FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ZOE DEVELOPMENTS LIMITED (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Rates of pay.
BACKGROUND:
2. The Union is in dispute with the Company over rates of pay for bricklayers. The Company employ two categories of bricklayers, (a) those on the PAYE system; and (b) those on the C45 system (self employed). It employs approximately 400 people.
The Union represents bricklayers on the PAYE system. The current rates for bricklayers in the Company are as follows:-
PAYEC45
Brick £23 per 100 -£30 per 100
Block £26 per 100 - £30 per 100
Block on edge £52 per 100 - £60 per 100
Dayworks rate £10 - £13.50
The Union is seeking the following increases for its members from the 1st of November, 1997:-
Brick - £50 per 100
Block - £60 per 100
Block on edge - £60 per 100
Dayworks rate - £15
The Union claims that the Company has operated a duel piecework and day work payments system for a number of years. It claims that bricklayers employed on the PAYE system are paid inferior rates to bricklayers employed on the C45 (self employed) system.
The Company rejects the Union's claim and states that the rates of pay being claimed by the Union are excessive. Furthermore, all bricklayers in the Company will be on the PAYE system with effect from the start of the new tax year.
As no agreement was possible between the parties the dispute was referred to the Conciliation Service of the Labour Relations Commission. Conciliation conferences were held on the 6th and 24th of February, 1998 and on the 19th and 30th of March, 1998.
At the conciliation conference on the 30th of March, 1998 the Company put forward its final offer as follows:-
Brick - £30 per 100
Block - £32 per 100
Block on edge - £52 per 100
Dayworks rate - £10.85
The Union rejected the offer. As no agreement could be reached the dispute was referred to the Labour Court on the 7th of April, 1998 under Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 24th of April, 1998.
UNION'S ARGUMENTS:
3. 1. Bricklayers employed on the PAYE system are paid lower rates of pay than those employed under the C45 (self employed) system.
2. The rates of pay in the Company are less than those paid by comparable companies in the construction industry.
3. The Company has not applied increases to piecework or day rates due under the Programme for Competitiveness and Work (PCW) and Partnership 2000.
4. The Company has reaped the benefits of a buoyant property market. The rates sought by the Union are reasonable and should be conceded.
COMPANY'S ARGUMENTS:
4. 1. The Company are house builders and not main contractors. The rates being claimed by the Union are those paid by main contractors.
2. The Company could not sustain the type of increases being sought by the Union.
3. The Company made an offer at conciliation which should be accepted by the Union.
4. Concession of the claim will lead to repercussive claims from other workers within the Company.
5. The claim is in breach of the terms of Partnership 2000.
RECOMMENDATION:
It would appear from the written and oral submissions, and clarifications sought by the Court, that the elements of this case can be classified as follows:-
A. A straight forward pay claim,
B. The issue of retrospection,
C. The perceived loss of earnings arising from the change over to
employee from contractor status of a number of the claimants.
The Union claimed that increases due under Partnership 2000 or PCW had not been paid, that rates paid by this Company were out of line with comparable companies and that individuals were losing considerably by transferring from contractor to employee.
The Company argued that its offer to the Union had taken into account the Partnership 2000 and PCW payments, had been increased to take account of retrospection and the issue of transfer to employee from contractor.
While the Company accepted that its offer was substantially above the provisions of Partnership 2000, it nevertheless prevailed upon the Court to reject the claim of the Union on the grounds that its claim was in breach of Partnership 2000.
Having considered all the information supplied, the Court is not in a position to make an informed judgement on whether the offer is reasonable in the circumstances, as no information was supplied on comparable employments, and no breakdown was given on clarifying what elements of the offer comprised Partnership 2000 and PCW payments including retrospection. It was also not clear how much of the offer was compensation for loss due to transfer from contractor to employee status.
In the circumstances, the Court is not in a position to make a recommendation on A or B above but in regard to claim C recommends as follows:-
the costs, heretofore borne by each individual as a subcontractor, should be evaluated (e.g., loss of wages during holidays, pension premiums, etc.,) and deducted from the gross amount paid by the employer so that the actual wages now being paid to the individual as an employee can be compared on a like for like basis with his income as a contractor. These figures should be agreed by both parties. If there is a difference, the parties should deal with how this is to be resolved and may, if necessary, refer this aspect back to the Court for a recommendation.
Signed on behalf of the Labour Court
Finbarr Flood
14th May, 1998______________________
L.W./D.T.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.