Complainant

Respondent

Anonymised Parties

A Supervisor / General Operative

A Road Maintenance Company

Representatives

Ms Aoife Farrelly, BL

Mr Tom Mallon, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00023263-001

16/11/2018

The respondent is joint venture of three major companies in the infrastructure development and management business. In 2012, it tendered for and won a contract with Transport Infrastructure Ireland (TII) under its Motorway Maintenance and Renewals Contract to carry out maintenance on 169 kilometres of motorway around the greater Dublin area. This contract comprises almost the entirety of the respondent’s business.

The complainant argues that the work he is engaged in for the respondent is governed by the terms of the Sectoral Employment Order (Construction Sector) 2017. This Order was reviewed by the Labour Court during 2019 and revised terms came into effect on October 1st 2019.   For the remainder of this document, I will refer to the Orders as “the 2017 SEO” or “the 2019 SEO” or, where appropriate, simply to “the SEO.” The complainant argues that he satisfies the criteria set out in the 2017 SEO for the Category of Worker and that he falls within the category of General Operative Grade B or A.

On July 9th 2018, in accordance with the respondent’s grievance procedure, the complainant and his colleagues raised the application of the 2017 SEO with their employer. In a letter to the respondent, the complainant’s solicitor, Mr Keane wrote:

“We are satisfied that the business operated by (the respondent) is that of a Civil Engineering firm as defined in the SEO and that, accordingly, our clients are entitled to the benefit of the provisions contained in the SEO.”

The respondent’s general manager replied on July 24th, stating:

“The Sectoral Employment Order (Construction Sector) 2017 (“the SEO”) does not apply to (the respondent). This is because the SEO applies to ‘Building Firms’ and “Civil Engineering Firms’ as those terms are defined in the SEO. More particularly: the SEO defines those terms to include undertakings ‘whose principal business is one or a combination’ of a specified list of activities and (the respondent’s) principal business is not included in that list.”

With no further progress being open to the complainant at that stage, on November 16th 2018, he submitted this complaint to the WRC.

The Issues in Dispute

The complainant’s case is that the nature of the work he does and the nature of the business of his employer means that the rights that accrue to construction workers under the SEO apply to him and his colleagues. He claims that his employer’s business falls within the definition of “a civil engineering firm” within the meaning of the SEO. The respondent claims that it is not a civil engineering firm and they make no submission regarding the class of worker covered by the order. It is the complainant’s position therefore, that the respondent accepts that the categorisation of worker defined in the SEO includes workers such as the complainant.

The Sectoral Employment Order

Section 16(3)(a) of the Industrial Relations (Amendment) Act 2015 requires that where the Labour Court determines to make a recommendation in accordance with the Act, it shall,

“…specify the class, type of group of workers and the economic sector in relations to which the recommendation shall apply.”

The Act requires that the Court shall not make a recommendation unless it is satisfied that to do so would “…promote harmonious relations between workers and employers and assist in the avoidance of industrial unrest in the economic sector concerned.”

Further, Section 16(4)(b) of the Act the Court should be satisfied that the recommendation is reasonably necessary to,

(i)                  Promote and preserve high standards of training and qualification, and

(ii)                Ensure fair and reasonable rates of remuneration in the economic sector concerned.

In the SEO, the Court has defined the economic sector to which it applies as “building firms” and “civil engineering” firms.

Civil Engineering Firm

In the 2017 SEO which was in force until September 30th 2019, the Court provides separate definitions of a building firm and a civil engineering firm. A civil engineering firm is defined as an undertaking whose principal business is one or a combination of the following activities:

“(a) the construction, reconstruction, alteration, repair, painting, decoration and demolition of:—

roads, paths, kerbs bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage and all work in connection with building their sites and mains;

rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion;

cattle markets, fair grounds, sports grounds, playgrounds, tennis-courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or like material, any boundary walls, railings, fences and shelters erected thereon.”

The most recent SEO does not differentiate between building firms and civil engineering firms and I will address this in the section below on “Findings.”

The Business of the Respondent

The respondent operates under a Motorway Maintenance and Renewals Contract (“MMaRC”) with TII.   All of the work carried out by the complainants is subject to the provisions of the Safety, Health and Welfare at Work (Construction) Regulations 2013 as an agreed Government Contracts Committee for Construction (GCCC) Contract. The complainant is required to have a Safe Pass construction ticket and a class C (truck / lorry) driving license.

In her submission at the hearing, Ms Farrelly described the nature of the works carried out by the complainants. She listed the various tasks under five headings and I have set out a summary of these tasks below:

1.       Cyclical works such as upkeep of drains, verges and medians, cleaning of footpaths, repair of kerbs, boundary fences and the removal of graffiti;

2.       Accident / damage repairs such as replacement of safety barriers and boundary walls, replacement of bollards and paving slabs;

3.       Winter service, such as carriageway upkeep and loading trucks with salt;

4.       Renewals, comprising filter drain renewals, site clearance, repair of pond and boundary fencing, public lighting repairs and replacement of kerbs and paving slabs;

5.       External works, such as traffic management, safety barrier repairs and road sweeping.

In addition to these categories of works, Ms Farrelly said that the complainant is involved in internal development works such as building concrete yards, erecting security fencing, yard lighting, and the renovation of depot buildings. Ms Farrelly submitted that the majority of these tasks fall within the definition of a civil engineering firm as set out in the 2017 SEO. The respondent’s safety statement requires that machine operators are trained in and obtain a Construction Skills Certification Card and they must comply with the construction stage Safety and Health Plan with regard to the safety rules associated with motorway working.

