INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 25(2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012
IRE RECRUITMENT LTD
(REPRESENTED BY DENISE MULCAHY, B.L., INSTRUCTED BY FINGHIN O' DRISCOLL, SOLICITORS)
- AND -
KIERAN GOULD , NOEL DINEEN AND JERMIAH HEALY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Hearing arising from Labour Court Determination No. AWD15/9.
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 25(2) of the Protection of Employees (Temporary Agency Work) Act 2012 on the 1st August, 2014. A Labour Court hearing was held on 13th November, 2014 and the Court issued a Determination on 19th January, 2015. A subsequent Labour Court hearing was held on the 2nd October, 2015. The following is the Determination of the Court:
This matter was the subject of Labour Court Determination Number AWD159 issued on 19 January 2015. In that determination the Court decided as follows
- On the evidence before it the Court determines that the Complainants that do not work overtime hours are paid less than comparable directly employed workers. The Court further determines that Agency workers that work overtime hours may or may not, depending on the number of overtime hours worked, be paid more or less than comparable directly employed workers. There is a calculation to be undertaken in respect of each worker for all hours worked over the last six months.
The Court will meet the parties again to hear submissions on the application of this point and determine the economic loss, if any, due to each of the workers concerned.
The Court at that time will hear the parties and make its determination regarding the level of compensation to be awarded to each of the Complainants for any infringement of their entitlements under the Act.
The Court so determines.
The Court has considered that request and has decided that it cannot accede to it for two reasons. Firstly it is satisfied that the position outlined to the Court in the submission was subsequently varied in the course of the hearing in line with that recorded in the Determination. However the Court notes and records the Company’s position on the matter.
The second reason the Court cannot amend the original Determination is that there is no power to do so in the Act. Having issued a Determination the Court is functus officio in respect of that matter and other provisions of the Act come into effect.
Where the Court is in error, which in this case it disputes, there are legal remedies available to both sides to correct that error. It would be improper for this Court to retrospectively vary a determination at the request of one party as to do so would be ultra vires the Court’s powers and could and would infringe the rights of the other party.
Accordingly, other than simple errors of a typographical or insignificant nature, the Court cannot alter the detail of a determination after it has been issued.
The Court, in accordance with the terms of the Determination, subsequently met the parties to establish the economic loss incurred by each of the workers involved. The Company submitted a detailed spreadsheet setting out its calculations of the impact of the Courts determination on each of the workers. The workers considered that spreadsheet and notified the Court on the 26thNovember that they each agreed with the calculations set out in the spreadsheet.
Accordingly the Court orders the Respondent pay the Complainants the shortfall, if any, as set out in the spreadsheet submitted to the Court by the Respondent, which has been accepted by the Complainant’s representatives, in respect of each of the weeks in the six months ending on the date on which the complaint was submitted to the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
18th December, 2015______________________
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.