The recent case of Team Obair Limited v Mr Robert Costello concerned an appeal by the employee against a Rights Commissioner decision dated 30th July 2013 in respect of the Protection of Employees (Temporary Agency Work) Act 2012. A full copy of the decision is available here.BackgroundThe claimant, Mr Costello was employed by the Respondent, an employment agency as a forklift truck driver. His basic pay was €13.50 an hour. He was assigned by the Respondent to a third party, namely Logistics Company Shannon Transport Logistics (STL) known as the “hirer”.The claimant contended that he was being paid less in terms of his basic pay to that which he would have been paid had he been employed directly by the hirer to perform the same work. He relied on section 6(1) of the 2012 Act in this regard. The rates of pay applicable to the Respondent including the claimant are €11.50 for general operative work and €13.50 for driving fork lift trucks. The claimant’s union contended that employees of the hirer who were engaged in identical work were paid €740 per week for a 40 hour week or €18.50 per hour. The union nominated a number of employees of the hirer as comparators and produced pay statements furnished to those comparators in verification of its contention.The respondent informed the court that when it commenced the contract it obtained a statement in writing from the hirer, pursuant to section 15 of the Act, setting out the basic terms and conditions that it would apply of it employed workers directly on the same work as that undertaken by agency workers assigned to it by the Respondent. In that statement the hirer indicated that it would pay fork lift workers the same rate as that paid to the Claimant by the Respondent. The respondent also stated that the comparators nominated by the claimant were all employed prior to coming into effect of section 6 of the Act on 5th December 2011 and that such comparators cannot be relied upon as valid comparators.Labour Court DeterminationThe Labour Court referred extensively to the Temporary Agency Workers Act and its purpose which was to transpose Directive 2008/104/EC of the European Union on Temporary Agency Work.The Court refereed to Section 6(1) of the Act which provides:”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 6(3) of the Act provides that ” Where the assignment of an agency worker commenced before 5th December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1) be deemed to have commenced on that date“.The Labour Court also referred to the definition of “basic working and employment conditions” as set out in Section 2 of the Act including the definition of pay and noted that “it seems clear from a reading of this provision as a whole that it is the enactment, collective agreement or arrangement that must be of general application rather than the rate of pay or conditions of employment that results from the utilisation thereof“.The Court referred to the argument under Section 6 that an agency worker is entitled to the same basic employment conditions as those to which he or she would be entitled if employed by the hirer and observed “This raises a question as to what employment conditions the agency worker would have become entitled to under any enactment, collective agreement, or any arrangement of general application to similar workers if he or she had been employed by the hirer at the time his or her assignment commenced (or is deemed to have commenced under Section 6(3) of the Act“.The Court further observed that the 2012 Act does not require a claim for equal pay to be grounded by reference to an actual comparator but the rate that is paid to employees of the hirer who are engaged in the same type of work is an important evidential tool. It observed “….”.the Court could reasonably infer that had the agency worker been employed by the hirer at the time the assignment commenced (or was deemed to have commenced) he or she would have been paid a different rate of pay than that claimed“. In addition it noted that the onus of proving that a rate of pay established within the hirer employment would not have applied to an agency worker had he or she been directly employed by the hirer rests with the party making that assertion.The Labour Court concluded by stating that “the points raised in this case are novel and are not governed by any authority of which the Court is aware” and that they must be approached by the application of first principles. It concluded:”….the Court has come to the conclusion that it is more probable than not that had the Claimant been employed by the hirer on 5th December 2011, he would have been paid €18.50 in line with other fork drivers similarly employed. Accordingly, that is the rate to which he is entitled pursuant to Section 6(1) of the Act. Accordingly the Court must hold that the Claimant is entitled to succeed in this appeal“.The Labour Court directed that the Respondent adjust the claimant’s rate of pay to €740 per 40 hour week or €18.50 per hour with effect from the 5th December 2011.