Labour Court Database __________________________________________________________________________________ File Number: CD91140 Case Number: LCR13255 Section / Act: S26(1) Parties: MICHAEL MCNAMARA AND COMPANY LIMITED - and - BUILDING AND ALLIED TRADES' UNION |
Claim by the Union for the reinstatement of fourteen bricklayers.
Recommendation:
5. The Court having considered the oral and written submissions
of the parties finds that on the date the workers were made
redundant further work was necessary on site.
In all the circumstances the Court considers the workers concerned
in full and final settlement of their claim should receive
compensation in the amount of #10,000. This sum to be divided by
the workers in such manner as they consider appropriate.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD91140 RECOMMENDATION NO. LCR13255
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: MICHAEL MCNAMARA AND COMPANY LIMITED
(REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION)
and
BUILDING AND ALLIED TRADES' UNION
SUBJECT:
1. Claim by the Union for the reinstatement of fourteen
bricklayers.
BACKGROUND:
2. In September/October, 1990 the bricklayers concerned commenced
employment with the Company in the Texas Home Care site in
Rathfarnham. On 14th December, 1990 the workers were dismissed by
the Company on the basis that a redundancy situation existed.
This was objected to by the workers and on Saturday 15th December,
1990 an unofficial picket was placed on the site. On 17th
December, 1990 the Company sought and obtained an interim
injunction and further obtained an interlocutory injunction on
11th January, 1991. On 16th January, 1991 the dispute was
referred to the Labour Relations Commission and a conciliation
conference was held on 23rd January, 1991. The Company's position
was that the workers were made redundant because all work on the
site which was part of the Company's contract had been completed
and that each site is treated as a separate unit in relation to
employment and that there is no precedent for transferring laid
off workers to another site. The Union's position was that when
the workers were dismissed there was still bricklayers' work to be
carried out on the site and that they were dismissed because they
insisted on being employed within the terms of the registered
employment agreement (R.E.A.) for the construction industry and
claimed that the workers should be reinstated. Agreement could
not be reached and on 26th February, 1991 the Labour Relations
Commission referred the matter to the Labour Court for
investigation and recommendation. The Court investigated the
dispute on 27th March, 1991.
UNION'S ARGUMENTS:
3. 1. The workers were dismissed on 14th December, 1990 despite
the fact that there was still an amount of bricklayers' work
to be carried out. This work has since been carried out by
other bricklayers either employed by this Company or by other
contractors and was still being carried out into the month of
February. The real reason for the dismissals on 14th
December, 1990 was not because of a shortage of work, but
because of the Company's frustration at the workers'
insistence on being employed within the terms of the
R.E.A. for the Construction Industry. Despite the Company's
denials to the contrary initially when work commenced on this
site in September, 1990 the bricklayers were not employed by
this Company but by a labour-only bricklaying sub-contractor.
This particular sub-contractor did not comply with the
criteria for bona fide sub-contractors which forms part of the
R.E.A. for the Construction Industry. The workers sought and
obtained the full benefits of the R.E.A. and the Union
contends that the Company strongly resented this as it
frustrated the Company's attempts to impose a new regime in
relation to employment of bricklayers. This change in policy
constituted a departure from the Company's normal employment
policies in relation to bricklaying and involved employment
practices in breach of the agreement for the industry (details
supplied to the Court).
2. The amount of bricklaying work which the Company had on
the Texas Homecare site could have provided up to two months
work for the bricklayers dismissed on 14th December, 1990.
The reasons given by the Company for the dismissals were not
valid. If the Company had conducted its affairs in a manner
to be expected from a responsible and reasonable employer and
if the workers had been allowed to finish out the work on the
site, they would have become eligible for consideration for a
transfer to other sites in the Dublin area now under
construction. As a result of the Company's decision to
dismiss the workers in such a provocative and vindictive
manner, the workers were deprived not only of a certain amount
of work, but of the prospect of even more. The bricklayers
dismissed on 14th December, 1990 should be reinstated. The
Company has a number of sites in the Dublin area which require
bricklayers and the workers who are party to this claim could
be accommodated on those sites.
COMPANY'S ARGUMENTS:
4. 1. In October, 1990 an unofficial dispute (later settled)
arose on site over bonus payments and the dismissal of two of
the fourteen bricklayers for "signing on" whilst employed on
the site. At the end of October just before the holiday
week-end the bricklayers once again took unofficial action in
support of further additional payments and the Company was in
a position where it was forced to settle the dispute. As a
result of the previous unofficial stoppages the Company
decided that it would not run the risk of a further stoppage
by having a phased redundancy operation and the possibility of
a row over selection for redundancy, but would hold all
bricklayers on site until work was complete which was the case
on 14th December, 1990. As the bricklayers work on site was
completed and the Company had no further work for them the
placing of pickets on the site was reckless behaviour on the
part of the workers, who had no mandate from their Union for
their unofficial action. The Company has always operated
under the terms of the R.E.A. and every one on the site
operated as a direct employee of the Company.
2. The bricklayers concerned do not have a genuine case for
compensation as they were made redundant on site only when all
work remaining in the Company's contract was complete. The
Company has always, as is the general practice in the
industry, with some exceptions, treated each site as a
separate unit. Notwithstanding the fact that the general
custom and practice within the Company is that the site staff
of each particular site have the freedom to recruit their own
team of workers, no other site was recruiting bricklayers at
the time these workers were made redundant. This is borne out
by the number of bricklayers employed by the Company since
then. The Company had 18 bricklayers working on their Dublin
sites in September, 1990, 20 in October, 27 in November, 26 in
December, 9 in January, 1991, 7 in February and presently has
4 bricklayers employed. It is generally accepted in the
industry that each site is treated as a unit and only on
occasions contact between individual foremen forms the basis
of any transfers that take place within a company. In all the
circumstances, the Union's claim should be rejected.
RECOMMENDATION:
5. The Court having considered the oral and written submissions
of the parties finds that on the date the workers were made
redundant further work was necessary on site.
In all the circumstances the Court considers the workers concerned
in full and final settlement of their claim should receive
compensation in the amount of #10,000. This sum to be divided by
the workers in such manner as they consider appropriate.
~
Signed on behalf of the Labour Court
Tom McGrath
_______________________
23rd April, 1991 Deputy Chairman.
U.M./J.C.