Waste driver loses challenge to rejection of pay complaint

A truck driver employed by a recruitment agency who claimed he was paid lower rates by waste company Greenstar Ltd than drivers directly employed by the company has lost his High Court challenge to the rejection of his complaint.

Patrick Mulholland, a driver employed by the QED Recruitment Ltd agency in 2009, was paid €11.50 an hour when driving for Greenstar.

He alleged truck drivers employed directly by Greenstar were paid between €12.50 and €20 an hour depending on length of service and also received a more favourable overtime allowance and daily meal allowance.

In July 2014, the Labour Court found he had produced insufficient evidence to show more favourable working conditions were established, via any "generally" applicable collective arrangement, for drivers employed directly by Greenstar.

Mr Mulholland appealed to the High Court in a case which centred on interpretation of provisions of the Protection of Employees (Agency Work) Act 2012.

That Act provides, subject to any collective agreement, an agency worker with a hirer shall be entitled to the same basic working and employment conditions as if directly employed by the hirer to do similar work.

Rights and privileges

The 2012 Act was intended to give effect to an EC Directive on protection of agency workers, and Mr Mulholland argued the Act’s clear intention was to ensure agency employees were entitled to legal protection to afford them the same rights and privileges as direct employees.

Mr Mulholland said his own evidence, plus evidence from a directly employed driver with Greenstar and two officials with the trade union Siptu, was sufficient to show there were higher rates of pay for drivers within the waste company and these were of "general application".

He also complained the Labour Court unreasonably refused to accept payslips of other employees as evidence on the basis they amounted to hearsay.

In opposing the case, QED Recruitment Ltd argued Mr Mulholland had overstated the protections afforded by the 2012 Act and had failed to produce evidence supporting his claim of generally applicable rates within Greenstar.

Dismissing the appeal, the president of the High Court, Mr Justice Nicholas Kearns, said the purpose of the 2012 Act was to ensure agency workers are entitled to the same basic working and employment conditions as if directly employed to do the same work.

Correct interpretation

The central issue was the correct interpretation of the term “general application” in Section 2 of the Act, he said.

He rejected arguments the Labour Court had created a new and artificial definition of the term which effectively required Mr Mulholland to establish “universal” rather than “general” application of pay rates.

A person relying on the protections of the Act must be able to establish that a contractual term, collective agreement or some other entitlement was in place which they, as an agency worker, have been denied, he said.

He accepted arguments by QED it was not sufficient for Mr Mulholland to identify just one fellow employee who received a different rate of pay.

Mr Mulholland had failed to show some “generally applicable” arrangement was in place at all, the judge found.

This failure, he said, was due to the manner in which he presented his case, rather than any error of the Labour Court.

The Labour Court had told Mr Mulholland he could issue a summons to compel the attendance of a member of Greenstar management to give evidence in relation to pay rates, but that option was not pursued, the judge said.

The judge also awarded costs against Mr Mulholland.