LCR22927

SUBJECT:

​​Appeal of Adjudication Officer Decision No's: ADJ-00044789 (CA-00055617-004)​ 

BACKGROUND:

On the 10October, the Worker referred the dispute to the Labour Court in accordance with Section 23 of the Industrial Relations (Amendment) Act, 2015 and agreed to be bound by the Court's Recommendation. 
A Labour Court hearing took place on the 12 January 2024. 

RECOMMENDATION:

This matter comes before the Court as an appeal by Liviu Lucian Ionut (the Appellant) against a decision of an Adjudication Officer CA-00055617-004 in his complaint made under Section 23 of the Industrial Relations (Amendment) Act, 2015 (the Act) against Vladimir Vecerin Pepito Trade (the Respondent). 

The Appellant was employed by the Respondent from 30th May 2022 until 9th March 2023. The within complaint was made to the Workplace Relations Commission on 21st March 2023. The cognisable period for the within complaint is therefore 22nd September 2022 until 21st March 2023. 

Relevant Law 

S.I No. 598 of 2021 [Sectoral Employment Order (Construction Sector), 2021] (the SEO) is an order made in accordance with the provisions of section 17 of the Act and having effect at the material time. The order at issue in the within appeal established minimum arrangements for certain terms and conditions of employment in the Construction Sector in accordance with the Act at Section 16(5) which sets out the terms that may be addressed in an SEO as follows: 

(a) a minimum hourly rate of basic pay that is greater than the minimum hourly rate of pay declared by order for the time being in force under the Act of 2000; 

(b) not more than 2 higher hourly rates of basic pay based on— 

(i) length of service in the economic sector concerned, or 

(ii) the attainment of recognised standards or skills; 

(c) minimum hourly rates of basic pay for persons who— 

(i) have not attained the age of 18 years, 

(ii) enter employment for the first time after attaining the age of 18 years, 

(iii) having entered into employment before attaining the age of 18 years, continue in employment on attaining that age, or 

(iv) have attained the age of 18 years and, during normal working hours, undergo a course of study or training prescribed by regulations made by the Minister under section 16 of the Act of 2000, reduced to the percentage set out in section 14, 15 or 16 of that Act for the category of worker concerned; 

(d) minimum hourly rates of basic pay for apprentices; 

(e) any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked, hours worked on a Sunday, or travelling time (when working away from base); 

(f) the requirements of a pension scheme, including a minimum daily rate of contribution to the scheme by a worker and an employer; and 

(g) the requirements of a sick pay scheme 

The order makes provision for rates of pay in relevant part as follows: 

Pay Rates 

The following basic hourly rates of pay will apply in the sector from 1st February 2022 to 31st January 2023. 

Craftsperson €20.52 per hour 

Category A Worker €19.91 per hour 

Category B Worker €18.47 per hour 

An hourly rate of pay of €14.93 will apply for two years after entrance to the Sector to all New Entrant Operative Workers who are over the age of 18 years and entering the sector for the first time. 

The following basic hourly rates of pay will apply in the sector from 1st February 2023. 

Craftsperson €21.09 per hour 

Category A Worker €20.47 per hour 

Category B Worker €18.99 per hour  

An hourly rate of pay of €15.35 will apply for two years after entrance to the Sector to all New Entrant Operative Workers who are over the age of 18 years and entering the sector for the first time. 

There is no dispute between the parties that the Complainant was employed at the material time by the Respondent in the construction sector.  

S.I. No. 234 of 2019 – [Sectoral Employment Order (Construction Sector) 2019] (the SEO of 2019) which was amended by S.I. 598 of 2021 set out the detail of categories of worker to which rates of pay contained in the order apply as follows: 

Categories of Worker 

In accordance with section 16 (5) (a) of the 2015 Act the Sectoral Employment Order should provide for: 

a basic minimum rate of pay to apply to all Skilled General Operatives who have worked in the sector for more than 2 years - (Category B Worker) 

In accordance with section 16(5) (b) of the Act two higher hourly rates of basic pay as follows: 

(1) A higher hourly rate of pay to apply to Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks operatives, Steel Fixers; Crane Drivers and Heavy Machine Operators (Category A Worker) 

and 

(2) a top hourly rate of pay to apply to Craftspersons in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers; (Craftspersons) 

A basic hourly rate of pay to apply in accordance with section 16 (5)(c)(ii) to General Operatives who enter employment for the first time after attaining the age of 18 years and for two years after entering employment in the industry, (New Entrant Worker) and in accordance with section 16(5)(d) of the Act a minimum hourly rate of pay to apply to apprentices (Apprentice) 

The Industrial Relations (Amendment) Act, 2015 makes provision at Section 23 as follows: 

23. (1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

(a) subsection (1) of section 20, 

(b) a registered employment agreement (within the meaning of Chapter 2), or 

(c) a sectoral employment order (within the meaning of Chapter 3). 

 (2) A decision of an adjudication officer to which this section applies 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 to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or 

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977, 

and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurs, as references to the person who, by virtue of the change, becomes entitled to such ownership. 

 (3) A decision of the Court under section 44 of the Act of 2015, on appeal from a decision of an adjudication officer to which this section applies, shall affirm, vary or set aside the decision of the adjudication officer. 