Traffic Management

The respondent’s work regularly involves the management of traffic and this is carried out in accordance with the Health and Safety Authority’s Guidelines for Working on Roads.   Regulation 97 of the Construction Regulations 2013 set out the responsibilities of a contractor who is engaged in works involving any part of a road that is “opened, excavated, broken up or obstructed by plant or equipment or by materials for the purpose of performing construction work.”

If the answer to the following three questions is in the affirmative, then the Construction Regulations 2013 apply:

1.       Does the work come under the definition of construction work in SI 291/2013?

2.       Is the work to be carried out on the road (on-roadway or off-roadway)?

3.       Is the road being opened, excavated or broken up or is the road being obstructed by plant or equipment or by materials for the purpose of performing construction?

Ms Farrelly submitted that, in every instance where traffic management duties are undertaken by the complainant and his colleague, the answer to the three questions above is “yes.” The application of the Construction Regulations 2013 to instances of traffic management denotes that such duties are defined as construction work and accordingly, fall within the definition of a civil engineering firm as defined by the SEO.

Other Factors

During severe weather events, the complainant and his colleagues have been required to work very long shifts for up to seven days without a day off. Due to the demands of the work that had to be carried out, the respondent hired sub-contractors. The complainant understands that the sub-contractors were paid SEO rates for doing work that was the same as the work carried out by him.   Ms Farrelly claims that this is at odds with the respondent’s argument that its employees are not covered by the SEO.

The complainant also believes that initial contracts with TII, before the commencement of the SEO, provided for the payment of rates under the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment ) Variation Order 2011 (“the REA.”) Ms Farrelly submitted that the terms of the REA are broadly similar to the SEO in that it relates to building and civil engineering firms.

Copies of two documents were submitted in evidence at the hearing. The first of these, the respondent’s Maintenance Method Statement Document sets out a “Document of Works” and refers to the Safety, Health and Welfare at Work (Construction) Regulations 2013. The second document, an Approved Form (AF) 2, was submitted to TII in accordance with the Safety, Health and Welfare at Work (Construction) Regulations 2013.

Conclusion

The complainant submits that the facts of his employment point to the proper operation of the SEO.   Having raised the matter with his employer and having not achieved any resolution to his grievance, the complainant has exercised his right of referral to the adjudication service of the WRC. He argues that the principal business of his employer falls within the definition of “a civil engineering firm” and, for his reason, he is entitled to have the terms of the SEO applied to his terms and conditions of employment.

At the end of the hearing, summarising the case for the complainant, Ms Farrelly submitted that he must satisfy me that he is a construction worker. She submitted that the repair element of the MMaRC contract brings the complainant within the definition of construction work.   He is involved in the repair of roads.   The company was set up for the specific purpose of doing this work of motorway maintenance and renewals. The remainder of the work that the complainant does, grass-cutting, litter-picking, graffiti-removal and salting and gritting of roads, comprises less than 50% of the work carried out by him and his colleagues. Ms Farrelly said that if 40% of the payment under the contract went towards this Lump Sum work, then 60% must be for other work which, she argued is civil engineering work.

Supplementary Submission

In a submission sent to the WRC after the hearing, on March 10th 2010, Ms Farrelly refers to the tender document for the MMaRC contract between the respondent and TII and the value of the category 1, “Lump Sum” works to be carried out over the 61 months’ duration of the contract. From information provided to the complainants’ solicitors by TII, she said that the value of the Lump Sum works, at €35.3m, was 40.22% of the total amount paid to the respondents for the four categories of work.

Referring to the Labour Court cases of OMC Engineering and Three Named Workers, INT0911, and Breffni Design and A Group of Workers, INT072, Ms Farrelly said that to be entitled to the terms of the SEO, the Court determined that the workers must demonstrate that more than 50% of the work of the company in which they are employed is concerned with civil engineering or construction. She submitted that, as the amount paid for Lump Sum work is 40% of the value of the contract, the remaining 60% is paid for work which is “civils-related.”

Ms Farrelly submitted also that the contract between the respondent and TII provides for pay increases. She referred to page 22 of the contract booklet which refers to a “general round increase” to be paid to employees in line with “all workers in the construction industry and compliant with Government guidelines and Social Partnership Agreements.” Ms Farrelly submitted that this definition relates to the manner in which increases in the wages of construction workers are to impact the Lump Sum value of the contract. She argued that the contract anticipates that any increase under the SEO applies to work carried out at category 1, “Lump Sum Work” and accordingly, the Lump Sum rate of pay. She noted that the respondent’s case is that Lump Sum work is the work carried out by non-construction workers.

