Complainant

Respondent

Anonymised Parties

A Horticultural OPerative

Mushroom Production Company

Representatives

  Derek Siggins

Andrea Montanelli

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00057614-002

09/07/2023

The claimant commenced employment with the respondent who runs a mushroom farm  as a Horticultural Operative on the 28th.August 2022.The claimant complained that she did not receive the minimum rates of pay set out in the Early Years Sector of the Employment Regulation Order .In her complaint form she stated that the Irish Statutory Minimum Wage of €11.30 per hour from the 1.01.2023 had not been implemented and she complained that payment was determined by the weight of the product harvested and not the agreed weight per hour as per the conditions of the General Employment Permit .The claimant submitted that the gross wage is not in line with €10.85 per hour , 39 hours per week , €423.15 per week as per the conditions of the General Employment Permit .

The respondent denied the substantive complaints regarding non compliance with the ERO and the National Minimum Wage Act 2000 and submitted that there was no jurisdiction to investigate the complaints.

The following submission was received from the complainant on the 22nd.Sept2023

My name is Ms.L, I am A Cambodian national and I have come to live and work in Ireland to make a better life for my two children and my family that remain in Cambodia. I would like to say I am very grateful for the opportunity that has been given to me to come and work in Ireland.

 It is my belief I have been exploited by my employer.

 I have asked my partner  Mr.DS to help with this document as I have limited English. He made an attempt to write an Excel spread sheet as a guide to what I have been paid by the respondent . The calculations are based on the pay-slips that I have dated from 09/09/2022 to 09/06/2023. I would like to make clear that neither I nor my partner Mr.DS are accountants or book keepers. The figures on the spread sheets should be used as a guide only. We also relied on information from the Workplace Relations Commission, Citizens Information and the Department of Enterprise, trade and Employment websites.

 I worked a total of 40 weeks but only have access to 38 pay-slips. The two pay-slips I do not have access to are dated 09/09/2022 and 16/09/2022 weeks 36 and 37. My pay-slips were emailed to me in PDF format and are available on request by email or print format.

 Through an agency in Cambodia, I gained work at the respondent’s business .

The personal cost of the agency, flight, work permit stamps (Visa) and ancillary costs are in excess of €13,149.88.

The terms of the General Employment Permit with the Department of Enterprise, Trade and Employment is from 29/05/2022 to 28/05/2024.

All 11 Cambodian nationals that came to work in Ireland arrived late in Ireland due to Visa or Covid 19 issues. We arrived 24/08/2022 and commenced work on or about 02/09/2022.

 I resigned from the company   on 03/06/2023.

 The reason I resigned is upon examining my work pay-slips and also seeking advice on employment regulations, I came to the realization that I and the other Cambodian staff  are not being paid in accordance with the terms of the General Employment Permit.

 • The working hours far exceed the 39 hours stipulated in the conditions of the General Employment Permit.

• The working hours generally are between 8 and 14 hours per day.

 • It is a requirement to work 13 out of 14 days consecutively.

• Payment is determined and paid by the weight of product harvested and not the agreed rate per hour as per the conditions of the General Employment Permit.

 • The gross wage is not in line with €10.85 per hour, 39 hours per week, €423.15 per week as per the conditions of the General Employment Permit.

 • Overtime and weekend work are not properly compensated.

• The Irish statuary minimum wage of €11.30 per hour from 01/01/2023 has not been implemented.

• There are payments for public bank holidays listed on the pay-slips but it is not clear how the payment calculated.

• Hours worked are not specified on the pay-slips.

 • Rate per working hour is not specified on the pay-slips.

 Expense coming from Cambodia: The Agency in Cambodia provided the following service, • Visa • Registry • Employment $13000.00 USD €11,908.65 Pay 50% of the cost of one-way flight to Ireland: $700.00 USD €641.23 Pay for Visa stamps = 2 stamps: €600 Total personal expense to come for work in Ireland: €13,149.88

On arrival in Ireland

 Contract:

The terms of the contract agreed by the Department of Enterprise, Trade and Employment FILE NO: AO/8/753 stipulates as follows;

 This permit is issued on condition that the named foreign national is paid a minimum annual remuneration of €22,000 on the basis of a 39-hour week over 52 weeks and in respect of which the minimum hourly rate is €10.85. During times of low economic activity, a 34-hour working week may be rostered and a weekly remuneration of €409.50 may be paid on condition that the required additional hours to secure a minimum annual remuneration of €22,000 are rostered in times of high economic activity.

 Daily work reality:

 • 11 Cambodian Nationals working on the same contract for the same employer. 

• The employer / employee contract that is provided to each member of Cambodian National staff is misleading.

• Work from 8 to 14 hours per day. Average of 10.9 hours per day, based on a 6.5-day week. (Approximate Average = 70.85 hours per week).

