FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MCCABE BUILDERS LIMITED (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES' UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR877/98/CW.
BACKGROUND:
2. The appeal concerns one worker who has worked for the Company, in the capacity of bricklayer, from September, 1996. The worker's employment was on a "C45" basis despite, the Unions claims, his numerous requests to be treated as a PAYE worker, up to the time his employment basis was, ultimately, changed to that of PAYE employee, in October, 1998. The Company rejected the Union's claim.
The dispute was the subject of an investigation by a Rights Commissioner. He considered that the worker should "apply to the Scope Section of the Department of Social, Community and Family Affairs for a decision as to whether he is an employee, or not." The Rights Commissioner recommended that the worker accept that he "has no entitlement at the moment to the benefit which he seeks." The Union appealed against the Rights Commissioner's recommendation, on the 15th of March, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 1st of June, 1999, the earliest date suitable to both parties.
UNION'S ARGUMENTS:
3. 1. During the worker's period of employment as a C45 worker he made numerous requests to the Company to be treated as a PAYE employee. At no time did he ever actually confirm that he was employed as a sub-contractor, either verbally or in writing, nor was he responsible for determining his hours of work.
2. In August, 1998, the worker and the Company reached agreement that he would be employed on a PAYE basis. The Company failed to implement this agreement at the time. In October, 1998, when a number of bricklayers with the Company demanded that they be employed as PAYE workers, the Company agreed to do so. All bricklayers, including the claimant, employed on the Company's sites are now employed on a PAYE basis.
3. The worker is entitled to have his right to have been re-classified as a PAYE worker acknowledged by the Company, from the time he applied to be so re-classified. He should be compensated for losses incurred arising from the Company's failure to accede to his request for re-classification.
COMPANY'S ARGUMENTS
4. 1. The worker agreed to work as a sub-contractor whereby he was responsible for and controlled the amount of bricklaying he carried out on a daily basis. He also determined his own hours of work and was employed in accordance with this system for over two years.
2. An agreement was reached between the worker and the Company on the rates he was to be paid for the work he produced. The amounts agreed were inclusive of all allowances and expenses which he may have incurred in the course of his work.
3. The Company deducted income tax from the worker's s payments in accordance with the RCT1 schedule to taxes as determined by the Revenue Commissioners.
4. The worker did not raise the issue of holiday pay or any other allowances until he sought direct employment with the Company.
DECISION:
The Court has given careful consideration to the issue in dispute and finds as follows:-
The appellant should be recognised as having employment status from the date he officially notified the Company of his request to be treated as an employee which, the Court notes, was in August, 1998.
The Court is satisfied that there is no evidence to indicate the matter had been raised formally by the appellant with the employer, prior to August, 1998, even though he could have availed of the facility of his Trade Union official to make such a claim.
When the issue was raised with management in August, 1998, his position was re-negotiated and he was, subsequently, placed in a formal employment relationship from October, 1998.
Classification as an employee or contractor is not a matter of description but is dependent on the reality of what the person does, how they do the job and the terms attached to doing the job. *Form RCT1 (agreed between the Unions, the CIF and the Revenue Commissioners, in May, 1996, when the issue of contractors was regularised with the Revenue Commissioners) clearly spells out the criteria to be used to determine whether one is an employee or a self-employed contractor. Those guidelines are in place to avoid disputes between the parties and should be strictly adhered to in the future.
The Rights Commissioner's Recommendation should be amended accordingly.
The Court so decides.
* Note:The Revenue Commissioners guideline IT63 Guide for Principal ContractorsRelevant Contracts Taxpage 4Sub-Contractor or Employeeis a helpful guide.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th July, 1999.______________________
MK/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.