The recruitment arm of the Irish School of Motoring says construction firm Roadstone should be paying a bill of over €55,000 it faces to resolve pay equity claims by agency lorry drivers.
Representatives of ISM Recruitment told the Workplace Relations Commission (WRC) that there is a “serious lacuna” in employment law, as an employment agency cannot have a client firm attached to proceedings.
ISM told the WRC it had no knowledge of a pay rise given to Roadstone’s direct employees in 2022 until a group of the staff it placed in the firm lodged statutory complaints. “The agency cannot afford to front-load the cost of the claim overall,” its legal representative told the employment tribunal – adding that it planned to try to recover the sum from Roadstone.
However, ISM has so far been ordered to pay over €13,000 in respect of three statutory claims by drivers under the Protection of Employees (Temporary Agency Work) Act 2012, with more still “being processed” by the WRC.
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In the three complainants decided so far, tipper truck drivers Wojciech Krajewski, Jan Brocki and George Evans each said Roadstone’s direct employees worked an hour less every week; had training costs covered by the firm; and received benefits denied to the complainants, including a €350-a-year mobile phone allowance, bonus pay and bereavement pay.
The complainants also said the direct employees got a series of 3.25% pay rises for 2021 and 2022, but that this was denied to agency tipper drivers in breach of their employment rights as temporary workers.
HR consultant David Kearney of HR Brief Ltd, who appeared for the agency, said ISM “takes its responsibilities under this act very seriously” and had “always endeavoured to establish equitable parity with a comparable full-time driver in Roadstone”.
Mr Kearney said the terms of business agreed between ISM and Roadstone signed in 2019 set out a requirement on the construction firm to “advise the agency of basic pay and conditions as they apply to their direct comparable drivers”.
“As understood by the respondent, the rates for permanent drivers in Roadstone had not changed for some years,” he said, adding that ISM “immediately” put the allegations to its client when the employment rights claims were made in June last year.
Mr Kearney said that its drivers got the increments as soon as Roadstone confirmed them – but that it “cannot afford to front-load” the cost of the back pay due to its staff in their claims, some €55,458.61.
“This represents a number of claims currently being processed by the WRC in respect of the same claim from several complainants,” Mr Kearney added.
The company representative said ISM had written to Roadstone with the back pay calculation, but had not “resolved” the matter.
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“It is an untenable situation that the agency is liable,” Mr Kearney said.
Mr Kearney said it was a “serious lacuna” in the Protection of Employment legislation that an employment agency could not have a client firm attached to the proceedings as a co-respondent, and said “clear culpability for this breach” should be with Roadstone.
He added that it had invited representatives of Roadstone to come to the hearings but that there had been no attendance by the construction firm in any of the cases in the series.
Mr Kearney said that if the tribunal ruled in favour of the workers, it would invoice Roadstone and “hope” to recover the sums to pay its staff to comply with the tribunal’s orders.
Ruling on Mr Krajewski’s case in April this year, WRC adjudicating officer Marie Flynn noted the company’s arguments and its support for its employees’ entitlement to the pay rises, including back pay.
She said there was “no evidence” of differential treatment in terms and conditions other than the pay increments denied to the complainants.
Ms Flynn ruled that liability for the redress in Mr Krajewski’s case lay with ISM and ordered it to pay him €4,336.07 for the back pay.
In two further decisions just published by the WRC, adjudicating officer Pat Brady noted the earlier ruling by Ms Flynn and wrote: “I agree with these conclusions.”
Applying them in the two cases before him, he found that liability rested with ISM Recruitment and ordered the agency to pay €4,336.07 to both Mr Brocki and Mr Evans.
