FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1); INDUSTRIAL RELATIONS ACT; 1946 PARTIES : KIRWAN ALUMINIUM LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - A WORKER (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Interpretation of the Construction Industry Registered Employment Agreement (Wages and Conditions of Employment).
BACKGROUND:
2. A Labour Court hearing took place on the 21st July 2010. The following is the Decision of the Court:-
DECISION:
This matter came before the Court by way of an application made by a named Worker (hereafter the Applicant) pursuant to s.33(1) of the Industrial Relations Act 1946. In his application the applicant is seeking the decision of the Court on the applicability to him of the Registered Employment Agreement for the Construction Industry (Wages and Conditions of Employment) (hereafter the REA) in respect to his employment with Kirwan Aluminium Ltd (hereafter the Respondent)
In the submission made to the Court on his behalf of the Applicant sought the following declarations: -
1. “He is a construction worker of a particular grade
2. That travel as required by the REA was due to be payable to him while working on different sites in Dublin
3. The rate of pay properly payable to him during the period of his employment
4. Confirmation that after working 39 hours per week that he would be entitled to overtime rates in accordance with the Registered Employment Agreement and their appropriate grade of pay.
5. That he should have been joined into the CWPS Pension and Sick Pay Scheme.”
The Applicant was employed by the Respondent from 4th May 2005 until 28th January 2010. His application was made to the Court on 28th February 2010.
The Respondent accepts that it is a building firm within the meaning of the REA. Prior to making the within application the Applicant did not seek to address any of the issues raised in the application with the Respondent.
Conclusions of the Court
Section 33(1) of the Act provides as follows: -
- “33.—(1) 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.”
The purpose of the subsection is to resolve disputes concerning the interpretation of an REA or the ambit of its application. It is not intended as a means of directly enforcing an REA. Nor is an appropriate mechanism for resolving trade disputes with may arise between workers to whom the REA relates and their employers. This seems clear from s.25 of the Act of 1946 which provides, in effect, that as a condition precedent to
registration, an agreement must contain a dispute resolution procedure.
It would also appear to the Court that the subsection should only be invoked where there is a genuine and clearly defined dispute as to the interpretation of a particular provision of the REA or as to its applicability to a particular person or firm. In that regard it would appear that, in order to avoid wasting the Court’s time at least, before invoking the Court’s jurisdiction a party should seek to raise the matters in contention directly with the other party so as to ascertain if, and to what extent, there is disagreement on issues of materiality requiring a ruling by the Court. Furthermore, where a matter of dispute or difference arises between a worker and his or her employer concerning an entitlement to a particular benefit or rate of pay under the agreement, good practice dictates that it should first be raised between the parties thought the dispute settling procedures of the Agreement itself.
Consequently, in the absence of some special excusing circumstance, the Court should normally exercise it discretion against giving a decision under the subsection unless some real attempt has been made to address the issues on which the Court’s decision is sought directly with the other party before invoking the Court’s jurisdiction.
Decision of the Court
In the instant case it is clear that there is no dispute or issue between the parties concerning the applicability of the REA to the Applicant. The Respondent admits that it is a building firm with the meaning of the REA. It is further admitted that the Applicant is a worker to whom the agreement applied during the currency of his employment with the Respondent. The terms of the REA are clear and there is no issue of interpretation between the parties upon which the intervention of the Court is required.
There is an issue relating to whether the Applicant was required to perform work outside the range of duties appropriate to the grade at which he was employed. There are also issues concerning whether or not he worked overtime and if he met the conditions prescribed by the REA for the payment of travelling time. These are all issues which form the subject matter of a trade dispute between the Applicant and the Respondent. No attempt was made by the Applicant to address these matters during the five years in which he was employed by the Respondent. Nor was any attempt made to process this dispute thought the procedures provided by the REA for the resolution of such disputes. In these circumstances is not appropriate for the Court to express any view on the merits of those disputes at this time.
Having regard to all the circumstance of this case the Court does not consider it appropriate to give its decision on the matters raised in the application.
Signed on behalf of the Labour Court
Kevin Duffy
22nd July, 2010______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.