Worker

Employer

Worker

Employer

Anonymised Parties

A Co-Ordinator/Controller

A Broadcaster

Representatives

Des Courtney                                                      SIPTU

Louise O’Byrne

Arthur Cox Solicitor

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00002160

25/01/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all hearings should be conducted fairly.

The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side.

The Specific Details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 25th of January 2024.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private, and the recommendation is therefore anonymised.

The Complainant was represented by her Trade Union Representative. The Complainant gave her own oral account of her employment history with the Respondent entity. I was provided with a comprehensive submission from the Complainant representative which was uploaded onto the system on or about the 3rd of September 2025. The Complainant is also presumed to be relying on the  submission outlined in the Workplace Relations Complaint Form which read:

I was incorrectly classified as self-employed for a significant period of my employment. Each year I was issued with an independent contractor agreement. A recent Eversheds inquiry established that I should have been in permanent, insurable employment since the commencement of my employment.

As a result of this misclassification, I have missed out on significant amounts under various employment entitlements. Broadcaster has made an offer which I believe is unreasonable in the circumstances. I am seeking payment of the outstanding balance. I will provide exact figures at the hearing.

No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant is seeking a back payment of monies which she says that the Employer is bound to pay her for their mischaracterisation of her employment both as an actor and a co-ordinator.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent was fully legally represented. The Respondent provided me with a comprehensive submission received the 27th of March 2025. Witness M gave evidence on behalf of the Respondent.

At every level the Respondent was challenging my jurisdiction and the Complainant’s entitlement to bring a matter before the WRC which inherently attempts to undermine an outcome negotiated and agreed between management and unions in this workplace.

I am being requested to decline jurisdiction to hear this case under 13(2) of the Industrial Relations Act 1969 whilst at the same time upholding the provisions of a negotiated Retrospection Agreement that has been recognised as a collective agreement.

I have carefully considered the arguments of both sides herein. I have heard comprehensive evidence from the complainant and have also heard the reply thereto posited by the two Respondent witnesses.

The Complainant is an actor and had consistent work from 2010 to 2017 working as an actor in a show commissioned by the Respondent broadcaster. In 2017, the Complainant’s role was removed from the show on a seemingly permanent basis. In anticipation of this eventuality the Complainant took her on-set experience and applied for other work with the Respondent which brought her out of the realm of acting. The Complainant moved to continuity and was involved therefore in the day-to-day smooth running of different aspects of the Respondent output. Eventually, I note, the Complainant was moved into a controller role which is a technical role in broadcasting, responsible for the managing and overseeing of operations.

Back in 2017, having been trained up in continuity/controller role, the Complainant was given a Contract for Service dated October 2017. It was clearly intended that the Complainant would not be an employee. These were Independent Contractor Agreements of the type being used across the board in this particular place of employment. Two more Contracts for Service were issued in early 2018 and early 2019.

As it happens there had, by 2017, been a groundswell of opposition from the large body of Independent Contractors to being treated as independent Contractors (of the Respondent), when all the objective criteria suggested they were employees. In response to this, the Respondent made a commitment to examine its freelance/contractor contractual engagements. The Respondent engaged the law firm ES for this process and a report issued in June 2018 (the “Report”). The Report found that the majority of those reviewed were appropriately engaged as contractors, however this exercise identified inconsistencies in certain roles where some individuals were hired as staff and others as independent contractors. I understand that following a review of up to 433 contractors, 106 were assessed as having “attributes akin to employment”. The Report required individual review with regard to the employment status of each of the 106. The Complainant, it is noted was one of the 106.

Certain recommendations flowed from the findings of the Report and for the purposes of the Complainant’s disputes, it is noted that the Respondent entered into a process with the on-site Trade Union Groups. The purpose was to have a collaborative review of the Report just issued and to come to an agreement on the Contractor Review process and to work out a practical implementation in the workplace. The Respondent recognised that a number of persons (including the Complainant herein) have attributes akin to employment. A number of Governing Principles of this Contractor Review process were agreed at this time. These included:

It was agreed between the parties that any Contract of employment to be offered would reflect the pattern of engagement with the Respondent over the previous two years - that is 2017 and 2018.

Any contract of employment would assign the persons concerned, to the grade and the pay for the grade appropriate to the nature of their work.

It was further agreed that if a person, to whom a contract of employment was offered, disputed the terms of the contract of employment, they may request an informal one-on-one meeting with HR to discuss the contract of employment offered.

It was also agreed that if the person continues to dispute the terms of the contract offered, as described, the person concerned may appeal the terms of the contract offered to an Appeal Panel.

The Respondent has emphasised again and again that the collaborative nature of this process should not be undermined. The Unions were involved in every stage of the process and negotiated outcomes on behalf of all members.

I understand that there was some opportunity for the individual employee to negotiate details. On this basis, the Complainant submitted her own records of her work pattern for 2017 and 2018 which was more than the Respondent had initially calculated. By the end of 2019 the Complainant was offered a permanent contract based on .32 full -time employment which the employer says fairly reflected the pattern of engagement with the Respondent over the previous two years.

