FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : G AND T CRAMPTON (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr McGrath Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Dispute concerning the employment of 10 bricklayers.
BACKGROUND:
2. On 16th June, 1997 three of the workers concerned commenced work on the Company's site at Dublin City University. The workers believed that they were in the direct employment of the Main Contractor G & T Crampton. The Company maintained that the workers were employed by a sub-contractor M. J. Lambee & Co. Considerable confusion arose as a result of which G & T Crampton decided to suspend all work pending clarification of the position. An industrial dispute arose and the site was picketed by the workers. The Company applied to the High Court for an interlocutory injunction restraining the Union and its members from breaching the grievance and disputes procedures under the Registered Employment Agreement for the Construction Industry. The Union gave an undertaking to the Court to desist from picketing pending the resolution of the issue through agreed procedures. The Company stated that the High Court indicated that the three bricklayers were employed by Lambe & Co. in accordance with the Registered Employment Agreement. Since that time a further 7 bricklayers have been employed by Lambe & Co. The Union wants an undertaking that these 10 workers will be retained by G & T Crampton when the Lambe contract is finished. The Company states that it is not the employer and could not give such an undertaking. The dispute was referred to the Labour Relations Commission and a conciliation conference was held on the 9th September, 1997. Agreement was not possible and the dispute was referred to the Labour Court by the Labour Relations Commission on the 9th September, 1997. A Court hearing was held on the 22nd September, 1997. A letter recommendation was issued on the 4th of November, 1997.
UNION'S ARGUMENTS:
3. 1. Since commencing work on the DCU site the bricklayers have effectively been under the direction and control of G & T Crampton. Its staff supervise the bricklayers on a day to day basis. G & T Crampton staff have been in negotiations with the Union on every issue which has arisen relating to bricklaying work since the contract commenced.
2. The workers concerned have a right to be employed on terms and conditions of employment consistent with the Registered Employment Agreement for the Construction Industry. G & T Crampton want to subcontract bricklaying work without any regard for the quality of employment offered to the workers concerned and to the terms of the REA for the Industry.
3. The Company has stated that bricklaying subcontracting is the norm for the industry. This is not the case. Most of the Company's main competitors employ bricklayers on a direct basis.
4. The workers concerned have worked on this site since bricklaying work commenced. On completion of the sub-structure, on which work the employees are presently engaged, another contractor will be engaged to carry out the superstructure. This constitutes the main brick-laying work on the total contract. This may result in the bricklayers concerned facing dismissal, despite the fact that the main section of brick work has yet to commence. The workers concerned have a right to seek continued employment on the site for the duration of the contract. This is consistent with the normal industry practice for bricklayers.
COMPANY'S ARGUMENTS:
4. 1. A trade dispute does not exist between the Company and the Union on the DCU site as no employer/worker relationship exists. The Union acknowledged in the High Court that its members were in the employment of M J Lambe and Sons Ltd.
2. It is custom and practice in the industry to subcontract blockwork. The Company has not employed block-layers directly on any of its sites for several years. It engages block-laying sub-contractors on all of its projects in the full knowledge of the Union.
3. It is common practice in the industry and within the Company for the blockwork to rising walls to be undertaken by the groundworks contractor and for the superstructure blockwork to be contracted to another sub-contractor.
4. The Union has separately sought the intervention of the Labour Court concerning the global issue of sub-contracting of blockwork by the Company. The Company is not alone in this regard, letters alleging breach of the Registered Employment Agreement for the Construction Agreement have been sent to several contractors including the Company, requesting the intervention of the Labour Court. The substantive issue of the employment of bricklayers has therefore already been referred to the Labour Court separately and this present reference is an effort to have the issue determined by the Labour Court in isolation and in advance of the substantive issue being investigated by the Labour Court.
5. The programme for the DCU project has been severely disrupted and delayed by several weeks and substantial financial costs have been incurred to date by the Company due to the unsatisfactory manner in which the blockwork in the substructure has proceeded. The anticipated period for completion of the substructure blockwork was 6-7 weeks. To date this activity has taken 15 weeks.
6. The Company has entered into a contract for the superstructure blockwork on the DCU site. This is a legally binding contract and the sub-contractor concerned has already commenced work on site.
7. The Union is aware of and has accepted the appointment of the sub-contractor for the superstructure blockwork, whom it met at the meeting of the 31st day of July 1997. The Union have been fully aware at all times of the Company's intention regarding the superstructure work. The Company has a contract in place for the superstructure blockwork and to induce a breach of said contract would have serious legal ramifications.
RECOMMENDATION:
The Court having considered all of the issues raised by the parties in their oral and written submissions finds:-
1. That a contract for the ground works on the site including the construction of blockwork was made by the Company (G & T Crampton) with a sub-contractor (M.J. Lambe).
2. That the workers concerned in this dispute were employed by the sub-contractor.
3. That the workers were not employees of G & T Crampton Limited.
Accordingly the Court does not recommend concession of the Union's claim.
Signed on behalf of the Labour Court
Tom McGrath
5th November, 1997______________________
T.O'D./S.G.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.