Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

SIPTU

Arthur Cox LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969

IR - SC - 00002164

25/01/2024

The dispute referred to the Commission was expressed to be in respect of the Worker’s incorrect classification as self-employed, resulting in the Worker having missed out on significant amounts under various employment entitlements.  The Worker considered an offer made by the Employer in 2022 in relation to retrospection/recognition of previous service to be unreasonable and sought payment of the outstanding balance.

At the hearing, the Worker asserted that the dispute refers to the impacts of bogus self-employment and ongoing loss of earnings due to incorrect placement on a pay scale since 2019 for an individual, not a body of workers.

Financial loss of €133,311.00 was estimated by reference to annual leave, public holiday and pension rights and ongoing loss of earnings.

The following is a summary of both the Worker’s and Union’s submissions.

From 2008 to 2019, the Worker was engaged on successive contracts for services, as opposed to contracts of service.  The Employer made a decision to engage people in this manner; it was not the Worker’s choice.  The Worker raised with management the unfairness of working alongside persons engaged on contracts of service doing similar work and not having the benefit of employment rights.

Following a third-party review of contractors at the Employer organisation, the Worker was included in a number identified as having attributes akin to employment.  Following this process, the Worker was offered a part-time contract of employment with the Employer. 

There followed a process of engagement between the Trade Union Group and the Employer on the matter of retrospection and recognition of previous service.  Joint Facilitators were nominated to assist the parties in their discussions.  The Employer designates agreement status to a final proposal that issued by the Joint Facilitators.  The Worker does not accept that the said proposal constitutes a collective agreement.  The Employer made individual offers to employees under the Joint Facilitators’ proposal and the offer could be accepted or rejected.  The Worker in this dispute chose not to accept the offer made to him.  Having regard to the terms of the proposal and the offer made to the Worker, it makes no sense to suggest that this was anything other than a proposal and an individual offer made to the Worker.  It is disingenuous to suggest that the Commission cannot hear the case because it relates to a body of workers.  This is an individual dispute referral referable to the impacts of bogus self-employment (no pension, holiday pay or sick pay) and ongoing loss of earnings since 2019 due to incorrect placement on a salary scale in circumstances where a Scope review classified the Worker as an employee from 1 March 2008.  Accordingly, section 13(2) of the 1969 Act does not apply. 

The Employer is hiding behind section 13(2) of the 1969 Act to avoid dealing with the substantive issue and that is neither fair nor reasonable. 

The Worker is one of a group who were treated very unfairly in a similar manner by the Employer.  The fact that this dispute shares features or has commonality with other cases does not make it a group case.  Nor does the fact that the Union submitted five separate, individual cases on the same day imply that they are the same case, or make them a group in nature, and no inference can be drawn from this. 

The Worker made submissions on the cases cited by the Employer.

The Commission does not have jurisdiction to hear this matter as it involves a body of workers and is connected with rates of pay.  Various cases on section 13(2) of the 1969 Act were cited.  This dispute referral is one of five identical disputes referred by the Union to the Commission on the same day all seeking “payment of the outstanding balance”.

The Employer set out the background to the contract of employment offered to the Worker towards the end of 2019.  Issues such as pay, holidays, pension and contract terms were central in the contractor review processes.  There was a third-party appeal mechanism put in place to deal with the very issue of pay scale placement. In claiming for ongoing loss due to his pay scale placement, the Worker is seeking to reopen the terms of the contract offered and accepted by him in 2020 in this dispute referral under the 1969 Act. 

In 2021, the Employer engaged with the Trade Union Group to address areas of retrospection which it had been agreed under the contractor review process would be revisited.   Independent facilitators with significant industrial relations experience were nominated by the Trade Union Group and the Employer to assist in discussions on retrospection. Terms of reference were agreed and there were multiple engagements between the Joint Facilitators, the Trade Union Group and the Employer in the period April to August 2022.  The Joint Facilitators’ proposal to the Employer and the Trade Union Group was published on 10 August 2022 (the “Retrospection Agreement”), and was accepted by the Employer and Trade Union Group as the best terms available under the industrial relations process.   The Retrospection Agreement set out a four-point proposal to deal with recognition of past continuous service, maternity leave, paternity leave and payment of an ex-gratia lump sum.  The context to the Retrospection Agreement was to put on the table a fair and balanced proposal as an alternative to pursuing legal rights.  

The Worker did not accept the specific offer made to him by the Employer under the Retrospection Agreement.  He did not pursue legal or statutory rights rather he referred this individual complaint to the Workplace Relations Commission 2 years after the Joint Facilitators issued their proposal.  The Worker seeks to ventilate matters relating to a body of workers and a significant sum by way of compensation.

