In case ADJ-19680 the AO in this case clearly set out sections 19 of the Industrial Relations (Amendment) Act 2015. The AO equally correctly pointed out that this rate of pay under the Sectoral Employment Order came into effect on the 19th October 2017. It is clear that the case was referred to the WRC on 10th February 2019. The AO awarded a sum of €10,935 being a rate of €18.93 per hour for all work performed for the respondent.
The case raises an interesting issue.
The issue is under the Sectoral Employment Order must a claim be brought within 6 months of the breach and therefore limited to 6 months back or if this decision is followed does it apply outside of the 6 month period of time.
The Act is quite clear in that it provides that the rate of pay specified by such an Order in respect of any period during which the Order applies has effect as if the Order rate was substituted for the contract rate.
The AO in this case has clearly taken the view that the period of time extends right back to October 2017. That is clearly one permissible view. The alternate view is that the claim is limited to 6 months prior to the date of lodging a claim. If it goes outside that six months as part of the claim then there is an argument following the case of HSE and McDermott that the claim is statute barred. The alternative is that the employee sues for a period of six months back from the date that they lodged their complaint and any period prior to that is dealt with by way of either an extension of time for a further six months or alternatively a claim is brought in the Courts.
The AO has taken one particular view in relation to matters. The other views are possibly ones that will be argued in other cases. It would be interesting to see how the jurisdiction of this issue progresses. What is absolutely clear however from this decision is that, and we fully agree with this, namely that SEO rates apply regardless as to what may be in a contract.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.