National recruitment federation BREAKFAST BRIEFING 29 TH JANUARY 2015

1. National recruitment federationBREAKFAST BRIEFING 29TH JANUARY 2015 AGENCY WORK LEGAL UPDATE

2. BRIEFING AGENDA • BRIEF INTRODUCTION • SHORT REVIEW OF THE ACT • CASE LAW TO DATE - DEVELOPMENTS • WHERE DO WE GO FROM HERE

3. THE DIRECTIVE/2012 ACT • Protection of Employees (Temporary Agency Work) Act 2012 • Derived from DIRECTIVE 2008/104/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 19th NOVEMBER 2008 ON TEMPORARY AGENCY WORK • Directive = A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods

4. Act HIGHLIGHTS • Date of implementation: 5th December 2011 • Basic working and employment conditions applicable as on that date • Scope of the Act • Parity of basic working and employment conditions of agency workers (section 6) • Obligations of Hirers to Employers (section 15) • Redress – Part 4 and Schedule 2 • Penalisation/Unfair Dismissals • Scope of retrospective application for granting relief

5. Date of Implementation • Retrospective effect • Direct provision of Directives – who is liable for losses • Basic working and employment conditions comparable as at 5th December 2011

6. Section 6: “Basic working and employment conditions” • Defined in section 2 “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to— (a) pay, (b) working time, (c) rest periods, (d) rest breaks during the working day, (e) night work, (f) overtime, (g) annual leave, or (h) public holidays;

7. Pay is … BASIC “pay” means— (a) basic pay, and (b) any pay in excess of basic pay in respect of— (i) shift work, (ii) piece work, (iii) overtime, (iv) unsocial hours worked, or (v) hours worked on a Sunday, but does not includesick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

8. Pay NOT Wages or Remuneration! • Wages is defined in the Payment of Wages Act 1991 – includes very wide scope of inclusions including bonuses, expenses • Remuneration is defined in several Acts: Unfair Dismissals Act 1977 and Employment Equality Act 1998 – any consideration, whether in cash or in kind, which the employee receives, directly or indirectly from the employer in respect of the employment.

9. COMPARATORS • Real • Hypothetical • Must be evidenced • Collective Agreements – Section 8 …8.— (1) An agreement (in this section referred to as a “collective agreement”) may be made by or on behalf of an employer or hirer, or an association representing employers or hirers, on the one hand, and by or on behalf of a body or bodies representative of employees on the other hand providing for working and employment conditions that differ from the basic employment and working conditions applicable by virtue of section 6 as respects agency workers.

10. Section 15: Obligations of Hirers to Employers 15.— (1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker. (2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.

11. REDRESS • Penalisation – PART 4 • Whistleblower/witness protection clauses • Section 23 – Employer Prohibited • Agency • Hirer • Section 24 – Hirer Prohibited • Unfair Dismissals – generally can be invoked without qualifying period

12. REDRESS • Retrospective application: Schedule 2, paragraphs (4) and (5): (4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

13. REASONABLE CAUSE • Labour Court in Cementation Stanska v Carroll DWT38/2003 “[I]n considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

14. CASE LAW TO DATE • 11 CASES • 10 ON THE LABOUR COURT WEBSITE • 1 ABOUT TO BE PUBLISHED

15. IMPLEMENTATION OF A RIGHTS COMMISSIONER DECISION/APPEAL FOR EXCESSIVE AWARDS • AWD 132: Match Employment and Raymond Nolan • AWD 133: CLS Recruitment v James O’Donnell

16. AWD 131: NURSE ON CALL v GERALDINE MAHON • Employer appeal against Rights Commissioner decision - Breach of Section 6: Refusal to pay a specialist midwifery qualification allowance which it was said was included in basic pay • It was argued that this allowance was a constituent of basic pay • The allowance was payable for those with the midwife qualification, working as a midwife • The allowance was introduced by way of a Departmental Circular letter • Allowance was superannuable, was paid to staff on sick leave and maternity leave • A second Circular included allowances within the definition of basic pay

17. DECISION: • Rights Commissioner decision was upheld • Allowance “in this case” was an integral part of basic pay • Court concluded that what constitutes Basic Pay can be ascertained from the manner in which the parties have treated the various elements contended for by either side

18. POSSIBLE CONSEQUENT ARGUMENTS IN SUBSEQUENT CASES • Bonuses, allowances may constitute basic pay • They also may NOT • Look at how the parties treat the paymentbeing made • If on notice of a bonus/allowance payable, seek a copy of the wording of contracts of employment for direct employees • Ask for documentation pertaining to the allowance paid • Even if you don’t get the answer, ask and record not receiving the answer!

