FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : PATRICK MURPHY AND MICHAEL O'SULLIVAN TRADING AS SKELLIG CONSTRUCTION - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Construction Industry Registered Employment Agreement - Pensions Assurance And Sick Pay.
BACKGROUND:
2. A complaint was received under Section 32 of the Industrial Relations Act, 1946 that the respondent failed to comply with the provisions of the Construction Industry Registered Employment Agreement - Pensions Assurance And Sick Pay.
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 Patrick Murphy and Michael O’Sullivan trading as Skellig Construction (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”.
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 ineligible 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 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 terms was 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 times material to the within complaint, 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 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
23rd November 2007______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.