Complainant

Respondent

Anonymised Parties

Motorway maintenance general operative

Motorway maintenance service company

Representatives

Tom Mallon BL instructed by James Scanlon Solicitor Maples & Calder

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-00027902-001

21/04/2019

An application was made by the Respondent to change the Respondent’s name as it was only partially set out in the Complainant’s application to the WRC. I accepted this application. Following the hearing the Respondent changed its name by special resolution on the 17th December 2019.  

The Complainant brought a claim that he did not receive the minimum rate of pay set out in the Sectoral Employment Order (SEO) for construction workers.

The Complainant’s case is that he was employed as a general operative. He described his employer as a civil engineering company.

He explained that his work as per his employment contract involved construction elements and minor civil works. These primarily included but were not restricted to:

boundary and safety fence and barrier repairs,

tidying of depots,

post and sign replacement,

minor surfacing,

serving a watchman role function in reporting back any problems that come about on the network

litter picking,

driving a variety of vehicles as part of maintenance duties

setting up traffic management systems and operating them.

He ho

He explained that he held a 360-degree digger ticket and had as part of my employment used it. In carrying out all of the stated role he worked as part of a small unit. He further explained that it was requisite for him to hold a safe pass, a CSCS (Construction certification scheme) card for a telescopic handler and a CSCS card for signing lighting and guarding (SLG) and a full driving (HGV) license.

The Complainant identified that he was enrolled as a member of the Construction Workers pension and sick pay scheme (CWPS).

Photographs of the civil and construction work that he carried out as part of his duties were furnished to me in conjunction with his co-complainants to substantiate his case.   These were photos of repairing potholes on a carriageway and hard shoulder, repairing and replacing a manhole cover and concrete surround, repairing damaged sign posts, re-erecting and concreting a damaged watermain marker posts, tarmac repairs to a footpath, post replacement and re erection of panel fencing, pothole repairs at a layby, traffic management for civil works, repairs to broken road gully, temporary repairs to safety barrier after a collision.

The Respondent’s case is that it was not a civil engineering firm for the purposes of the Sectoral Employment Order (Construction Sector) 2017 (“the SEO”).

It explained that the Respondent was a wholly owned subsidiary of a company which was party to a joint venture with a UK company for the purpose of business operations including motorway maintenance and renewals contract for certain motorways in Ireland.

Its case was that the Complaint was employed by the Respondents as a motorway maintenance operative and not as a construction operative. It set out that the Complainant worked exclusively on routine maintenance work carried out under a motorway maintenance and renewals contract.   This included grass cutting, weed control, gulley clearing, litter picking, sign cleaning, response to incidents on the road network and the winter services including salting and gritting the roads.

The Respondent submitted that this was not civil engineering work. It argued that the Complainant did not carry out work of a civil engineering nature.

It went on to explain that works of a civil engineering nature on the motorway maintenance and renewals contract were carried out by subcontractors and not by the Respondent or by the Complainant. This work was done by specialist sub-contractors for work such as civil engineering works, IT, pavement testing, surveying and fencing.

The Respondent relied on the definitions of the sector set out in the wording of the SEO. It relied on the wording that was provided for “building firms” and “civil engineering firms” in the order. It submitted that the Respondent was neither.

It also argued that the Complainant did not invoke the SEO’s dispute resolution procedure and neither did he follow the Respondent’s grievance procedure, but it did acknowledge that he did submit a query as to the application of the SEO one year prior to the submission of his complaint.

The Respondent submitted a detailed breakdown of the tasks undertaken by the Complainant in any given year.   32 tasks were identified and the time the Complainant spent on each task identified. The task upon which the Complainant spent the greatest amount of his time (19.17% of time) was winter service. Grass cutting took up 17.24%, incident report 11.54%, litter picking 8.52%, sweeping 8.15%, spraying 6.91% and so on down to sapling maintenance 0.01%.  

