Alan Haugh BL writes:

Mulholland v QED Recruitment Limited [2015] IEHC 151


Introduction

This is the first decision of the High Court under the Protection of Employees (Temporary Agency Work) Act 2012 (‘the 2012 Act’). The matter came before the High Court by way of an appeal on a point of law from a determination of the Labour Court. Both the Rights Commissioner, at first instance, and the Labour Court, on appeal, had found that Mr Mulholland’s complaints under the 2012 Act were not well-founded.

The following propositions can be inferred from the judgment delivered by the President of the High Court, Kearns P:

(i) a claimant under the 2012 Act must establish that a contractual term, collective agreement, or some other entitlement or agreement generally applies to directly employed comparable employees and that this has been denied to the claimant by virtue of his or her status as an agency worker;

(ii) the onus of proving the existence of a generally applicable rate of pay within a hirer business rests on the claimant under the 2012 Act;

(iii) where the existence of such a generally applicable rate of pay has been established, the onus of proving that those rates would not have been applied to the claimant if he or she were directly employed by the hirer, shifts to the respondent;

(iv) the Labour Court is not strictly bound by the rules of evidence and the formalities of courtroom procedures.


Background

The appellant was employed by the respondent as an agency worker. For the relevant period to which his complaint relates he was placed as a truck driver with Greenstar Limited (‘the hirer’). His rate of pay for the assignment was €11.50 an hour. The appellant complained that drivers directly employed by the hirer were on higher rates of between €12.50 and €20.00 per hour and that they also benefited from a more favourable overtime arrangement and a daily meal allowance.


Findings

(i) The purpose of the 2012 Act is to ensure that an agency worker is entitled to the same basic working and employment conditions as he or she would be entitled to if he or she were directly employed by the hirer to carry out the same or similar work.

The protection provided by the 2012 Act to a temporary agency worker is to be distinguished therefore from that which applies to a part-time worker under the Protection of Employees (Part-time Work) Act 2001 and to a fixed-term worker under the Protection of Employees (Fixed-term Work) Act 2003: the latter two Acts simply require a complainant to identify a single comparable full-time or permanent (as the case may be) comparator whose terms and conditions are more favourable than those of the claimant’s; where such a comparator has been and identified and should the respondent fail to advance objective grounds for the less favourable treatment the claimant’s case will succeed.

On the other hand, a person seeking to rely on the protections offered by the 2012 Act must be able to establish that a contractual term, collective agreement, or some other entitlement or agreement is in place which they have been denied by virtue of being an agency worker. This requirement stems from section 6(1) of the 2012 Act which provides:

6.— (1) Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a 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.

Section 2(1) of the Act defines "basic working and employment conditions" as

"...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"

The High Court fully endorsed the Labour Court’s approach in respect of the evidential the burden of proof that rests on a claimant under the 2012 Act: i.e. he or she must establish that a contractual term, collective agreement, or some other entitlement or agreement which generally applies to directly employed comparable employees is in place and that this has been denied to the claimant by virtue of his or her status as an agency worker.

Furthermore, the President’s judgment emphasises the important distinction, referred to above, between the statutory scheme established by the 2012 Act and the schemes established by the Part-time Work Act and the Fixed-Term Work Act, respectively:

"...had it been the intention for the legislature for a complainant to identify just one fellow employee who received a different rate of pay, such a provision would have been included in the Act."

(ii) The Labour Court heard oral evidence in support of the appellant’s case from the appellant himself, a driver formerly directly employed by the hirer and two SIPTU officials. The claimant’s first witness gave evidence in relation to the rate of pay which he himself had been paid but was unable to give evidence as to the rates of pay which applied to other drivers. One of the union officials gave evidence in relation to a collective agreement which came into effect after the claimant’s period of assignment to the hirer; the other official was not in a position to provide the Labour Court with evidence of a generally applicable rate of pay amongst the hirer’s drivers.

Having considered the evidence adduced before it on behalf of the claimant, the Labour Court concluded that “the the Claimant has failed to show, as a matter of probability, that the working and employment conditions for which he contends were established by virtue of any enactment or collective agreement, or any arrangement that applied generally in respect of employees, or any class of employees, of the Hirer at the time material to his claim. In these circumstances his claim cannot succeed.”

Counsel for the appellant submitted to the High Court that placing the onus of proof on the claimant to show that a rate of pay is of general application effectively disbars anyone from ever being successful in claiming under the 2012 Act as no claimant would have access to the payment structure operated by a hiring entity. He further submitted that in order to give efficacy to the 2012 Act, a reverse onus of proof should apply. The Court was clear that no such arrangement could be inferred into the 2012 Act:

"In relation to the burden of proof, while other statutory schemes such as the Employment Equality Acts allow for a complainant to establish facts from which it may be presumed that discrimination has occurred and require a respondent to prove the contrary, there is no such provision in the 2012 Act."

(iii) Counsel for the appellant referred to a number of previous determinations of the Labour Court under the 2012 Act in which he submitted the Labour Court had in fact reversed the onus of proof:  Costello v Team Obair Ltd [2014] 25 ELR 76 and Elizabeth Stafford v Ernest Isaacson & Others (Determination AWD142). The Court distinguished the instant case from the aforementioned Labour Court determinations, and pointed out that in Stafford, for example, the respondent had conceded the existence of a generally applicable arrangement.

The High Court, by implication, appears to accept the correctness of the Labour Court’s approach in cases where the existence of a generally applicable arrangement within a hirer business has been established of shifting to the respondent the onus of proving that those arrangements would not have been applied to the claimant if he or she had been directly employed by the hirer.

(iv) The High Court’s observations in relation to the procedures observed by the Labour Court in this case are deserving of comment. The President refers to the one of the leading cases on constitutional fair procedures -  Kiely v Minister for Social Welfare [1977] IR 267 – and observes that it is well-settled law, following Henchy J’s judgment in that case, that a quasi-judicial tribunal such as the Labour Court is not strictly bound by the rules of evidence and the formalities of courtroom procedures.  The High Court in fact specifically noted that “the Labour Court [had] afforded the appellant every opportunity to present his case and did not impose unduly strict or rigorous evidential requirements on the appellant.”

For example, the Labour Court had specifically informed the appellant on the first date of hearing before it that he could apply to the Court to have a summons issued to compel the attendance of a member of management from the hirer who could give evidence in relation to rates of pay. The appellant chose not to avail himself of this option.

On the other hand, the appellant had sought to admit a number payslips which had been issued to an employee of the hirer company in evidence before the Labour Court. Neither the employee concerned nor the person who had prepared the payslips was present to give evidence at the hearing. On that basis, and having regard to its obligation to act fairly to both the parties, the Labour Court determined that the payslips were inadmissible as hearsay and in any event could not amount to a sufficient method to demonstrate generally applicable rates of pay across the hirer company.


Conclusion

The judgment of the High Court in this case strongly confirms the Labour Court’s interpretation and application of key provisions of the Protection of Employees (Temporary Agency Work) Act 2012.

Arguably, even more importantly, this judgment is also a significant judicial endorsement of the approach the Labour Court has taken in seeking to balance an appropriate level of procedural formality with the requirement to do justice to all parties appearing before it.

Full case decision:

http://www.bailii.org/ie/cases/IEHC/2015/H151.html