ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003247
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012
Date of Adjudication Hearing: 01/12/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
An Agency Worker
An Employment Agency
Complainant’s Submission and Presentation:
The complainant is an employee of the agency and until her maternity leave, which is just concluding, was assigned to work in a bank where she had been for just over five years.
She has two complaints; one relating to leave days and another relating to payment for maternity leave.
In respect of the first complaint permanent employees of the bank get a day off on each of Good Friday and December 27th. The complainant is required to apply for these days but as the bank is closed this is always granted. She feels she ought to have these days off as a matter of right as her permanent co-workers do.
The bank has a paid maternity leave scheme which ensures women on maternity leave retain their full salary, although they are required to submit their social welfare payments.
As an employee of the respondent the complainant is not part of the scheme and says that this is contrary to the provisions of the Act.
Respondent’s Submission and Presentation:
Regarding the two days leave the complainant says that the leave arrangement for the complainant leaves her at no disadvantage to the permanent comparators.
While it is true that she is required to apply for the two says in question, her basic annual leave has been boosted by two days too enable her to do so without any impact on her basic annual leave entitlement.
The requirement to apply for the days results from the fact that she could in theory use those extra days at any time, but not be paid on the two days in question if this suited her better.
The total entitlement of the bank’s employees is thirty four days, including statutory public holidays.
The complainant’s basic annual leave is twenty-three, plus nine public holidays, (thirty two) and then she is given two extra days to bring her into line with the bank’s employees, (a total of thirty four) although she has some discretion as outlined above as to when she uses them.
In respect of the maternity pay complaint the respondent says that the complainant has the same entitlements to basic working conditions as required, and as defined by the legislation.
The respondent relies on Section 2 of the act which refers to ‘pay’ and submits that pay is defined narrowly and does not include payment for sick leave for example or maternity leave. Article 3 of Directive 2008/104/EC defines basic working and employment conditions as those
‘laid down by legislation, regulations, administrative provisions, collective agreements and/or binding provisions in the user relating to pay.
The respondent also referred to the definition contained in the Payment of Wages Act 1991 (which does include sick or maternity pay in the definition of pay) as evidence that had the legislature wished to have such a broad definition in the protection of Employees (Temporary Agency Work) Act it would have followed the Payment of Wages Act in so defining it.
Findings and Conclusions
The respondent submitted that the entitlement under the Act to comparable treatment relates to ‘basic’ working conditions. Section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 contains a definition of those working conditions and refers simply to ‘pay’ and contrasted this with the more comprehensive definition in the Payment of Wages Act 1991.
The further submission outlined above regarding Article 3 of the Directive 2008/104/EC is also persuasive.
Accordingly, I conclude that there is no entitlement to payments which are in addition to basic pay such as those claimed by the complainant.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I do not uphold Complaint CA-00003908-001 and the complaint is dismissed.
Dated: 9th January 2017