FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : GLENLINE CONSTRUCTION LIMITED (REPRESENTED BY ARRA HRD) - AND - LUKASZ BLAHUT (REPRESENTED BY PADRAIG MURPHY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Interpretation Of A Registered Employment Agreement
BACKGROUND:
2. The matter before the Court concerns an interpretation of the Construction Industry Registered Employment agreement and whether the Company concerned is covered by the Agreement. The Company submitted that its principle business is telecoms installation and that it is not a building or civil engineering firm as outlined by the Registered Employment Agreement. The Worker was employed with the Company from November, 2007 until April, 2011 as a rigger. It is submitted that the worker was involved in the construction of masts and pylons and that this work came within the meaning of the Registered Employment Agreement.
The matter was referred to the Labour Court for a decision under Section 33(1) of the Industrial Relations Act, 1946 as to whether the REA applies to the Company and the worker. A Labour Court hearing took place on 11th August, 2011. The following is the Court's Decision
DECISION:
The case comes before the Court pursuant to Section 33(1) of the Industrial Relations 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 Complainant is asking the Court to give its decision on the following questions
Whether
(1) The Company’s activities classify it is as a “Building Firm” or a “Civil Engineering Firm” within the meaning of the Second Schedule of the REA
And
(2) Whether the applicant is an employee to whom the REA applies.
Procedure:
The Court considered the written and oral submissions of both parties at a hearing of the application on Thursday 11th August 2011.
Position of the parties
Applicant’s Case
Mr Leonard BL on behlaf of the Applicant referred the Court to a copy of the Respondent’s website in which it states
“Glenline Telecoms specialise in the construction of mobile telecommunications infrastructure in rural and urban environments throughout Ireland. With over ten years experience in the mobile telecommunications sector we can boast of an extensive client list ranging from mobile phone operators, vendors, infrastructure providers, equipment providers and broadband operators.
The website also refers to Sports Lighting Systems the floodlighting division of the Glenline Group. It says that the Company engages in the“installation and maintenance of sports lighting in sporting grounds and stadiums country wide.”
Mr Leonard further submitted that the applicant was employed on the construction of pylons or masts. He said that for all practical purposes this was construction work and the applicant was a construction worker within the meaning of the Registered Employment Agreement.
The Respondent’s Case
Mr Michael O’Sullivan, Consultant, on behalf of the respondent submitted that the principal business of the company is telecommunications. It is not a building or civil engineering business within the meaning of the Registered Employment Agreement. Whilst the respondent company carries out telecommunications related construction work, its principal business is the erection, installation and alignment of telecommunications equipment to facilitate mobile communications. He outlined in some detail the nature of the work undertaken by the respondent company that he said was principally telecommunications related and not construction or civil engineering work within the meaning of the REA.
He outlined the work undertaken by the applicant in the course of his employment. This work primarily involved the installation of telecommunications equipment in various locations and its integration onto the mobile phone network. He said that occasionally this involved the construction of pylon or masts to carry the equipment. However he said this constituted a minor part of this work.
He submitted financial information to the Court to the effect that the respondent spent no more than 27% of its turnover on construction related activity. The balance of its turnover was spent on telecommunications related activities.
Court’s Findings
Section 33(1) provides that the Court “may” give its decision on any question as to the interpretation or application of a registered employment agreement or its application to a particular person.
The section confers on the Court a discretion to give or not to give its decision on any such question put to it. There are occasions on which the Court may decided to exercise its discretion not to issue a decision in response to such an application. This is not such an occasion. The Court takes the view that there is a fair issue to be resolved between the parties and that it can be best decided by way of a decision pursuant to Section 33(1).
