Labour Court Database __________________________________________________________________________________ File Number: CD94158 Case Number: INT942 Section / Act: S33(1) Parties: MACHALE PLANT HIRE LIMITED - and - CONSTRUCTION INDUSTRY FEDERATION |
Interpretation of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) ('the Employment Agreement') and its application to 27 workers.
Recommendation:
The Employment Agreement which was registered in the Register
of Employment Agreements of 15th March, 1967 is an agreement
which, in its application to labourers, is national. Labourers,
who are also known under the less pejorative term "General
Operatives", have always been identified in the building industry
as those on-site workers who were required to do, and were capable
of doing, a number of tasks, including the handling of machinery.
As machinery became more sophisticated and some training required
for its use, labourers capable of operating such machinery were
compensated for their additional skills and responsibilities by
"plus rate" supplements to their basic rates of pay. In November,
1992 the Construction Industry Federation and the Irish Congress
of Trade Unions agreed to formalise such "plus rates", and agreed
that labourers (described in that agreement as Construction
Operatives) would thenceforth be graded on the basis of skill and
experience, with corresponding rates of pay. There are now
therefore four Construction Operatives grades which are applied to
non-craft workers in the Construction Industry. Within those
grades are to be found the Machine Operators whose category is at
issue in this case.
It is significant that in the Construction Industry there are only
two classes of workers and two rates of pay, namely craftsmen
(with the craft rate) and labourers (with the General Operatives'
rate). Where a labourer has acquired an expertise and takes on
additional responsibilities, he acquires a different grade, and
receives additional payment. The Court is therefore satisfied
that while the REA makes no reference to Machine Operators, in
fact such workers are, by custom and practice within the
Construction Industry, actually labourers (i.e. General
Operatives) who are graded for payment purposes in accordance with
their skills and experience.
The Court decides that the Registered Employment Agreement
(Construction Industry Wages and Conditions of Empoyment) applies
to the 27 workers named in the Appendix hereto, the same being
covered under the term "Labourers (i.e. General Operatives)" in
Clause 2 (Classes of Workers to which this Agreement applies).
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD94158 INTERPRETATION NO. INT294
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946
PARTIES:
MACHALE PLANT HIRE LIMITED
AND
CONSTRUCTION INDUSTRY FEDERATION
SUBJECT:
1. Interpretation of the Registered Employment Agreement
(Construction Industry Wages and Conditions of Employment)
('the Employment Agreement') and its application to 27
workers.
BACKGROUND:
2. 1. On 10th May, 1993, the Labour Court issued REA 1393 in
the matter of a complaint under section 10 of the
Industrial Relations Act, 1969 by the Construction
Industry Federation ('the Federation') against MacHale
Plant Hire Limited ('the Company'). The Court found as
follows:-
"The Court, having considered the complaint and having
heard all persons appearing to the Court to be
interested and desiring to be heard, is satisfied that
the said MacHale Plant Hire Limited is an employer
affected by the Employment Agreement as varied, and
that the complaint is well founded.
The Court, by virtue of the powers conferred upon it
by Section 10(1)(b) of the Industrial Relations Act,
1969, hereby directs the said MacHale Plant Hire
Limited ('the Company') to (a) discover to an official
of the Construction Federation Operatives Pension/Sick
Pay Schemes the employment records of all workers
employed by the Company from 5th April, 1990 to date
to whom Employment Agreement as varied applied; (b) to
pay such contributions to the Construction Federation
Operatives Pension/Sick Pay Schemes as will affect
pension and mortality and sick/pay insurance cover for
all such workers from 5th April, 1990 to date and (c)
to maintain pension, mortality and sick pay insurance
cover for all workers in the Company employment to
whom the Employment Agreement as varied applies on
terms not less favourable than those set out in the
said Agreement."
2. On 14th January, 1994, the Federation wrote to the Court
seeking an interpretation under Section 33 of the
Industrial Relations Act, 1946 in relation to 27 named
employees or former employees of the Company (see
Appendix). The Labour Court considered the oral and
written submission of the parties as well as
supplementary correspondence received from both parties.
FEDERATION'S ARGUMENTS:
3. 1. In REA 1393, the Court found that the Company was an
employer affected by the Employment Agreement as varied,
and that the complaint made was well founded. The
Company has failed to carry out the Order of the Court.
2. The Company is engaged in demolition, site development
and civil engineering works. The majority of its
workers are engaged as truck drivers and earth moving
machine operators. Truck drivers are specifically
mentioned in section 2(b) of the Employment Agreement
and machine operators are covered under Section 2(c)
where it specifies general operatives. Machine drivers
are general operatives with a "plus" payment and are
therefore covered under the Employment Agreement.
