Complainant

Respondent

Parties

Carlos Manuel  Sousa Ferreira Da Costa

Workways Recruitments Ltd

Representatives

  Appeared In Person

Roberta Urbon Peninsula Business Services Ireland

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-00066309-001

26/09/2024

On 26 September 2024 the Complainant, a lay litigant submitted a complaint with reference to the Mechanical Engineering Building Services Contract, Sectoral Employment Order (SEO).

The Complaint was lodged against Workways Recruitments ltd who were notified of the claim on 11 October 2024.

On 16 January 2024, both Parties were invited to hearing set for 10 March 2025 at 10 am.

On 12 February, Peninsula notified the WRC of a change in representative to Ms. Urbon.

In preparation for hearing, I asked for a particularisation of the claim by the complainant and a written response from the Respondent.

I am the Adjudicator assigned to hear your case on March 10 next in Cork.

I would be grateful if you could finalise and submit your requested written statement of what has happened for you in this case, please.

I would be grateful if you could place dates next to the occurrences relied on.

As your case is coming in under the Industrial Relations Act 2015/ Sectoral Employment Order 2023 may be of relevance.

Please include any instance where a Dispute has been notified by you to the employer in writing.

I am awaiting a written submission from your employer also.

I will copy this letter for completeness while I seek to secure a written submission from the Respondent.

I look forward to meeting the Parties at hearing.

The Respondent submission was received to file on March 6, 2025.

The Complainants submission was received post hearing and referred to a number of ancillary issues and ancillary pieces of legislation, not before me.

Both Parties attended the hearing.

Both witnesses took the oath to accompany their evidence to hearing.

At the conclusion of hearing, I requested that the Respondent provide the company handbook with 7 days of hearing. This was not received.

The Complainant, a Portuguese national and lay litigant submitted the following complaint under Section 23 of the Industrial Relations (Amendment)Act 2015.

“I am not being paid minimal (minimum) wage of SEO, as a Carpenter, the contract wasn’t delivered before travelling to Ireland as the EU Directive orders, house given by employers not in good conditions, people too many people inside.”

He outlined that he commenced work on 2 October 2023 until 26 October 2024 on 14 euro per hour for a 54-hr week.

The Complainant exhibited some documents from his employment but had not accepted the invitation by the WRC to file a composite written submission in support of his claim, prior to hearing. He was accompanied to hearing by a support person.

On a careful reading of his submission, received post hearing, I found a number of what’s apps, not translated, a reference to interpersonal conflict with the owners’ brother in a domestic setting. There was also reference to a complaint made to the Residential Tenancies Board in November 2024, which postdated the receipt of the instant complaint.

I found very little to help me in the claim under the SEO, Sectoral Employment Order.

Evidence of the Complainant: by oath.

The Complainant gave evidence that he was troubled at the way that he and other were treated by this Employment Agency.

He outlined that he got the work as a carpenter through the internet, and this included access to accommodation.

He cast doubt on the integrity of the statement of terms of employment he received on 15 February 2024, calling it a fake, which he did not understand. He was not given a contract in the Portuguese language or provided with a staff handbook.

He was never requested to provide his credentials as a Carpenter. He was qualified for 13 years.

He submitted that he had not been given the correct SEO rate for the job and was not clear on whether he had raised a grievance under the SEO, or not. He should have received €33 an hour rather than €14. He then added that he had been refused minimum wage.

Mr da Costa left this employment for self-employment in October 2024, a month following the lodgement of this claim.

In response to my Inquiry, he maintained that he had a face-to-face discussion with the owner, Mr Ferreira on the topic of securing SEO rate but could not provide a record, recollection or evidence of this date. He also contended that he was provided with the incorrect address for the respondent.

The Complainant expressed an abject sense of disappointment in how he was treated by his employer within training opportunities, in contract and in shortfall of salary.

While his claim came under the SEO, he did not include the relevant SEO in his submissions.

