Recent Legal Developments in Relation to Agency Workers

Recent Legal Developments in Relation to Agency Workers

In this article, Emer O’Sullivan considers whether recent findings of the Labour Court means that the Court will not as a matter of course, make retrospective awards in all cases to 5 December 2011 as was the case until two recent 2015 Labour Court decisions.  Emer considers how recent authorities suggest that the Labour Court will, in certain cases, ring-fence liability in pay awards made in accordance with the Protection of Employment (Temporary Agency Workers) Act 2012 (“the Act”) to six months prior to the date of issue of the claim form. Emer also examines the somewhat onerous evidential burden agency workers now need to meet in light of the High Court Decision in Mullholland v QED Recruitment

[2015] IEHC 151.

In Paul Doyle Hire Services Limited v Raymond Furlong (Labour Court AWD1512) and Paul Doyle Hire Services Limited v Michael Stafford (Labour Court, AWD1513), the Labour Court shows a willingness to give consideration to the point that a Claimant’s complaint should be limited to the period of 6 months prior to the date the Claimant issued their claim, in circumstances where a complaint under the Act should be made within six months of the date of the contravention unless a failure to make the complaint was due to reasonable cause. While these cases must be distinguished on their own facts (see factual analysis of cases below), the practical implication of these cases for agency employers (and for end user organisations arising from their liability under section 15 of the Act) is that the Labour Court may favourably consider an application by a Respondent to limit any compensation to the period within six months prior to the case being commenced. This position is a development as in previous cases such as Team Obair Limited v Robert Costello (Labour Court, AWD134), the Court found that pay should be backdated to the date of commencement of employment or alternatively to the date of the commencement of the equal pay provision of the Act on 5 December 2011 in the event that the date of commencement of employment predated 5 December 2011.

Paul Doyle Hire Services Limited v Raymond Furlong (Labour Court AWD1512) and Paul Doyle Hire Services Limited v Michael Stafford (Labour Court, AWD1513)

Facts

The Claimants in both cases were employed by the Respondent from 25 June 2012 until 22 April 2014 as agency workers. A difference in the rate of pay existed between the agency and the Hirer company (Greenstar). The Claimants were paid €9 per hour while working as truck helpers and €12.50 per hour while working as truck drivers but pursuant to a collective agreement in place between the Hirer and SIPTU the appropriate rate was €12.50 per hour for a driver and €9.15 per hour for a helper. The Claimants contended that in reliance on section 6 of the Act, they should be paid the difference between the rate received by them and that provided for in the collective agreement for the duration of their assignments to the Hirer.

It was contended by the Respondent that the Claimants could only recover in respect of the six month period ending on the date that they presented their claims (20 March 2014 and 7 April 2014 respectively) in accordance with paragraph 1 of the Second Schedule of the Act and that contrary to the conclusion reached by the Rights Commissioner, reasonable cause did not exist for any enlargement of that period.

The Respondent also argued that as the Claimants received higher subsistence and travel time than that provided by the collective agreement on which they were relying that these additional payments should be offset against any arrears to which they would be entitled.

The Claimants contended that the Hirer organisation had been in receivership and the receiver was in the process of trying to sell the business as a going concern and had asked the Union to desist from pursuing a claim and accordingly the Union decided not to pursue any claims under the Act until the sale of the business was completed.

Finding

In respect of the contention that the Claimants had not pursued their claims as the Hirer was in receivership, the Receiver was not called to give evidence as to this at the Labour Court and the Court deemed these reasons to be hearsay and of no probative value.

The Labour Court considered the tests for determining if the time limit for the lodgement of a claim could be extended and concluded that it could not accept that the delay in making the claim was either explained or justified and it could not hold that an extension of time was allowable in the case and that the cognisable period for the claim is the six month period ending on the date on which the claim was presented, despite the fact that the claimants had been receiving the lower rate of pay from 25 June 2012 to 22 April 2014.

In relation to the contention by the Respondent that the additional payments made to the Claimants in respect of subsistence and travel time should be offset against any arrears, the Labour Court found that the statutory definition of pay in section 2 of the Act must be applied by the Court and that definition does not include subsistence payments or travelling time.  The Labour Court stated that the Oireachtas did not provide that the totality of an agency worker’s remuneration is to be taken into account in determining if section 6 of the Act has been complied with and that any form of set off could not be made against the amount due to the Claimants by way of arrears of wages under the Act.

The Claimants were therefore entitled to recover the difference between the rate of pay they received and that paid to comparable employees of the Hirer in respect of the period of six months ending on the date on which their complaints were presented.

These cases provide an example of the enforcement by the Labour Court of the six month time period from the date of contravention of the Act in which a Claimant has to make a complaint. These cases show that the Labour Court may limit the period which it will consider to six months prior to the complaint being made as contravention of the Act prior to that could be considered by them to be out of time. The cases also demonstrate that an extension of the six month period will require explanation and justification by the Claimant to satisfy the court that there is reasonable cause to extend the period.

Further High Court Update in relation to Agency Workers

This year so far has been relatively active in the area of litigation disputes involving agency workers.

A High Court decision of Kearns, P in Mullholland v QED Recruitment [2015] IEHC 151 clarifies where the burden of proof lies in any case under the Act. Specifically, the test is that the Claimant must first establish that a rate of pay applies generally to directly employed comparable employees. In Mullholland the appellant elected to rely on the evidence of just one directly hired driver as a comparator and failed to establish that a generally applicable rate of pay existed. The Labour Court cases of Elizabeth Stafford v Ernest Issacson and Others; Team Obair, clarified that where a generally applicable rate of pay has been established by the Claimant, the onus of proving that those rates would not have been applied to the Claimant if he/she were directly employed by the Hirer, shifts to the respondent Agency to prove.

Analysis and conclusion

It appears that the onus on Claimants in light of Mullholland is an onerous one and this onus taken in conjunction with the Labour Court’s willingness to consider retrospective pay award for a defined period and not necessarily all the way back to 5 December 2011, will be key for any Respondent considering their approach to defending actions taken in accordance with the terms of the Act. This is an active and ever evolving area of Irish employment law and is one to watch.

For further information please contact Emer O’Sullivan at eosullivan@crowleysolicitors.ie  or Deirdre Crowley at dcrowley@crowleysolicitors.ie

This article is a generally summary on the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.

2018-01-31T12:12:54+01:00