3. It is the Federation's contention that the general
operative, given the proper training, should have the
ability to operate any item of plant. The level of
skill attained is reflected in the "plus" payment which
he receives. In Interpretation No. 1 of 1986, the Court
found that "Laggers" were covered by the Employment
Agreement under the general description of
"Labourers/general operatives" (details supplied).
COMPANY'S ARGUMENTS:
4. 1. The Construction Industry Federation as the body making
a complaint against the Company is obliged by law to
satisfy the Court in every way that the complaint is
well founded.
2. Because of the nature of the legislation, both the
statute and the Employment Agreement must be strictly
construed in favour of the Company. The effect of
inclusion in the statutory scheme is that workers secure
certain pension and assurance rights. However, there is
no degree of selectivity or choice on the part of the
workers or employers as to the level of rights secured
by them or the level of contribution. The scheme is
therefore a scheme of taxation and in such
circumstances, the Court must construe the scheme as
being of the narrowest application consistent with the
words used both in the statutes and in the Employment
Agreement itself.
3. Many of the workers employed by the Company do not fall
within the class of workers covered by the Employment
Agreement, as defined at Clause 2 thereof following its
fifteen variations by the Court. The class of workers
described at Clause 2 of the Employment Agreement is
very strictly defined and the Court is obliged to
interpret it strictly. There is no statutory or legal
reason why the Company's workers could not have been
included in the Agreement as originally drafted or
amended over the years. Accordingly, the complaint in
as much as it relates to these workers is not well
founded.
INTERPRETATION:
The Employment Agreement which was registered in the Register
of Employment Agreements of 15th March, 1967 is an agreement
which, in its application to labourers, is national. Labourers,
who are also known under the less pejorative term "General
Operatives", have always been identified in the building industry
as those on-site workers who were required to do, and were capable
of doing, a number of tasks, including the handling of machinery.
As machinery became more sophisticated and some training required
for its use, labourers capable of operating such machinery were
compensated for their additional skills and responsibilities by
"plus rate" supplements to their basic rates of pay. In November,
1992 the Construction Industry Federation and the Irish Congress
of Trade Unions agreed to formalise such "plus rates", and agreed
that labourers (described in that agreement as Construction
Operatives) would thenceforth be graded on the basis of skill and
experience, with corresponding rates of pay. There are now
therefore four Construction Operatives grades which are applied to
non-craft workers in the Construction Industry. Within those
grades are to be found the Machine Operators whose category is at
issue in this case.
It is significant that in the Construction Industry there are only
two classes of workers and two rates of pay, namely craftsmen
(with the craft rate) and labourers (with the General Operatives'
rate). Where a labourer has acquired an expertise and takes on
additional responsibilities, he acquires a different grade, and
receives additional payment. The Court is therefore satisfied
that while the REA makes no reference to Machine Operators, in
fact such workers are, by custom and practice within the
Construction Industry, actually labourers (i.e. General
Operatives) who are graded for payment purposes in accordance with
their skills and experience.
The Court decides that the Registered Employment Agreement
(Construction Industry Wages and Conditions of Empoyment) applies
to the 27 workers named in the Appendix hereto, the same being
covered under the term "Labourers (i.e. General Operatives)" in
Clause 2 (Classes of Workers to which this Agreement applies).
~
Signed on behalf of the Labour Court
30th August, 1994 Tom McGrath
J.F./D.T. _______________
Deputy Chairman
APPENDIX
NAME P.R.S.I. NUMBER
1. John Farrell 6065763 N
2. Anthony O'Donnell
3. Sean Morris 2049684 D
4. Joseph Eustace 2837407 Q
5. M.Keogh
6. O. Gilhooley
7. Val Harris 6084473
8. Denis Garvey
9. Edward Devlin
10. Michael Gallagher
11. Patrick Foster 2435287 B
12. John Ward
13. P. Flynn
14. Patrick O'Brien 5893101 J
15. M. Mulryan 6132366 J
16. P. Nugent
17. J. Finn 2382249 R
18. K. O'Connor 2389160 N
19. T, Gilsenen 2397847 W
20. M.Keating 2909117 I
21. N. Mansfield 3857323 H
22. V. Olwill 6165587 M
23. D. Rooney 2973053 S
24. H. Kiernan 2878441 W
25. P. Garrigan
26. D. Courtney
27. D. Geary 5310561 O