Complainant

Respondent

Parties

Richard  Fagan

 E Fitzgerald Limited T/A Fitzgerald’s Kitchens

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00072169-001

06/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00072169-002

06/06/2025

The Complainant was employed by the Respondent as a General Operative from 1 July 2024 to 23 April 2025. He stated that he did not receive the applicable terms and conditions that he was entitled to in accordance with the sectoral employment order (SEO) for the construction sector. He also stated that he was not paid any of his holiday entitlements and did not receive his last week’s pay.

The Complainant stated that he was employed by the Respondent as a General Operative from 1 July 2024 to 23 April 2025 working on sites located around Dublin but mainly on the glass bottle site near Ringsend.

He stated that throughout his period of employment, he was paid below the rates set out under the sectoral employment order (SEO) governing the construction industry. Specifically, his hourly rate was €16.50 per hour, whereas the correct rate should have been €19.35 for the period from 1 July 2024 to 4 April 2024 and €20.03 euro per hour for the period from 5 August 2024 to 23 April 2025 when he left his employment. He also stated that he was not included in any pension scheme.

The Complainant also asserted that he did not receive his last weeks’ pay and received no holiday pay.

The Respondent did not attend the hearing to give evidence.

CA-00072169-001

S.I No. 207 of 2023 is an order made in accordance with the provisions of section 17 of the Act. That order established minimum arrangements for certain terms and conditions of employment in the Construction Sector in accordance with the Act at Section 16(5) which sets out the terms that may be addressed in an SEO as follows:

• The Class, type or group of workers to whom the request is expressed to apply is - 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.

DEFINITION OF THE SECTOR:

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;

• The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings, the making of roads and paths within the boundaries of such sites;

• The manufacture, alteration, fitting and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster;

• The construction, reconstruction, alteration, repair, painting, decoration and demolition of roads, paths, kerbs, bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage works, public mains for the supply of water or the disposal of sewerage and all work in connection with buildings and their sites with such mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion, cattle markets, fair grounds, sports grounds, playgrounds, tennis-courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or such like material, any boundary walls, railings, fences and shelters erected thereon;

• The painting or decoration of poles, masts, standard pylons for telephone, telegraph, radio communication and broadcasting;

• Ground levelling, ground formation or drainage in connection with the construction or reconstruction of grass sports grounds, public parks, playing fields, tennis-courts, golf links, playgrounds, racecourses and greyhound racing tracks.

Categories of Worker:

• In accordance with section 16 (5) (a) of the 2015 Act the Sectoral Employment Order should provide for:
  • a basic minimum rate of pay to apply to all Skilled General Operatives who have worked in the sector for more than 2 years - (Category B Worker)

In accordance with section 16(5) (b) of the Act two higher hourly rates of basic pay as follows:

• • (1) A higher hourly rate of pay to apply to Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks operatives, Steel Fixers; Crane Drivers and Heavy Machine Operators (Category A Worker)

and

(2) a top hourly rate of pay to apply to Craftspersons in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers; (Craftspersons)

A basic hourly rate of pay to apply in accordance with section 16 (5)(c)(ii) to General Operatives who enter employment for the first time after attaining the age of 18 years and for two years after entering employment in the industry, (New Entrant Worker) and in accordance with section 16(5)(d) of the Act a minimum hourly rate of pay to apply to apprentices (Apprentice)

Pay Rates:

• The following basic hourly rates of pay will apply in the sector from 5th August 2024.

Pension Scheme:

• A pension scheme with no less favourable the terms, including both employer and employee contribution rates, than those set out in the Construction Workers Pension Scheme be in place in the industry. That scheme must provide for entry into the scheme at age 18 and must provide a facility for payment of a daily contribution rate which is a fifth of the weekly rate specified in the scheme.

The contribution rates in the scheme will be as follows with effect from 5 August 2024:

Pension Contribution

Employer €30.82 per week [Daily rate - €6.16]

Employee €20.57 per week [Daily Rate - €4.11]

Total Contribution weekly into the scheme per worker - €51.39

Total Contribution daily into the scheme per worker - €10.28

Analysis:

I must determine firstly whether or not the Respondent breached Section 23 of the Industrial Relations (Amendment) Act 2015 by failing to apply to the Complainant rates of pay set down in the Construction Industry Sectoral Employment Order S.I No. 207 of 2023 and by failing to allow him access to a pension scheme, as provided for under the terms of that SEO.

As the complaint was lodged to the WRC on 6 June 2025, the relevant period for consideration is the period from 7 December 2024 until the Complainant left the employment of the Respondent on 23 April 2024.

In order to determine if a breach of Section 23 of the Industrial Relations (Amendment) Act 2015 occurred, it is first necessary to establish if the work activities in the Complainant’s workplace were encompassed by the construction Industry SEO and, if so, was the Complainant a Worker encompassed by that SEO.

