Worker

Employer

Anonymised Parties

A Painter

A Film Production Company

Representatives

Liz Murray, Irish Film Workers’ Association

Nichola Harkin, Irish Business and Employers’ Confederation

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00061195-001

25/10/2021

At a hearing of complaints under various employment rights statutes, the employer argued that the worker was never employed by them and that, on the form he submitted to the WRC, he named the incorrect respondent.  I reached a conclusion on this matter under a separate Adjudication Decision and I am satisfied that this worker was an employee of this employer from July 27th 2015 until August 23rd 2021.

In July 2015, the worker commenced as a painter on an hourly rate of €21.25.  In 2016, he decided to accept an offer from a construction manager to start an apprenticeship as a painter.  Ms Murray submitted a “start form” at the hearing which shows that, as a first-year apprentice, the worker’s hourly rate was €8.65.  In year two, it seems that his hourly rate increased to €11.95.  When he returned from a period of lay-off in 2020, the worker said that he was informed by the construction manager that the company didn’t sponsor apprentices, and his rate of pay from then on was the construction rate of €27.71 per hour.

As an outcome from this dispute, the worker is seeking a recommendation that the employer pays him compensation for being on an apprentice’s rate of pay for three years, when he was not registered as an apprentice and he received no qualification.   

At the hearing, the worker said that he joined the construction department of the employer’s company in July 2015, earning €21.25 per hour.  He said that when he was offered the opportunity to become an apprentice painter, he thought that it would be good to have a qualification and that it would help him to progress in the industry.  He decided to start the apprenticeship, even with the disadvantage of having his wages reduced by more than half and he said that he was assigned to train with a master painter in the set construction department.

When he was laid off in 2018, the worker said that he decided to go to Australia to work and he asked the construction manager for a certificate to show that he was in the third year of his apprenticeship.  He said that he was told that his apprenticeship wasn’t completed.  In 2020, when he returned from lay-off and went back to work on a new film, he said that the construction manager told him that they didn’t do “normal apprenticeships.”  From 2020 onwards, until he was dismissed in August 2021, he was paid an hourly rate of €27.71.

When he was working under what he thought was an apprenticeship, the employer was a recipient of tax credit under section 481 of the Taxes Consolidation Act 1997.  At the hearing, Ms Murray presented a copy of Revenue’s Tax and Duty Manual for companies applying for s.481 relief[1].  The Guidance Note refers to the application process for a s.481 certificate comprising “Tabs A to M.”  Section 4 of Tab A requires the producer company to,

“…demonstrate how, in promoting, developing and enhancing culture, the film acts as an effective stimulus to film making in the State through, among other things, the provision of quality employment and training opportunities.”

The worker’s grievance is about the failure of his employer to register him as an apprentice.  In addition to being on a rate of pay that was less than half of what he would have been paid if he had not accepted the “apprenticeship,” he has been deprived of an opportunity to gain a qualification and to advance in his career.

The employer’s position is that the worker was not employed by them and their representative made no response in relation to this dispute.

Because of the significant cut in wages, it is unusual, although not un-heard of, for an employee to move out of mainstream work to start an apprenticeship.  In the case of this worker, he said that he thought that his employer registered him as an apprentice in 2016, although, up until he was laid off in 2018, he wasn’t sent to do the college parts of the course.  I find it difficult to understand why he didn’t make enquiries about his training programme, or why he didn’t speak to the master painter who he thought was responsible for training him, about how his training was to be organised and when he was to go on college placements.      

At the hearing of this dispute, the worker said that he spent four years on an apprentice rate of pay, with no qualification at the end.  It seems to me that, over the course of those four years, the worker must have known that something wasn’t right when the formalities associated with an apprenticeship training programme were not in place.  He wasn’t assigned a college place, no assessments were carried out, and there was no communication regarding whether his skills were advanced enough to move from one year to the next of the apprenticeship programme.  At the hearing, it wasn’t clear why this happened or why he didn’t take action at the end of year one, or at some point during his so-called “apprenticeship.”

When he was informed in 2020 that the company didn’t do “normal apprenticeships,” the worker was then hired on the construction workers’ rate of €27.71 per hour.  It is clear from what he said at the hearing that he had a grievance at this point, but he still took no action.

If he was not an apprentice between 2016 and 2018, it is apparent that the worker was paid less than half his wages.  I must conclude from this that there was some understanding between the worker and his manager that he was on an apprenticeship programme.

As part of its obligations under s.481 of the Taxes Consolidation Act 1997 (the “TCA”), the employer is required to provide training so that employees can advance in their careers in the film industry.  It is government policy that low-skilled and low-paid workers can gain qualifications and advancement through the apprenticeship system and no complications would have arisen for the employer if the worker had been registered as an apprentice.

My role is to recommend on how this dispute should be resolved.  In the context of the employer’s obligations to provide training to employees under the certification requirements of s.481 of the TCA, an apprenticeship programme must be a standard feature of the film industry.  It seems to me that the opportunity for resolution of this worker’s apprenticeship occurred in 2017, at the end of his first year when he thought he was assigned to a master painter.  With no formal training arranged by the end of his first year as an “apprentice,” with the assistance of his union, the worker had a responsibility to make enquiries and to sort things out.  Why he didn’t do so has not been explained.  It is not clear why he allowed the situation to continue after year one, or why he did not raise a grievance to seek a resolution at local level.

Due to the failure of the parties to engage in discussions to seek a resolution of this dispute at the level of the workplace, I recommend that the worker accepts that the matter will not now be resolved and that it is closed.

Apprenticeship