The issues raised by the Worker relate to matters the subject of the Retrospection Agreement, which has consistently been recognised as a collective agreement.  As such, its integrity and validity should be upheld.  Any concession outside of the terms of agreement reached between the Employer and the Trade Union Group has the potential to undermine long standing and agreed industrial relations processes and the terms of the agreement reached between the Trade Union Group and the Employer on retrospection.  

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

In a written submission provided by the Worker at the hearing, it was stated that the dispute was one referring to “i) the impacts of bogus self-employment to which the respondent has admitted through the Scope process, ii) ongoing loss of earnings due to the complainant being put on the wrong point on an uncontested salary scale since 2019, for iii) an individual not a body of workers.”

The impacts to which the Worker’s dispute refers were set out in written submissions on behalf of the Worker as a denial of employment rights in respect of annual leave, public holidays, pension and ongoing/continuing losses.  The latter-mentioned ongoing/continuing losses are expressed by the Worker in the terms set out at (ii) above. 

The Worker has estimated the financial loss in respect of the foregoing to amount to approximately €133,311.00.

The dispute as presented by the Worker at the hearing is broader in scope than a dispute connected with rates of pay of, hours or time of work of, or annual holidays of, a body of workers.  The Worker’s dispute refers to the matters set out above and further takes issue with the outcomes of industrial relations processes at local level.

The Worker’s representative submitted that the divergence in the position of the parties occurs at the point where a contract of employment was offered to the Worker under the governing principles of the contractor review process and in relation to the outcome of a facilitation process concerning retrospection.

Relevant to the dispute referral under section 13 of the 1969 Act is that the governing principles for the contractor review process were agreed by the Trade Union Group and the Employer.  The contractor review process was an industrial relations mechanism to implement recommendations from the third-party review of contractor arrangements in the Employer organisation. The agreed governing principles specifically addressed how the grade and pay under the contract of employment offered would reflect an individual’s pattern of engagement with the Employer over the previous two years.   The principles further provided for both an informal and third-party appeal process for an individual who disputed the terms of the contract of employment. 

In the context of the dispute referable to ongoing/continuing losses due to being on a wrong point of a salary scale since 2019, the Worker is therefore contesting the governing principles agreed by the Employer and the Trade Union Group, the terms of the contract of employment that the Worker entered with the Employer in December 2019, and the terms of a subsequent contract of employment entered into in January 2021.  

As regards the dispute concerning the Joint Facilitators’ proposal on retrospection to the Trade Union Group and the Employer in August 2022 and its status as an agreement or otherwise, the key point, which was not disputed, is that an individual to whom an offer was made under the proposal had the choice to accept or reject the offer made.  The Worker chose not to accept the offer as he did not believe it fair or reasonable in the circumstances.

Of relevance to the dispute referral under section 13 is that the facilitation process on retrospection, which resulted in the previously mentioned proposal, was a process with which both the Trade Union Group and Employer agreed to engage constructively.  The terms of reference for that process, which were not in issue, reflected the foregoing commitment along with the objective of developing a proposal that both the Trade Union Group and Employer could recommend for acceptance.   The proposal was an industrial relations solution further to recommendations and industrial relations processes at local level.

My role in a section 13 dispute referral is to make a recommendation to the parties to the dispute setting out my opinion on the merits of the dispute.  A section 13 dispute referral does not involve a determination of legal rights and obligations.  The thrust of section 13 is to provide a practical industrial relations basis for investigation and resolution of the dispute between the parties.

The Worker asserts legal rights and entitlements from 2008 to date.  However, the Worker’s employment status in the period from 2008 until 2018 for the purpose of contractual and/or statutory employment rights is not established.   A Scope decision on insurability is not determinative of the application of contractual and statutory employment rights, and it is not appropriate in the context of a trade dispute referral under the 1969 Act to embark upon an adjudication of the Worker’s employment status in the relevant period. 

Furthermore, it is my view that a recommendation in favour of the Worker in this dispute would have implications of a collective nature in terms of undermining the outcome of agreed industrial relations processes (the contractor review process and the facilitation process) at local level and where the Joint Facilitators’ proposal applied to a particular cohort of workers.  As set out above, I am satisfied that an offer made under the proposal was not binding on an individual employee.  My view on implications of a collective nature is because of the background to and practical application of the proposal, which is irrespective of the status of the proposal itself.

In the circumstances, given the nature of the dispute, pertaining as it does to legal rights and agreed industrial relations processes, and the financial sum sought in resolution of the said dispute, I do not consider it appropriate under section 13 of the 1969 Act to recommend in favour of the Worker.

Industrial Relations Act 1969 – Trade dispute – Industrial relations processes – Employment rights