FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : KDK SCAFFOLDING - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms N� Mhurchu |
1. Construction Industry Registered Employment Agreement - Wages And Conditions Of Employment
BACKGROUND:
2. The Union's claim before the Court is that the Company is in breach of the Construction Industry Registered Employment Agreement regarding three of its former employees. It is the Union's claim that the employees concerned were underpaid for travel time money owed to them. They subsequently left the Company and following the completion of negotiations on the National Wage Agreement, Towards 2016, the Company paid back money owed to its employees. The three employees concerned did not receive any monies owed to them.
The Company's position is that all three claimants were paid at the appropriate rate in accordance with the Registered Employment Agreement.
A Labour Court hearing took place on the 12th March, 2008
UNION'S ARGUMENTS:
3. 1 The three employees left the Company the week before the Company paid the retrospective monies to all its employees and refused to pay any retrospection to the three. These monies should be paid.
2 The shortfall in travel time should be paid to the three employees.
COMPANY'S ARGUMENTS:
4. 1 The three claimants were paid at the appropriate rate under the Registered Employment Agreement.
2 Form April, 2006 all three employees received an additional travel allowance of €1.70 on top of their hourly rate instead of the 1/3 of an hour that they had been paid in the past. This increase led to the travel payments made to the claimants being in excess of the travel payments stipulated under the Registered Employment Agreement which was done to compensate for the underpayments made in the past.
DECISION:
This matter came before the Court by way of a complaint by the SIPTU that KDK Scaffolding Limited (the Company) 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’s Position
The Union submitted claims on behalf of three employees concerning their wages and conditions under the Agreement. It submitted that the three employees were underpaid travel time when they were required to travel from their base at Railway Square, Waterford to go to sites in Dublin, Waterford, Carlow, Enniscorthy and Kilkenny. The Union submitted claims for ¾ of an hour’s pay per day as provided for by the Agreement for travelling to the Railway Square site, which was outside the Waterford City boundary. For working outside the City boundary, the Union sought one hour’s pay per day as provided for by the Agreement.
The three employees were paid €5.11 per day for travelling time until this rate was increased on 3rd April 2006 to €1.70 per hour.
The Union quantified the outstanding monies due as follows:
Claim for Travel Time:
While no details of times or dates were supplied to the Court, the Union submitted the following claims on behalf of the three claimants:
When required to work in Waterford City : Due €638.75
When required to work in Carlow : Due €613.20
When required to work in Kilkenny : Due €229.95
When required to work in Enniscorthy : Due €229.95
When required to work in Dublin : €306.60
Accordingly, the Union sought the following payments :
Mr. Brendan Walsh €2,018.45
Mr. Stephen Crowley €2,018.45
Mr. Gerry Noblett €2,018.45
Claim for Retrospection
Secondly, the Union submitted that the three claimants did not receive retrospective payments due when the hourly Grade B rate was increased by 3% under the terms of “Towards 2016” to €15.80 in September 2006, retrospective to 1st April 2006.
The Union quantified the outstanding monies due as follows:
Mr. Brendan Walsh €1835.76
Mr. Sthepen Crowley €1860.80
Mr. Gerry Noblett €1321.50
The Employer’s position
Mr. Brendan Walsh commenced with the Company on 18th April 2005 and his employment terminated on 7th September 2006, Mr. Stephen Crowley commenced on 6th April 2005 and terminated on 7th September 2006 and Mr. Gerry Noblett commenced on 4th July 2005 and terminated on 7th September 2006.
Claim for Travel Time
At the commencement of their employment they were each paid €14.96 per hour in accordance with the Grade B rate in the Agreement. They received a travel payment of 1/3 of an hour’s pay per day. Their rate of pay increased to €15.33 per hour with effect from 1st October 2005, in line with Sustaining Progress Agreement. Mr. Brendan Walsh’s rate of pay increased to the Grade A rate from 6th March 2006.
On 3rd April 2006, all three employees received an additional traveling allowance of €1.70 on top of their hourly rate instead of the 1/3 of an hour’s pay. The employer maintained that this was in excess of the travel payments stipulated under the Agreement but was paid in recognition of the underpayments made in the past. The employer accepted that there were still outstanding monies due and submitted details of all travel payments made to the three employees during the period of their employment and details of the payments due.
The Employer stated that all three claimants worked only on site in Railway Square, in Waterford City.
