A truck driver who was engaged by a recruitment agency to drive for Greenstar Limited has lost his challenge in the High Court that his employment conditions were less favourable than drivers directly employed by Greenstar.

The driver was paid at a rate of €11.50 per hour. He alleged that drivers employed directly by Greenstar were paid at rates between €12.50 and €20 per hour and benefited from more favourable overtime and daily meal allowances.

His complaints to the Labour Relations Commission and the Labour Court (on appeal) were unsuccessful and his case was further appealed to the High Court. The appeal was based on his assertion that the Labour Court had incorrectly interpreted the Protection of Employees (Temporary Agency Work) Act 2012.

Under the Act, an agency worker is entitled to the same basic working and employment conditions as employees who are hired directly to do similar work. Basic working and employment conditions mean terms and conditions which exist because of an enactment, collective agreement or arrangement that applies generally to employees of the hirer.

The Labour Court had refused to accept payslips of another employee as evidence on the basis that these were hearsay. The High Court affirmed the Labour Court’s decision in that regard, stating that the payslips of one other employee were not a sufficient method to demonstrate generally applicable rates of pay.

Importantly, the High Court commented on the “crucial factor” that the Labour Court told the driver he could summons a member of Greenstar’s management team to give evidence in relation to pay structures in the Company but he failed to do so.

It may be the case that had he put forward additional evidence from other employees of Greenstar or from a member of its management team, he would have satisfied the requirement to show that higher rates of pay were generally applicable to drivers in Greenstar.

Few complaints have been lodged under this legislation and this case is the first complaint under the Act to reach the High Court. It is a useful judgment insofar as it shows the High Court’s agreement with the Labour Court’s interpretation that a claimant must establish that a term and/or condition of employment is generally applicable in its effect in order for an agency worker to rely on it.