MS Farrelly said that the complainant’s solicitors procured from TII under a Freedom of Information request, a letter dated March 4th 2010 which confirms that the contract between the respondent and TII contains a provision that provides that the respondent must comply with all applicable law in respect of rates of pay and conditions of employment. Ms Farrelly submitted that this document, which only became available to the complainants after the hearing on March 2nd, “is crucial and is a matter that is central to the issue between the parties.”

For completeness, I wish to re-produce the letter of March 4th from TII in full here:

“Dear Mr Keane

Thank you for your letter of 24 June 2019 regarding the Motorway Maintenance and Renewals Contract (MMaRC). The position in relation to your enquiry is as follows:

Transport Infrastructure Ireland confirms that the final contract contains a provision whereby the Contractor is obliged to comply with all applicable law in respect of rates of pay and the conditions of employment (sic). The contractor shall ensure that those rates and conditions are at least as favourable as those for the relevant category of worker in any sectoral employment orders.

I hope this is of assistance to you.

Yours sincerely,

“(Name)

Governance and Legal Executive.”

Direct Evidence of the Complainant

The complainant said that he started working with the respondent in July 2013 and was the third person to be taken on. He had previously worked in the construction sector, where he drove a lorry and he also had a “ticket” to operate a grab/crane. During his evidence, we established that the complainant is paid an hourly rate of €15.92 He also receives a monthly “uplift” for his supervision duties.

The complainant said that he joined the company with a Safe Pass ticket, a truck license and a crane license for a lorry. He said that, since 2013, he has obtained tickets to operate a significant number of machines such as mowers, telescopic handlers, a loading shovel, an abrasive wheel and a chain saw. He is also trained in health and safety, signing, lighting and guarding on roads, traffic management, fire safety and chemical safety.

In response to Ms Farrelly, the complainant described the nature of his work. He said that he is involved in the maintenance of drains and cleaning of culverts and the maintenance of bridges. He carries out litter removal and he does traffic management when grass cutting or hedge cutting is carried out. He prepares footpaths for renewal and he replaces kerbs.   He drives an impact protection vehicle. He carries out sound barrier maintenance and he clears the gullies in the motorways’ central medians. He works on the replacement of damaged barriers. This requires a ticket to operate a digger. The complainant said that he is mainly assigned to work around Balbriggan, sweeping, replacing kerbs and clearing gullies.

In his evidence, the complainant said that, since the middle of 2018, when this grievance commenced, he and his colleague have been moved off construction-related jobs, although he said that they “still do a bit.” He said that, since November 2018, most of his work is now focussed on grass-cutting, litter-picking, drain-clearing and the removal of graffiti.   As a supervisor, he is responsible for allocating to the work to the men on his team. He gets instructions for the week from the office and he is alerted to an up-coming weather event and the requirement for road-gritting.

Cross-examining of the Complainant

Mr Mallon referred to the complainant’s evidence that he was qualified to operate a crane on the back of a truck and he asked the complainant how much time he spent doing this work. The complainant agreed that he had not done this work at any time during the past week, or the previous weeks. Mr Mallon suggested that less than 10% of the complainant’s time was spent operating a crane.

Since October 2019, the complainant said that the majority of his work has been maintaining barriers, clearing gullies, cutting grass in the summer time and litter-picking in the winter. He agreed with Mr Mallon that grass-cutting and litter-picking is what he does “an awful lot of the time.” He said that before this grievance, “we were driving a lot more.” He said that every job requires traffic management, including litter-picking and grass-cutting.

Mr Mallon referred to the breakdown of the categories of work done by the respondent which as set out in their written submission:

1.       Lump sum work involving routine inspection and maintenance including grass-cutting, litter-picking sweeping and cleaning.

2.       Variable payment work carried out under Employer Instructed Work Orders (“EIWOs”) including the repair of barriers and fencing.

3.       Insurance work carried out to repair damage to the road network following accidents. This includes traffic management, vehicle removal and cleaning and repair of the damaged assets.

4.       Other Instructed Work Orders, “(OIWOs”) which is occasional work carried out for local councils which is outside the scope of the maintenance contract. This work may involve traffic management, road-sweeping, grass-cutting and barrier maintenance and repair.

Mr Mallon asked the complainant if he agreed that 78% of his work was associated with category 1 above, which is described as “lump sum work.” The complainant did not respond.

Evidence of the Complainant’s Colleague

The complainant’s colleague, (“CC”) said that he started working for the respondent in August 2013, having worked as a welder with an engineering firm for over 22 years. He also worked for a construction company for six months. Describing his work with the respondent, CC said that he holds a C and E driving licence and he has a ticket to operate a 360° digger / excavator and a telescopic handler. He is a qualified signaller / banksman.   He said that his tickets are renewed every four years by the respondent. He is experienced in the location of underground services and he does sign-lighting and guarding. He drives an impact protection vehicle and works on mobile lane closures. He has advanced chain-saw training which is required for site clearance and for clearing trees at junctions. CC said that he considers this to be construction work. CC said that he is paid €15.91 per hour.

