REA0761

FULL RECOMMENDATION

CD/06/1054

DECISIONNO.REA0761

INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 32, INDUSTRIAL RELATIONS ACT, 1946

PARTIES :

PLUNKETT CONSTRUCTION LIMITED
(REPRESENTED BY BCM HANBY WALLACE)

- AND -

BUILDING AND ALLIED TRADES UNION

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr Nash

SUBJECT:
1. Construction Industry Registered Employment Agreement - Pensions Assurance and Sick Pay.

BACKGROUND:

2. The case was referred to the Labour Court on the 26th of September, 2006, in accordance with Section 32 of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 2nd of October, 2007. The following is the Court's decision:

DECISION:

This matter came before the Court by way of a complaint made by the Building and Allied Trades Union (the Complainant) alleging that Plunkett Construction Ltd (the Respondent) failed or neglected to comply with the terms of the Registered Employment Agreement (Construction Industry Pensions, Assurance and Sick Pay), hereafter referred to as the "Agreement".

The facts of the case can be briefly stated. It is accepted that the Respondent is a building firm to which the Agreement relates. The Respondent has engaged a number of workers to whom the Agreement relates who were not entered in a pension, mortality and sick pay scheme, as is required by the Agreement. The Respondent contends that the workers in question were self-employed under a contract for service and as such were and are eligible for inclusion in an occupational pensions scheme. The Court heard no evidence which would enable it to form any view on whether the workers concerned are properly described as self-employed or whether, as contended by the Union, they were in fact employees.

The relevant provisions of the Agreement are contained at Clauses 3 and 4, and provide as follows:-

3. PENSION AND MORTALITY BENEFITS
(a) Every employer to whom this Agreement applies shall become and remain a party to a contributory scheme approved by the Revenue Commissioners for Income Tax purposes under Part XII of the Income Tax Act, 1967 or any other relevant legislation for the time being in force - the main purpose of which shall be the provision of the benefits for every worker who shall have been employed by such an employer for not less than a specified period before retirement of such worker from such employment at a specified age or after incapacity at an earlier age and an ancillary purpose of which shall be the provision upon the death of any such worker while employed by him/her of benefits for financially dependent relatives of such worker.

(b) The conditions upon which such pension and mortality benefits are payable and the amount thereof shall be not less favourable than those set out in the second Schedule hereto.
4. SICK PAY
Every employer to whom this Agreement applies shall become and remain a party to a contributory sick pay scheme, approved by the Revenue Commissioners, for income tax purposes, under relevant legislation - the main purpose of which shall be the provision of benefits for every worker, who shall have been in the employment of such an employer immediately before the illness of such worker and who has also been employed for a specified period in the Construction Industry.

It is noted that the Agreement applies to "workers". The ambit which is to be ascribed to that term for the purpose of the Agreement was considered by Mr Justice Murphy inBuilding and Allied Trades and Valentine Scott v The Labour Court and The Construction Industry Federation and Gerry Fleming, High Court, Unreported, 15th April, 2005. It was held that the term is wide enough to include a person employed under a contract for service as well as persons employed under a contract of employment.

The Respondent accepts that it employed persons who, at all material times, were workers within the meaning ascribed to that term by the High Court. It is further accepted by the Respondent that those workers were not provided with pension, mortality and sick pay benefits as is required by the Agreement.

Any difficulty which arises between the Respondent and the pension providers in the industry is not a matter for the Court. The Court must apply the Agreement and the law as it finds it. Accordingly, the Court must hold that the Respondent contravened the Agreement by failing to provide all workers engaged by it with pension, mortality and sick pay cover.

The Court notes that the Respondent was incorporated on 19th July 2004. The Court directs that the Respondent take such steps as are necessary to comply with the terms of the Agreement in respect of all workers who were engaged by it since the aforementioned date.

Signed on behalf of the Labour Court

Kevin Duffy
8th November, 2007______________________
CON.Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.