FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : TIMOTHY O' DRISCOLL - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Alleged breach of the Construction Industry Registered Employment Agreement - Wages and Conditions of employment.
BACKGROUND:
2. The Union alleges, on behalf of the Worker concerned, that the Employer is in breach of the Construction Industry Registered Employment Agreement (REA) in respect of the rate of pay, holiday pay and minimum notice paid to the Worker.
The Union contends that the Worker was employed by the Employer for a period of 4 years during which time he completed his apprenticeship and became a time-served Plasterer. His rate of pay did not increase following the end of his apprenticeship. The Union contends further that the Worker did not receive the correct holiday pay and was summarily dismissed without receiving one weeks' pay in lieu of notice.
The Company contends that the Worker had a total period of employment amounting to two years and eleven months and that he was not a time-served Plasterer as he did not qualify as a Plasterer through the FAS Statutory Apprenticeship Scheme and receive a FETAC award. The Company also maintains that the Worker was paid his holiday entitlements and did receive pay in lieu of notice.
The Union referred the matter to the Labour Court on the 27th July 2006 in accordance with Section 32 of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 12th September, 2007 and was adjourned. A second Labour Court hearing took place on the 16th July, 2008.
DECISION:
This matter came before the Court by way of a complaint by SIPTU that Timothy O’Driscoll (the Respondent) contravened the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment), as varied (the Agreement). The complaint was referred pursuant to Section 32 of the Industrial Relations Act, 1946.
The Union submitted claims on behalf of Mr. David O’Connor, PPS No: 746930F concerning payment of the appropriate craft rate of pay, outstanding holiday pay, minimum notice, pension registration and payments and a claim for charges for acquiring his P60 and Safe Pass.
The Union subsequently withdrew the claim concerning pension registration and payments, indicating that it was satisfied that the Respondent had properly registered Mr. O’Connor with the Construction Industry Pension and Sick Pay Scheme.
The Court explained that it did not have the jurisdiction under the terms of the Agreement to hear claims in respect of Minimum Notice and the P60 and the Safe Pass charges. This was accepted by the Union and these claims were also withdrawn from the Court.
Claim for Craft Rate of Pay
Mr. O’Connor commenced his employment with the Respondent on 26th December 2003. The Union submitted that when he completed his apprenticeship in the plastering trade in August 2004, the Respondent should have paid him the appropriate craft rate of €16.85 per hour instead of €12.00 per hour he was paid. The Union submitted a claim for the difference between €12.00 per hour and the appropriate craft rate as per the Agreement. It claimed that there were outstanding payments totalling €14,330.94, due for period from 1st July 2004 to March 2006 (he had a short lay-off in May 2005).
The Respondent stated that Mr. O’Connor was paid the appropriate apprentice rate up until the end of December 2004 when his status changed when it became clear that he would not be continuing with his apprenticeship. His hourly rate at that time changed to a General Operative rate and he was paid €12.81 per hour up to 25th March 2005, when his employment ceased. When he was re-employed on 20th June 2005 he was paid €12.48 per hour and from 2nd September 2005 he was paid €13.85 per hour. His rate of pay was then reduced from January 2006 to €13.74 until he ceased employment on a permanent basis at the end of March 2006.
Having examined the positions of both sides the Court notes that no evidence was produced to substantiate the Union’s contention that Mr.O’Connor became a qualified craftsman in August 2004. The Court notes that Mr. O’Connor did not obtain a FETAC Advanced Certificate, the Company had not complied with its obligation to ensure that Mr. O’Connor attended FÁS for off the job training, which is essential for the completion of an apprenticeship. Therefore, the Court is satisfied that the appropriate rate was the Grade B rate and calculates the outstanding liabilities as
€375.50.
Holiday Pay
The Union stated that Mr. O’Connor was due €1,179.50 (70 hours at the craft rate of
€16.85 per hour) holiday pay. The Company informed the Court that he was paid a sum of €1,033.66 (78 hours at the Grade B rate) in respect of outstanding holidays. The Union accepted that a sum of €1,033.66 was paid in respect of outstanding liabilities when contacted about this claim. Therefore, the Court is satisfied that there are no outstanding annual leave payments due.
The Court, having considered the complaint and having heard all persons appearing to the Court to be interested and desiring to be heard, is satisfied that the said Timothy O’Driscoll is an employer affected by the Employment Agreement as varied, and that the complaint is well founded.
The Court, by virtue of the powers conferred on it by Section 32 of the Industrial Relations Act, 1946 hereby directs the said Timothy O’Driscoll to comply with the Employment Agreement as varied, and to pay €375.50 toMr. O’Connor.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th September, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.