In 2016 and 2017, CC said that he spent 10 weeks working at junction 5 on the M11, cutting back overgrown trees and preparing the site for a new junction. He said that the similar work was carried out on the M4, although he was not involved on that site. He described the task of renewing “French drains” and filter beds and sound barrier repairs.

CC said that a lot of his work is currently litter-picking and grass cutting and he agreed with his colleague that this has been the case since they submitted this grievance in 2018. He said that they do six or seven grass cuts a year, taking about two to two and a half weeks to complete each cut. He said that they can pick litter at the same time, although they also pick litter separately during the winter. While they pick litter, they clear the gullies and do drainage work.   CC argued that drainage work is included in the definition of civil engineering in the SEO.

CC said that before 2018, around 70% of his work was other than litter-picking and grass-cutting.   He said that they used to get work repairing sound barriers, but now they are just required to make them safe and they don’t do any repairs. He said that another company is repairing the filter drains, a job which he did up to 2018.

While he is not involved in re-construction of roads, CC said that he works on repairing and re-surfacing the roads. He said that a filter drain is part of the road and that clearing gullies is a good part of his work. He also removes graffiti and re-paints the surfaces that have been defaced.

CC said that he considers himself to be a Grade A operative, as set out at page 9 of the 2017 SEO. The SEO describes this category of worker as,

“Skilled General Operatives, Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banksoperatives, Steel Fixers, Crane Drivers and Heavy Machine Operators.”

CC said that he operates as a banksman for the respondent, he driver heavy vehicles, he carried our welding as part of a response to an emergency, when he welded cattle grids and fixed manhole covers.

Cross-examining of the Complainant’s Colleague

CC agreed with Mr Mallon that he obtained his “tickets” before he joined the respondent. Mr Mallon suggested to CC that the fact that he had the tickets did not make him a construction worker. CC said that the respondent kept up his tickets, asserting, “if you work in construction, you must have tickets.” Mr Mallon referred to the complainant’s ticket for sign lighting and guarding, which qualifies him to “interfere” with traffic.   The witness did not respond when he was asked if traffic management was associated with construction. Mr Mallon submitted that council workers are not construction workers and clearing drains, cutting hedges or sweeping leaves is not construction.  

CC said that the alteration of the sight line of a junction or the alteration of the landscape of a road is construction work.

CC said that grass-cutting and litter-picking used to make up about 30% of his workload. He did not agree that the majority of his work is associated with traffic-management, salting in winter and grass-cutting and litter-picking. He said that he replaces signs, repairs fences, clears drains, clears sites and carries out repairs to footpaths and kerbs. He referred to work he carried out about three weeks before the hearing, when he had to lift lighting columns so that they could be repaired.

Mr Mallon asked CC about the work involved in repairing pot holes and he agreed that he was required to apply a temporary repair only. Mr Mallon suggested that the work that CC was involved in was not civil engineering, but maintenance of civil works.

Evidence of Colleague No. 2

Colleague No. 2, (“C2”) said that he worked with the civil engineering firm that built part of the motorway network and he came straight across to the respondent. He had a Safe Pass ticket and since he joined the respondent he has obtained tickets to work on underground drains, telescopic cranes and many of the same tickets obtained by his two colleagues who gave evidence earlier. He carries out the same work that was described by his colleagues.

C2 said that he is paid the same hourly rate as his colleagues, €15.90 plus a monthly “uplift” for supervision duties. Before he joined the respondent, he was a Grade A Operative, as defined by the SEO and he was paid the appropriate rate for that category.  

Considering the definition of what constitutes a civil engineering firm which is set out in the SEO, C2 said that, in his view, the respondent fits into that category. He referred to job sheets and photos of a selection of the jobs carried out by the complainants. A folder with a large selection of photos was submitted in evidence and C2 described the work being carried out. These included erecting signs for traffic management, breaking rocks, removing poles, putting in a “sleeve” to support a pole, installing poles and repairing stone walls. He referred to the work required to repair a lighting column that was struck by a vehicle, but he said that another depot is now doing this work. He referred to the replacement of road signs, the repair of noise barriers and fence repairs, which requires the use of an abrasive wheel. He said that all of the work that he and his colleagues carry out is associated with the maintenance of the motorway so that it is kept safe for motorists. C2 said that, since 2018, the bulk of their work is grass-cutting and litter-picking, and they also do more traffic-management. He said that the company has taken on a sub-contractor to carry out repairs to the kerbs.

Cross-Examining of Colleague No. 2

Mr Mallon referred to the timesheets completed by the complainant and his colleagues. He suggested that these show that the majority of the work they do is associated with grass-cutting and litter-picking and salting and gritting, amounting to approximately 78% of their work. C2 said that he disagrees and estimates that this work comprises about 50% of what they do. He said that they keep a diary of the work that they do and he would challenge the accuracy of the respondent’s information.

