FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TF PRODUCTIONS - AND - A WORKER (REPRESENTED BY MUSICIANS' UNION OF IRELAND) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Payment of agreed contractual fee.
BACKGROUND:
2. The claim before the Court relates to the loss of earnings incurred by the Worker, following her dismissal by the Company at less than 24-hours notice, prior to the commencement of a tour for which the Worker had been engaged. Despite the fact that no dates for rehearsals or performances had been issued the Worker had given a firm undertaking to tour in early August 2008.
On the day prior to the commencement of the tour the Worker received a phone call telling her that her association with the Employer had come to an end.
The Union made several attempts to secure a meeting with the Company's representatives to discuss its concerns with regard to this case but to date have neither met with nor spoken directly to any of the representatives.
The Union are seeking to have the agreed contractual payment of €4,600 paid to the Worker.
The Union referred the claim to the Labour Court on the 24th June 2009, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th January 2010.
The Company did not attend the hearing but sent a letter to the Court disputing the allegations made by the Worker and stating that 'she does not fall within the definition of a "worker" under the Industrial Relations Acts 1946-2004.'
UNION'S ARGUMENTS:
3. 1.The Union maintains that the Worker was engaged, and agreed in good faith to perform both rehearsals and performances for the Employer's tour in early 2009. To be dismissed in such a manner, at such short notice left the Worker no scope to organise alternative employment during the period of the tour.
2. The Worker did not receive the agreed contractual payment of €4,6000. In good faith she also turned down several bookings which conflicted with known scheduled tour dates.
3. The Union maintains that the Company has show total unwillingness to engage at any point over the past twelve months and it is therefore seeking the payment of theagreed contractual payment of €4,600.
RECOMMENDATION:
The Claimant in this case is a freelance musician. She was engaged by TF Productions (the Employer) for various performances between 16th January 2009 and 4th April 2009. She claims that this engagement was cancelled on less than 24 hours notice, in consequence of which she suffered a loss of earnings of €4,600. She claims that she should be paid the amount by way of compensation.
The Employer declined to attend the hearing or to communicate with the Court in relation to the substance of the claim. Through its solicitors the Employer contended in correspondence that the Claimant is not a "worker" within the meaning of the Industrial Relations Acts 1946 - 2004 and that her case should not proceed to the Court.
Preliminary Issue - Is the Dispute Properly before the Court?
This case is before the Court pursuant to s.20(1) of the Industrial Relations Act 1969. That section provides:-
"20.-(1)Where the workers concerned in a trade dispute or their trade union or trade unions request or requests the Court to investigate the dispute or undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the Principal Act in relation thereto then, notwithstanding anything contained in The Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto."
A trade dispute, for the purposes of the Act of 1969, is defined by s3 of the Industrial Relations Act 1946 as:-
" ....... any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person"
The term "worker" is defined by s 23 of the Industrial Relations Act 1990 as:-
"23.- (1) In the Industrial Relations Acts, 1946 to 1976, and this Part, "worker" means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including......"
The ambit of this definition was considered by the High Court inBuilding and Allied Trades Union and Another v The Labour Court and Others, High Court Unreported, Murphy J. 15th April 2005. This was an application by way of Judicial Review to quash an order of this Court varying a Registered Agreement so as to incorporate, inter alia, a clause dealing with sub-contractors. It was contended that the effect of the proposed variation was to extend the scope of the Agreement by including sub-contractors, who were not workers, within its terms. In rejecting this contention, Murphy J. considered the meaning of the term "worker" by reference to the definition of that term contained at Section 23 of the Industrial Relations Act 1990.
Murphy J. pointed out that this was a wider definition than that contained at Section 8 of the same Act, and is not confined in its scope to those employed under a contract of service. the Judge continued at page 36 of the Judgement:-
"The former definition, which was the relevant definition for the purpose of this application refers, in addition to a contract of service or of apprenticeship, to a "contract personally to execute any work or labour". This would seem to imply a contract for services and, accordingly, to include an individual worker acting as contractor or sub-contractor. "Person" is not defined but is limited to persons aged 15 years or more and accordingly, would not appear to include legal persons, such as companies or partnerships."
In this case the Court was told that the Claimant was engaged under contract to provide a service to the Employer and that she was contractually obligated to provide that service personally. Moreover, she is neither a Company nor a partnership. In these circumstances the Court is satisfied that the Claimant is a worker within the meaning of the Industrial Relations Acts 1946 and that she is a proper party to a trade dispute within the statutory meaning of that term. Accordingly, the dispute is properly before the Court for investigation and recommendation.
Substantive Issue
On the uncontested evidence tendered the Court is satisfied that the Claimant was engaged by the Employer to undertake performances between 16th January 2009 and 4th April 2009, for which she was to have been paid the sum of €4,600. The Employer cancelled the engagement on short notice. Again, on uncontested evidence of the Claimant, the Court is satisfied that she was unable to obtain alternative work in the period in question due to the short notice which she received.
In these circumstances the Court regards the Union's claim as reasonable. It recommends that the Claimant be paid compensation in the amount claimed, namely
€4,600.
Signed on behalf of the Labour Court
Kevin Duffy
15th January, 2010______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.