FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : B. NEVIN CONTRACTING TRADING AS NEVIN CONSTRUCTION (REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Construction Industry Registered Employment Agreement - Wages and Conditions of Employment.
BACKGROUND:
2. The Union referred the case to the Labour Court on the 16th September, 2010. A Labour Court hearing took place on the 14th September, 2011, in Waterford. The following is the Court's decision:
DECISION:
The matter before the Court concerns a complaint made pursuant to Section 32 of the Industrial Relations Act 1946 (‘the Act’) by SIPTU alleging that Nevin Construction (hereafter ‘the Respondent’) contravened the Registered Agreement (Construction Industry Pensions Assurance and Sick Pay) (hereafter ‘the REA’).
The Union submitted that the Employer was in breach of Clause 10, “Engagement of Subcontractors” at its site at Williamstown, Co. Waterford, where work commenced on the building of S�las Cancer Centre in the second quarter of 2010.
The substance of the complaint is that the Respondent was“employing sub-contractors on site who were not compliant with Clause 10 of the REA in relation to pension, assurance and terms and conditions”.
Clause 10
ENGAGEMENT OF SUB-CONTRACTORS
The parties agree that contractors and sub-contractors covered by the Registered Employment Agreement for the Construction Industry should be free to engage approved contractors in any trade or activity in the industry. For the purpose of this agreement, approved sub-contractors are defined as follows: -
They must comply with the terms of the Registered Employment Agreements for the industry.
(a) They must employ the appropriate grades of trade union labour.
(b) They must supply material as well as labour in those sectors of the industry where this has been normal practice.
(c) They must comply with the Social Welfare Acts and Section 17 of the Finance Act, 1970 as amended by the Finance Act, 1995 and they must conform to the guidelines issued by the Revenue Commissioners under the Finance Act, 1995.
(d) They must maintain a safe and healthy environment and comply with the provisions of the Safety in Industry Act, 1990.
(e) They must carry employers’ liability insurance in respect of their employees and the work in which they are engaged unless this cover is provided by the main contractor or the client.
(f) They must employ appropriate numbers of apprentices relative to the number of craft workers employed.
(g) They must, if in a labour only category, give security in a manner to be determined from time to time by the NJIC for the ConstructionIndustry against default in respect of any liabilities they may have to employees.
On 23rd August, 2010, the Union sought details of compliance by the Respondent with the terms of Clause 10 of the REA. When information had not been provided by 13th September, 2010, the Union wrote to the Respondent seeking such details and at the same time referred the claim under Section 32 of the Act to the Court.
The Respondent told the Court that at the commencement of the building project, prior to issuing contracts, it ascertained from each of the subcontractors whether or not they were compliant with the terms of the REA. Then, on receipt of the Union’s letter, the Respondent again sought written confirmation of compliance with the terms of the REA from all of its subcontractors and indicated that appropriate measures would be taken if such confirmation was not forthcoming.
By letter dated 18th October 2010, the Union submitted the names of two subcontractors employed on the Respondent’s site that it claimed were in breach of the REA. In response by letter dated 26th October, 2010, the Respondent stated that based on the written confirmation it received from the first-named subcontractor it was satisfied that it was compliant. Furthermore, the Respondent informed the Union that it had no contract with the second-named subcontractor, however, it did have a contract with a sister company and as that company was unable to produce written confirmation of compliance with the terms of the REA, the Respondent terminated the contract.
The Court notes the Respondent’s confirmation that it complies with Clause 10 of the REA and that it will continue to do so.
The Respondent stated that the alleged non-compliance should have been raised in the first instance with the Respondent outlining the details of the complaint. It contended that the Union had acted prematurely in referring the case to the Labour Court and had failed to refer the issue to Construction Industry Disputes Tribunal in accordance with the agreed disputes procedure in the industry.
The Court notes that the Union did not invoke Clause 11, “Procedures for Settling Grievances and Disputes”, which provides for issues in dispute to be referred to the Construction Industry Disputes Tribunal. Clause 11 of the Agreement is intended to provide for the orderly resolution of disputes which arise between workers and employers and in the view of the Court would have been an appropriate mechanism to invoke in this case prior to any such referral to the Court.
In all the circumstances of this case the Court is satisfied that the Respondent sought details of compliance with the terms of the REA, both at the commencement of the project and in furtherance of the Union’s queries on the matter, and that it took appropriate action when such confirmation was not forthcoming in the case of one of the subcontractors. Accordingly, the Court finds that the Respondent was not in breach of Clause 10 of the REA.
Decision of the Court
In accordance with Section 32(1)(b) of the Industrial Relations Act 1946 the Court finds that the Union’s complaint is not well-founded.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th October, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.