In closing, the complainant continued to register his disapproval at the way he had been treated by the respondent. He submitted that he had spoken to the owner, Mr Ferreira on his payments, but was unable to specify a dateline.

He denied the validity of any of his employment documentation and came to the WRC when his suspicions of wrong were heightened. He contended he had been badly treated by the respondent in work and in his domestic setting. He said he had been refused lifts to work.

In the Complainants written documents, there were marked variations from his oral evidence.

He has managed to relaunch his employment in a different setting but seeks a decision in this case.

The Respondent operates an Employment Agency, Workways Recruitment ltd and acts as an agency for employees who have skillsets and qualifications in the construction industry.

“Essentially, the Respondent provides labour/ trades to the Construction Sector, and to companies that opt to subcontract local national, and international workers “

The Respondent employed the Complainant, as a carpenter on 2 October 2023. He remains on the books. The Respondent confirmed at hearing that he had changed his employment in October 2024.

The Respondent has rejected the claim at hand and has exhibited a co signed statement of main terms of employment dated 2 October 2023 and the Schedule of Assignment signed on the same day.

It was the Respondent case that the complainant had not raised a grievance within the disputes Resolution provision of the SEO.

The Respondent clarified the correct address for the business as “Workways ltd, 27 Cork Rd” This was known to the complainant.

Preliminary Issue 1:

The Respondent submitted that the complainant had neglected to exhaust internal procedures before resorting to the WRC on 26 September 2024.

To assist the argument, the Respondent drew

Preliminary Issue 2:

The Respondent has submitted that the Complainant is not entitled to the minimum rate of pay as set out in SEO, Construction Sector, 2023 as the Agency is not a construction company and does not fulfil the criteria for application of SEO, namely:

1 The Employer must operate in the construction sector.

2 Employees who work in that sector and defines their roles into specific classes.

The SEO does not apply to recruitment agencies.

The Respondent on the Complainant being employed directly by the Agency and thus covered by the Swedish Derogation, which permits an employer to pay an agency worker “the going rate for the job “in the context of a direct hiring arrangement.

The Respondent argued that the Complainant was provided with a contractual clause from the outset, which was framed on Article 5, Directive 2008/104/ EC, enacted in Section 6(2) of the Protection of Employees (Temporary Agency Work) Act, 2012.

“Under the Protection of Employees (Temporary Agency Work) Act, 2012, you do not retain nay entitlement to equal treatment in respect of pay. All other right conferred on you under the aforementioned Act are not affected.”

The Respondent contended that the Agency was entitled to practice a distinction in pay for the complainant compared to the construction workers.

Staff line Recruitment ltd v John Fitzgerald AWC/18/2

The Respondent remained reliant on the Swedish Derogation as justification for the €14.00 ph.  pay rate paid and repeated once more that the Respondent did not operate a construction company.

Evidence of Ms Dulcineii Ferreira, Proprietor, by oath:

Ms Ferreira recalled that a position of Carpenter was advertised on 2 September 2023. The Complainant submitted a CV and was offered the position.

He accepted the position and signed the contract which reflected the Swedish derogation, where he would be paid between assignments at 50% of the last assignment.

He did not require a translator as his English was good.

Ms Ferreira submitted that she saw the complainant weekly as his time sheets were signed, but he never raised that anything was wrong. The Complainant was relocated to a different site on 25 October 2024, but he had not attended work from 18 October 2024.

By November 2024, the complainant had departed the site and texted her that he was at a friend’s house. She later saw the complainant back on the site, not associated with the Agency. He did not explain why he left.

In closing, the Respondent repeated that the complainant had never been engaged by a construction company but had “always been on assignment”. He was not entitled to the provisions of the Construction SEO.

He had never raised issues of grievance and pay rates were not discussed.

The Respondent did not submit the requested handbook within the 7 days permitted.

I have been requested to make a decision on whether the complainant received the SEO rates of pay in accordance with the Mechanical Engineering Building Services Contracting.?

