FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : P ELLIOTT & COMPANY LIMITED (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION)(CIF) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Construction Industry Registered Employment Agreement - Wages and Conditions of Employment
BACKGROUND:
2. The Company is involved in general contracting and the Union claims that it is covered by the terms of the "Construction Industry Registered Employment Agreement, Wages and Conditions of Employment" (REA). In January, 2008, the Company engaged Oakchurch Landscaping Limited on its site in Herberton, Rialto, Dublin 8 project. The issue in dispute concerns the type of work done by Oakchurch. The Company claims that the work consisted of top soiling, sowing seeds and planting shrubs etc. whereas the Union maintains that it involved work defined in the second Schedule 1(v) of the REA i.e. paving/footpaths. The union raised the issue with the Company in 2008, including having workers with Oakchurch becoming unionised, but the matter was not resolved and the Union referred it the Labour Court on the 29th March, 2009, in accordance with Section 32 of the Industrial Relations act, 1946. A Labour Court hearing took place on the 11th June, 2010. The following is the Court's decision:
DECISION:
The complaint before the Court is made by BATU (the Union) alleging a breach of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment), (the REA) by P. Elliott & Company Ltd (the Company). The Union's complaint is that the Company is in breach of Clause 10 of the REA “Engagement of Subcontractors” in that they are employing subcontractors which they have failed to ensure are in compliance with the criteria laid out in the REA.
The Company engaged Oakchurch Landscaping Limited on its site in Herberton in January, 2008, for aesthetic purposes only and not for construction of the project; it carried out some paving work, topsoiling, sowing seeds and planting shrubs etc. The Company submitted that it has not breached Clause 10 in relation to named sub-contractor identified by the Union and held that the principal business of Oakchurch Landscaping Limited was landscaping and the majority of the works done here was soft landscaping and, accordingly, not covered by the REA.
As representatives of the Company CIF stated that the Company was aware of its obligations under Clause 10 of the REA and had a procedure in place prior to awarding a contract to ensure that all sub-contractors were in compliance with the Agreement.
At the request of the Court the Company were instructed to ascertain details of the business of Oakchurch Landscaping Limited to assist the Court in determining whether or not it is a firm encompassed by the REA. By letter dated 23rd September, 2010, the Company reported that it has endeavoured over a number of months to make contact with Oakchurch Landscaping Limited in order to provide proof that the majority of its business pertained to soft rather than hard landscaping. However, this proved unsuccessful particularly as the assets of Oakchurch Landscaping Limited had recently been acquired by another company. Notwithstanding that, the Company stated that it could categorically stand over its belief that the majority of works carried out by Oakchurch Landscaping Limited on its sites was soft landscaping and accordingly not covered by the REA.
Decision of the Court
As the Court is not in a position to definitely declare that Oakchurch Landscaping Limited is covered by the REA, the Court cannot find that the Company was in breach of Clause 10 of the REA.
However, in accordance with Section 32(1)(b) of the Industrial Relations Act 1946, the Court has no hesitation in directing the Company to comply with Clause 10 of the Agreement by ensuring that its sub-contractors are in compliance with the terms of the REA for the future.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th December, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.