Mr Mallon referred to the respondent’s submission and the section which describes the four categories of work which was discussed during the complainant’s evidence.   Considering the Variable Payment Work at category 2, the “EIWOs,” Mr Mallon asked C2 if he was involved in road-re-surfacing. C2 said that the respondent sub-contracts this work, but the fact that they are responsible for work of this kind means that they are a civil engineering firm.

Referring to category 3, Insurance Work, Mr Mallon said that the workers’ timesheets are used to charge for this work and the respondent estimates that it amounted to 4% of the work that the company carried out in 2018.

C2 agreed with Mr Mallon that the essence of the contract between the respondent and TII is about safety and keeping the roads safe. This involves grass-cutting, litter-picking, gritting and salting.

Background

The respondent’s principal business is the maintenance and operation of various sections of the State’s motorway network and the complainant is employed as a manager of maintenance operatives and not construction workers. This is specified in the complainant’s contract of employment. On behalf of the respondent, Mr Mallon submitted that the SEO 2017 does not apply to the respondent because it is not a civil engineering firm. Referring to the decision of the Labour Court in the OMC Engineering case, Mr Mallon argued that the Court held that the SEO did not apply to that company even though its business included installing metalwork on residential and commercial building sites.

The principal obligation of the respondent is to manage the motorway infrastructure on behalf of TII during the period of the MMaRC and to ensure its functionality during the period and its condition at the end of the contract period. The respondent is responsible for the provision of data systems which assist in the supervision, control and maintenance of the motorways, inspection and maintenance of pavements, drainage, signage and safety barriers, grass-cutting, weed-control and litter-picking, sweeping, cleaning and the winter services of salting and gritting the roads. The respondent employs people to carry out these functions and they are augmented by subcontractors when the demands of the contract is beyond the resources of the respondent. Mr Mallon listed the work that is outsourced to specialist contractors such as IT, civil engineering, pavement testing, surveying and fencing.

Mr Mallon submitted that no more than 5% of the work carried out by the complainants falls under the definition of civil engineering. He claims that “it is self-evident that the SEO was never intended to apply to motorway maintenance companies such as the respondent.

The Sectoral Employment Order

In their written submission, the respondent notes that the complainant is not arguing that they are employed in a building firm, but instead they claim that their employer is a civil engineering firm for the purpose of the SEO. The definition of a civil engineering firm has been noted in the section above outlining the Summary of the Complainant’s Position and includes,

“An undertaking whose principal business is one, or a combination of…

(a) the construction, reconstruction, alteration, repair, painting, decoration and demolition of:—

roads, paths, kerbs bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage and all work in connection with building their sites and mains;

rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion;

cattle markets, fair grounds, sports grounds, playgrounds, tennis-courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or like material, any boundary walls, railings, fences and shelters erected thereon.”

It is the respondent’s case that the definition above does not include the majority of the work carried out by the complainant, being grass-cutting, weed-control, litter-picking, sweeping, cleaning, salting and gritting roads and traffic management. The respondent does not accept that the classes of workers set out in the SEO apply to any of its employees. It follows therefore, that if the complainants are not working for a building or a civil engineering firm, then their individual category of work is not the same as that which is set out in the SEO.

Work Carried Out

The respondent’s submission described the work carried out under the four categories of Lump Sum Maintenance, Variable Payment Work (EIWOs), Insurance Work and Other Instructed Work Orders (OIWOs) which have been described in the section above with the heading, Summary of the Complainant’s Position. The respondent calculated the breakdown of the percentage of the hours worked and the revenue derived from each category:

1.       Lump sum work, involving routine inspection and maintenance including grass-cutting, litter-picking sweeping and cleaning: Hours worked, 78% Revenue, 75%  

2.       Variable payment work carried out under Employer Instructed Work Orders (“EIWOs”) including the repair of barriers and fencing:   Hours worked, 14% Revenue 20.4%

3.       Insurance work carried out to repair damage to the road network following accidents. Hours worked, 4% Revenue, 2%

4.       Other Instructed Work Orders, “(OIWOs”) occasional work carried out for local councils which is outside the scope of the maintenance contract: Hours worked, 4% Revenue, 2.6%

None of the work carried out in the Lump Sum category above is listed as an activity under the definition of Building Firm or Civil Engineering Firm in the SEO. Given that the majority of the work carried out by the respondent is Lump Sum work, it may be said that its principal business is routine maintenance. The respondent submits that, with this evidence alone, it cannot be argued that the principal business of the respondent is as a Building Firm or a Civil Engineering Firm, for the purposes of the SEO.

For the avoidance of doubt, the respondent does not concede that any of the work done under the remaining three categories includes activities under the definition of a Building Firm or a Civil Engineering Firm. The repairs to kerbs and paths and the repairs to barriers and fences forms no more than 5% of the respondent’s business and does not mean that the respondent is engaged in civil engineering or construction.

