FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : PAUL FULLAM CONSTRUCTION LIMITED - AND - MR ZVONKO STJEPANOVIC (REPRESENTED BY MR GARETH KYNE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Interpretation of Registered Employment Agreement.
BACKGROUND:
2. The Worker claims that he was an Employee covered by the provisions of the Registered Employment Agreements for the Construction Industry and is seeking a declaration to this effect from the Labour Court. The Worker referred his case to the Labour Court on the 7th September 2011, in accordance with Section 33(1) of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 6th January, 2012.
DECISION:
The Worker in this case has applied to the Court under Section 33(1) of the Industrial Relations Act 1946 seeking a decision within the meaning of the Act that the Registered Agreement for the Construction Industry applied to his former employment with the Respondent Company.
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
(2) A court of law, in determining any question arising in proceedings before it as to the interpretation of a registered employment agreement or its application to a particular person, shall have regard to any decision of the Court on the said agreement referred to it in the course of the proceedings
(3) If any question arises in proceedings before a court of law as to the interpretation of a registered employment agreement or its application to a particular person, the court of law may, if it thinks proper, refer the question to the Court for its decision, and the decision of the Court thereon shall be final.
The Court conducted a hearing into the application on 6 January 2012. Both parties were represented at the hearing and made submissions to the Court.
Section 33(1) confers a discretion on the Court to give or withhold a decision on any question referred to it under the Section. The Court invited the parties to address this as a preliminary issue. The Applicant’s representative, Mr Gareth Kyne, Consultant, outlined the background to the Applicant’s arrival in this country from Bosnia and his relative ignorance of Irish law. He told the Court that the Applicant had been made redundant from a Company that had not provided him with a contract of employment and had given him payslips on an irregular basis only. He told the Court that the Respondent Company had not paid the Applicant his statutory redundancy entitlements and had not submitted the relevant form to the Department of Enterprise Jobs and Innovation causing a further delay in the processing of his claim. He submitted that a decision by the Court not to exercise its discretion in this case would add a further delay and would be unfair to and oppressive on the Applicant.
The Company’s representative, Mr John Maguire, Irish Concrete Federation, made no submissions to the Court on this issue.
Decision of the Court
Having considered the Applicant’s overall circumstances and the delays that had arisen in this case together with the fact that the Respondent’s representative raised no objections, the Court has decided to exercise its discretion and to give a decision on the matter at issue.
Substantive Issue
Mr Kyne submitted that the Applicant was employed by the Respondent Company as a Construction Operative for a period in excess of ten years. He submitted that the Applicant was initially employed to erect steel sheds on site in the agricultural sector. After a time the Applicant was in addition required to work in the Respondent Company’s workshop manufacturing components for later use in bespoke construction projects. He said that he spent in excess of 70% of his time on site. The remaining time he spent in the Company’s workshop manufacturing related components.
He submitted that the Applicant carried out a range of duties associated with the preparation of foundations, the pouring of concrete, the erection of walls, roofs and structural steel frames. He operated various types of construction related equipment including mixing machines, concrete saws, kango hammers, power screeds and jumping jacks. Accordingly he submitted that the Applicant is a worker who came within the scope of the Registered Agreement.
He submitted that the Company was primarily engaged in the construction of buildings and that this accounted for roughly 70% of its activities. Accordingly he submitted that the Respondent Company is a building company within the meaning of the Registered Agreement.
The Respondent Company’s representative made no submission to the Court on this matter. He advised the Court that he was not contesting the application, that he had no instructions on the issues raised and that his attendance was a matter of courtesy to the Court.
Decision
On the uncontested submissions of the Applicant the Court finds that the Registered Employment Agreement for the Construction Industry applies in this case and that its provisions govern the terms and conditions of the Applicant’s former employment with the Respondent Company.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
16th January, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.