Summary Position of the Appellant. 

The Appellant submitted that at the commencement of his employment with the Respondent and throughout the period from 22nd September to the termination of his employment in March 2023 in May 2022 he had worked in the sector for more than 2 years. On that basis the rate applicable to him was the rate provided in the SEO for Category B workers. 

He submitted that the SEO provided for a rate of pay of €18.47 per hour for Category B workers from 22nd September until 31st January 2023 and a rate of €18.99 per hour from 31st January 2023 until the termination of his employment on 9th March 2023. 

He submitted that he was actually paid €11.45 per hour from 22nd September 2023 to 31st January 2023 and €11.87 per hour thereafter. 

He submitted that he worked for 48 hours each week from Monday to Saturday. 

He submitted that the difference in pay across the cognisable period was €9,355.38 and the failure to pay him this amount amounted to a breach of the SEO. 

Summary testimony of the Appellant 

The Appellant gave evidence under oath which can be summarised as follows: 

He had worked for six years in the construction sector prior to his employment by the Respondent. He stated that he worked eight hours per day while employed by the Respondent. He stated that he worked six hours each day Monday to Friday and seven hours on each Saturday. 

He stated that at all times he was working for the Respondent and that he was never paid by any other contractor or other employer throughout the period. 

Summary position of the Respondent 

The Respondent submitted that the Appellant was paid €15.00 per hour by agreement. He submitted that the Appellant did not work 48 hours per week. He worked five days per week from Monday to Friday for eight hours per day and seven and a half hours on Friday. He submitted that if the Appellant worked on any hours outside of these hours he was engaged by and paid by the main contractor on the site and not by the Respondent. 

When questioned by the Court the Respondent confirmed that the Appellant had not been provided with a contract of employment or any written statement of the terms and conditions of his employment. Similarly, the Respondent did not maintain a record of the hours worked by the Appellant at the material time. He also confirmed that he did not know if the Appellant had worked for two years or more in the construction sector prior to his engagement by the Respondent. 

The Respondent declined to proffer sworn evidence when invited to do so by the Court. 

Discussion and conclusions. 

It is common case that the Appellant was not paid the rate of pay set out in the SEO during his employment. 

It is common case that the Appellant was paid €550 per week for some or all of his employment. 

According to the Respondent, the Appellant was employed for 37 paid hours per week. The Court therefore understands the Respondent’s submission as meaning that the Appellant was paid €14.86 per hour. The Court notes that the Respondent has submitted that a weekly rate of €550 divided by the hours worked by the Appellant equates to an hourly rate of €15. The Court was unable at its hearing to establish the mathematical calculation which would produce that result. 

According to the Appellant he worked for 48 hours each week and received €550 per week in pay. He submits that this rate of pay equates to €11.45 per hour from September 2022 to January 2023 and €11.87 per hour thereafter. The Court calculates the mathematical result of €550 divided by 48 to be €11.46. 

The Respondent did not proffer testimony or comprehensive records of hours of work or payslips or a contract of employment to support the submission made to the Court. 

The Appellant did proffer sworn evidence that he worked each week for 48 hours while employed by the Respondent. 

It is common case that the Appellant was paid €550 each week during his employment. 

The Appellant has given sworn evidence that he had worked in the Sector for more than two years prior to his engagement by the Respondent. 

The Court, therefore, giving appropriate weight to the sworn evidence tendered by the Appellant and the absence of sworn evidence on behalf of the Respondent or records contradicting that evidence, concludes that, on the balance or probability, the factual position at the material time for the within complaint was: 

A. That the Appellant was, within the meaning of the SEO, a Category B Worker. 

B. That the rate of pay to be paid to a category B Worker during the cognisable period for the within complaint was €18.47 per hour from 22nd September until 31st January 2023 and €18.99 per hour from 31st January 2023 until the termination of his employment on 9th March 2023. 

C. That the rate of pay actually paid to the Appellant during the cognisable period for the within complaint was €11.46 per hour. 

D. That the Respondent was in breach of the SEO throughout that period of employment of the Appellant which fell during the cognisable period for the within complaint. 

The Court calculates that the effect of the breach of the SEO during that time period was to deprive the Appellant of the sum of €8,500 approximately in wages statutorily due to him in the period. 

[48 X 20 weeks X €7.01 per hour underpayment = €6,729.6 to 31st January 2023. From 1st February up to 9th March 2023 - 5 weeks X 48 X €7.53 per hour underpayment = €1,807.20]. 

In the view of the Court, having regard in particular to the fact that employment of the Appellant terminated in March 2023, the Court considers that compensation is the appropriate form of redress.  

The Court considers that the amount of compensation which is just and equitable having regard to all of the circumstances is €10,000. 

Decision 

The complaint of a contravention of S.I. No. 598 of 2021 is well founded. The Court therefore requires the Respondent to pay to the Appellant compensation in the amount of €10,000, being the amount the Court considers to be just and equitable having regard to all of the circumstances. 

The decision of the Adjudication Officer is set aside. 

The Court so decides. 

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
16 February 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Sinead O'Connor, Court Secretary.