The Law

The respondent’s submission refers to the Labour Court decisions in Breffni Design and A Group of Workers, INT072 and OMC Engineering and Three Named Workers, INT0911. These decisions were issued in 2007 and 2009 respectively, before the introduction of the SEO and during the tenure of a Registered Employment Agreement (REA) for the Construction Industry. The definitions contained in the REA and the SEO include the requirement that the principal business of the employer is comprised of the listed activities under the headings of “Building Firm” and “Civil Engineering Firm.”   Following the Labour Court’s jurisprudence on this matter, the respondent submits that the complainant must prove that more than 50% of the respondent’s activities come under the definition of a Building Firm or a Civil Engineering Firm.

Health and Safety Regulations

The complainant has asserted that because the respondent is contractually obliged to conform to the standards set out in the Safety, Health and Welfare at Work (Construction) Regulations 2013 that he is covered by the SEO. The respondent submits however, that there are no separate regulations that govern the specific business of the respondent and, for this reason, TII simply made it an obligation under the contract that any business tendering for the MMaRC would have to apply the standard under the 2013 Regulations. Health and safety is a distinct area of law the purpose of which is to ensure that employers provide a safe place of work for employees. In the interests of applying high standards of health and safety, the respondent agreed, under the MMaRC, to abide by the 2013 Regulations.   By agreeing to comply, the respondent is not agreeing that it is a Building Firm or a Civil Engineering Firm. It is the respondent’s case that, as there is no reference to Health and Safety Regulations in the SEO, the reference to Safety, Health and Welfare legislation in the complainant’s submission is not relevant.

Miscellaneous

In a concluding paragraph, the respondent’s submission refers to the complainant’s assertion that the terms of the SEO applied to the terms and conditions of the employees of a subcontractor contracted to carry out work for the respondent. The respondent’s position regarding this matter is that, if the SEO applies to these workers, this is because of an assessment of the principal business of the subcontractor.

The respondent also referred to the complainant’s belief that the contract with TII provided for the payment of REA rates of pay. The respondent said that they were not required to pay the rates provided for in the REA.

Conclusion of the Respondent’s Case

Mr Mallon summarised the respondent’s case by reminding me that I have no power to go beyond a finding that the complainant is or is not covered by the SEO. This is not a payment of wages claim. In a two-stage test, the complainant must show that he is a construction operative and that his employer is a construction or a civil engineering firm. He said that the respondent is clearly not a construction firm, and, in accordance with the definition of a civil engineering firm in the SEO, the respondent is not such a firm.

Mr Mallon asserted that the only argument that the complainant can “squeeze” into his case is that maintenance is repair. He said that the respondent is engaged in winter and summer maintenance of motorways and that this is not civil engineering work

Correspondence of April 1st 2020 from the Respondent’s Solicitors

The Respondent’s Solicitors replied to the submission provided to the WRC by the complainant’s solicitor on March 10th 2010 in the following terms:

1.       The respondent subcontracts all civil engineering work to a third party civil engineering firm. Neither the respondent or its employees carry out civil engineering work.

2.       The civil engineering work referred to in the document submitted to the WRC on March 10th is paid for by TII, under the terms of the MMaRC to the civil engineering firm.

3.       Payments from TII for the civil engineering works is not the respondent’s income and the respondent does not carry out civil engineering work for those payments.

4.       It is clear that the respondents do not carry out civil engineering work and the complainants do not contend that they carry out civil engineering work. The complainants agree that the civil engineering work is subcontracted to and carried out by a third party civil engineering firm.

5.       Under the two-stage test set out in the Boles case, the Complainants must show that both (a) the Respondent is a civil engineering firm (as conceded by the Complainants that means that more than 50% of its business must be civil engineering work) and (b) that the Complainants carry out that civil engineering work.

6.       It is clear that the Complainants do not carry out any civil engineering work. In evidence at the hearing, one of the complainants confirmed that the "vast majority" of their work was made up of just grass cutting, winter salting and traffic management.

7.       It is also clear that the Respondent does not carry out civil engineering work. Its business is not that of civil engineering; it is motorway maintenance.

8.       The Complainants' latest submission is misconceived. The Boles case confirms the settled law in this area that a contractor's business is not that of its subcontractor simply because it subcontracts the work.

9.       Finally, the letter produced at this late stage from the TII is not of any assistance to the Adjudication Officer in this case. The Respondent complies with all applicable laws. The SEO does not apply.

The Labour Court case referred to at point 8 above is that of Boles Hire Limited and a Worker, INT115.

Evidence of the General Manager

In his direct evidence, the General Manager (“GM”), said that the MMaRC agreed between them and TII in 2013 was the “first generation” of such a contract. The respondent company, which is a joint venture of two Spanish and one Irish company, was incorporated to tender for the contract.   In 2013, GM said that a lot of its employees came from the construction sector. He said that their thinking was, “no one has experience of motorway maintenance, so we should recruit people with experience of motorway construction. If you could build it, then you could maintain it.”

