Complainant

Respondent

Parties

Anthony Cosgrave

John Tinnelly & Sons (Ireland) Limited

Representatives

Barnaba Dorda, SIPTU

Represented by Management

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00069084-001

06/02/2025

Introduction

The respondent is a demolition contractor and is also engaged in asbestos removal and waste management across the island of Ireland.  They hold a Waste Collection Permit from the National Waste Collection Permit Office and a Waste Facility Permit issued by Dublin City Council.  They also operate a Waste Management Facility in Newry, County Down, issued by the Northern Ireland Environment Agency. 

The complainant joined the company in June 2013 and was recruited initially as a temporary labourer.  There was no end date in his contract and he remained working with the respondent on a permanent basis.  When he was recruited as a labourer, the complainant’s pay and conditions were governed by the 25th variation of the Registered Employment Agreement (REA) for the Construction Industry, which was effective from February 4th 2011.  He was paid €13.77 per hour, the rate that applied to new entrants “that are capable of carrying out basic general labouring requirements, including occasional operation of small plant items.”  In the 2011 REA, this was the Grade D hourly rate for construction operatives.

The complainant is licensed to drive heavy goods vehicles and shortly after he started working for the respondent, he was assigned to a job driving a truck.  When he completed one year of service, he was moved to Grade C of the construction operatives’ rate of pay.

Sectoral Employment Orders

Although the REA framework had been in place since 1946, in May 2013, the Supreme Court decided that it was unconstitutional, based at it was on a premise that the Labour Court, and not the Oireachtas, was entitled to make laws regulating pay.  The situation was remedied with the enactment of the Industrial Relations (Amendment) Act 2015, which provides that, having considered submissions from unions and employer representatives, the Labour Court may make a recommendation to the Minister for Enterprise, Trade and Employment for minimum rates of pay and conditions of employment in a particular sector.  If the Minister accepts the recommendation, the terms are formalised in a Sectoral Employment Order (SEO) which is published in a statutory instrument (SI).   

Between 2013 and 2017, after the REAs were struck down, the absence of a legally binding mechanism for setting wages in the construction sector, combined with the recession and low levels of construction activity, resulted in a general reduction in hourly rates of pay.  Depending on the availability of work, many contractors negotiated with their employees to reduce hourly rates to ensure the survival of their businesses.  Towards the end of 2016, as the sector was beginning to emerge from the recession, the Construction Industry Federation (CIF) applied to the Labour Court for an SEO, to re-introduce a mechanism for setting legally binding rates of pay and terms and conditions of employment in the industry.[1]

On October 19th 2017, the first SEO for the construction sector was agreed and published by the Minister in SI 455 of 2017.  In this SEO, construction operatives at Grade B and C were merged into a group with the title, “General Operative Grade B.”  While not relevant to the complainant’s case, Grade D was titled “New Entrant Worker.”  Another significant change in the SEO was the decision of the Labour Court not to recommend the inclusion of a travel allowance, which applied in the old REA system until 2013.

Further SEOs were recommended and published by the Minister in 2019 and 2021, with the most recent being published on September 18th 2023 (SI 207 of 2023).  This latest SEO provided for an increase in the hourly rate for Grade B operatives to €20.03 with effect from August 5th 2024.  The respondent did not pay the increase to the complainant, arguing that, as a truck driver, he is not a general operative, and that the SEO rates do not apply to his job.

On August 4th 2024, the day before the new SEO rate came into effect, the complainant’s hourly rate of pay was €19.53, 18 cents higher than the SEO rate of €19.35 per hour that applied from September 2023.  In his submission on behalf of the complainant, Mr Dorda said that, for a number of years, the complainant’s rate of pay had been higher than the minimum rate for Grade B workers in the sector.  However, when the new rate of €20.03 was not applied to him on August 5th 2024, his wages fell below the Grade B rate by 50 cents per hour.

At the hearing, the complainant said that he always received the percentage of the pay increase that applied in the SEO and he was surprised when he didn’t get an increase in August 2024.  He contacted SIPTU for assistance and an official wrote to the company on his behalf on October 29th.  The union official was informed that because he is a truck driver, the complainant didn’t get a pay increase.  Further correspondence from the union in November 2024 produced no resolution and, on February 6th 2025, this complaint was submitted to the WRC.