The Respondent highlighted contested activities namely defect repairs, sign and boundary fence repairs and other contract work at 1.56% of annual time spent. The Respondent went on to argue that this 1.56% of the work undertaken by the Complainant could be argued to fall under a wide misconception of civil engineering. The Respondent did not accept that such works were civil engineer works.

When questioned the Respondent explained further about the maintenance work that was subcontracted out from year to year. It explained that this subcontracted work amounted to 0.5% of net income of the Respondent. It went on to explain this is work that the Complainant was not himself involved in.

As regards the pension membership, the Respondent submitted that the fact that the complainant was a member of the CWPS pension scheme did not render him a building operative or a member of the construction industry. Other operatives that are not building operatives are members of the scheme. The Respondent submitted it was a readily available scheme, but it didn’t change the status of the Complainant.

The Respondent submitted that none of the works in the categories it listed as tasks carried out by the Complainant were listed as an activity under the definition of “building firm” or “civil engineering firm” in the SEO. It submitted that the majority of work carried out by the Complainant was not contested and therefore it should be accepted that the Respondent’s principle business is routine roadway maintenance. The Respondent submitted that with this evidence alone it could not be said that the principle business of the Respondent was a building firm or a civil engineering firm for the purpose of the SEO.

The case concerns a dispute between a Complainant and Respondent in relation to whether SEO for the construction sector applied to its working relationship. The complainant came before me as an individual dispute under the dispute resolution procedure set out in the SEO. Either party can appeal the outcome of my decision to the Labour Court.

I must first determine if the Complainant is a class of worker to which the SEO applies. The categories of worker are listed in the SEO. The categories are very broadly defined.   General operative grade B is “to consist of skilled general operatives with more than one year’s experience working in the sector”. The sector is the construction industry.   The definition of Civil Engineering firm set out in the SEO lists the alteration and repair of roads and paths.

Taking into account the broad definition of general operation and the evidence of what the Complainant carried out as part of his duties and the work subcontracted by the Respondent, I find that he falls within the definition of a general operative within the meaning of the SEO.

The second issue for me is to determine is whether he was employed by a building firm or civil engineering firm within the meaning of those terms defined in the SEO.

The SEO sets out that a Building Firm is defined as an undertaking whose ‘principal’

business is one or a combination of any of the following activities: -

(a) The construction, reconstruction, alteration, repair, painting, decoration,

fitting of glass in buildings, and the demolition of buildings;

(b) The installation, alteration, fitting, repair, painting, decoration, maintenance

and demolition in any building, or its site, of articles, fittings, pipes,

containers, tubes, wires or instruments (including central heating apparatus,

machinery and fuel containers connected thereto) for the heating,

lighting, power or water supply of such buildings;

(c) (i) The clearing and laying out of sites for buildings.

(ii) The construction of foundations on such sites.

(iii) The construction, reconstruction, repair and maintenance within such

sites of all sewers, drains and other works for use in connection with

sanitation of buildings and the disposal of waste.

(iv) The construction, reconstruction, repair and maintenance on such

sites of boundary walls, railings and fences for the use, protection or

ornamentation of buildings.

(v) The making of roads and paths within the boundaries of such sites.

(d) The manufacture, alteration, fitting, and repair of articles of worked stone

(including rough punched granite and stone), granite, marble, slate and

plaster.

A Civil Engineering Firm was defined as an undertaking

whose ‘principal’ business is one, or a combination of any 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, tenniscourts,

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.

From an analysis of the evidence presented to me, I accept that the principal business of the Respondent is the maintenance of a section of the motorway network. Its principal business in terms of time spent by its operatives and nett turnover do not relate to any of the activities listed in the definitions of a Building or Civil Engineering firm as set out in the SEO.   Consequently, I find that the Respondent is not a Building or Civil Engineering firm.

The complaint is not well founded.

Sectoral Employment Order (Construction Sector) 2017, SEO

General Operative, a Building Firm, A Civil Engineering firm