FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : E P LYNAM PROPERTIES LIMITED (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Construction Industry Registered Employment Agreement - wages and conditions of employment.
BACKGROUND:
2. The Union's case:the Company has refused to employ two workers (bricklayers) on its Dublin 15 site in accordance with the terms and conditions of Section 10 of the Registered Employment Agreement (REA). It claims that the workers were employed through a sub-contractor who was non-compliant with the REA in that he was not in the pension scheme. The Union visited the site and informed the employer of the situation. The employer informed the Union that it would continue to use the sub-contractor and had no intention of employing the two workers directly. The Company stated that in June, 2006, the two workers were, in fact, self employed, and that the REA did not apply.
Company's case: The Company currently has 14 employees on two sites in Dublin. The Company was contacted by the Union in April, 2006, about the two workers. It informed the Union that it had used a sub-contractor for 15 years and had no previous complaints from the Union. Each of the bricklayers engaged by the sub-contractor are on a RCT 1 basis and, therefore, are self employed. The sub-contractor requested that each bricklayer become a member of the CIF pension scheme. The applications were refused as the scheme only accepts employees in the construction industry and, as the workers were employed on a RTC 1 basis, the scheme did not apply to them.
DECISION:
The Court has carefully considered this case in the light of the Judgement of the High Court inBuilding & Allied Trades Union and Another v The Labour Court and Others,Unreported, Murphy J. 15th April, 2005, and its consideration of the terms "worker" and "employer" by reference to Section 23(1) of the Industrial Relations Act 1990 which states
"(1) In the Industrial Relations Act, 1946 to 1976, and this Part, "worker" means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include- {not relevant}
He subsequently summarised as follows:
"....It seems, accordingly, that a 'worker' is wide enough to include an individual sub-contractor. The sub-contracting company, on the other hand would appear to be an employer as defined by S. 8 of the Act. Accordingly, both a worker as an individual sub-contractor or sub-contractor as an employer of workers would appear to be within the ambit of the Registered Employment Agreement of 1967".
The Court would also direct the parties to its decisions in the cases of Mythen Brothers & BATU (REA 0591) of 14th December, 2005, and Patrick McKevitt & BATU (REA 0595) of 22nd December, 2005.
The Court, accordingly, finds that the workers concerned provide their services personally and are workers within the meaning of the Industrial Relations Acts 1946 to 2004 and are thus encompassed by the Agreement. For this purpose the Respondent must be regarded as their employer. The Court directs that the Respondent comply with the terms of the Registered Employment Agreement in accordance with Section 32(1)(b) of the Industrial Relations Act, 1946.
Signed on behalf of the Labour Court
Raymond McGee
19th January, 2007______________________
CON/MC.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.