Complainant

Respondent

Anonymised Parties

A Bricklayer

A Construction Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00029048-001

14/06/2019

The complainant, a bricklayer submitted a complaint to the WRC which was received on 14th June 2019.   The respondent is a construction company. A hearing was held on 21st August 2019.

The complainant submits that he was employed by company A, a subcontractor for company B from 27th July 2018 until he was dismissed on 8th April 2019. He worked as a bricklayer on several company B projects in the Dublin area. While working on one of these sites the complainant was told that his employment had been terminated by company A as they could not continue the project due to financial difficulties. He was also advised that a new sub-contractor, company C, the respondent, would be completing the work previously undertaken by company A on the site for company B.

The complainant submits that his union met with company B with a view to company B contacting company C regarding the re-employment of the complainant on their site. Company B subsequently contacted the complainant’s union and advised that company C were not able to employ the complainant.

The complainant submits that he should have been employed by company C to continue working on company A’s site under a Transfer of Undertakings. Despite the efforts of the complainant’s union to press this point, no agreement was reached, even after a conciliation conference at the WRC.

The complainant submits that company C, the respondent, took over the work that had been being done by company A, and that he should have transferred under a Transfer of Undertakings, to company C.

The respondent submits that it is a block laying sub-contractor in the construction industry. The respondent, like other sub-contractors in the industry, is engaged by main contractors to work on their sites to carryout specialist work.

This case concerns a contract that was awarded to the respondent for supply and fit of blockwork on a site in Dublin city centre which commenced on 3rd of May 2019. Company A were originally engaged by the main contractor, company B, on the site to lay blockwork. Company A worked on this site from the beginning of February 2019 until the 8th of April 2019. The complainant was employed by company A and worked on this site from the 11th of March 2019 to the 8th of April 2019, when company A ran into financial difficulties and were unable to deliver their side of the contract. As a result, the contract between company A and the main contractor, company B, was terminated. The main contractor then engaged the respondent, company C, to do the block work on the site. There was no transfer of undertaking for the purposes of the 2003 Regulations.

It is the respondent’s understanding that company A pulled off several jobs at this time. The complainant was employed by company A and the respondent’s understanding is that he worked on several different sites for company for approximately one year. The site in question was not his only place of work. He had been transferred from another site to this site on the 11th of March 2019. The claimant only worked on this site for approximately 4 weeks when company A pulled off the job.

The respondent was engaged by company B for supply and fit of brick, angles and associated works, as per the contract that was awarded to them to a normal subcontracting tendering process on the 17th of April 2019. There was no mention in the contract of a transfer situation arising. The respondent commenced work on the site on the 3rd of May 2019 and finished on the 25th of July 2019. The respondent supplied the raw materials, tools and equipment and their own labour. The respondent was operating on other sites during this period.

The first that the respondent was made aware of a request for a transfer of undertaking was when he received claim papers from the WRC lodged by the complainant on the 27th of June 2019.

The respondent submits that no legal transfer took place between company A and the respondent. No assets, either tangible or intangible, were transferred. Indeed, no communication whatsoever took place between the two contractors.

The respondent submits that a change in subcontractors by a main contractor due to the financial instability and withdrawal of contract by the first subcontractor does not amount to a transfer of undertakings for the purposes of the regulations. The awarding of the contract to the respondent was in accordance with normal contracting in the construction industry.

The contract between the respondent and company B which details the respondent’s obligations with regard conducting works on the project, did not mention a transfer situation. The fact that company A workers received holiday pay and notice pay, from company A, would indicate a redundancy situation and not a transfer situation.

Section 3(1) of the Regulations apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

 Section 3(2) of the Regulations defines a “transfer” as the transfer of an economic entity which retains its identity; and where an “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

Having considered the matter carefully I find a transfer of undertakings within the meaning of the regulations contained in the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (S.I. No. 131 of 2003) did not occur in this case. In summary I find that:

(a)    no transfer of assets occurred,

(b)   no staff transferred and

(c)    the previous holder of the contract did not cease to fully exist nor was a business or part of a business belonging to it transferred.

I am therefore satisfied that a Transfer of Undertakings within the meaning of Article 1(1) of the Transfer of Undertakings Regulations did not occur.

The complaint is not well founded.

“Transfer of Undertaking” “Construction Industry”