GM described the work carried out under each of the four headings which have been described in the previous sections. The company has a depot in Balbriggan and they subsequently set up a depot on a site vacated by the construction workers on the M50 at Sandyford. They purchased a winter service vehicle and part of their contract is to buy and store salt. In 2019, he said that the company took on responsibility for a new section of the motorway north of Kells and an area in Cavan.

Referring to the Lump Sum Work, carried out as part of category 1, GM said that 50% of this is carried out by their own workers and 50% is contracted out. Of the category 2 work, the variable payment work carried out under EIWOs, GM said that they contract out some of this. He said that he is a land surveyor and he has been involved in the building of motorways. He has experience of civil engineering and he said that the complainant does not do construction or civil engineering work. The principal business of the company is motorway maintenance.

Mr Mallon asked GM about the perception that, in 2018, when this grievance was first aired, they moved the complainant and his colleagues away from work that could be considered to be civil engineering work. GM said that there was a nervousness about providing other work in 2018. In 2013, there was a lot of emphasis on pavement work, but the contract provided that this work had to be done quickly.   There is now not much pavement work in the new contract.

GM referred to site clearance work on the M4, M7 and M11. He said that this was part of their contract for landscape maintenance.   He said that this work was not site clearance from a civil engineering perspective, but simply landscape maintenance.

Cross-examining of the General Manager

Ms Farrelly referred to the fact that the contract between the respondent and TII has the title, “Motorway Maintenance and Renewals Contract.” She asked what is meant by “renewals.” GM said that this refers to pavement renewals, the filter drains on the sides of the roads. He said that there is now very little pavement work carried out by the complainant and his colleagues.

GM said that the complainant and his colleagues are skilled maintenance operatives, but that they do not work in the civil engineering sector. The complainant has a C driver’s license and he drives a large truck. GM disagreed that the painting on of solvents to remove graffiti is associated with construction or civil engineering.

Ms Farrelly referred to the definition of a company engaged in civil engineering which includes the repair of road drainage. She also referred to the fact that the complainant must comply with health and safety regulations that apply to construction workers, but GM said that there are no specific health and safety regulations for maintenance workers. He said that they were instructed to comply with the regulations by TII.

Ms Farrelly referred to the AF 2 form which is completed by the respondent and sent to the Health and Safety Authority. This is used to notify the Authority about any project covered by the Safety, Health and Welfare (Construction) Regulations 2013. GM said that TII completed part 1 of this form and they were required to complete part 2. He said it does not mean that the respondent is engaged in construction, but that they are in compliance with health and safety regulations that apply in the construction industry.

Ms Farrelly referred to the contract document and the allocation of €35.3m to the Lump Sum element of the contract, which she estimated, is 40% of the total value of €87.7m. GM said that this category of work under the Lump Sum element of the contract relates to cleaning and maintenance, removal of graffiti, strimming hedges, cutting grass and gritting and salting roads.   He said that the rates set out in the contract covers the cost of plant, labour and materials.

Ms Farrelly asked GM about the employment of subcontractors during “Storm Emma” in February / March 2018 and the payment to these workers of the SEO rates. GM said that these workers are employed by a civil engineering firm and they were taken on when the respondent had “maxed out” on agency workers. They carried out the work described under category 1, Lump Sum activities.

Referring to the contract document, GM said that while certain work is listed, this is for the purpose of pricing the work. The respondent does not do all of the work specified in the contract document.

Concluding her questioning of GM, Ms Farrelly asked why the respondent recruited people with experience of motorway construction. GM replied, “why would we not?”

Re-direction by Counsel for the Respondent

Mr Mallon referred to the €35.3m paid for the Lump Sum works and he asked GM how the remainder of the €87m was allocated. GM said that this was paid to the civil engineering company that got a framework contract carry out kerb maintenance. None of this work was done by the complainant or his colleagues.   In the context of this contract, the term “pavement” refers to roads. The fact that certain work is included in the MMaRC contract does not mean that the respondent does that work. The repairs to pavements and fencing that was done by the respondent amounted to no more than 5% of the work carried out.

GM said that the contract provides that the contractor must comply with the Safety, Health and Welfare at Work (Construction) Regulations 2013. He said that these regulations contain a different definition of construction work compared to the definition in the SEO.

Since his complaint was submitted to the WRC, a revised SEO came into effect on October 1st 2019. This provides that the terms set out are to apply to,

“Persons employed in the Construction Sector as craft persons, construction operatives and apprentices.”

For the SEO to apply, two questions must be answered in the affirmative: Is the complainant employed in the construction sector?   And, Is he a construction operative?

Is the Respondent in the Construction Sector?

In the latest SEO, there is no differentiation between building firms and civil engineering firms; however, each of the activities that were described under both headings in the 2017 SEO are all included in the “Definition of the Sector” in the updated version. I will examine each aspect of the definition to consider if the respondent could be said to carry out the economic activities described. For convenience, I have numbered the paragraphs below, rather than used the bulleted format in the Order.

1.       The construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings;

It is apparent to me that building work is not a feature of the respondent’s economic activity.

