FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : C & M CONSTRUCTION LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Construction Industry Registered Employment Agreement - Wages and Conditions of Employment.
BACKGROUND:
2. The case before the Court concerns a dispute between C&M Construction Limited and two named individuals represented by SIPTU in relation to the application of the Construction Industry Registered Employment Agreement (REA), Wages and Conditions of Employment.The Union, on behalf of its members contends that the Company has acted in breach of the terms of the REA and as a result there are outstanding monies owed to the Workers. The Union is seeking the retrospective payment of said monies to the Workers in relation to unpaid wages, travel time, and overtime.Several discussions took place at local level however agreement could not be reached between the parties. The matter was referred to the Construction Industry DisputesTribunal (CIDT) for resolution howevera hearing did not take place.On the 12th April, 2011 the Union proceeded to refer the dispute to the Labour Court under Section 32 of the Industrial Relations Act, 1946. A Labour Court hearing took place on August 12th, 2011 and a subsequent hearing took place on January 26th, 2012. The following is the Decision of the Court:
DECISION:
The issue for consideration in this case concerns a complaint by SIPTU (the Union) on behalf of two workers made pursuant to Section 32 of the Industrial Relations Act 1946 against C&M Construction Limited (the Respondent) that the Respondent was in breach of the Registered Employment Agreement (Wages and Conditions of Employment), (the REA) as varied.
The dispute relates to two workers Mr Frank Dunne who claimed he was underpaid the appropriate REA rate for the period from 1stJanuary 2010 to 3rdMarch 2010 and Mr Dave Kearney who claimed he was not paid the appropriate travel money from 21stMay 2007 to 3rdFebruary 2010.
The Court heard submissions from both sides. The Respondent informed the Court that due to the decline in business which commenced in 2008, as part of a cost reduction exercise it cut pay levels by 10% and accordingly Mr Dunne’s rate of pay was reduced. However, it stated that it was paying him a rate of €18.04 from 1stJanuary 2008 until 31stDecember 2009, which was in excess of the Grade B rate (€16.93). Therefore it contended that Mr Dunne had been overpaid and that this must be taken into account when in January 2010 when it had to reduce the rate by 10% to €16.23.
The Court cannot accept this contention as the claim before the Court concerns an alleged breach of the REA and accordingly finds that Mr Dunne is due the sum of €405.00 as claimed by the Union.
The Union submitted that the travel money to Mr Kearney was not in accordance with the REA. Mr Kearney was based at a site in Dublin Airport and was paid a travel allowance of one hour’s pay per day. The Union submitted that he was entitled to one and a half hour’s pay as the site is located between 5 and 6 miles from the GPO.
The Respondent submitted to the Court that as the company is based in Duleek, Co Meath it is outside the scope of the greater Dublin area with regard to travel time as provided in the REA. However, in keeping with the spirit of the REA after discussions at local level it decided to pay Travel Time. As some employees were transported by company transport to sites and others had their own form of transport the Respondent decided to pay all staff one hour Travel Time pay per working day.
Mr Kearney was required to attend a construction site at Dublin Airport. The Court is satisfied that Travel Time as provided for under the REA should be paid for attendance at work at a construction site within the Dublin area (other city locations are also provided for within the terms of the REA). The intention of the Agreement is to provide paid travelling time to workers who are required to start work on site, as opposed to the company's premises, in the locations specified in the REA.
Notwithstanding the local arrangement entered into the Court finds that in line with Clause 8 of the REA, Mr Kearney was entitled to one and a half hour's pay per working day for travelling to the site at Dublin Airport.
Accordingly, the Court finds that the complaint is well-founded and Mr Kearney is due the sum of €5,922.00 for the period from 21stMay 2007 until 3rdFebruary 2010.
Breach of Clause 11 Complaint
The Union submitted that the Employer was in breach of Clause 11 “Procedures for Settling Grievances and Disputes” in relation to a dispute concerning the selection of Mr Frank Dunne for temporary lay-off in 3rdMarch 2010.
Clause 11 of The Registered Employment Agreement:
PROCEDURE FOR SETTLING GRIEVANCES AND DISPUTES
If a trade dispute occurs between workers to whom this Agreement relates and their employers, no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with and the Labour Court has issued a recommendation.
Category A Disputes
For the purposes of this Agreement questions concerning local matters or matters of an individual nature are regarded as category A disputes. Where these disputes arise, the following procedure shall be complied with :
- (a) The grievance or dispute shall in the first instance be discussed between the parties concerned. If the dispute is not resolved within 3 days it may be referred to the trade union concerned and, where appropriate, the Construction Industry Federation (CIF). Notice in writing of the dispute shall be given by the individual concerned or his trade union to the CIF.
(b) If the dispute is not resolved within 7 days, or such longer period as may be mutually agreed, the issue may be referred to a Construction Industry Disputes Tribunal (CIDT).
(c) The CIDT will issue a decision within one week. The decision of the CIDT, where unanimous, shall be binding.
(d) Other decisions may be appealed to a Rights Commissioner, the Labour Relations Commission or the National Joint Industrial Council (NJIC) as appropriate.
(e) If the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.
The Union submitted that despite a number of meetings with the Company on the issue it was not possible to find a resolution. Therefore, the issue was referred to the CIDT as a Category A dispute. Attempts were made to organise a CIDT between October and December 2010, however, it was not possible to hold such a hearing and the matter was referred as a complaint under Section 32 to the Labour Court.
At the hearing before the Court the Respondent stated that it was willing to attend the CIDT and the Union was agreeable to accept that commitment. Both parties committed to attend an early hearing of the matter before the CIDT.
The clear intention of Clause 11 is to ensure that the process is progressed in a swift manner. This issue has been ongoing since March 2010, however, as the CIDT process has not been exhausted to finality and has not been through the procedures as outlined under Clause 11, the complaint under Section 32 is premature. Therefore, the Court is of the view that the matter should now be referred to the CIDT and the process should be completed as expeditiously as possible.
Decision
The Court finds that the complaint in respect of Mr Frank Dunne is well-founded and awards the sum of €405.00 in respect of outstanding wages for the period from 1stJanuary 2010 to 3rdMarch 2010
The Court finds that the complaint in respect of Mr Dave Kearney is well-founded and awards the sum of €5,922.00 in respect of outstanding Travel Time payment for the period from 21stMay 2007 to 3rdFebruary 2010.
The Court finds that the Union's complaint concerning a breach of Clause 11 is not well-founded and on the basis of the commitment given by the Company recommends that Mr Dunne’s complaint be processed according to the procedures outlined in Clause 11 and should be completed as expeditiously as possible.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th February 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.