The sole complaint before me comes under section 23 of the Industrial Relations (Amendment)Act 2015, from where my jurisdiction in the case is drawn.

Section 19 of the Industrial Relations (Amendment)Act 2015 provides details of just what an SEO comprises of.

It follows an application to the Labour Court to set pay rates in the relevant Industry.

Adaptation of contracts of service consequential upon sectoral employment orders

19. (1) A sectoral employment order shall apply, for the purposes of this section, to every worker of the class, type or group in the economic sector to which it is expressed to apply, and his or her employer, notwithstanding that such worker or employer was not a party to a request under section 14, or would not, apart from this subsection, be bound by the order.

(2) If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for the payment of remuneration at a rate (in this subsection referred to as the “contract rate”) less than the rate (in this subsection referred to as the “order rate”) provided by such order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order rate were substituted for the contract rate.

(3) If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for conditions in relation to a pension scheme or a sick pay scheme (in this subsection referred to as the “contract conditions”) less favourable than the conditions (in this subsection referred to as the “order conditions”) fixed by the order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order conditions were substituted for the contract conditions.

Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 (S.I. No. 59 of 2018), relied on by the complainant on his complaint form, refers to plumbers and pipe fitters, not carpenters.

I find there is no prejudice against the respondent for identifying the correct SEO, Construction.

This case arises from the complainants stated claim to be covered by SEO rates in the context of his work as a Carpenter in the run up to his claim before the WRC on 26 September 2024.

 The correct SEO reflects SI 207/2023, Sectoral Employment Order (Construction Sector) 2023

Statutory minima pay, pension and sick pay entitlements for craft persons, construction operatives and apprentices employed in the construction sector, which into effect from 18 September 2023 and adjusted rates upward from 5 August 2024.

SI 234/2019 sets down the Disputes Resolution procedure in seeking access to SEO rates as described by the Labour Court in Section 16 (6) Industrial Relations (Amendment)Act 2015.

(6) A recommendation under this section shall include procedures that shall apply in relation to the resolution of a dispute concerning the terms of a sectoral employment order.

Dispute Resolution Procedure

If a dispute occurs between workers to whom the SEO relates and their employers, no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with.

All sides are obliged to fully comply with the terms of the dispute’s procedure.

 Individual Dispute a) The grievance or dispute shall in the first instance be raised with the employer at local level with a requirement to respond within 5 working days.

a)     Notice in writing of the dispute shall be given by the individual concerned or his trade union to the relevant organisation representing employers or to the employer directly

. b) If the dispute is not resolved it shall be referred to the Adjudication Service of the WRC

b)     Either party can appeal the outcome of the Adjudication Hearing to the Labour Court.

This is a Dispute between a worker and his employer in relation to SEO rates, albeit the incorrect SEO was named on the complaint form of 26 September 2024.

I am unable to inquire into the attempts made by the complainant to broaden his claim within his written submission, received post hearing . I lack the jurisdiction for this.

It is regrettable that both parties filed very late written submissions and only after I requested them directly from the parties on March 3, 2025.

The WRC invites written submissions to be received no later than 15 days prior to hearing.

In reaching my decision in this case, I have had regard for both written and oral submissions in addition to the direct evidence and questions posed.

In listening to both parties at hearing, it was clear to me that the complainant brought a high level of dissatisfaction at how he was treated in this employment.

I certainly found him very combative both towards me and towards his former employer. I believe that his frustration turned to anger when he was reminded of his experiences. I can understand that.

Firstly, I had to satisfy myself that the complainant was a standalone worker and not a posted worker, SI 412/2016.

He applied for a position at the Agency, and I can accept that paperwork in terms of contract was delayed in signing. However, both parties must share responsibility for this. I cannot accept that the documents “were fake “. The Complainant did not request an interpreter for his hearing at WRC, and I found his English to be at a very high level. I am satisfied that he complainant was not a posted worker .