·        Were the economic activities in the Complainant’s workplace encompassed by the Construction Industry SEO?

The construction Industry SEO applies to economic activities as defined in the SEO. That definition includes a firm whose principal business is the construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings.

The Complainant gave evidence that was assigned to work for the Respondent during the relevant period for the claim and that the business of that company is to fit kitchens in properties on construction sites.

The Complainant also stated that he was assigned to various construction sites during his employment with the Respondent and was assigned to work for the Respondent largely at the glass bottle construction site during the relevant period for the within claim.

Based on his uncontested evidence, I am satisfied that the Complainant was engaged in the fitting of kitchens as encompassed by the SEO. As a result, I find that the economic activities in the Complainant’s workplace were encompassed by the Construction Industry SEO.

·        Was the Complainant a worker as encompassed by the Construction Industry SEO?

The Construction Industry Sectoral Employment Order S.I No. 207 of 2023 applies to “persons employed in the Construction Sector as craft persons, construction operatives and apprentices”. The question I must determine is whether or not the Complainant was a worker as encompassed by the SEO.

In his evidence, the Complainant said that for the duration of his employment, he was assigned to various construction sites by the Respondent where he assisted in the fitting of kitchens.

Although the Complainant’s evidence was vague on details regarding dates, he gave clear and cogent evidence about the work undertaken while on site. He was clear that the work he carried out for the Respondent was general operative work. He said that his role was to take the kitchen pieces from hoists and fit them in properties on site. He also assisted with the snagging process.

Based on the undisputed evidence submitted by the Complainant, I am satisfied that he carried out work as a general construction operative while assigned to the Respondent on various construction sites. Accordingly, I find that the Complainant was a construction operative encompassed by the Construction Industry SEO.

WHAT CATEGORY OF WORKER WAS THE COMPLAINANT?

The SEO provides a basic minimum rate of pay to all skilled General Operatives who have worked in the sector for more than 2 years. Such workers are classified as a Category B Worker.

The Complainant stated that he was a Category B Worker, as he had acquired more than two years’ experience working in the construction sector prior to commencing with the Respondent on 1 July 2024.

Based on the undisputed evidence presented by the Complainant, I find that he carried out construction work/general operative duties for a period in excess of two years prior to joining the Respondent and find that was a Category B Worker for the purposes of the Construction Sector SEO.

Having reached the conclusion that the Complainant was a Category B worker encompassed by the Construction Sector SEO, it follows that the Respondent as his employer is required to comply with its terms.

The applicable rate of pay for a Category B worker during the relevant period encompassed by the within claim was €20.03 per hour. I find that the Complainant was not paid the statutory rate of pay required under the terms of the 2023 Construction Sector SEO.

The Construction Sector SEO also requires that an employer provides a worker (encompassed by the SEO) with access to a pension scheme on no less favourable terms than those set out in the Construction Workers Pension (CWPS) in the industry and to make weekly pension scheme contributions on their behalf.

I find however that the Complainant was not provided with access to a pension scheme and no weekly contribution were made on his behalf as required under the terms of the 2023 Construction Sector SEO.

Considering all of the foregoing, I find that this complaint is well founded.

CA-00072169-002:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

The Complainant stated in his evidence that he did not receive his last weeks’ pay and was not paid his holiday entitlements, both of which fall under the definition of wages as set out in the Act above. In the absence of any evidence from the Respondent to dispute this, I find that this complaint is well founded.

CA-00072169-001

I find that the complaint that the Complainant was not paid the statutory rate of pay for a Category B Skilled General Operative as required under the terms of the 2023 Construction Sector SEO to be well founded for the reasons set out above.

I also find that the complaint that the Complainant was not provided with access to a pension scheme, and that no weekly contribution were made on his behalf, as required under the terms of the Construction Sector SEO to be well founded.

Considering the foregoing, I make an award of €4,000 in respect of this complaint which I find to be just and equitable in circumstances where the Respondent failed to apply the statutory terms and conditions set down in Construction Industry Sectoral Employment Order S.I. No. 207 of 2023.

CA-00072169-002:

I find that this complaint is well founded for the reason set out above.

As the Complainant worked for 42.6 weeks for the Respondent, namely from 1 July 2024 to 23 April 2025, and he is entitled to 20 days annual leave per year, he is owed €2,559 in holiday pay. This is calculated as follows:

20 days/52 weeks*42.6 weeks worked*€20.03(hourly rate of pay)*7.8 (hours per day) = €2,559

As the Complainant was not paid his last week’s salary, he is owed €781 (€20.03*39) in backpay.

Considering the foregoing, I make an award of €3,340 in respect of this complaint.