by Breda O'Malley February-01-2014 in Employment Law
There has been a recent decision of the Labour Court where an agency worker made a claim for similar pay as a direct hire. Mr Robert Costello (represented by SIPTU), a forklift truck driver, was the Claimant and Team Obair Limited was the relevant employment agency who employed Mr Costello. Mr Costello was assigned by Team Obair to a contractor based at a plant operated by Diageo at St James’s Gate in Dublin. Mr Costello’s claim centred around the fact that the third party contractor (to which Mr Costello was assigned) hired employees directly who were engaged in identical work and were paid €18.50 per hour compared to the rate of €13.50 per hour paid to him. SIPTU contended on Mr Costello’s behalf that there was a breach by the employment agency Team Obair of the Protection of Employees (Temporary Agency Work) Act 2012 (the “Temporary Agency Act”). His claim was that had he been employed directly by the third party contractor, he would have been paid at the higher rate of €18.50 per hour.
Relevant in this regard is Section 6 of the Temporary Agency Act which provides that:-
“an agency worker shall… be entitled to the same basic working and employment conditions as the basic working and employment conditions which he/she would be entitled if he/she were employed by the hirer
[end user organisation] under the Contract of Employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.”
The claim was defended by the agency on the basis that the end user had advised that the lesser rate of €13.50 was the rate it would have paid had it been hiring forklift drivers directly at that time. This was not accepted as a successful defence.
The Court determined that if Mr Costello had been employed directly by the third party company, he would have been paid €18.50 per hour, the same as the forklift drivers directly hired. The Court directed that Mr Costello’s rate of pay be increased to €18.50 per hour retrospectively with effect from 5 December 2011, the date when the Act was applied in Ireland in relation to rates of pay.
It is clear from this case that an agency cannot rely exclusively on the end user organisation’s statement of what it would pay workers were it to hire directly. There needs to be a justifiable basis for any differential in pay.
For more information please contact Breda O’Malley bomalley@hayes-solicitors.ie at Hayes Solicitors.
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About the Author
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.