The relevant section of the REA provides
- This Agreement applies to workers who are employed in one of the undermentioned capacities, by Building or Civil Engineering Firms (see Second Schedule to the Agreement for the definition of “Building or Civil Engineering firms”)
The Second Schedule defines Building firms as follows
- 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:-
- the construction, reconstruction, alteration, repair, painting,
decorating, fitting of glass in buildings and demolition of buildings;- the installation, alteration, fitting, repair, painting, decoration,
maintenance and demolition in any building or its site of articles,
fittings, pipes, containers, tubes, wires or instruments (including
central heating apparatus, machinery and fuel containers connected
thereto) for the heating, lighting, power or water supply of such
buildings;
- the installation, alteration, fitting, repair, painting, decoration,
(i) the clearing and laying out of sites for buildings;
(ii) the construction of foundations of such sites;
(iii) the construction, reconstruction, repair and maintenance
within such sites of all sewers, drains and other works for use in
connection with sanitation of building or the disposal of waste;
(iv) the construction, reconstruction, repair and maintenance on
such sites of boundary walls, railings and fences for the use,
protection or ornamentation of buildings;
(v) the making of roads and paths within the boundaries of
such sites.
(d) the manufacture, alteration, fitting and repair of articles of worked
stone (including rough punched granite and stone) granite, marble,
slate and plaster. - the construction, reconstruction, alteration, repair, painting,
A Civil Engineering firm for the purpose of the Agreement is defined in the following terms.
- For the purpose of this Agreement a Civil Engineering firm means
an undertaking the principal business of which is one, or a combination of
any of the following activities:-- (a) the construction, reconstruction, alteration, repair, painting,
decoration and demolition of:-
roads, paths, kerbs, bridges, viaducts, aqueducts, harbours, docks,
wharves, piers, quays, promenades, landing places, sea defences,
airports, canals, waterworks, reservoirs, filter beds, works for the
production of gas or electricity, sewerage works, public mains for the
supply of water or the disposal of sewerage and all work in connection
with buildings and their sites with such mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion; cattlemarkets, fair grounds, sports grounds, playgrounds, tennis-courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or such like material, any boundary walls, railings, fences and shelters erected thereon;
(b) the painting or decoration of poles, masts, standard pylons for
telephone, telegraph, radio communication and broadcasting; and
(c) ground levelling, ground formation or drainage in connection with
the construction or reconstruction of grass sports grounds, public parks, playing fields, tennis-courts, golf links, play-grounds, racecourses and greyhound racing tracks, but excluding the sowing of grass seed on such grounds.
Clearly therefore to come within the scope of the agreement a worker must be employed in a capacity set out in the REA by an entity that is either a Building or a Civil Engineering firm within the meaning of the REA.
It was common case that the applicant was a worker employed by the respondent. It was also common case that he was employed on installation work that would bring him within the scope of the REA at grade C or D for pay purposes.
The issue in dispute therefore was the applicants contention that the respondent company is a “Building or Civil Engineering Firm” within the meaning of the REA.
Building or Civil Engineering firm:
The Court has held that the REA is a collective agreement that “must be construed in accordance with the ordinary rules of contractual construction.”
(Horan Homes (Castlemaine) Ltd v Building and Allied Trades Union Decision No. REA06120)
In applying these rules in this case the Court understands the common meaning of the term “building” to refer to a structure with walls and a roof. It was common case that the respondent is not involved in the construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings. It was also common case that the respondent was not involved in the preparations of site or other works within the boundaries of such sites.
Accordingly the Court decides that the respondent is not a “Building Firm” within the meaning of the REA.
The Court then considered whether the respondent is a “Civil Engineering Firm” within the meaning of the REA.
The REA outlines the activities which, should they constitute the principal activity of the firm, would render the respondent a “Civil Engineering Firm” for the purposes of the REA.
The Court is satisfied that the respondent company is not involved in any of the activities outlined in section 2(a) of the REA.
The Court is satisfied that the respondent is engaged in the construction of poles, masts, standard pylons for telephone telegraph, radio communications and broadcasting. However section 2(b) of the REA makes no reference to the construction of such structures. It confines its scope to painting or decoration of said structures.
From the information supplied the Court is satisfied that the principal business of the respondent company does not consist of the painting or decoration of such structures.
Whilst the Court is satisfied that there is a substantial civil engineering dimension to the work of the respondent company the Court does not find that it is of a nature that brings it within the scope of the REA.
Decision
Accordingly the Court decides that the respondent company is not a Building or Civil Engineering Firm within the meaning of the REA.
The Court so decides. - (a) the construction, reconstruction, alteration, repair, painting,
Signed on behalf of the Labour Court
Brendan Hayes
16th September, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.