It is the complainant’s case that he is employed in a building firm governed by the SEO and defined in SI 455 of 2017 as,

“… an undertaking whose principal business is one or a combination of any of the following activities;

(a)   The construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings;

(b)   The installation, alteration, fitting, repair, painting, decoration, maintenance and demolition in any building, or its site, or articles, fittings, pipes, containers, tubes, wires or instruments (including central heating apparatus, machinery and fuel containers connected thereto) for the heating, lighting, power or water supplied of such buildings[.]”

Subsections (c) and (d) are not relevant to the complaint under consideration.

The complainant works as a truck driver, hauling demolition debris, stones, gravel and other materials from construction sites.  He drives his truck onto sites to be loaded with rubble and he then transports and dispatches the materials.

The SEO of 2017 is the substantive document, setting out the background to the application to the Labour Court of the CIF and the process that led to the recommendation to the Minister for new rates and conditions for the sector.  The 2017 SEO also sets out a definition of the sector, and the four categories of worker; General Operatives Grade A and B, Craft Workers and New Entrants.

Mr Dorda referred to these definitions in his submission:

General Operative Grade B to consist of Skilled General Operatives with More than one year’s experience working in the Sector.

General Operative Grade A to consist of the following categories of Skilled General Operatives, Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks Operative, Steel Fixers; Crane Drivers and Heavy Machine Operators.

Craft Workers in the following trades: Bricklayers / Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers; together with a pro rata rate of pay applicable to Apprentices in these trades.

New Entrant General Operative to apply to all new entrant General Operatives with less than one year’s service working in the sector.

Mr Dorda included in his submission a copy of Appendix F from the last REA in 2011, which, under the heading, “Construction Operatives – Skills and Responsibility Ranking,” shows that truck drivers are included in both Grades B and C.  As I’ve mentioned, these two grades have been merged into one at Grade B.  The following examples of truck drivers are specifically included in the list of roles:

§  Articulated dump trucks, greater than 30 tonnes carrying capacity;

§  Truck Driver 9 – 16 tonnes gross vehicle weight;

§  Articulated dump trucks, less than 30 tonnes carrying weight;

§  Truck and van drivers 1 – 9 tonnes capacity;

§  Trucks, less than 16 tonnes gross vehicle weight;

§  Vans and pick-ups.

In support of the complainant’s position, Mr Dorda referred to a decision of the Labour Court in April 2024 in the case of Martompol and Szymon Tomiak[2].  Mr Tomiak had been paid €10.50 per hour by his employer, who was engaged in the building and renovation of houses.  The Court decided that he was a Category B general operative and awarded him compensation for the failure of his employer to pay him at the SEO rate.

Mr Dorda said also that the complainant relies on the decision of my colleague adjudication officer, Marguerite Buckley in November 2022, James Quinn v Brandrake Plant Hire Limited[3] where she found in favour of a complainant who was a ground worker / lorry driver in a plant hire business. 

Conclusion

Concluding his submission, Mr Dorda noted that the complainant is a construction worker, employed in that sector and working on construction sites.  He is a member of the Construction Workers’ Pension Scheme operated by the CIF.  For a number of years, he was paid at or above the SEO rate of pay, but on August 5th 2024, the respondent decided not to increase his wages, claiming that he wasn’t a general operative.  The loss to the complainant is approximately €1,000 annually.

In advance of the hearing, the respondent’s director, Mr Patrick Tinnelly, sent a submission to the WRC setting out his position regarding this claim.  He said that the complainant works as a lorry driver, hauling segregated waste materials from the clients’ sites to the waste management facilities.  He also frequently hauls scrap metals to facilities in Ireland and to the company’s waste management facility in County Down.  The complainant almost exclusively drives a “hook loader, roll on roll off skip lorry” which is included in the respondent’s waste collection permit.

Considering the specifics of the complainant’s claim, Mr Tinnelly said that, in August 2024, the company made an assessment of the current market rates of pay for lorry drivers.  They found that the hourly rate for drivers was between €16.00 and €17.00 and he determined that the complainant was paid substantially in excess of the market rate.

As an employer participating in the CIF pension scheme, Mr Tinnelly said that membership of the scheme does not automatically qualify the complainant as a construction worker.  He noted that Appendix B of the pension booklet states that membership is “open to all types of PAYE Workers including office workers employed by a participating employer.”

