FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : MR PAUL KELLY T/A PAUL KELLY CONSTRUCTION - AND - MR TOMASZ MULARSKI (REPRESENTED BY JC HOBAN & COMPANY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Interpretation of Construction Industry Registered Employment Agreement (Wages & Conditions of Employment)
BACKGROUND:
2. This case was referred to the Labour Court in accordance with Section 33(1) of the Industrial Relations Act, 1946. The worker is seeking a Decision of the Labour Court that the Construction Industry Registered Employment Agreement (Wages & Conditions of Employment) applies to his employment with the Respondent Company. A Labour Court hearing took place on 26th March, 2013. The following is the Court's Decision:
DECISION:
Mr Tomas Mularski (the Worker or the Applicant) has applied to the Court under Section 33(1) of the Industrial Relations Acts 1946 – 2012 seeking a Decision that his employment with Thomas Kelly t/a Thomas Kelly Construction (the Respondent) in the period 31 July 2007 to 06 January 2009 comes within the scope of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) Variation Order 2006 (REA).
Background
It is common case that the Respondent employed the Applicant as a labourer from 31 July 2007 until he was made redundant on 6 January 2009. The Respondent admits that the business he operates is a Building Firm or a Civil Engineering Firm within the meaning of the REA. The Respondent further admits that he employed the Applicant as a labourer assisting in the carrying out of civil engineering site works at the relevant time.
He argues however that the Applicant did not raise any issues regarding the REA with him whilst in employment. He further argues that the delay in bringing this application to the Court is such as to prejudice him in the manner in which he would otherwise have responded to such a request by the Applicant to have the terms of the REA applied to him.
The Applicant argues that shortly after his employment ended he referred the matter to the Construction Industry Disputes Committee that is provided for in the REA. He states that the referral was delayed because of the Respondent’s failure to engage with the Disputes Committee. After several attempts to have the matter dealt with he was eventually left with no alternative but to bring this application to the Court.
Findings of the Court
It is common case that both the Respondent and the Applicant come within the scope of the REA. Accordingly the terms of the Variation Order 2006 apply to the terms and conditions of employment under which the Respondent employed the Applicant. As the terms of the REA as a matter of law apply to all relevant workers employed by Building Firms and Civil Engineering Firms as defined therein, the Court does not accept the Respondent’s argument that he is prejudiced by the delay in bringing this application. The Respondent was, or should have been, aware that the Applicant’s employment came within the scope of the REA and that he was entitled to have the terms and conditions of that Agreement applied to him. The Respondent benefited by not applying those terms and conditions of employment to the Applicant. He cannot now seek to argue that he would have acted differently had he been compelled to comply with the law.
The Court accepts the Applicant’s submission that he acted reasonably by referring the matter to the Disputes Committee provided for in the REA in an effort to bring the matter to a conclusion. The Respondent did not co-operate with that referral and is consequently culpable for the delay in the bringing of this Application.
Decision
The Court decides that the Respondent operated a Building Firm or a Civil Engineering Firm within the meaning of the REA and that the Applicant was employed as a labourer by the Respondent in that Firm. Accordingly, the Court finds that, the terms of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) Variation Order 2006, apply to the period during which the Applicant worked for the Respondent.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
18th April 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.