FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : MDY CONSTRUCTION LIMITED - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Construction Industry Registered Employment Agreement - Wages and Conditions of Employment
BACKGROUND:
2. The case before the Court concerns a complaint by the Building and Allied Trades Union that MDY Construction Limited is in breach of the Construction Industry Registered Employment Agreement (REA) on Pensions Assurance and Sick Pay. The Union is claiming that MDY Construction Limited should apply the terms of the Registered Agreement to all workers and sub-contractors covered by the agreement. The employer's position is that they were given an assurance that the sub-contractors employees were compliant with the terms of the Agreement.
The Union has sought an order from the Court to compel MDY Construction Limited to provide evidence of compliance with the REA.
The Union submitted its complaint on 28th October, 2010. A Labour Court Hearing took place on 28th January 2011, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. All masonry Workers on the Company's worksites should be members of BATU and also members of the pension scheme which applies to the Construction Industry which is mandatory unless an alternative scheme is in place that exceeds the Scheme provided under the Registered Employment Agreement.
EMPLOYER'S ARGUMENTS:
4. 1. Management asked the sub-contractor if he and his Employees were compliant with the terms of the REA and was assured that everything was in order regarding their "approved status".
DECISION:
Findings of the Court:
Clause 10 of the Registered Agreement for the Construction Industry provides that a contractor should be free to engage approved sub-contractors in any trade or activity in the industry. In order for a sub-contractor to be classified as ”approved” it must comply with eight conditions set out in the Agreement. One of these conditions provides as follows:
10(b) They must employ the appropriate grades of trade union labour.
This Court has consistently held that this is an industrial relations agreement that was drafted as such and accordingly should be interpreted purposively rather than in accordance with the normal rules of statutory interpretation.
Clause 10 was introduced into the Agreement in order to facilitate the use of sub-contractors in the industry. The intention of the clause was to place an onus on trade unions to accept the use of sub-contractors in the industry and on employers to use only approved contractors for this purpose. The Agreement sets out the definition of an “approved contractor.” Accordingly the contractor who wishes to utilise a sub-contractor under the Agreement must take all reasonable steps to ensure that he chooses an “approved contractor” so as to remains compliant with its terms. Because the terms on which the sub contractor is engaged is within the knowledge and control of the contractor the onus is on him to demonstrate that he has complied with the provisions of Section 10 of the Agreement to the satisfaction of this Court where a complaint is submitted by a party to the Agreement under Section 32 of the 1946 Act. Where a Sub-Contractor is not compliant it is a matter for the Contractor that engaged him/her to enforce the terms of the contract with the sub-contractor so as to bring himself and or the sub-contractor back into compliance with the Agreement.
In this case the Court is advised that the contractor has failed to ensure that the bricklaying sub-contractor is compliant with the terms of the Agreement. It is a matter for the contractor to demonstrate compliance with the Agreement to the Court. The contractor has presented no evidence to the Court that would demonstrate that s/he is compliant with the terms of the Agreement or that s/he has taken reasonable steps to ensure compliance therewith. He simply advised the Court that he made an enquiry of the sub-contractor at the time of his engagement and he was assured he was compliant. The Court is not satisfied that this discharges the contractor’s obligations to engage “approved contractors” under Section 10 of the agreement.
Normally the Court would issue an order instructing the contractor to become compliant with the terms of the Registered Employment Agreement from a specified date. However in this case the Court was advised that the sub-contractor has left the site having completed his work there. Accordingly it would be nugatory to issue an order that would have no reality and accordingly the Court has decided not to do so on this occasion.
The Union has sought an order from the Court to compel MDY Construction Ltd to provide evidence of compliance with the Agreement to BATU. The Court is not prepared to make such an order. The obligation on the contractor is to demonstrate compliance with the Agreement to this Court.
The Union has also sought an order from the Court to the effect that the Respondent compel all masonry workers on its worksites to become members of BATU. The Court is not prepared to make such an order. The obligation on the Respondent is to demonstrate to this Court that it is compliant with the terms of the Agreement. It is a matter for the Respondent to determine and to take such steps as are necessary to bring about such compliance. The order sought by the union may not be the only method by which such compliance can be realised. The Court will deal with such issues as they arise in each particular case.
The Respondent raised significant issues regarding the relevance of the European Convention on Human Rights in this case. The Court is satisfied that this dispute is between two legal entities neither of which are human persons and consequently cannot come within the scope of the Convention.
The Respondent also made submissions regarding the Irish Constitution and made specific reference to the case ofJohn Meskell v Coras Iompair Eireann [1973 IR 121].The Court is satisfied that the issues raised in this case are not impacted by that decision. The net question in this case is not related to trade union membership but rather to whether there is an obligation on an employer to prove compliance with the provisions of Section 10 of the Registered Agreement when opting to have work carried out by sub-contractors rather than by directly employed labour. The Court has already dealt with this issue in this decision.
The Court pursuant to Section 32(1) (b) of the Industrial Relations Act 1946 finds that the complaint is well founded as the Employer did not demonstrate compliance with the REA. For the reasons stated above the Court makes no order as the occasion of the breach of the Registered Agreement has passed and an order would have no effect or purpose at this time.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
21st February, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.