Mr Tinnelly disputes that lorry drivers are classified as Grade B general operatives in the 2017 SEO.  He said that there is no reference to lorry drivers in the document.  Mr Tinnelly noted that the REA was struck down in 2013 and eventually replaced by the SEO in 2017, following negotiations between the CIF and the unions.  He said that the SEO did not transpose all the terms and conditions that were previously in the REAs.  For example, travel time was not included and has not been paid since 2013.

The SEO specifically lists site-based trades withing a hierarchy from Craft Workers, Category A general operatives, to Category B general operatives to New Entrant General Operatives.  Mr Tinnelly referred to the definition of “general operative” on the website of careersportal.ie, as an employee who “works on building sites and operates plant equipment such as dump trucks and excavators.”  He said that nowhere in the description, or in any other researched source does the terms “general operative” include lorry drivers who do not carry out any other site-based activities.

Mr Tinnelly argued that some, but not all the activities that the company engages in fall within the scope of the definition in the SEO of a building firm or a civil engineering firm.  He emphasised that 60% of the company’s consolidated turnover is derived from asbestos removal and waste management.

Responding to the decision in Brandrake Plant Hire, the respondent’s position is the Mr Quinn was a ground worker and a lorry driver and that his company was involved in road building.  As he carried out ground work, he was considered to be a construction general operative.

Conclusion

Mr Tinnelly reiterated his company’s position that the complainant should not be classified as a construction worker for the following reasons:

He said that he does not carry out any of the activities specified in the current SEO.

The SEO contains no reference to lorry drivers being classified as construction workers and Mr Tinnelly argued that the REA that was struck down should not be cherry-picked to suit a trade that has been excluded from the SEO.  He emphasised that the term “general operative” does not include lorry drivers.

Mr Tinnelly submitted that the complainant’s role as a lorry driver is predominantly concerned with hauling waste from a variety of locations, including demolition sites, to waste management facilities.

Waste management, including haulage and disposal, accounts for almost 60% of the company’s consolidated turnover.

The fact that the complainant is a member of the Construction Workers’ Pension scheme does not qualify him as a general operative.

Referring to the WRC decision in Brandrake Plant Hire, Mr Tinnelly said that the activities other than driving a lorry qualified the claimant in that case as a general operative.  There are no similar activities attributable to the complainant in this case.   

The Sectoral Employment Order

In the four years after the striking down of the REA in 2013, employers and unions had to resort to local negotiations to agree rates of pay.  The construction industry was struggling to cope with the recession that began in 2008 and, in many instances, rates of pay were reduced.  The old REA rate that applied to the complainant when he commenced with the respondent in June 2013, €13.77 per hour, was effective from February 4th 2011, but was 7.5% less than the rate agreed on January 1st 2008, which was €14.88.

The 2017 SEO, running to 20 pages, is the substantive document, as it seeks to re-establish a framework for pay and conditions in the construction sector.  The SEO published in 2019 contains a revised definition of the “class, type or group of workers” to whom the SEO applies:

Persons employed in the Construction Sector as craft persons, construction operatives and apprentices.

For the purpose of a Sectoral Employment Order a worker to whom such order has application is defined as any person aged 15 years or more who has entered into or works under a contract with an employer, (including through an employment agency within the meaning of the Employment Agency Act, 1971 and / or the Protection of Employees (Temporary Agency Work) Act, 2012 ), whether the contract be for manual labour or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour.  For the purpose of this definition apprentice and apprenticeship has the same meaning as it has in the Industrial Training Act 1967.

The definition of the sector to which the SEO applies has seven categories (compared to three in 2017), the first two of which are relevant to this complaint:

The sector to which the Order should have application is defined as the sector of the economy comprising the following economic activity:

• The construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings;

• The clearing and laying out of sites for buildings, the construction of foundations of such sites, the construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings or the disposal of waste[.]

Category A Workers are defined as licensed scaffolders with four years’ experience, banks operatives, steel fixers, crane drivers and heavy machine operators.

Category B Workers are described as “skilled general operatives who have worked in the sector for more than two years.”

