FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : ASCAL ELECTRICAL LTD (REPRESENTED BY DOYLE FLANAGAN SOLICITORS) - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Interpretation of the Registered Employment Agreement (Electrical Contracting Industry).
BACKGROUND:
2. In July 2006, the TEEU made a complaint to the Labour Court under Section 32 of the Industrial Relations Act 1946, alleging breaches of the Registered Employment Agreement (Electrical Contacting Industry) [REA]. Subsequent to the Labour Court hearing held on 17th November 2006, the Union made an application to the Court for an interpretation of Clauses 13 and 23 of the Agreement. The Union is claiming that apprentices are employees under the terms of the REA and are entitled to be registered in Pension and Mortality Schemes if over the age of 20. The Union further claims that, with regard to travelling time for employees, the Employer's registered address can be defined as a shop under Clause 13 of the REA.
A Labour Court hearing took place on 28th February, 2007.
UNION'S ARGUMENTS:
3. 1 Under Section 4 (1) of the Industrial Relations Act, 1946 an apprentice is defined as a worker. Similarly under Section 23 of the Industrial Relations Act, 1990 and Section 2 of the Industrial Training Act, 1967. For Revenue and Social Welfare purposes an apprentice is also treated as a worker despite their status as a trainee.
2 The Agreement has been varied on thirteen occasions and on each occasion the conditions applicable to apprentices as a group of workers was an intricate part of the variation.
3 Ascal Electrical Limited conduct their business from their registered address and therefore it can be defined as a shop.
COMPANY'S ARGUMENTS:
4 1 With the absence of a definition of the term "employee" in the Registered Employment Agreement, the term "employee" must be determined with reference to the common law definition.
2 The work done by an apprentice forms part of a reciprocal obligation with an employer. The work done is a necessary part of their training and therefore they cannot be designated as employees.
3 Clauses 22 and 23 of the REA, which deal with sick pay, pensions and mortality schemes establish that employees and apprentices form two separate categories of persons under the Agreement.
4 The Company do not have a shop as defined in Clause 13 of the REA as all work is carried out on site.
DECISION:
This matter came before the Court by way of a complaint by the TEEU (the Union) alleging a breach of the Registered Employment Agreement for the Electrical Contracting Industry by Ascal Electrical Limited (the Employer). The substance of the complaint is that the Employer contravened Clause 23 of the said Agreement in failing to enrol apprentices over 20 years of age in an approved pension scheme. It is further alleged that the Employer contravened Clause 6 of the Agreement in failing to pay travelling time to workers to whom the Agreement relates.
The relevant Clauses provide as follows:
Clause 23
PENSIONS AND MORTALITY SCHEME
A Pension and Mortality Scheme equal in conditions and benefits to the terms of the pension and mortality scheme of the Registered Agreement for the Construction Industry to be provided for all employees between the age of 20 and 65 years. In this connection each employee between the age of 20 and 65 years to be entered in the Construction Federation Pension and Mortality Scheme. Under the terms of this Scheme each employee is entitled to one pension scheme stamp per week to be fixed to his pension card (while in the employment of the firm) by his employer. The Scheme is contributory and the cost of each stamp is to be borne jointly by the employer and the employee. The responsibility of seeing that stamps are fixed when due rests with the employer.
Clause 6
- STARTING ON SITE
- (A) Where within a distance of 11 miles by road from the shop, an electrician starts on site instead of in the shop, travelling time shall be paid in accordance wit the following scale:-
over 4 up to 5 miles - a quarter hour per day
over 5 up to 6 miles - a half hour per day
over 6 up to 7 miles - three quarters hours per day
over 7 up to 8 miles - one hour per day
over 8 up to 9 miles - one and a quarter hours per day
over 9 up to 10 miles - one and a half hours per day
- over 10 up to 11 miles - one and three quarter hours per day
A shop is defined by clause 13 as follows:-
(a) The following is the definition of shops:-
Premises which are used for the purpose of general electrical trading as distinct from one contract or one or more contracts upon any site.
In its defence the Employer contended that apprentices are not employees and are therefore outside the scope of Clause 23 of the Agreement. It also contended that Clause 6 is inapplicable in the circumstances of the Employer as its office is not a shop within the meaning of Clause 13 of the Agreement.
Interpretation
Clause 23.
The Employer contended that the word "employee" as it appears in Clause 23 should be understood as referring to a person employed under a contract of service and not to an apprentice.
The word can be understood as a legal term of art or it can bear an ordinary colloquial meaning. As a term of art it is defined in Murdoch's Dictionary of Irish Law, 4th Edition, at p 462 as follows:-- "A person who is under a contract of service to another person called the employer"
- "A person employed for wages or salary"
In ordinary parlance the word "employee" connotes a person who is employed by an employer for a wage or salary. An apprentice is so employed. The Court is satisfied that in referring to "employees" in Clause 23 of the Agreement the parties thereto intended to bring all persons employed within the ambit of the Clause, including apprentices.
The Court interprets Clause 23 accordingly.
Clause 6.
The applicability of Clause 6 of the Agreement to the Employer essentially turns on the true construction of the definition of a shop as contained at Clause 13 of the Agreement. The definition (which is recited above) refers to a premises which is used for general electrical trading. The Employer is an electrical contractor. It carries out its business from premises situated at Crumlin Business Centre in Dublin. In evidence the principal of the business told the Court that tenders for work are prepared at the premises and that payments are made and received at the premises. Records relating to contract and to employees are also maintained at the premises.
The Court is in no doubt that the Employer is carrying on general electrical trading from the premises and, in consequence, it is the Employer's "shop" for the purpose of the Agreement.
The Court interprets Clause 13 of the Agreement accordingly.
Conclusion
In light of the interpretations set out above the Court is satisfied that:-- The Employer is required by Clause 23 of the Agreement to enrol apprentices over 20 years of age in an approved pension scheme.
- The Employer's premises situated at Crumlin Business Centre is its shop for the purpose of calculating travelling time in accordance with Clause 6.
Based on these findings the Court must conclude that the Union's complaint made pursuant to Section 32 of the Act is well - founded.
The Court will not make any Order at this stage and will allow the parties an opportunity to negotiate in the light of the Court's findings. An appropriate Order will be made after the expiry of a period of one month from the date of this decision on application being made to the Court by either party in that behalf.
- (A) Where within a distance of 11 miles by road from the shop, an electrician starts on site instead of in the shop, travelling time shall be paid in accordance wit the following scale:-
Signed on behalf of the Labour Court
Kevin Duffy
22nd March 2007______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.