FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : MCCARTHY BROTHERS (CONTRACTORS) ENNIS LTD - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Alleged breach of the Construction Industry Registered Employment Agreement (Construction Industry Wages and Conditions of Employment).
BACKGROUND:
2. The Union alleges that the Company is in breach of the Construction Industry Registered Employment Agreement (Construction Industry Wages and Conditions of Employment). The Union contends that in this case the breach relates to Clause 10, Engagement of Sub-Contractors and Clause 11, Procedure for Settling Grievances and Disputes.
The Union's case is that the workers had sought and obtained employment at the Caherconlish site in Co. Limerick with Mr. McCarthy, Company Director, in July 2005. Two weeks after the workers started on site they were surprised to be informed by the foremen that they were actually working for a ground-works sub-contractor. The workers advised the foreman that they had sought and gained work directly with the main contractor. It was their understanding that they were working directly for McCarthy Brothers Limited. The workers informed the Union of the events and were then laid off by the Company. Upon investigation, the Union found that the sub contractor was not an approved subcontractor as defined by Clause 10(a) of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment). The Union further contends that the Company continues to engage an unapproved sub-contractor on the Caherconlish site in Co. Limerick.
On the 9th January, 2006 the Union referred the complaint to the Labour Court under Section 32 of the Industrial Relations Act, 1946. A Labour Court hearing was held on the 21st June, 2006
DECISION:
The case before the Court concerns a breach of the Register of Employment Agreements (Construction Industry Wages and Conditions of Employment). The Union submitted that the Employer was in breach of Clause 10, “Engagement of Subcontractors” and Clause 11, “Procedures for Settling Grievances and Disputes”. In particular, the complaints relate to the following :
- “The Company continues to engage an unapproved sub-contractor on his site at Caherconlish. Co. Limerick.
All attempts by the Union to resolve this dispute through the disputes procedure of the Registered Employment Agreement have been frustrated by the employer”.
Clause 10
- ENGAGEMENT OF SUB-CONTRACTORS
The parties agree that contractors and sub-contractors covered by the Registered Employment Agreement for the Construction Industry should be free to engage approved contractors in any trade or activity in the industry. For the purpose of this agreement, approved sub-contractors are defined as follows: -
They must comply with the terms of the Registered Employment Agreements for the industry.
- (a) They must employ the appropriate grades of trade union labour.
(b) They must supply material as well as labour in those sectors of the industry where this has been normal practice.
(c) They must comply with the Social Welfare Acts and Section 17 of the Finance Act, 1970 as amended by the Finance Act, 1995 and they must conform to the guidelines issued by the Revenue Commissioners under the Finance Act, 1995.
(d) They must maintain a safe and healthy environment and comply with the provisions of the Safety in Industry Act, 1990.
(e) They must carry employers’ liability insurance in respect of their employees and the work in which they are engaged unless this cover is provided by the main contractor or the client.
(f) They must employ appropriate numbers of apprentices relative to the number of craft workers employed.
(g) They must, if in a labour only category, give security in a manner to be determined from time to time by the NJIC for the ConstructionIndustry against default in respect of any liabilities they may have to employees.
Clause 11.
PROCEDURE FOR SETTLING GRIEVANCES AND DISPUTES
If a trade dispute occurs between workers to whom this Agreement relates and their employers, no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with and the Labour Court has issued a recommendation.
Category A Disputes
For the purposes of this Agreement questions concerning local matters or matters of an individual nature are regarded as category A disputes. Where these disputes arise, the following procedure shall be complied with :- (a) The grievance or dispute shall in the first instance be discussed between the parties concerned. If the dispute is not resolved within 3 days it may be referred to the trade union concerned and, where appropriate, the Construction Industry Federation (CIF). Notice in writing of the dispute shall be given by the individual concerned or his trade union to the CIF.
(b) If the dispute is not resolved within 7 days, or such longer period as may be mutually agreed, the issue may be referred to a Construction Industry Disputes Tribunal (CIDT).
(c) The CIDT will issue a decision within one week. The decision of the CIDT, where unanimous, shall be binding.
(d) Other decisions may be appealed to a Rights Commissioner, the Labour Relations Commission or the National Joint Industrial Council (NJIC) as appropriate.
(e) If the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.
The Tribunal shall be established to deal with Category A disputes as defined above. The Tribunal will consist of the following:- - Independent Chairman. The Chairman of the NJIC may act as the independent Chairman in this regard
- one employer representative to be nominated by the employers’ side of the NJIC
- one trade union representative to be nominated by the employees’ side of the NJIC
Category B Disputes
For the purposes of this Agreement questions concerning wages, working hours and conditions of employment in the industry are regarded as Category B disputes.
Where these issues arise, the following procedure shall be complied with :
(a) Any grievance or dispute that arises between workers and employers covered by this Agreement will in the first instance be discussed between the parties concerned and their trade unions.(b) Where the issue remains unresolved after (a) above, it shall be referred to the NJIC. The Secretary of the NJIC, within 3 days of receiving written notification of the dispute from either of the parties involved, shall arrange a meeting to discuss the issue in dispute.
(c) If after a meeting of the NJIC the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.’ - (a) The grievance or dispute shall in the first instance be discussed between the parties concerned. If the dispute is not resolved within 3 days it may be referred to the trade union concerned and, where appropriate, the Construction Industry Federation (CIF). Notice in writing of the dispute shall be given by the individual concerned or his trade union to the CIF.
- ENGAGEMENT OF SUB-CONTRACTORS
In October 2005 the Union stated that it became apparent that the Company would not employ the two named bricklayers as previously agreed and the matter was transferred to the Construction Industry Disputes Tribunal on 13th October 2005. When the Company refused, the Union referred the dispute again on 8th November 2005 and again on 15th November 2005.
The Union informed the Court that to date the sub-contractor is still not compliant with the terms of the Registered Employment Agreement (Construction Industry Pension Assurance and Sick Pay).
The Company stated to the Court that a hearing date had been set for 16th May 2006 to have the matter dealt with at the Industry Disputes Tribunal, this date was cancelled, and it was now awaiting a new date. The Company stated that the Union had acted prematurely in referring this case to the Labour Court and that it breached the disputes procedures in referring it to both the Construction Industry Disputes Tribunal and the Labour Court.
The Company stated that this was the first time that the Union had raised the issue of the Company being in breach of Clause 10 of the REA on the Use of Sub-Contractors. It held that the sub-contractor had held that it was in compliance with the terms of the REA. When questioned by the Court, the Company gave an assurance that it would check the status of the sub-contractor to ascertain its compliance with Clause 10 of the REA.
Decision of the Court
In accordance with Section 32(1)(b) of the Industrial Relations Act 1946 the Court directs the Employer herein to proceed along with the Trade Union to comply with Clause 11 of the Agreement “Procedures for Settling Grievances and Disputes”, within the time frame laid down in the agreement.
The Court directs the Employer to produce proof that John McInerney Construction Limited are in full compliance with the Registered Employment Agreement (Construction Industry Pension Assurance and Sick Pay and if it is not in compliance, the unapproved subcontractor should be disengaged from the work in which the Employer is involved.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th_July, 2006______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.