In mid-2024, just before the application of the most recent SEO increase, the complainant’s hourly rate was €19.53, although the SEO rate from September 18th 2023 was €19.35.  It seems that, as a result of local bargaining between 2013 and 2017, the complainant’s hourly rate caught up with and was eventually slightly higher than the Grade B general operative rate.  In his evidence at the hearing, he said that he always got an increase when the SEO rates were increased.  He said that he spoke to one of the principals in the company just before August 5th 2024, and he was informed that an increase was due.  He said that he was surprised when he didn’t get the increase.  The result is that his hourly rate, at €19.53, is 50 cents below the SEO rate for Grade B operatives.

Is the Complainant a Category B Worker in the Construction Sector?

The issue in dispute is the complainant’s contention that he entitled to be paid in accordance with Category B of the SEO, which, he claims, has applied to his job since he started with the respondent in June 2013.  For the respondent, Mr Tinnelly argued that the complainant was paid a rate equivalent to Category B, but that he is not a construction general operative.  Mr Tinnelly’s argument is bolstered by the fact that, as a driver, the complainant hauls material from demolition sites, and he said that he doesn’t do any work on the sites.  In his evidence however, the complainant said, “I don’t just pull up and wait,” and that he often uses lifting equipment to fill his truck.

It is clear to me that the respondent’s business is in the sector of the economy described in the 2019 definition above, as a business engaged in the demolition and laying out of sites for buildings.  I accept Mr Tinnelly’s position that 60% of the Group’s consolidated turnover is from waste management, but the critical fact is that the company is involved in the demolition of buildings, even if that comprises 40% of the Group’s turnover.  Logically, it seems to me also that the demolition aspect of the business is a supplier to the waste management part.  I must conclude therefore, that the complainant is employed in a business where the rates of pay and conditions of employment are governed by the SEO.

The second issue to consider is if the complainant is a Category B Worker, as set out in the SEO.  Mr Tinnelly argued that the complainant is not a general operative, because he is not a “site worker” in the normal sense, in that he doesn’t work on the site, but that he comes onto the site to collect demolition material.

I accept that the complainant’s job is more accurately described as a driver, because that is what he does.  However, it is my view that his job is included in Category B for the following reasons:

In the 2011 REA, there is a reference to five separate categories of truck driver, depending on the capacity of each truck.  These truck drivers are considered as Category B or C Workers.  In 2017, when the first SEO was published, there was no reference to the specific jobs under the Category B or C classifications, but a decision to have just one category, Category B.  It is my view that, if the Labour Court had intended that certain jobs were to be removed from Category B or C, it would have made that specific in the SEO, in the same way that it specifically stated that a travel allowance, which applied in the REA, did not apply in the SEO.

When he joined the company in 2013, the complainant was paid the new entrant general operative rate of pay.  Over the course of time when there was no SEO in place, his hourly rate became slightly higher than the SEO rate for a general operative.  He claims that he is entitled to be paid in accordance with the agreed framework that was in place when he joined the company, which has transitioned from the REA rate to the SEO rate.  In the absence of any negotiations, or any definitive change in policy that no longer includes drivers on building sites as construction operatives, it is my view that he is entitled to be paid the Category B rate of pay. 

I have considered the approach of the Labour Court in its decision in Martompol.  The first “hurdle” that the complainant in that case, Mr Tomiak, had to surmount was to establish that his employer was in the construction sector.  As his employer was a house-builder, that wasn’t an insurmountable task.  Secondly, the Labour Court determined that, as a labourer, or a helper, on the building site, Mr Tomiak was a Grade B general operative.  In the case we are considering, the complainant commenced working for the respondent as a general operative and was paid at the new entrant general operative rate of pay until he moved to Grade C (now merged with Grade B) one year later.   He came to the company with a qualification to drive heavy trucks and he offered to do that work for the respondent.  His job as a remover of demolition waste from building sites is intrinsic to the process of demolition.

Conclusion

The complainant is employed in a business where the rates of pay are governed by the SEO for the Construction Sector.  I am satisfied that his job as a driver is included in the description of a Category B worker, as described in the 2017 SEO.  I am further satisfied that the definitions in the 2017 SEO remain applicable and that no change to this categorisation has been contemplated by the parties to the SEO. 

It follows from these conclusions that, with effect from August 5th 2024, the complainant’s hourly rate of pay is €20.03.

Based on the conclusions I have set out above, I decide that this complaint is well founded.  I direct the respondent therefore, to increase the complainant’s hourly rate of pay from €19.53 to €20.03 and to pay him retrospectively the shortfall of 50 cents per hour since August 5th 2024.

SEO for the Construction Sector