19. AWD 134: TEAM OBAIR LIMITED v ROBERT COSTELLO • Appeal by employee, represented by SIPTU • The facts of the case were not in dispute, that applicability of the existent rate was • The Hirer direct employees members of SIPTU • SIPTU nominated comparators, gave pay slips • Hirer provided a statement of a rate of pay which would be payable to a comparator employed following the implementation of the Act – hypothetical comparator • Representatives for both sides had first hand knowledge of the Hirer custom, practice and culture

20. DECISION • Term “any arrangement” – objectively considered • Pay determined by custom and practice and later were modified by collective agreements • Rates of pay may be determined by factors to which the Agency Worker did not have access • This implies that it is within the peculiar knowledge of the Hirer, who therefore bears onus of proof • Respondent was relying on the Request for Information Form as the sole assertion for the comparable the rate of pay • Principle of non regression in EU law applies • Alteration of rates of pay downwards would have to involve Trade Union discussion where a TU is recognised • Rights Commissioner decision was overturned, the Claimants claim for a breach of s.6 2012 was upheld

21. POSSIBLE CONSEQUENT ARGUMENTS IN SUBSEQUENT CASES • HYPOTHETICAL COMPARATORS • Must prove that the comparator would be engaged at the rate being asserted • If there is a group of comparable employees being paid a rate, it is reasonable to believe the Agency Worker should be paid that rate • PECULIAR KNOWLEDGE • The onus of proof was reversed as being put upon the Respondent and not the Claimant to disprove that the comparator rate would not apply • REQUEST FOR INFORMATION FORM • The reliance by an Agency on the request for information form as proof of the rate applicable to a comparator was undermined significantly

22. AWD 141: O’REILLY RECRUITMENT LIMITED v ZAREMBA et al. • Appeal by the Agency Worker against Rights Commissioner decision • Hypothetical comparator on a lower rate, existing direct comparators on higher rate, only one on the agency rate • Reliance on length of service as a distinction

23. DECISION • The one comparator, came to the employment of the Hirer under a Transfer of Undertakings, as such was not a comparator • Court would not substitute a hypothetical comparator for actual comparators on the basis of mere assertions • Claimants case was upheld, Rights Commissioner decision was overturned

24. AWD 142: ELIZABETH STAFFORD v ISAACSON et al • Employer appeal of Rights Commissioner decision • Direct comparators paid significantly higher rates, with long service, employed when economic outlook was better • Hirer did not recruit on or about 5th December 2011, but did subsequently, and at the rate stated for a hypothetical comparator, this was cited as evidence of the rate which would have applied • There were three different categories of employees making the claim

25. DECISION • The rate of pay actually being paid to comparators is the rate of pay which applies, in the absence of an agreement/arrangement to the contrary • The Court will look at the rate which applies generally • A small number of employees subsequently directly employed at a lower is insufficient evidence of the rate now applicable constitute an exception • Cost of directive compliance alone does not constitute the lowering of a rate of pay (as per Schnheit v Stadt Frankfurt ECJ decision) • Rights Commissioner decision was upheld

26. POSSIBLE CONSEQUENT ARGUMENTS IN SUBSEQUENT CASES • The rate of pay applicable to direct employees on the 5th December 2011 is the comparator rate • A Direct Employee subsequently employed on a lower rate, the hypothetical rate, would constitute an exception in the absence of a collective agreement • Cost alone is not an acceptable defence for lowering the rate for newly employed staff in order to comply with the Directive

27. AWD 143: IRE RECRUITMENT SERVICES v MICHAEL O SULLIVAN • Employee Appeal of Rights Commissioner Decision • Claimant claimed a higher rate was being paid • No evidence was put before the Court • The Claimant had seen a pay slip, but did not have it in his possession DECISION • Mere assertion is insufficient to meet the standard of proof for a Claimant in bringing a case

28. CONSEQUENCES: • Something more that mere assertion is required to make out the case

29. AWD 144 and 145: ICE Group v Richard Browne and ICE Group v Margaret Costello respectively • Similar cases • Appeal by the Agency Workers of Right’s Commissioner Decisions • Claimants were former direct employees, took redundancy and were retained as Temporary Agency Workers • There were real comparators in existence, a hypothetical comparator was being argued • Non regression was argued • There was evidence of a downturn in business on the part of the Hirer • Evidence of a staff wide vote on reduced rates of pay per hour, was put before the Court, this did not include the specific rate of pay applicable to the Claimant – this evidence was disputed by the Claimant

