FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 TO 2012 PARTIES : GORD DON CONSTRUCTION LIMITED (REPRESENTED BY JOHN P. CARLIN & COMPANY) - AND - UNITE THE UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Construction Industry Registered Employment Agreement - Pensions Assurance And Sick Pay.
BACKGROUND:
2. This matter came before the Court by way of a complaint by UNITE Trade Union (the Complainant), made pursuant to s.32 of the Industrial Relations Act 1946, against Gord Don Construction Limited (Respondent). The substance of the complaint is that the Respondent contravened the terms of the Registered Employment Agreement for the Construction Industry (Pension Assurance and Sick Pay) (the REA) by failing to include named employees in an approved pension, assurance and pension scheme.
DECISION:
The Issues in Dispute
It is not denied that the Respondent is a building firm within the meaning of the REA. The Respondent’s response to the complaint is that the named employees are ‘posted workers’ and as such are outside the scope of the REA.
The Respondent is a limited liability company having its registered office in Sandyford Dublin. It employed the named employees who are the subject of this complaint in construction activity within the State. The named employees are natives of Northern Ireland and are ordinarily resident in Northern Ireland. The Respondent’s representative told the Court that it had been advised by the Construction Workers Pension Scheme that as these employees were ‘posted workers’ they need not be entered in the scheme.
The Complainant contends that the named employees are not posted workers within the meaning of Directive 96/71/EC (the Posted Workers Directive). It point out that the Respondent is an Irish Company which carries out construction work within the State. The named employees came to work for the Respondent in the State and they are subject to Irish law in the same way as other workers.
The Complainant asked the Court to make an order directing the Respondent to pay €74,383.80 being arrears of pension contributions in respect of the named employees.
Conclusion
What is in issue in this case is whether, on its correct construction, the REA applies to the named employees. Section 33(1) makes provision for the interpretation of an REA by the Court on the application of any person. However, there is also an inherent jurisdiction vested in the Court under s. 32 to determine questions relating to the interpretation of an REA or its application to any person. This arises from the obvious fact that before the Court could decide if a complaint alleging non-compliance with an REA is well-founded it would first have to decide if the REA is applicable in the particular case.
In this case the applicability of the REA is the principal issue in dispute between the parties. Consequently the Court must first determine that question.
Directive 96/71/EC applies in situations in which an enterprise located in a Member State of the European Union sends workers to work for that enterprise in another Member State. The Respondent is located in this State and the named employees worked for the Respondent in this State. Consequently the Directive has no application in relation to them.
There are other matters of relevance in this case. The named workers are resident in Northern Ireland and are citizens of the European Union. Article 45 of the Treaty on the Functioning of the European Union (the Lisbon Treaty) prohibits any form of less favourable treatment in employment as between citizens of different Member States. Furthermore, s.66 of the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 prohibits discrimination in relation to occupational pension scheme on grounds, inter alia, of nationality.
Even if the named employees could be regarded as posted workers, and the Court is satisfied that they could not be so regarded, by operation of s.20 of the Protection of Employees (Part-Time Work) Act 2001 they would nevertheless be entitled to the benefits of the REA in like manner to all other workers within the State. Section 20 of the Act of 2001, which transposed Directive 96/71/EC in Irish law provides: -
- 20.—(1) In this section, the “Directive” means Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
(2) For the avoidance of doubt, every enactment referred to in subsection (3) that confers rights or entitlements on an employee applies and shall be deemed always to have applied to—- (a) a posted worker (within the meaning of the Directive), and
(b) a person, irrespective of his or her nationality or place of residence, who—- (i) has entered into a contract of employment that provides for his or her being employed in the State,
(ii) works in the State under a contract of employment, or
(iii) where the employment has ceased, entered into a contract of employment referred to in subparagraph (i) or worked in the State under a contract of employment, in the same manner, and subject to the like exceptions not inconsistent with this subsection, as it applies and applied to any other type of employee.
- (i) has entered into a contract of employment that provides for his or her being employed in the State,
- (a) the Minister or a Minister of State at the Department of Enterprise, Trade and Employment, or
(b) the Minister for Justice, Equality and Law Reform or a Minister of State at the Department of Justice, Equality and Law Reform.
- (a) a posted worker (within the meaning of the Directive), and
For reasons that were explained in more detail by this Court in Decision REA /1/2008 (concerning an application to cancel the registration of Registered Agreement for the Electrical Contracting Industry) the combined effect of subsections (2) and (3) of this section is to extend to posted workers all of the benefits of a Registered Employment Agreement in like manner to that of all other workers.
There is nothing in the REA which could be construed as excluding from its scope workers who are domiciled or resident outside the State. Nor, for the reasons referred to earlier, could any such exclusion be lawfully be included.
Decision
For all of these reasons the Court is fully satisfied that the REA applies to the named employees to whom this complaint relates. Having given its interpretation of the REA the Court believes that the parties should be given one further opportunity to resolve the dispute which gave rise to this dispute. Accordingly, the Court will make no further order at this stage. Should the dispute remain unresolved the parties may apply to the Court at a later stage for an appropriate order.
Signed on behalf of the Labour Court
Kevin Duffy
7th December, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.