmas bonus of 1.5 times weekly pay.

    Attendance bonus of up to €1904 for full attendance.

    Safety bonus of €901 for meeting safety criteria.

    The Complainant sought payment of these amounts.

    The Respondent argued that the definition of ‘pay’ in the Act is very narrow, that the relevant EU Directive leaves it to member states to define ‘pay’, that the definition in the Act uses ‘pay’ deliberately, rather than ‘wages’ and that it defines ‘pay’ as ‘basic pay’ and other pay in excess of basic pay in a definition that is exhaustive and does not include bonuses. It was argued further that this definition complies with the requirements of the relevant Directive.

  
  3. A subsistence allowance of €10.43 per day is paid to employees of the hirer when they are away from base at mealtimes.

  The Complainant argued that the Act creates obligations on employers to ensure that facilities, including canteen facilities, available to employees should be available also to agency workers and, therefore, if employees are compensated for not being able to use these facilities, the same compensation is applicable to agency workers.

  The Respondent stated that meal allowances have never been extended to agency workers because the arguments set out above in respect of bonuses appear to be equally applicable in respect of meal allowances. However, it was stated that the Respondent would welcome clarification from the Court as to whether this was, in fact, the case.

  4. The Complainant argued that the hirer is part of the construction industry and that as an agency worker engaged to work for a construction company, he is entitled to have the terms of the Sectoral Employment Order, ‘SEO’, for that industry applied to him. In particular, he argued that he is entitled to be paid the SEO rates of pay applicable in that industry.

  • 
    The Respondent argued that drivers employed by the hirer are not covered by the SEO for the construction industry, that the hourly rate of €17.50 paid to the Complainant exceeds the hourly rate of €16.50 paid to drivers employed by the hirer and that the definition of the scope of the SEO, as set out in S.I. 455 of 2017, excludes drivers. That definition reads as follows;

    (a) The construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings; (b) The installation, alteration, fitting, repair, painting, decoration, maintenance and demolition in any building, or its site, of articles, fittings, pipes, containers, tubes, wires or instruments (including central heating apparatus, machinery and fuel containers connected thereto) for the heating, lighting, power or water supply of such buildings; (c) (i) The clearing and laying out of sites for buildings. (ii) The construction of foundations on such sites. (iii) The construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings and the disposal of waste. (iv) The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings. (v) The making of roads and paths within the boundaries of such sites. (d) The manufacture, alteration, fitting, and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster. They proposed that A Civil Engineering Firm be defined as an undertaking whose principal business is one, or a combination of any of the following activities:— [455] 9 (a) the construction, reconstruction, alteration, repair, painting, decoration and demolition of:— roads, paths, kerbs bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage and all work in connection with building their sites and mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion; cattle markets, fair grounds, sports grounds, playgrounds, tennis courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or like material, any boundary walls, railings, fences and shelters erected thereon. The Court notes that these definitions are well established, have stood the test of time and have been the basis on which the industry has defined itself for many decades. The Court accordingly adopts those definitions.
    
    

    The applicable law.

    • 
      

      Protection of Employees, (Temporary Agency Work) Act, 2012.

      1.

(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,

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 undersection 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.

Schedule 2

Decision undersection 41of Workplace Relations Act 2015

1. A decision of an adjudication officer undersection 41of 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.

2. A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in paragraph 1, shall affirm, vary or set aside the decision of the adjudication officer.

Directive/2008/104/EC

Article 5

4.

The arrangements referred to in this paragraph shall be in conformity with Community legislation and shall be sufficiently precise and accessible to allow the sectors and firms concerned to identify and comply with their obligations. In particular, Member States shall specify, in application of Article 3(2), whether occupational social security schemes, including pension, sick pay or financial participation schemes are included in the basic working and employment conditions referred to in paragraph 1. Such arrangements shall also be without prejudice to agreements at national, regional, local or sectoral level that are no less favourable to workers.

Deliberation.

• 
  1. The Complainant produced no evidence to substantiate his claim that he is due in excess of €4900 for arrears in basic pay due to the belated application to him of pay increases given to employees of the hirer.
  • 
    

    The Respondent accepts that arrears are due to the Complainant due to the non-application of pay increases awarded to employees of the hirer, which arose due the failure of the hirer to make the Respondent aware of these increases. The AO awarded a sum of €4336.07, and the Respondent expressed a willingness to pay this amount if so directed by the Court. The Respondent has paid €3593.16 already and the Court determines that the balance of €742.91 should be now paid to the Complainant in recognition of the failure to apply the protections of the Act to him in a timely manner, this extra amount being compensation in accordance with s.1(c) of Schedule 2 of the Act.

  
  2. The definition of ‘pay’ in the Act does not include provision for bonus schemes. In the rather convoluted way in which the Act is framed, it excludes financial participation schemes from the matters protected under the Act. The Oxford dictionary defines such schemes in terms of profit sharing or worker shareholdings. Given that the list of matters covered under the definition of ‘pay’ excludes bonuses, it is not necessary for the Court to consider if the type of bonus in question falls into this category. That list is not stated to be indicative only, so the Court is obliged to treat it as exhaustive.
  • 
    

    Accordingly, that aspect of the Complainant’s appeal must fail.

  
  3. In the case of Paul Doyle Hire Services Ltd. V. Raymond Furlong AWD 1512, this Court stated 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.

  
  4. 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, 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.

The Decision of the Adjudication Officer is affirmed.

	Signed on behalf of the Labour Court
	Tom Geraghty
TH	______________________
14 September 2023	Deputy Chairman