The Employer quantified the outstanding monies due as follows:
Mr. Brendan Walsh €1395.84
Mr. Stephen Crowley €1420.88
Mr. Gerry Noblett €881.58
Claim for Retrospection
The employer rejected the claim for retrospection to 1st April 2006 of the phase one of Towards 2016 as the increase did not come into effect until after the three claimants had ceased employment with the Company on 7th September 2006.
Court’s Findings
Claim for Travel Time
The Employer acknowledged that there were outstanding monies due in terms of travel time payments to the three claimants for travelling to the Railway Square site. However, there was no agreement between the parties on the outstanding amounts. Furthermore, the Union submitted that there were monies due for time spent to sites outside Waterford city, for which the Agreement provided for a payment of one hour’s pay per day. This was contested by the employer.
The Court granted an adjournment of the hearing on 12th March 2008, when the parties indicated their interest in engaging in discussions, with a view to resolving the issues in dispute. However, as the issues were not resolved, the Court hereby issues the following decision.
The Union submitted details of the overall monies due to the claimants in respect of their claims for outstanding travel payments, however, it did not supply specific details of dates they were required to work on sites outside Waterford City and there is no agreement between the parties on this matter. Therefore, the Court finds the Union’s claim for outstanding monies due for the requirement to travel to sites outside Waterford City is not well-founded.
The Court finds in favour of the claim for outstanding travel payments of ¾ hour’s pay in respect of travel to the Railway Square site in Waterford City. The Court notes that the Union’s claim in respect of all three claimants is for €2,018.45, despite the fact that one of the three claimants, Mr. Noblett, commenced employment with the Company on 4th July 2005, almost three months after the other two.
The Court notes the employer’s contention that the overpayment of travel time monies paid from 3rd April 2006 should be deducted from any outstanding monies due. The Court cannot accept this contention. There is no evidence to suggest that this formed part of an agreed methodology to meet the outstanding monies due; rather it appears that it was a simply a new formula designed to pay for travelling time. The Agreement does not prohibit the application of more favourable terms.
Based on the information supplied, the Court calculates the outstanding amounts due to the three claimants in respect of travel time, as follows:
Mr. Brendan Walsh €1502.20
Mr. Stephen Crowley €1566.50
Mr. Gerry Noblett €1186.90
The Court hereby issues an order for the outstanding amounts.
Claim for Retrospection
The Court notes that the claim for a 3% increases retrospective to 1st April 2006 was made after the three claimants had left the employment on 7th September 2006, i.e. on a date before the Agreement was varied.
The Agreement was varied with effect from 17th November 2006 to include increases due under “Towards 2016”. Prior to that date the Agreement in place - Variation Order (No.2) 2005 (effective from 27th May, 2005), provided for a rate of €15.33 for Grade B, which was the rate of pay in place for the three claimants at the time.
Therefore, as the Agreement was not varied until 17th November 2006, the Court is satisfied that the three claimants were paid the appropriate rate of pay in accordance with the Agreement in place for the period when they were employed.
Accordingly, the Court finds that the Union’s claim in this regard is not well founded.
ORDER
On 7th March, 1969 an Employment Agreement, dated the 1st March1967 and made between the Construction Industry Federation (formerly the Federation of Builders, Contractors and Allied Employers of Ireland) of the one part and the Amalgamated Society of Woodworkers and others of the other part, was registered in the Register of Employment Agreements.
- The said Employment Agreement has been varied pursuant to the provisions of Section 28 of the Industrial Relations Act,1946 twenty four times and most recently by the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) Variation Order, 2006 with effect as from the 17th November, 2006 and is hereinafter called 'the Employment Agreement as varied'.
- SIPTU has complained to the Labour Court (hereinafter called 'the Court') that KDK Scaffolding Limited, having its registered office at Old Dublin Road, Enniscorthy, Co Wexford being an employer affected by the Employment Agreement as varied, has failed to comply with the provisions of the Employment Agreement as varied by failing or neglecting to pay the payments due in respect of travelling time prescribed by clause 8 of the first schedule of the Employment Agreement as varied to the workers specified in the schedule hereto and to whom the Employment Agreement as varied applies.
- 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 KDK Scaffolding Limited 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 KDK Scaffolding Limited to comply with the Employment Agreement as varied, and to pay €4,255.60 to the persons named in the schedule hereto in the amounts specified therein being the difference between the amounts paid to the said persons and the amounts properly payable to the said persons pursuant to Clause 8 of the said first schedule of the Employment Agreement as varied.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th February, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.