FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BRIAN MC CARTHY CONTRACTORS LTD (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Lay-off procedure.
BACKGROUND:
2. The Company is a Building & Civil Engineering Company which employs upwards of 230 employees. At the completion of works in Co Clare and Newcastlewest, Co Limerick about the end of March 2006 the workers were put on notice of redundancy or in the case of workers with less than two years' service, their employment was terminated.
The Company has stated that there was a genuine redundancy situation as they had no further work in the area. The Union claimed that a genuine redundancy situation did not exist and that the workers concerned should have been placed on lay-off or transferred to the Company's other sites outside of the area in Cork, Galway, or Waterford.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 28th August, 2006, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 16th May, 2007.
UNION'S ARGUMENTS:
3. 1.The Union wishes to enter into an agreement with the Company which will provide protection and job security for the workers who have been employed by the Company.
2. The Union has entered into agreements with many of the Company's competitors to place workers on temporary lay-off when work is not available or to give workers a written commitment regarding future employment.
COMPANY'S ARGUMENTS:
4. 1.It was not appropriate nor fair to the workers concerned to be placed on temporary lay-off indefinitely and to deny them their right to a redundancy payment.
2. The Company has issued a letter to the workers concerned in relation to future employment prospects in the Limerick area and they will be contacted when they have work available for bricklayers.
RECOMMENDATION:
This dispute arose from the dismissal of 6 members of the Union on grounds of redundancy from sites in the Limerick/Clare region. The Union firstly contends that a situation of redundancy did not exist because the Company had alternative work in Waterford, Cork and Galway, to which the workers could have been transferred. The Company contends that it is not the practice in the Construction Industry for Bricklayers to be transferred to locations outside reasonable commuting distance from where they reside or previously worked.
Secondly, the Union claims that in the circumstances prevailing the workers should have been placed on lay-off rather than being made redundant. They are claiming that in future the Company should have recourse to lay-off rather than dismissal when work ceases to be available.
The Court notes that Section 7(2)(b) of the Redundancy Payments Act 1967, as amended, provides that a situation of redundancy exists, inter alia, where:-
- "The fact that the requirements of that business for employees to carry out work of a particular kindin the placewhere he was so employed have ceased or diminished or are expected to cease or diminish" (emphasis added).
In the Court's view a genuine redundancy arose when the Company ceased to have work available in the region in which the workers normally worked. The dismissals were, accordingly, on grounds of redundancy as that term is defined and generally understood.
On the second aspect of the case, the Court accepts that at the relevant time the Company did not have any immediate or identifiable prospect of further work in the region which would require the services of the workers concerned. In these circumstances the Court is not aware of any generally accepted rule or practice in the Industry which would have required the Employer to place the workers on lay-off.
It is noted that the Company wrote to each of the workers associated with this claim giving an assurance that when it next has appropriate work in the Limerick region, it will first contact Bricklayers who have worked for it in the past and offer the work to those available at that time.
In the Court's view this is a reasonable response and it should be accepted.
In the Court's view the wider questions raised relating to when workers should be placed on lay-off and subject to recall is a matter which should more properly be pursued at the level of the Industry. Accordingly, the Court recommends that should the Union wish to pursue this claim further it should do so through the National Joint Industrial Council for the Construction Industry.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Duffy
6th June, 2007______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.