30. DECISION • A survival plan was in place, which was balloted upon and included the use of agency staff and lower rates of pay/conditions for direct employees • No direct employees were taken on subsequent to that • The only evidence relied upon by the Agency was the Request for Information form • There were direct comparators paid at higher rates • Cost is an insufficient reason for failure to comply with the provisions of the 2012 Act • The Claimant’s case was upheld, Rights Commissioner decision was overturned

31. POSSIBLE CONSEQUENT ARGUMENTS IN SUBSEQUENT CASES • An agreement must specify the rates which will be paid for future direct employees and it must particularise the rates applicable to each position • Direct employees on those rates must be in situ as comparators for the purposes of the Act – hypothetical comparators will not suffice

32. AWD 146: QED RECRUITMENT LIMITED v PATRICK MULHOLLAND • Employee appeal against a Rights Commissioner decision • Employee was in place at the implementation date for the 2012 Act • Evidence was heard from SIPTU officials who had members within the Hirer • There was evidence of a collective agreement applicable from 15th April 2013 • It was agreed that various different rates were being paid to direct employees carrying out the same/similar work as that of the Claimant • Evidence was given that the Hirer had procured several entities to which the Transfer of Undertakings provisions would apply

33. DECISION • While different rates of pay were being paid, there was no evidence given of a general agreement pertaining to rates of pay applicable • The collective agreement came into effect following the making of the Claimant’s claim, and while it had the effect of increasing the terms and conditions, it is irrelevant as a comparator as it could not be shown that the terms and conditions therein contained were applicable during the currency of the Claimant’s employment • The appeal was denied, the Rights Commissioner’s decision was upheld, against the Claimant

34. POSSIBLE CONSEQUENT ARGUMENTS IN SUBSEQUENT CASES • The onus of showing the comparator applicable lies with the Claimant • Where there are various possible comparators, the Claimant must show which one is applicable and why • The Hirer did not offer explicit information with regard to rates payable to the drivers and possible comparators, yet, the Court did not relieve the Claimant of burden of proving the comparator

35. POINTS COMMON TO ALL CASES • The Employees/Claimants were all in situ as at the commencement of the Act and at the implementation of the Act • The fact of a different rate of pay being paid was not in dispute • Representatives of or parties with first hand knowledge of the Hirer were present to give evidence

36. AWD 151:Noel Recruitment v Mantas Alisuaskas • Claimant was employed subsequent to the commencement of the Act • The Claimant claimed that there were comparators at a higher rate of pay per hour, being paid overtime at a higher rate, being paid a forklift additional premium and being paid a twice yearly bonus • The existence of a higher rate comparator was disputed • The Claimant submitted redacted pay slips as evidence of the existence of the rate of pay • The Hirer did not attend the hearing or make any submission • The Hirer provided the Agency with contracts for 30 direct employees doing same/similar work, hired subsequent to the Act • The Respondent was reliant upon the Request for Information Form and the copy contracts of employment for the 30 employed staff

37. DECISION • The pay slips were redacted and were therefore of little use to the Court in establishing whether they were in fact those of a comparator • One pay slip showed a Trade Union contribution being made – this led the Court to determine that it was possible that a collective agreement was in place • The onus was on the Claimant to contact the Union to establish if this was the case • There was no evidence that this was done • The Respondent could not reply to redacted pay slips, the Respondent had formal correspondence from the Hirer which stated that the rate of pay, terms and conditions were the same as those of the Claimant • The Claimant’s Appeal was dismissed

38. POSSIBLE CONSEQUENT ARGUMENTS IN SUBSEQUENT CASES • This case establishes the bar for the burden of proof applicable to the Claimant in order to make out his/her claim – the Claimant must exhaust all possibilities to procure evidence of that which they are alleging. • The Court will not assist the Claimant with regard to compelling evidence in support of their claim either at all or unless the Claimant exhausts their evidentiary burden • The Court did not accept the argument of peculiar knowledge as a third party could have been contacted by the Claimant, and therefore the burden of proof could not be reversed

39. What QED and Noel have in common! • The onus of proof stayed with the Claimant, it was not reversed. • The Hirer did not provide detailed information which might have further explained the case or supported the Claimant’s position • The Court did not compel the Hirer to so do by exercising its discretionary authority to subpoena the Hirer or its representatives

40. WHERE DO WE GO FROM HERE • Trends in determinations • The tripartite relationship and it’s inherent weakness against the Agency • The failure to include the Hirer as Respondent • Unfair Dismissals Acts • Safety, Health and Welfare at Work Act