FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 57(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : MCR PERSONNEL LIMITED (REPRESENTED BY WARREN PARKES, SOLICITORS) - AND - KATARZYNA KALUS-NOWAK (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Applicability of Contract Cleaning Employment Regulation Order.
BACKGROUND:
2. The Worker concerned was employed by the Company between the period 18th December 2007 and 5th February 2009. She was employed as a Cleaner, cleaning interiors of mostly newly-built, unoccupied buildings before they were handed over to developers. Her rate of pay was €8.66 per hour.
The case before the Court is an issue of applicability of the Contract Cleaning Employment Regulation Order (ERO) to the Worker's employment with the Company.
The Employer maintains that it is not a party to the Contract Cleaning ERO.
The Worker referred the case to the Labour Court for interpretation under Section 57(1) of the Industrial Relations Act, 1946, on the 11th November 2009. A Labour Court hearing took place on the 1st April, 2010.
WORKER'S ARGUMENTS:
3. 1. The Worker contends that the ERO does not specify that the offices, shops, hospitals, factories, stores and other similar establishments have to be occupied and functioning as such and that therefore cleaning the interiors of buildings that have just been built comes within the scope of the ERO for Contract Cleaning.
COMPANY'S ARGUMENTS:
4. 1. The Company contends that the specific nature of the work carried out by the Employer categorically excludes the Worker from the provisions of the Contract Cleaning ERO.
DECISION:
This matter came before the Court by way of an application by the Polish Consultancy Enterprise on behalf of Katarzyna Kalus-Nowak for a decision on whether or not the Contract Cleaning Industry Joint Labour Committee (City and County of Dublin) (JLC) operates as respect the applicant Worker and as to whether certain Contract Cleaning Industry Employment Regulation Orders (EROs) apply to her. The application was made pursuant to Section 57(1) of the Industrial Relations Act 1946.
The Contract Cleaning Industry JLC
The application was dated 10th November, 2009, and relates to the Contract Cleaning Industry (City and County of Dublin). The ERO defines its scope at Clause 1 as follows: -
“Workers to whom this Schedule applies
1. Workers employed in Contract Cleaning in the City and the County of Dublin who are engaged on any of the following duties, that is to say: -
- The cleaning of the interior of offices, shops, hospitals, factories, stores and other similar establishments
BUT EXCLUDING
(i) Workers affected by an Employment Agreement, that is “an agreement relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union of workers and an employer or trade union of employers or made, at a meeting of a registered joint industrial council, between members of the council representative of employers.”
(ii) Workers to whom an Employment Regulation Order made as a result of proposals received from another Joint Labour Committee applies.
(iii) Workers engaged on exterior structural cleaning.
2. In this schedule “Contract Cleaning” means the cleaning of premises by companies engaged in whole or in part on the provisions of cleaning and janitorial services in establishments such as hospitals, offices, shops, factories, stores or similar establishments on a contract basis.Position of the parties
Mr. Blazej Nowak on behalf of the Polish Consultancy Enterprisestated that the Applicant was employed as a Cleaner, cleaning interiors of mostly newly-built and unoccupied buildings before they were handed over to developers/owners. He submitted that there is nothing in the ERO which requires that the premises being cleaned must be occupied.
Mr. Warren Parkes, Solicito,r on behalf of the Employer submitted that it did not come within the scope of the Contract Cleaning Industry JLC and its employees were not covered by the ERO. He stated that the Company was an employment agency which supplied personnel to the construction industry and had three services within its business – building services, security services and cleaning services. He submitted that the Company could not be considered as a “contract cleaning” company in the traditional sense. It did not tender for repetitive cleaning contracts of commercial businesses such as hospitals, offices, shops, factories, stores or similar establishments, it was not involved in cleaning and janitorial services of such establishments, in fact it has never been involved in janitorial services. Mr. Parkes told the Court that its business with its clients tended to be once-off arrangements to clean newly-built buildings before they became occupied and it did not engage in tendering for ongoing cleaning and janitorial services.
Furthermore, Mr. Parkes stated that the Applicant (as with all its cleaning staff) was required to satisfactorily complete a Safe Pass examination and was required to wear a hard hat while cleaning the buildings. This cleaning was carried out after “first fix”, “second fix” and in all cases prior to the installation of any furnishings.
Findings of the Court
The Court has examined the written and oral submissions of both parties.
The definition of a “Contract Cleaning” contained in the ERO applies to the cleaning of premises by companies engaged in whole or in part on the provisions of cleaning and janitorial services in establishments such as hospitals, offices, shops, factories, stores or similar establishments on a contract basis.
The term “janitorial” service is not defined, however, the Court is of the view that in the context of the ERO the term must include “cleaning” services. The ERO applies to the “cleaning” of premises and it is significant that the only category of worker covered is that of “cleaner”. Is it noteworthy that there is no separate rate of pay or occupational classification that relates to the term “janitor” in the ERO.
The Court accepts the Company’s contention that it does not provide nor compete for the provision of an ongoing service as envisaged by the term “Contract Cleaning” in the ERO.
Having regard to the limited nature of the service provided by the Company the Court is not satisfied that it comes within the ambit of the ERO. It seems to be more properly described as a construction-type activity involving the finishing of buildings so as to put them into a habitable condition.
Decision
For all of the foregoing reasons the Court is satisfied that the JLC to which this application relates does not operate as respect the Applicant herein. The Court is further satisfied that the ERO does not apply to the Applicant.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th May, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.