• Paid by weight of mushrooms harvested and not an hourly rate as agreed in the contract set out by The Department of Enterprise, Trade and Employment as can be seen on the pay slips dated August 2022 to June 2023.

• On all pay slips, the hours worked is not listed.

 • On all pay slips, the hourly rate is not listed.

• There is a separate slip to show the weight of mushrooms harvested and pay rates. The employees are paid the following week based on what is harvested.

• The correct weekly wage should be Gross €423.15 based on 39-hour week at €10.85 per hour set out by The Department of Enterprise, Trade and Employment.

• Actual approximate weekly average wage Gross €364.19 based on pay slips provided.

 • The average difference of contract wage and actual wage is €58.96 per week.

• Approximate paid hourly rate at €364.19 per week based on 39 hours is €9.33 per hour or if based on 70.85 hours per week the rate per hour is as low as €5.14 per hour

• Since 1 January 2023, the national minimum wage is €11.30 per hour. No wage adjustment has been implemented, if it has its not shown on the pay-slips.

• Questionable methods of paying for Public Bank Holidays.

• 1 day off in every 14. Should be 1 day in every 7.

• No alternate pay rate for Saturdays or Sundays or overtime.

• No overtime paid based on the pay slips provided by  the respondent .

• There is no public transport to and from the accommodation and the work place, therefore a taxi service had to be used every day at the worker’s expense.

• House Rent paid to the company €75 per week. Paid cash to the HR department bi-weekly (€150 X 2 per month). 11 people living in the house (€300 X 11 = €3300 Per month). No receipt provided from the HR department for these cash payments

. Work Place Relations Commission

• The maximum number of hours that an employee should work in an average working week is 48 hours. (Work Place Relations Commission). Average hourly working week = 70.85 hours a week.

• A weekly rest period of 24 consecutive hours per seven days. Required to work 13 out of 14 days in succession. • If not already included in the rate of pay, an employee is generally entitled to paid time off in lieu or a premium payment for Sunday working.

The premium can be in the form of:

• An allowance

 • Increased rate of pay

• Paid time off

• Combination of the above.

• If the business is open and an employee works, he/she is entitled to either paid time off or an additional day's pay. The additional day's pay is what was paid for the normal daily hours last worked before the public holiday.

• The hours (including a part of an hour) of work of the employee as determined in accordance with – ▪ (i) his or her contract of employment, ▪ (ii) any collective agreement that relates to the employee,

▪ (iii) any Registered Employment Agreement that relates to the employee,

 ▪ (iv) any Employment Regulation Order that relates to the employee,

▪ any statement provided by the employee's employer to the employee in accordance with section 3 (1) of the Terms of Employment (Information) Act, 1994 ,

▪ (vi) any notification by the employee's employer to the employee under section 17 of the Organisation of Working Time Act, 1997 ,

 ▪ (vii) section 18 of the Organisation of Working Time Act, 1997, or

▪ (viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work, whichever, in any case, is the greater number of hours of work.

Or (b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be (2) “Working hours” under this section shall include—

 • (a) overtime,

 • (b) time spent travelling on official business, and

 • (c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

• whichever, in any case, is the greater number of hours of work. You can call either my partner  at any time if we can be of any help with this process.

The following submission was received on behalf of the respondent on the

 Preliminary Points A) Employment Regulation Order (ERO)

1. The Claimant brought a complaint stating that she did not receive the minimum rate of pay set out in an Employment Regulation Order (ERO) related to Early Years Sector under Section 45A of the Industrial Relations Act, 1946.

2. Employment Regulation Order (ERO) related to Early Years Sector provide for minimum hourly rates of pay and other conditions of employment for various roles in the Early Years Services Sector, which can be seen from page 224 of the Booklet of Papers.

3. The Order applies to: • Early Years Educators and School Age Childcare (SAC) Practitioners • Lead Educators (Room Leaders) and School Age Childcare (SAC) Coordinators (including graduate rate) • Deputy / Assistant Manager • Centre Manager (including graduate rate)

 4. Early Years Educators and SAC Practitioners are workers who are wholly or mainly in direct contact with children and who are involved in the education and/or care of children.

 5. The Complainant was employed as a Horticulture Operative whose main duties were to harvest mushrooms.

 6. The Complainant has never worked in the Early Years Sector for the Respondent, and therefore, the minimum rate of pay set out in the Employment Regulation Order (ERO) related to Early Years Sector does not apply to the Complainant.

 7. Therefore, the Respondent respectfully submits that the WRC does not have jurisdiction to investigate the instant claim brought under Section 45A of the Industrial Relations Act, 1946, as it is not applicable to the Claimant.