2.       The clearing and laying out of sites for buildings, the construction of foundations of such sites, the construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings or the disposal of waste;

I am satisfied that, while the complainant may have carried out work to set up a new depot, which may have involved site clearance and building a concrete yard, for the majority of the respondent’s time and in respect of the uses of all its resources, the respondent company is not engaged in the work described at 2 above.

3.       The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings, the making of roads and paths within the boundaries of such sites;

The respondent is not involved in the construction of walls or fences, or the making or roads and paths within the boundaries of such walls or fences.

4.       The manufacture, alteration, fitting and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster;

General masonry and stonework referred to at 4 above, is not a feature of the economic activity carried out by the respondent.

5.       The construction, reconstruction, alteration, repair, painting, decoration and demolition of roads, paths, kerbs, bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage works, public mains for the supply of water or the disposal of sewerage and all work in connection with buildings and their sites with such mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion, cattle markets, fair grounds, sports grounds, playgrounds, tennis-courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or such like material, any boundary walls, railings, fences and shelters erected thereon;

Of the seven activities described at in paragraph 5 above, “construction, reconstruction, alteration, repair, painting, decoration and demolition,” it is my view that the work of the respondent in the maintenance and renewal of various aspects of the motorway network, must reasonably come within a common sense understanding of the word “repair.”

6.       The painting or decoration of poles, masts, standard pylons for telephone, telegraph, radio communication and broadcasting;

The respondent is not engaged in working on communications masts.  

7.       Ground levelling, ground formation or drainage in connection with the construction or reconstruction of grass sports grounds, public parks, playing fields, tennis-courts, golf links, playgrounds, racecourses and greyhound racing tracks.

The respondent is not engaged in the work associated with leisure facilities and parks as described at 7 above.

From this analysis, I have concluded that, in respect of one aspect of its work, the respondent could be said to be a company that falls under the definition of the construction sector. However, it seems to me that an inference that the respondent is a construction company, as that term is understood by the SEO, is an expansion of the term beyond what is intended. In the Breffni Design and OMC cases, the Labour Court found that, for a company to be considered to be a construction company, 50% of its work must be construction work. The evidence submitted by both sides at the hearing of this complaint has shown that the majority of the work carried out by the respondent is associated with maintenance of the motorway and the work of litter-picking, grass-cutting, the clearing of drains and gullies, the salting and gritting of roads and the traffic management associated with those tasks. I find therefore, that, based on the test established in the Breffni Design and OMC cases, the respondent is not a company covered by the terms of the SEO.

Is the Complainant a Construction Operative?

At the hearing, the complainant gave a frank and honest description of his job. He is a skilled operative, with qualifications to operate equipment and heavy machinery and to do the work associated with the hazardous responsibility of keeping the motorway safe. At the hearing, he said that the majority of his work is focussed on maintenance work and very little on repair. He said that the repair work has been outsourced to a separate company. While the complainant has a complex job involving specific skills, it is my view that his job is not that of a construction operative as that term is understood in the SEO.

Other Considerations

Counsel for the complainant argued that because the respondent is bound by the provisions of the Safety, Health and Welfare (Construction) Regulations 2013, this is an indicator that it is a construction company. I do not accept this argument, and I am satisfied that the application of these Regulations to the respondent’s operation is a convenience, because the Regulations can be adapted to the circumstances in which the complainants work.

Ms Farrelly also referred to page 22 of the contract document and the reference to increases in workers’ wages to the extent that they apply in the construction industry and in social partnership agreements. In the submission sent to the WRC after the hearing, she included a letter from TII dated March 4th 2020. This letter states,

“…the final Contract contains a provision whereby the Contractor is obliged to comply with all applicable law in respect of rates of pay and conditions of employment. The Contractor shall ensure that those rates and conditions are at least as favourable as those for the relevant category of worker in any sectoral employment orders.”

A social partnership agreement has not been in operation for more than a decade and the provisions of the public sector pay agreements that apply to employees in TII are not applicable in the private sector. I am satisfied that the respondent is compliant with the applicable law concerning the wages of the complainant and his colleagues. I am also satisfied that the complainant is not in the relevant category of worker to whom the terms of the Construction SEO applies.

Conclusion

Having examined all the evidence submitted by the parties at the hearing of this complaint, I have reached the conclusion that the respondent is not a construction company, as defined by the 2019 SEO and the complainant is not a construction operative.   I have reached this conclusion because the utilisation of resources and the revenue generated by the respondent in the repair of the motorway under the MMaRC is significantly less than the resources required and the revenue generated by the maintenance aspect of the contract which is the work carried out by the complainant.

Considering the work that he does for the company in which he is employed, I have concluded that, within the meaning of the Sectoral Employment Order (Construction Sector) 2019, the complainant is not a construction worker. I am satisfied that the respondent is not a construction company. Therefore, in accordance with section 23 of the Industrial Relations (Amendment) Act 2015, I have decided that this complaint is not well founded.

Sectoral Employment Order (Construction Sector) 2019