The Protection of Employees (Temporary Agency Work) Act, 2012 came into effect in May, 2012. However the pay provisions of the act were made retrospective to December, 2011.
This case-Team Obair Limited and Robert Costello-involved a fork lift driver who was paid €13.50 per hour. He first brought his case to the Rights Commissioner service and failed. He was arguing that he should have been paid the going rate for fork lift drivers at the hirer’s workplace.
The hirer in this case was Logistics Company Shannon Transport Logistics (STL) who had the contract to provide services to Diageo Guinness Ireland and who traditionally paid €18.50 per hour to forklift drivers.
Team Obair Limited told the Court that when it commenced the contract it obtained a statement in writing from Logistics Company Shannon Transport Logistics (STL), pursuant to s.15 of the Act, setting out the basic terms and conditions that it would apply if it employed workers directly on the same work as that undertaken by agency workers assigned to it by the Respondent. In that statement the hirer indicated that it would pay fork lift workers the same rate as that paid to the Claimant by the Respondent, that is €13.50.
The case turned on the argument by the Respondent that the fork lift driver rates of €18.50 were historical and would not be paid now if taking on drivers.
The Court stated:
While this is acknowledged by the Respondent it contended that those rates are historical. It submitted that if the hirer took on new employees at the time that the Claimant’s assignment is deemed to have commenced the rates payable would be those specified in the s.15 notification upon which it relies. That, however, is a mere assertion which cannot be elevated to an evidential basis upon which the Court could make findings of fact. In particular, the Respondent has not pointed to any pay determination arrangement operated by the hirer the application of which might result in fork lift drivers being paid €13.50 per hour.
However the Court found that this argument, if accepted, would be subversive to the purpose of the legislation and render it “nugatory”.
The Court found:
For these reasons, and in the absence of any reliable evidence to the contrary, the Court has come to the conclusion that it is more probable than not that had the Claimant been employed by the hirer on 5thDecember 2011 he would have been paid €18.50 in line with other fork lift drivers similarly employed. Accordingly, that is the rate to which he is entitled pursuant to s.6(1) of the Act. Accordingly the Court must hold that the Claimant is entitled to succeed in this appeal.
It then ordered:
In accordance with Clauses (a) and (b) of sub paragraph (3) above, the Court declares that the Claimant’s complaint is well founded and it directs the Respondent herein to adjust the Claimant’s rate of pay to €740 per 40 hour week, or €18.50 per hour, with effect from 5th December 2011.
This works out at in excess of €200 per week.
You can read the full decision of the Labour Court here.