 B) Minimum Wage

 8. The Complainant alleges that the Irish statutory minimum wage of €11.30 per hour from 01.01.2023 has not been implemented. Third Party Sensitive

 9. Firstly, the Respondent denies such allegation and states that the Complainant has not lodged her claim under the National Minimum Wage Act 2000, and therefore, such complaint cannot be investigated under the said Act.

 10. Secondly, the Respondent states that the Complainant has never requested the statement of her average hourly rate of pay in respect of any relevant period.

 11. The Contract of Employment states that the Complainant’s salary was €22,000 minimum per annum and that “in accordance with section 23 of the NMW Act 2000, you may request a written statement of your average hourly rate of pay for any pay reference period falling within the previous 12 months. Working hours are averaged over a four-week period.”

 12. Section 23 subsection (1) and Section 24 subsection (2) of the National Minimum Wage Act, 2000 determine as follows: 23.-(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request. 24.-(1) (…) (2) A dispute cannot be referred to or dealt with by a rights commissioner (a) unless the employee (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be (…)”

 13. In the matter Warren Dolan -v- Joe Duffys BMW, ADJ-00037772, the Adjudication Officer decided that “it is clear that Section 24 makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period in order to pursue a dispute about his/her entitlements under the Act. As the Complainant has not obtained the statement as required by section 23 of the Act, which by virtue of section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint.”

14. In the same decision the Labour Court decision in Masion House Ltd -v- Izquierdo MWD043 was quoted as follows: “For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimant’s right to re-enter the same complaint having complied with the said section…..” Third Party Sensitive

 15. Considering the foregoing, the Respondent respectfully submits that there is no jurisdiction to hear this complaint under the National Minimum Wage Act 2000.

 C) Time Limit – restricted to 6 months period

16. The Claimant lodged her complaint on the 09.07.2023.

 17. As outlined above, the ERO (Employment Regulation Order) and the Section 45A of the Industrial Relations Act, 1946 does not apply to the Complainant.

 18. The Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation.

 19. Section 41(6) of the Workplace Relations Act (2015) states: Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 20. The Respondent refers to the High Court Judgement in HSE -V- Mc Dermott [2014] IEHC 331 where the relevant period for the purposes of claims under the Payment of Wages Act was extensively considered. In this case, Hogan J. concluded as follows: “For the purposes of this limitation period, everything turns, accordingly on the manner in which the complaint is framed by the employee. If for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be intime for the purposes of S. 6(4).If, on the other hand, the complaint was to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of her time.”(emphasis added).

21. Under these circumstances, notwithstanding the above and without prejudice to the Respondent’s position, should an award be made, it is submitted that any possible award should be restricted to the period of 6 months from the date of the lodgement of the claim (09.07.2023), period from 10.01.2023 to the end of her employment on 03.06.2023.

 Deciding the preliminary issue prior to hearing the substantive matter

 22. There is a body of case law which suggests an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter is in fact reached. Third Party Sensitive

23. In the case of Guerin v SR Technics Ireland Limited UD969/2009, the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

 24. In the case of Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case.

 25. In the case of Donal Gillespie and Donegal Meat Processors UD/20/135 the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be dealt with together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

 26. Therefore, the Respondent respectfully requests that the adjudicator hear the preliminary points and adjourn to make a decision on the substantive point.

 Background

 27. The respondent is a fresh mushrooms producer established in 1999 .

28. The Complainant was employed as Horticulture Operative starting on 28th of August 2022 to her resignation effective from 3rd of June 2023.

29. The Complainant did not work her notice’s period as per terms and conditions agreed on her Contract of Employment.

30. The Complainant went on holidays on 27.05.2023 as per page 173 of the Respondent’s Booklet and texted the Respondent on 02.06.2023 as per page 222 of the Booklet of Papers that she would not be returning from 03.06.2023 to work giving on notice period.

 31. The Claimant raised the instant complaint under Section 45A of the Industrial Relations Act, 1946 claiming that she did not receive the minimum rate of pay set out in an ERO related to Early Years Sector.

32. The Respondent strenuously denies such allegations. T

 Legal Submission

 A) Minimum rate of pay set out in ERO Early Years Sector

33. The Complainant lodged a complaint under Section 45A of the Industrial Relations Act, 1946 claiming that she did not receive the minimum rate of pay set out in an ERO related to Early Years Sector.

34. The Respondent respectfully submits that it is a mushrooms producer and as such it is not a company engaged in the Early Years Services Sector as well as that the Complainant has never worked in any roles of the Early Years Services Sector for the Respondent and it is not covered by the Employment Regulation Order of the Early Years Sector.

