FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CLONMEL ENTERPRISES LIMITED (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Ms Owens Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Dismissal.
BACKGROUND:
2. Clonmel Enterprises Limited is a Civil Engineering Contractor based in Dublin. It is engaged as the main contractor on the Leopardstown Bypass for Dun Laoghaire/Rathdown County Council.
The dispute concerns the dismissal of two workers. The workers concerned commenced employment as bricklayers on the Leopardstown Road site on the 24th February, 1997. They were dismissed on the 27th February, 1997.
On the 25th February, 1997 the Union on behalf of the workers sought information in relation to the status of their employment. It was informed that the bricklaying work was being carried out by a subcontractor. The Union sought information on the subcontractor.
The Company, by letter of the 5th March, 1997, informed the Union that all bricklayers now on site are employed directly by Clonmel Enterprises.
The Company's position is that it transpired that the subcontractor did not have a tax clearance certificate and, therefore, could not operate on site. With a view to minimising disruption it decided to employ directly six bricklayers employed by the subcontractor. As there was only sufficient work for six bricklayers, the two workers concerned were not employed as they were the last in.
The Union argues that the manner in which the workers were taken on, supervised on site etc., gave the clear impression that they were employed directly by the Company, and it is Union policy that members cannot work for subcontractors.
The matter was referred to the Labour Relations Commission. A conciliation conference took place on the 21st May, 1997. As agreement could not be reached the dispute was referred to the Labour Court on the 3rd June, 1997 under Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 9th July, 1997.
UNION'S ARGUMENTS:
3. 1. It was the workers' understanding that they were employed directly by Clonmel Enterprises. The manner in which they were supervised on site gave the clear impression that they were employed by Clonmel Enterprises. On reporting for work they were instructed by the site-engineer.
2. The Company has employed five bricklayers since the workers' dismissal. The Union is concerned that the workers were dismissed and not considered for further employment because of the Union's request for information on the status of their employment.
3. The Department of Finance and the Department of the Environment have issued directives to companies engaged on Government projects to ensure that subcontractors fully meet the obligations laid down under the Construction Industry Registered Employment Agreement. On this occasion, Clonmel Enterprises failed to conform with the conditions of its contract with Dun Laoghire/Rathdown County Council.
4. The Union is satisfied that the workers concerned and Clonmel Enterprises respectively are the employees and the employers and are the contracting parties for the purpose of the Registered Employment Agreement. In the circumstances, the Union is seeking that the workers be reinstated without loss of pay.
COMPANY'S ARGUMENTS:
4. 1. No contract of employment existed at any stage between Clonmel Enterprises and the workers concerned. No dispute can exist between the Company and the claimants as they are not workers as defined under the Industrial Relations Act, 1946.
2. The Union's allegation that the use of a bricklaying subcontractor is illegal is untrue. In December, 1966 the National Joint Industrial Council for the Construction Industry ratified an agreement which existed between the Construction Industry Federation and the Irish Congress of Trade Unions which provided for the use of subcontractors in all trades and activities in the Industry.
3. The workers sought employment from the subcontractor on site. The parties agreed rates of pay for the job and the workers were instructed to report for work by the subcontractor.
4. It is the Company's contention that no dismissal has taken place as the workers concerned were not employed by Clonmel Enterprises. Should the Court decide that a dismissal has taken place, then the Company would argue that under the Registered Employment Agreement dismissals are the prerogative of the employer. In this instance the Company did not require all the bricklayers on site and selected the claimants for dismissal as they did not have the experience of the other bricklayers on site.
RECOMMENDATION:
Having considered the submissions, and on the basis of the evidence presented, the Court has concluded that Clonmel Enterprises Limited were not the employer of the claimants. The Court is satisfied that they were in the employment of Mr. Johnson - a subcontractor on the site.
In the circumstances, the Court recommends payment of £2,000 (gross) to each claimant in full settlement of the claim.
Signed on behalf of the Labour Court
Evelyn Owens
22nd July, 1997______________________
F.B./D.T.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.