FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : THOMAS MIMNA - AND - PIOTR PIENSZKE (REPRESENTED BY PETER LEONARD B.L. AND INSTRUCTED BY POLISH CONSULTANCY ENTERPRISE)) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Interpretation of the Construction Industry Registered Employment Agreement (REA)
BACKGROUND:
2. The worker was employed from 25th October, 2006, until 15th January, 2010, although he was on lay-off from February - October, 2009, due to a shortage of work. His case is that he was paid at the wrong rate of pay for the duration of his employment. His pay ranged from €13.99 per hour when he started in 2006 to €14.88 per hour when he finished in 2010. This was the equivalent of a constructive operative Grade D whereas the worker believes that, with the skills he had, he should have been paid at Grade A where the rate of pay was €16.84 in 2006 and €18.04 as of 1st January, 2008. The employer's case is that the worker agreed to the rates of pay when he joined the Company and had no complaints for as long as he was employed. He believes that he treated the worker fairly at all times. He has suffered serious financial difficulties as a result of the downturn in the building trade and cannot afford to pay any retrospective monies.
DECISION:
This matter came before the Court by way of an application by Piotr Pienszke, 19 Talbot Street, Dublin 1 for an interpretation of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) (the Agreement) and its application to him. It is brought under Section 33(1) of the Industrial Relations Act, 1946.
Section 33(1) of the Industrial Relations Act 1946 provides as follows:-
- "The Court may at any time, on the application of any person, give its decision on any question as to the interpretation of a registered employment agreement or its application to a particular person".
Mr. Peter Leonard B.L. Counsel for Mr. Pienszke, submitted that the Applicant was a Steel Fixer and consequently should be classified as a Grade A Construction Operative, whereas the Respondent had classified him as a Grade D Construction Operative.
The Respondent accepted that it is a firm covered by the Second Schedule to the Registered Employment Agreement (Construction Industry Pay and Conditions of Employment) and submitted details of its compliance with the Agreement. It held that Mr. Pienszke was employed as a “Niphand” to tie steel and consequently it was correct in classifing him as a Grade D Construction Operative.Mr. Leonard stated that the Applicant had extensive experience working on building sites as a steel fixer.
The Agreement outlines the Construction Operatives grades, from Grade A to D and states that the grades reflect the range of ability and years of service, as outlined by the Labour Relations Commission document entitled “Construction Operatives Responsibility and Skill Ranking”.
Having examined this document the Court is satisfied that the work carried out by Mr. Pienszke does not come within the definition of Grades B, C, or D.
On the basis of the information put before it the Court is satisfied that while employed by Mimna Contracting Limited Piotr Pienszke was entitled to be paid the rate of pay applicable to a General Operative Grade A specified in the First Schedule of the Agreement.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th July, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.