FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : B & L DISTRIBUTORS LTD - AND - VADYM PANASENKO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Interpretation Of A Registered Employment Agreement
BACKGROUND:
2. The Worker concerned commenced employment with the Company in April, 2002 as a stretch ceiling fitter. His employment ended in January 2010. The Worker is seeking a declaration that he is covered by the provisions of the Registered Employment Agreement for the Construction Industry and that he be entered into the Construction Industry Pensions and Sick Pay Scheme for the period of his employment. The Company's position is that it is not bound by the Registered Employment Agreement for the Construction Industry as it does not come under the Second Schedule of the REA which defines Building and Civil Engineering activity.
A Labour Court hearing took place on 15th September, 2011.
DECISION:
The case comes before the Court pursuant to Section 33(1) of the Industrial Relations Act 1946.
The question as to whether the Applicants and their employer, the Respondent in this case, came within the scope of the REA for the Construction Industry arose in the course of a hearing of a complaint before a rights commissioner pursuant to the Payment of Wages Act 1991. The Rights Commissioner adjourned the case to enable the Applicants refer the matter to the Labour Court pursuant to Section 33(1) of the 1946 Act.
Section 33(1) provides
- 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 Applicants asked the Court to decide if the Registered Employment Agreement for the Construction Industry applied to them in respect of their employment with B and L Distributors Ltd (the Respondent).
The Court decided to invite the parties to set out their respective positions at an oral hearing into the matter that took place on September 15th 2011. Both parties attended the hearing. Mr Richard Grogan, Solicitor, Richard Grogan and Associates Solicitors represented the Applicants. Ms Noreen Brady, Director, represented the Respondent Company.
Position of the Parties
Ms Brady submitted that the Respondent Company does not come within the scope of the REA and the Applicants are not a class of worker to which it applies. She submitted that the Company specialises primarily in importing raw materials from France and processing them in this country to produce a ceiling known as an Extenzo Stretch Ceiling. She submitted that the Company sourced business through various methods including
•Trade Stands at trade shows
•Advertising in the Golden Pages
•Interior design companies
•Word of mouth
She submitted that the Stretch Ceiling is imported on a roll and cut to size in the Company’s facility in Ashbourne County Meath. The Stretch Ceiling is then taken to the site and applied through a heating and stretching process onto a standard ceiling to protect it from its environment and to minimise or eliminate future maintenance. The Applicants were employed in the process of cutting and installing the stretch ceilings on site.
Mr Grogan, on behalf of the Applicants, agreed with the description of the work undertaken by the Company given by the Respondent and submitted that this brought it within the scope of Clause 1 (a) of the Second Schedule to the Registered Agreement and that the Company was accordingly a Building firm within the meaning of the REA. He further contended that, on the basis of the work they performed for the Respondent Company, the Applicants come within the Scope of Clause 2(b) of the REA and are entitled to be remunerated in accordance with the terms and conditions of employment set out in the Agreement.
Decision of the Court
The relevant section of Clause 2 of the REA provides
- This agreement applies to workers who are employed in one of the under-mentioned capacities, by a Building or Civil Engineering Firm.
The REA then goes on to list the capacities in which a worker must be employed to come within the scope of the Agreement. Clause 2(a) lists a range of skilled workers generally known as construction tradesmen. Clause 2(b) lists a second category of worker described as “Construction Operative.” The Court understands this second group to comprise of semi skilled or unskilled construction workers.
The relevant section of the Second Schedule to the Agreement defines a building firm in the following terms
- “For the purpose of this Agreement a building firm means an undertaking the principal business of which is one or a combination of any of the following activities:-
(a) the construction, reconstruction, repair, painting, decorating, fitting of glass in buildings and demolition of buildings.
From the information provided to it the Court has formed the view that the principal business of and the work carried out by the Respondent Company is one or a combination of the following activities the “construction”, reconstruction”, “repair” and or “decorating” of ceilings in buildings.
It is common case that the Applicants were employed primarily to install the stretch ceilings on site. Accordingly the Court has formed the view that they come within the scope of Clause 2(b) of the REA.
Accordingly the Court’s decision is that Applicants come within the scope of the REA and are employed by a building firm within the meaning of Clause 1(a) of the Second Schedule thereof. The Applicants are therefore entitled to be paid in accordance with the terms of the REA and to be entered into the CWPS Pension and Sick Pay Scheme or another scheme that is comparable thereto.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
20th October, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.