The complainant did not share details of being a Union member and in that I am conscious of the disputes resolution rules in the SEO, relied on in ADJ 30000, a Construction Worker v A Recruitment Agency, May 2021, where the then Adjudicator found that SEO pay rates were properly applicable to an Agency Worker / a Category B worker, assigned to a client.

The claimant raised the issue regarding his incorrect rate of pay with the company on several occasions and it was also raised with the respondent by his union. The respondent did not engage with the union and the issues remained unresolved.

The award was varied on appeal to the Labour Court in LCR 22588, CLS Recruitment Group ltd and A worker

This case is precedent for an Agency worker placed on a construction site to receive compensation for the contravention of an SEO.

The Respondent has relied on an exemption permitted under the Swedish Derogation for Agency Workers rather than on an application to seek an exemption for SEO rates in accordance with Section 21 of the Industrial Relations Amendment Act, 2015.

The Respondent relied on Fitzgerald in the instant case .

Staff line Recruitment ltd v John Fitzgerald AWC/18/2, AWD 18

The Respondent stated that it is their practice to only issue contracts to agency workers which provide for the “Swedish Derogation”. The contract supplied to the Complainant is headed “Terms and Conditions of Employment (Regulation 10 Complaint Contract, Also Known as “Swedish Derogation”) for Employees”. This heading is contained on each page of the contract.The Court is satisfied that the conditions outlined at Section 6(2) have been fulfilled by the Respondent in the contract of employment furnished to Complainant dated 24thOctober 2014. Accordingly, the Respondent is entitled to rely on the derogation contained therein.

While I understand the point the respondent is seeking to rely on in this case, Mr Fitzgerald was an Engineer and was not seeking application of SEO rates for his position, but rather, the application of pay rates of the direct hires at the business, green isle, Portumna.

In the instant case, the complainant has claimed that he not paid SEO rates as a Carpenter / Craftsperson. He did not receive sick pay or pension.

SI 598/ 2021   €21.49 for Crafts person    to 4 August 2024 and €22.24 after that.

I can see that the complainant’s hourly rate was €17.00 per hour at the time the claim was submitted to WRC which was an upward alignment of €14.00 on commencement on the statement of terms. The Complainant is clear that he was shocked that the Respondent was claiming €33 per hour in payment from the client and sought more pay.

The SEO sets out a clear disputes resolution procedure as a first step in a dispute regarding SEO .

The Complainant  gave evidence that he raised the topic of his pay with Mr Ferreria but could not show a record or give me a dateline for this grievance .

 He did exhibit emails regarding unease with coworkers, accommodation, lifts to work, conflict, reference to having to leave for Portugal to give evidence in a court case in October 2024, but all of this postdated the claim to the WRC where the cognisable period is 27 March 2024 to 26 September 2024. The Complainant referenced making a complaint to the Residential Tenancies Board.

 However, I do not have a “notice in writing of the dispute to his employer “within the cognisable period and I must reluctantly find that his claim is not well founded as it falls on the procedural steps laid down in the SEO.

In reaching this decision, I am guided by Gregory Geoghegan T/ A Taps and a Worker INT 1014, in a claim of disputed categorisation of work under the Construction Industry Registered Employment Agreement

The Court held

“Having carefully considered the submission of both parties, the Court notes that the relevant Registered Agreement contains dispute resolution procedures for dealing with issues of this nature which should have been utilised in this case. The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been by passed “

I wrote to the Complainant prehearing to scope out if he sent a grievance to his employer regarding the SEO rates.

I have not received this document despite my best efforts.

I must now prefer the Respondents evidence at hearing that the complainant did not raise a grievance on SEO pay rates during the cognisable period.

The claim for contravention of the SEO is not well founded due to procedural oversight by the complainant.

Section 41 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.

Section 23 of the Industrial Relations (Amendment) Act, 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the claim for contravention of the SEO SI 207/2023, Construction Sector ,2023 is not well founded.

Claim for contravention of the SEO rates, Construction.