FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : CMH CONSTRUCTION & CIVIL ENGINEERING LTD - AND - OPATSI DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Construction Industry Registered Employment Agreement - Pensions Assurance And Sick Pay
BACKGROUND:
2. A Labour Court hearing took place in accordance with Section 32 of the Industrial Relations Act, 1946, on the 15th July, 2009. The following is the Labour Court's Decision:-
DECISION:
The complaint
This matter came before the Court by way of a complaint by OPATSI (hereafter "the Complainant") that CMH Construction and Civil Engineering Limited, having its registered office at Ballinaboul, Castleisland, Co Kerry, (hereafter "the Respondent") has failed or neglected to comply with the Registered Employment Agreement (Construction Industry Pensions Assurance and Sick Pay) (hereafter "the REA"). The complaint was made pursuant to s.32 of the Industrial Relations Act 1946 ("the Act").
The substance of the complaint is that the Respondent failed to enter its employees in an approved pension, assurance and sick pay scheme as required by the REA or that it failed to pay contributions to the scheme so as to secure the due entitlements of its employees under the scheme. The complaint relates to the years 2003 to 2008 inclusive. The Complainant contends that in order to secure the entitlements of all present and past employees in the years to which the complaint relates the Respondent should be ordered to pay to the Construction Workers Pension Scheme contributions in the amount of €159,521.58
On the matter coming on for hearing before the Court the Solicitor for the Respondent raised preliminary issues concerning the jurisdiction of the Court to entertain the within complaint and in relation to the order sought by the Complainant. There is no issue concerning the applicability of the REA to the Respondent. Nor is there any issue concerning thelocus standiof the Complainant to maintain the complaint.
Jurisdiction point
The Respondent contends that the REA provides a procedure for resolving disputes and that procedure should be followed so as to deal with the subject-matter of the complaint rather than invoking the mechanism provided by the Act.
Clause 5 of the REA provides as follows: -
- 5. MACHINERY FOR SETTLING GRIEVANCES AND DISPUTES
If a trade dispute occurs between workers to whom this Agreement relates and their employers, no strike or lockout, or other form of
industrial action shall take place until the following procedures have been complied with and the Labour Court has issued a recommendation:-
For the purposes of this Agreement questions concerning local matters or matters of an individual nature are regarded as category A disputes. Where these disputes arise, the following procedure shall be complied with:
- (a) The grievance or dispute shall in the first instance be discussed between the parties concerned.
(b) If the dispute is not resolved within 7 days, or such longer period as may be mutually agreed, the issue may be referred to a Construction Industry Disputes Tribunal (CIDT).
(c) The CIDT will issue a decision within one week. The decision of the CIDT, where unanimous, shall be binding.
(d) Other decisions may be appealed to a Rights Commissioner, the Labour Relations Commission or the National Joint Industrial Council (NJIC) as appropriate.
(e) If the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.
The Tribunal shall be established to deal with Category A disputes as defined above. The Tribunal will consist of the following:
- -Independent Chairman. The Chairman of the NJIC may act as the independent Chairman in this regard
-One employer representative to be nominated by the employers’ side of the NJIC
-One trade union representative to be nominated by the employees’ side of the NJIC
CATEGORY B DISPUTES
For the purposes of this Agreement questions concerning wages, working hours and conditions of employment in the industry are regarded as Category B disputes.
Where these issues arise, the following procedure shall be complied with:
(a) Any grievance or dispute that arises between workers and employers covered by this Agreement will in the first instance be discussed between the parties concerned and their trade unions.
(b) Where the issue remains unresolved after (a) above, it shall be referred to the NJIC. The Secretary of the NJIC, within 3 days of receiving written notification of the dispute from either of the parties involved, shall arrange a meeting to discuss the issue in dispute.
(c) If after a meeting of the NJIC the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.
Section 32(1) of the Act provides as follows: -
- 32.—(1) If a trade union representative of workers affected by a registered employment agreement complains to the Court that any employer of any class to which the agreement relates has failed or neglected to comply with the agreement, the following provisions shall have effect—
( a ) the Court shall consider the complaint, and shall hear all persons appearing to the Court to be interested and desiring to be heard;
( b ) if, after such consideration, the Court is satisfied that the complaint is well-founded, the Court may by order direct the said employer to do such things (including the payment of any sum due to a worker for remuneration in accordance with the agreement) as will in the opinion of the Court result in the said agreement being complied with by the said employer.
