Complainant

Respondent

Parties

Noel  McInerney

Teagasc, Grange Research Centre

Representatives

Act

Complaint/Dispute 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-00061013-001

10/01/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the employer undertook to give evidence under affirmation.

The respondent wrote to the WRC in advance of the hearing indicating that, as they were not the complainant’s employer in this case, they would not be attending the hearing of the matter.  The hearing proceeded in their absence.

The complainant submitted that he started work with the respondent as an agency worker as a farm labourer via farm relief in January 2015.  He was on an hourly rate and was due to get overtime at a rate of time and a quarter on Saturday and time and a half on Sundays and Bank Holidays.  He submitted that the respondent’s full-time staff were on a basic of €31,000 per year.  He noted that full time staff were paid time and a half for Saturday and double time for Sundays and Bank Holidays.

He stated that the respondent’s staff were given trips to various locations around Ireland as a perk but that this was not given to agency staff.  He submitted that the respondent’s staff wer always asked about overtime before he was.  He submitted that the respondent’s staff were sent on training courses for farm safety and animal handling and that he was not.  He submitted that on occasions the respondent let its staff go early but that agency staff were no allowed.

The complainant submitted that during the Covid lockdown period, he was treated less favourably to the respondent’s staff.  After Covid, the Director of the Respondent visited the workplace to thank his staff for their efforts during Covid, the complainant and other agency staff were left outside.

In early 2022, the complainant submitted that his basic rate of pay went up to €15 per hour.  He also submitted that job vacancies were advertised to staff with existing positions but these were not open to him to apply for.

Evidence of Witnesses:

The respondent did not attend the hearing of this matter.

Section 2 of the Protection of Employees (Temporary Agency Work) Act, 2012 provides a number of interpretations that relate to this complaint.

“Agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency”

“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;

“contract of employment” means—

(a) a contract of service, or

(b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

“overtime” means any hours worked in excess of normal working hours;

“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;

“place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act 2005;

“work” includes service, and references to the doing or carrying out of work include references to the provision or performance of a service;

“working hours” shall be construed in accordance with section 8 of the Act of 2000.

Section 2(2) of the Act states

(2) A word or expression used in this Act that is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.

The Directive (DIRECTIVE 2008/104/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 19 NOVEMBER 2008 ON TEMPORARY AGENCY WORK) is contained in Schedule 1 of the Act and Articles 1, 2 and 3 state the following:

Article 1

Scope

1. This Directive applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.

2. This Directive applies to public and private undertakings which are temporary-work agencies or user undertakings engaged in economic activities whether or not they are operating for gain.

3. Member States may, after consulting the social partners, provide that this Directive does not apply to employment contracts or relationships concluded under a specific public or publicly supported vocational training, integration or retraining programme.

Article 2

Aim

The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognising temporary-work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.

Article 3

Definitions

1. For the purposes of this Directive:

(a) ‘worker’ means any person who, in the Member State concerned, is protected as a worker under national employment law;

(b) ‘temporary-work agency’ means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction;

(c) ‘temporary agency worker’ means a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction;

(d) ‘user undertaking’ means any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily;

(e) ‘assignment’ means the period during which the temporary agency worker is placed at the user undertaking to work temporarily under its supervision and direction;

(f) ‘basic working and employment conditions’ means working and employment conditions laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking relating to:

(i) the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;

(ii) pay.

2. This Directive shall be without prejudice to national law as regards the definition of pay, contract of employment, employment relationship or worker.

Member States shall not exclude from the scope of this Directive workers, contracts of employment or employment relationships solely because they relate to part-time workers, fixed-term contract workers or persons with a contract of employment or employment relationship with a temporary-work agency.

The employer put forward an argument that the complainant was on a managed contract and accordingly does not fall within the scope of the Act.  In response, the complainant stated in evidence that he was managed by the respondent.  There is no copy of a contract of employment or service agreement, or other relevant contract available and it appears from the evidence presented that the complainant is employed in a capacity covered by the Act and Directive.  I find that the respondent falls within the definition of ‘Hirer’ outlined in the Act.

The complainant stated that he worked under different terms and conditions to those of the respondents’ employees and gave several examples of this in his evidence.  He gave his evidence in a cogent and clear fashion and I find he is a credible witness.  This evidence was not contradicted by the evidence of the employers’ witnesses. 

Section 25 of the Act is detailed in Schedule 2 of the Act and contains the following provisions:

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.

Accordingly, I find that the complaint is well founded.  In the circumstances I require the hirer to pay the complainant compensation of €15,000 which I consider to be just and equitable in the circumstances of this case.

I find that the complaint is well founded.  In the circumstances I require the hirer to pay the complainant compensation of €15,000 which I consider to be just and equitable in the circumstances of this case.