FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : VALWIN LIMITED, TRADING AS GLANMIRE PRECISION (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - A WORKER (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation Ir8037/02/MR.
BACKGROUND:
2. The appeal concerns a worker who has been employed by the Company as a maintenance fitter since May, 2001. The Union claimed that since that time the Company refused to pay pension contributions on behalf of the claimant to the Construction Federation Operatives Pension Scheme (CFOPS). The claimant was briefly employed by the Company in 1991 when it paid contributions to the scheme. The claimant was employed by a number of companies between 1974 and 2001 and those employers had made contributions to the scheme. However Glanmire Precision had refused to make contributions on behalf of the claimant to the scheme since May, 2001. The Company rejected the claim stated that it was a mechanical engineering firm exclusively engaged in work related to process engineering and was not a building firm for the purposes of the Construction Industry's Registered Employment Agreement (REA). The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 6th December, 2002 the Rights Commissioner issued his recommendation as follows:
"In these circumstances I recommend that Glanmire Precision should agree , on an exceptional basis, to regard the worker as being covered by the Pension Scheme, and that the Company and the worker should agree to make the appropriate on-going payments to the Scheme from an early date, with full retrospection to May, 2001. In return, the worker and the TEEU should accept the making of these payments in full and final settlement of their claim.
(The worker was named in the Rights Commissioner's recommendation).
On the 18th December, 2002 the Company appealed the recommendation to the LabourCourt. The Court heard the appeal in Cork on the 26th March, 2003.
COMPANY'S ARGUMENTS:
3. 1. The Company is a member of the Mechanical Engineering Contractors Association (MECA), which is a constituent association of the Construction Industry Federation(CIF).The Company is engaged exclusively in work relating to process engineering and employs craftsmen in the following disciplines:-
Mechanical Welders
Welders
Mechanical Turners
The claimant is employed as a mechanical fitter which is a category of worker not covered by the REA.
2. Fitters employed by mechanical engineering companies are subject to a completely separate wage agreement (MECA) agreement which sets wage rates and provides for their revision annually without any recourse to the REA.
3. The claimant was employed for three days by the Company in 1991 when it was Company policy to enter all manual employees in the CFOPS. Two weekly contributions were made to the CFOPS in respect of him at that time.
4. In 1995 the Company received advice that the terms of the REA did not apply to it or its employees, and ceased making CFOPS contributions for new employees. Existing employees continued to have CFOPS contributions made in respect of them. At present the Company has one manual employee who commenced work prior to 1995. This worker is the only employee in respect of whom CFOPS contributions are now made by the Company.
5. There is recent precedence where the Labour Court recommended that a mechanical engineering company, engaged in similar work to Glanmire Precision, is not covered by the terms of the REA, (LCR 17221 refers).
6. The Company sees no basis for the Rights Commissioner's recommendation that the terms of the REA should be applied in respect of the claimant. The Company does not accept that he should be considered an exceptional case in isolation from every other employee in the Company.
UNION'S ARGUMENTS:
4. 1. During the worker's brief term of employment in 1991 the Company made contributions to the CFOPS on his behalf. It continues to make contributions on behalf of other workers in the employment.
2. The claimant has been contributing to the CFOPS since 1974. The consequences of the Company not making contributions to the scheme have significant consequences for the claimant. His ability to fund his pension plan to secure a retirement pension is put on hold. In the event of his demise there is a question mark over the provision of life cover for his family. His sick pay entitlements are affected.These difficulties, from a humane and moral point of view, must be addressed.
3. The worker is prepared to make the necessary payments to cover his contributions, backdated to May, 2001.
4. The Company's refusal to accept the Rights Commissioner's recommendation has added to the claimant's hardship and insecurity.
DECISION:
The Rights Commissioner found that neither the claimant nor the employer were covered by the Construction Industry REA.
However, he went on to recommend that "on an exceptional basis" the Company "should agree to make the appropriate ongoing payments to the scheme" with full retrospection.
The Court is of the view that as the Company is not covered by the REA it should not be obliged to make ongoing contributions.
Noting the comments made by the Rights Commissioner in relation to the claimant's working history, and his contribution to the pension scheme over many years, the Court recommends that the Company, as outlined in the Rights Commissioner's recommendation, pay the contributions to the Pension Scheme for this employee from May, 2001. However, these contributions should only be paid up to May, 2003 and not on an ongoing basis.
The employee should accept that from May, 2003 he is responsible for arranging his pension requirements.
The Rights Commissioner's recommendation to be amended accordingly.
Signed on behalf of the Labour Court
Finbarr Flood
8th May, 2003______________________
TODChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.