It is the Respondent’s contention that what is at issue in this case is a Category B dispute which should be dealt with in accordance with the procedures prescribed by the REA for resolving such disputes. It was submitted, in effect, that in light of this provision of the REA the Complainant is estopped from invoking the provisions of s.32(1) of the Act.
Having considered the submissions of the parties the Court is satisfied that s.32(1) of the Act and Clause 5 of the REA are intended to deal with entirely different situations. It is clear from a reading of Clause 5 of the REA as a whole that it is intended to provide machinery to resolve industrial relations or trade disputes which arise between workers and their employers. In the instant case neither the workers employed by the Respondent nor the trade union of which they are members have raised any dispute with the Respondent in respect to the subject-matter of the within complaint. It is well settled that a trade unionper secannot be a proper party to a trade dispute other than in its representative capacity acting for and on behalf of workers with whom the dispute arises. Consequently it could not be validly argued that what is at issue in this case constitutes a trade dispute of a type comprehended by Clause 5 of the REA.
On the other hand s.32(1) is intended to provide a statutory scheme within which a trade union of workers which is party to an REA can complain to the Court that an employer to which the Agreement relates has contravened its terms. It is clear from the statutory language used that such a complaint is maintainable by the trade union in its own right rather than on behalf of any number or body of workers. This is intended to bring about a situation where a trade union affected by an REA can seek to ensure that the terms of the REA are universally applied within the industry or sector to which the Agreement relates. This provision applies even in situations in which the employees of the employer alleged to be in breach are content to accept less favourable terms and conditions of employment than those provided for in the REA.
Moreover, s.32(1) provides in clear terms a statutory mechanism for enforcing the terms of an REA. This is a freestanding provision which is not contingent upon the use of any other procedure. Consequently, the terms of the REA could not operate so as to offset or supplant the clear statutory provisions contained at s.32(1) of the Act.
Accordingly, the Court is satisfied that the within complaint is properly before the Court and falls to be dealt with in accordance with the provisions of s.32(1) of the Act.
Orders Sought by the Complainant
The Order sought by the Complainant is for the payment by the Respondent of €159,521.58 to the Construction Workers Pension Scheme. It is submitted that this is the amount necessary to secure the entitlements of the Respondent’s employees under the REA and thus bring the Respondent into compliance with the REA.
The Respondent submitted that demands for various sums were served on it in 2004 and subsequent years and that the aggregate now being claimed exceeds the sum of those amounts. It is submitted on the Respondent’s behalf that the amount now being sought was never previously claimed and it is not open to the Complainant to effectively amend its demands at this stage.
Section 32(1)(b) of the Act provides that where a complaint under the section is well-founded the Court may, by order, direct the employer to do such things (including the payment of any sum due to a worker for remuneration in accordance with the Agreement) as will in the opinion of the Court result in the REA being complied with by the employer. The object of the Order sought by the Complainant is to secure the pension, assurance and sick pay entitlements of the Respondent’s employees. The amount sought is intended to achieve that objective.
In that regard the Court was told, and it accepts, that had the various amounts previously claimed been paid on the due dates it would have secured the entitlements of those concerned. However, the amounts in issue were not paid when demanded and, in the Complainant’s submission, those amounts must now be actuarially adjusted.
The Order sought by the Complainant is not in respect of a fixed or liquidated sum due and owing. Rather it is for the payment of such amount as is necessary to secure the pension entitlements of a group of workers under the REA. The Court accepts that the amount which will have to be paid in order to meet that objective must be actuarially calculated at the time at which payment is actually made.
Decision
For the reasons set out above the Court does not accept that the preliminary objections taken by the Respondent are of substance. It is accepted that the Respondent is an employer to which the REA relates and that the Complainant is a trade union of workers affected by the REA. It is further accepted that the Respondent has not complied with the REA in respect of all of its employees who are covered by the Agreement in the years covered by the complaint. Accordingly, the Court is satisfied that the complaint herein is well-founded.
Issues have been raised concerning the calculation of the amount claimed by the Complainant and on the entitlement of certain employees of the Respondent to the benefits of the REA.
The Court will defer making any final Order in the case so as to allow the parties an opportunity to address these matters between them within the period of eight weeks to run from the date of this Decision. If agreement is not reached on these maters within that eight-week period then the Court will make a final Order on the application of either party.
Signed on behalf of the Labour Court
Kevin Duffy
30th July, 2009______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.