The Complainant signed her Contract in early 2020. I accept that as per the Governing Principles, it was open to the Complainant to appeal her contract in the internal appeal process, but she did not avail of same. This is important because right from the start, the Complainant was not happy with some of the aspects of how she had been assessed for the purpose of putting a permanent Contract of employment to her.

In particular, the Complainant was aggrieved that her years of service as an actor were not to be included as service for the purpose of any future redundancy as had been allowed for with others working outside of acting. The Respondent, by way of reply, is very clear that at no time were the class of workers engaged as actors ever intended to be included in this process. These persons would have been represented by Equity which, whilst affiliated with SIPTU, operate in a very different way. I am satisfied that actors are usually freelance rather than permanent employees for several key reasons related to the nature of the entertainment industry, the structure of productions, and the flexibility required by both the actors and producers. Had there been an intention to include actors in this process then that would have been very clearly earmarked. I am therefore not surprised that eh Complainant’s seven years as an actor have not been included for the purposes of calculating service.

In the same vein, I must find that the hours and pattern of work completed by the Complainant as an actor for the first nine months of 2017 had to be discounted for the purpose of calculating what a permanent Contract of employment should look like. Per the agreed process (outlined above) the Employer based its assessment of the Complainant’s hours of employment on the work pattern of 2017 and 2018. The fact that the Complainant worked more hours in 2019 is not relevant. The Complainant was assessed in line with the agreed process at that particular time. It should be noted that a subsequent review (in 2021) brought the Complainant’s Contract hours up to .94.

Lest there be doubt, I recognise that the Contract on offer to the Complainant at the end of 2019, was borne out of a consultative process that come with strings attached. Very strict guidelines concerning calculations were agreed and I get a sense that of the 106 beneficiaries, probably not one of them was entirely happy. Compromises had to be made across the board.

I understand that the Complainant might feel that she had to make more compromises than most. I completely understand that the Complainant was unhappy about being put at the bottom of the pay scale for her role but there is nothing to suggest that, pursuant to the agreement reached between the negotiating parties, that the Complainant was entitled to be placed three rungs higher on the pay scale. 

It is an unfortunate by-product of this new status of permanent employment that the Complainant is not now allowed to work for the Respondent on a Contract basis. An opportunity to work as an actor for a few weeks back in 2020 had to be forsaken as a result of this strict in-house policy. I cannot, however, see a way around this policy as the Employer is unlikely to weave this area of work into the Contract of employment currently held by the Complainant.

I understand that the Complainant has recently been offered a full-time permanent Contract which I think must be testament to how good she is at her job which is a fact that has not been, at any time, contested by the Respondent employer.

For its part, the Respondent (through its witness Ms. M) has asserted that the process engaged in by the Respondent was intended to create a fair and balanced approach to allow the parties to move forward in the aftermath of the Report being published. The methodology adopted was agreed to by the unions and the Respondent in collaboration. For example, the reason why the years 2017 and 2018 were selected was because these would have been considered normal years with no distorting events.

Ms. M recalled the one-on-one talks held with the Complainant where she had scope to look for further accreditation of hours. Ms. M noted that the Complainant did not appeal any of the final aspects of her proposed contract of Employment to the person nominated to hear Appeals. 

Quite apart from the foregoing, the Respondent has asked me, by way of preliminary issue, to refuse jurisdiction to hear this case. This is an Industrial Relations claim under section 13 of the Industrial Relations Act 1969.

The relevant section reads:

13.—(1) F16[…] (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

The import of this Section is quite clear. The Adjudication process has no jurisdiction when it comes to hearing disputes connected with the rates of pay of a body of workers. Nor can the Adjudication process hear a dispute connected with the hours of work, the time of work or the annual holidays of a body of workers.

This Respondent has pointed out that this claim is one of five identical claims submitted by the Union on the same day all seeking “payment of the outstanding balance” to which the claimants believe they are entitled. The Respondent argues that It is therefore unequivocal that this matter involves a body of workers and is connected with rates of pay and therefore, the WRC does not have jurisdiction under section 13(2) the Industrial Relations Act to hear this matter. On balance, I find that I am inclined to agree with this assessment. I could potentially, at this remove, allow 106 disputes be raised if I do not respect the process already engaged in on behalf of this very body of workers.

The Respondent has gone on to state that….

This matter before the Adjudication Officer is particularly significant in that it creates the potential to undermine the long standing and agreed Industrial Relations processes between the Respondent and the TUG such that collective agreements freely reached could be undermined by individuals seeking to pursue cases separately into another Industrial Relations forum.

3.3 Any concession outside of the terms of the agreement reached between the Respondent and the TUG will immediately undermine that agreement (the background of which is set out below) and lead to others making similar Industrial Relations claims to the WRC and the Labour Court.

3.4 For this critical reason alone, we are requesting that the Adjudication Officer should uphold the terms of the TUG Retrospection Agreement reached between the Respondent and the TUG and reject the claim.