FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 10, INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONNEALLY PAINTING CONTRACTORS LTD (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - CONSTRUCTION INDUSTRY FEDERATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Alleged breach of the Construction Industry Registered Employment Agreement - Pensions Assurance And Sick Pay
BACKGROUND:
2. This case concerns a dispute between the Company and the Construction Industry Federation (CIF) in relation to an alleged breach of the Contruction Industry Registered Employment Agreement (REA) on Pensions Assurance and Sick Pay.
The Complainant's position is that the Company is covered by the REA and has failed in its duty to comply with the Agreement's provisions and seeks a Court Order for the payment of arrears due to the pension, assurance and sick pay scheme for workers to whom the Agreement applies.
The Respondent's position is that it wishes to be compliant with the provisions of the Agreement going forward but is not compelled to contribute restrospectively to the Scheme. It further contends that the summons was incorrectly served and that the Complainant does not have "locus standi" in relation to the making of the Complaint.
A Labour Court hearing took place on 25th November, 2009. The following is the Court's Decision:
DECISION:
This matter came before the Court by way of a complaint made by the Construction Industry Federation (the Complainant) alleging that Conneally Painting Contractors Limited (the Respondent) failed or neglected to comply with the Registered Employment Agreement for the Construction Industry (the REA). The complaint was made pursuant to Section 10 of the Industrial Relations Act 1969.
The particulars of the complaint were set out in a complaint form completed by the Complainant and dated 11th March 2008. In effect it is alleged that the Complainant failed to enter its employees in an approved pension, assurance and sick pay scheme as is required by the REA. The complaint relates to the period 1st January 2005 to 31st December 2006.
It is now alleged that the total amount due and owing by the Respondent in order to bring it into compliance with the agreement is €73,304.68.
At the hearing the Respondent disputed the amount claimed and also sought to rely on a number of technical defences. The points taken and the conclusions of the Court are set out as follows: -
The Summons
A summons was served on the Respondent requiring attendance at the within hearing. The Respondent contends that the summons is deficient in that the address of the Respondent is incorrect and that there is no proper time limit set out in the summons.
It is well settled in law that the purpose of a summons is to compel the attendance of a person before the Court on a particular day at a particular time. The jurisdiction of the Court derives from the making of a complaint not from the nature of the summons (seeDPP v Sheerin[1986] ILRM 576). The Court is satisfied that the complaint before the Court is clear and that at all times the Respondent knew or ought to have known the nature of the complaint being pursued by the Complainant. It follows that any defect which may exist in the summons served on the Respondent does not undermine the jurisdiction of the Court to investigate this complaint.
Locus Standi of the Complainant
The statutory provision under which this complaint is brought affordslocus standito a Trade Union representative of Employers. The Respondent submits that there is no evidence that the Complainant herein is such a body.
InInoue v MBK Designs Ltd[2003] 14 ELR 98 this Court pointed out that the procedures of this Court are intended to facilitate parties whether they appear represented by solicitor or counsel, industrial relations practitioners or unrepresented, alike. It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience. That decision echoed a similar approach taken by the Court of Appeal for England and Wales inLondon Underground v Edwards (No.2)[1998] IRLR 364 where it was acknowledged that [tribunals] do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field. Similarly in the Northern Ireland case of Briggsv North Eastern Education and Library Board,[1990] IRLR 181, the Court of Appeal held that Tribunals are not debarred from taking account of their own knowledge and experience.
The Construction Industry Federation is a party to the REA. It is a well-known and respected representative body of employers. It represents employers in negotiations with trade unions of workers as part of its core service to its members. It is well known to this Court that the body is an authorised trade union of employers and the Court does no require formal proof of that fact.
Scope of any Order made by the Court
The Respondent contends that having regard to the wording of Section 10 of the Act and to the wording of the REA the Court is restricted to making an order requiring the Respondent to comply with the REA prospectively.
It is well settled that a statute (or a statutory instrument) cannot be construed so as to produce an absurd result. It would be plainly absurd to hold that where an employer has been in continuing contravention of an REA, the Court is debarred from requiring that employer from rectifying such default retrospectively. Moreover, there is nothing in the language of the statute, on a plain reading which could suggest that such a result was intended. The Court has consistently held that in construing the REA, the normal rule of interpretation is to ascertain the intention of the parties i.e. to ensure compliance with its terms by those employers covered by the REA.
The Court is assisted in this regard by Section 5 of The Interpretation Act, 2005 which allows a purposive approach to be taken :-
(1)In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –
(a) that is obscure or ambiguous, or
(b) that on literal interpretation would be absurd or would fail to reflect that plain intention of –
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned.
The provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made.
the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.
Decision
For the reasons set out above the Court sees no merit in the points taken on behalf of the Respondent. The amount claimed in consequence of the Respondent’s default was disputed, however, when invited to do so, the Respondent was unwilling to give details to the Court of its understanding of the amount owed. Accordingly, the Court has no choice but to make an order in the terms proposed by the Complainant.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th December 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.