 35. It is possible to verify from page 224 of the Booklet of Papers onwards that the Order applies to: • Early Years Educators and School Age Childcare (SAC) Practitioners • Lead Educators (Room Leaders) and School Age Childcare (SAC) Coordinators (including graduate rate) • Deputy / Assistant Manager • Centre Manager (including graduate rate)

 36. Early Years Educators and SAC Practitioners are workers who are wholly or mainly in direct contact with children and who are involved in the education and/or care of children.

 37. The Complainant was employed as a Horticulture Operative whose main duties were to harvest mushrooms.

 38. The Complainant has never worked in the Early Years Sector for the Respondent, and therefore, the minimum rate of pay set out in the Employment Regulation Order (ERO) related to Early Years Sector does not apply to the Complainant.

 39. Therefore, the Respondent respectfully submits that the instant complaint fails.

 B) National Minimum Wage

 40. As outlined above, the Complainant alleged that the statutory minimum wage has not been implemented, however, she has not lodged a complaint under the National Minimum Wage Act, 2000, and has not requested a statement of her average hourly rate to the Respondent and therefore the jurisdiction to investigate the instant complaint shall be declined.

41. Notwithstanding the above and without prejudice to the Respondent’s position, it is submitted that the Complainant has never been paid under the statutory minimum wage.

42. The Complainant was employed as a Horticulture Operative for a salary of €22,000 minimum per annum as per contract in place since May 2022 in order to ensure that all obligations under the National Minimum Wage (NMW) Regulations and General Employment Permit are met.

43. Due to the nature of the mushroom industry, and as agreed between the parties, the Complainant was remunerated according to the harvester payment system based on productivity, measured for units of mushrooms picked per hour.

 44. It is therefore submitted that her wages were calculated on piece rate, and the Complainant was paid over and above the minimum wage according to the units of mushrooms picked per week, which can be easily verified in the timesheets and payslips attached to pages 72 to 171 of the Booklet of Papers. For example, in the week 20 from 06.05.2023 to 12.05.2023 the Complainant worked 34:15 hours and was paid €440.06, which equates to €12.88 per hour.

 45. In relation to the working hours, the Respondent submits that the Complainant used an app to register her start/finish times and therefore the Complainant would have information in relation to the hours performed by her each week. In addition, Section 4 of the Payment of Wages Act, 1991 does not determine that the hours worked by the employee are specified in the payslips.

 46. By virtue of the nature of the business, there are busy weeks and quiet weeks, however, even in opportunities where the Complainant could have earned more, her average earnings were €379 per week due to performance related issues, and even on those circumstances the Complainant has never been paid under the national minimum wage.

47. Please note that the reports stating the quantity of mushrooms picked by the Complainant per week at pages 111 to 149 of the Respondent’s Booklet demonstrate how her salary was calculated to equals the final wage, and that the columns “Statutory €” refer to Sunday Premium at 30% for pickings on Sundays.

 48. Such reports were sent to the Complainant every week together with her payslips through emails at pages 174 to 223 of the Respondent’s Booklet. The Complainant has never made any queries in relation to her payslips during her contract of employment.

49. Ultimately, the Respondent states that in case an employee’s picking did not reach the minimum wage, it would top up the employee’s salary according to the average earnings over a four-week reference period in order to ensure that the obligations under the National Minimum Wage were met, however, this situation rarely happens.

50. Therefore, the Complainant’s salary was paid in accordance with the units of mushrooms picked during the week, and always above the minimum wage.

 51. The Respondent respectfully submits that the Complainant’s allegations cannot prevail. Third Party Sensitive

52. The Respondent reserves the right to make the relevant enquiries at the hearing of the matter as well as to submit additional documentation and information at the hearing.

I have reviewed the evidence presented at the hearing and the entirety of submissions and rebuttal submissions presented by both parties.

Complaint re. non receipt of “ the minimum rates(s) of pay set out in the employment Regulation Order (ERO)” as per the claimant’s complaint form :

As I have established as a matter of fact that there is no ERO for the Mushroom Industry , I have no jurisdiction  to investigate this element of the complaint.

Complaint under the National Minimum Wage Act , 2000

               While I acknowledge that the respondent has argued that the complainant did not lodge her complaint under this Act , I note that in the body of her complaint form  the claimant refers to the non implementation of the Irish Statutory Minimum Wage.As the complaint form is not prescriptive and given that the respondent was on notice of a complaint about the National Minimum Wage Act , I am satisfied that I can investigate the complaint and that this decision is consistent with the provisions of County Louth VC v Equality Tribunal [2009]IEHC 370 approved by the Supreme Court in County Louth VEC v Equality Tribunal [2016]IESC 40.

               At the hearing , the complainant accepted that she did not seek a written statement of her average hourly rate of pay for fear of loosing her job – in these circumstances , I am obliged to find that I have no jurisdiction to investigate this element of the complaint in accordance with Sections 23 &  24 of the Act.