FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : FIRESEAL CONTRACTS LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - THREE WORKERS (REPRESENTED BY J. C. HOBAN & COMPANY, SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Interpretation of a Registered Employment Agreement.
BACKGROUND:
2. The case before the Court concerns a dispute between Fireseal Contractors Limited and three named Workers in relation to the application of the Construction Industry Registered Employment Agreement, Wages and Conditions of Employment (the REA).
The Company is involved in the provision of passive fire protection services in the Construction Industry. In carrying out this process the Company maintains that it is not required to construct party walls or internal/external walls, ceilings etc., and does not construct fire shafts.
The Company maintains that it is not bound by the REA applicable to the Construction Industry as it is not a Building or Civil Engineering firm within the meaning of the REA to which the agreement applies, and that the workers/ Employees do not come under the classification of Construction Operatives under the REA for the Construction Industry. The Company maintains that it is not a construction company and that it specialises in providing 'fire protection' services to clients within the Construction Industry.
It is the Workers' case that the Company is and has been a Building or Civil Engineering firm as defined in the Second Schedule of the REA for the Construction Industry and that the principal business of the Employer is connected to the construction of buildings. The Workers maintain that the Employer is involved in the alteration/repair of buildings and that fireproofing of buildings is an integral and inalienable part of the process of constructing the buildings upon which the Company works and that the Company's work has no utility or value other than as part of that process.
J.C Hoban & Company, Solicitors, on behalf of the three named Workers, submitted a request for an interpretation of the REA for the Construction Industry on the 13th April 2011, in accordance with Section 33(1) of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 16th August 2011.
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 Complainants are asking the Court to give its decision on the following questions
(1) Whether 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 or not the applicants are employees to whom the REA applies.
Procedure:
The Court considered the written and oral submissions of both parties at a hearing of the application on Tuesday 16th August 2011.
Position of the parties
Applicant's Case
The Applicant submitted that the Respondent company is a construction company as defined in the Second Schedule of the REA for the Construction Industry. The principal business of the Respondent company is the construction of buildings. The Respondent company is involved in the provision of passive fire protection services in the construction industry. The work consists of compressing a fire-related material into a service penetration in the floors and/or walls of structures during construction or applying an industrial coating of intumescent paint to steel framed structures.
The main activities in which the Applicants were involved were: constructing cavity barriers and sealing fire stops, sub-dividing buildings into compartments by constructing compartment floors and compartment walls, constructing protected shafts to prevent internal fire spread, and constructing external walls and roofs of buildings to prevent external fire spread.
The Respondent's Case
Ms Catherine Day of Peinsula Business Services (Irl ) Ltd on behalf of the Respondent company submitted that
- The Respondent company is not a "building firm" within the meaning ascribed to it under the second schedule to the REA.
- The Respondent company is not engaged in "the construction, reconstruction, alteration, repair, painting, or decoration" .... of buildings as defined in Clause 1(a) of the Second Schedule to REA.
- The Respondent company is not engaged in the activities described in Clause 1(b) of the Second Schedule to the REA.
- Any repair work carried out to existing firestopping would constitute approximately 10% of the work carried out by the Respondent and therefore it is not "wholly or mainly" involved in repair work.
- The activities of the Respondent company do not bring it within the scope of Clause C of the REA.
- Should the Court decide that the Respondent company comes within the scope of the REA it should not decide the question of the grade on which the applicant's should be paid as this is a matter that should be decided through the dispute resolution procedure set out in the REA for resolving such matters.
Court's Findings
The Court considered the extensive written and oral submissions of both parties in this application.
It is common case that the Respondent company is engaged wholly or mainly in the provision of passive fire protection services to clients in the Construction Industry. The main type of service offered by the Respondent company involves compressing fire-rated material into a service penetration in the floor or walls of structures at the construction phase or applying an industrial coating of intumescent paint to steel framed structures or putting a fire blanket/fire curtain into a ceiling or attic to separate one area from another.
Following detailed consideration of the submissions made the Court is satisfied that the activity undertaken by the Company involves the alteration or repair of buildings.
This is an activity that comes within the definition of a "Building Firm" contained at Clause 1(a) of the Second Schedule of the REA. The Court is, therefore, satisfied that the Company is covered by the Agreement.
The Court further finds that the applicants are a class of worker to whom the Agreement relates and are entitled to the rates of pay and conditions of employment prescribed in the Agreement. Any dispute regarding the appropriate grading of these workers is a matter that falls to be dealt with under the dispute resolution provisions of the Agreement.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
12th September, 2011______________________
MGDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.