Complainant

Respondent

Anonymised Parties

Motorway maintenance general operative

Motorway Maintenance Company

Representatives

Tom Mallon BL                             James Scanlon Maples and Calder Solicitors

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-00027906-001

22/04/2019

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.  

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 provided me a copy of his employment contract. The contract was signed by him on the 11th of December 2015.  

He highlighted several issues with his contract. He highlighted the logo of the Respondent which indicated that it was a civil engineering and building contractors. The name of his employer on the contract included the phrase motorway maintenance. His contract described him as a motorway maintenance general operative. The contract stated that the job title was not definitive. It stated that he was required to carry out other duties as requested by management.   It went on to state that the main duties included as part of his daily routine were not limited to the following:

• Driving of a range of vehicles as part of maintenance duties (including winter maintenance gritters)
• Conducting various maintenance works to a high standard and high-speed motorway and associated roads
• Carrying out a wide range of works such as grass and hedge cutting, small drainage repairs, boundary and safety fence and barrier repairs, gulley cleaning and routine tidying of depots and the network including litter picking, post and sign replacement, minor surfacing and minor civil works
• Setting up traffic management systems and operating them
• Observing and promoting all aspects of health and safety
• Communicating with and assisting members of the public and colleagues when required
• Carrying out any other tasks as appropriate to the role

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

He referred to the paragraph in his contract wherein he was required to wear personal protective gear at all times. He was provided with safety shoes/boots and protective clothing/equipment.

He provided me with a copy of his payslip for period 1/2018 and it contained the logo referring to civil engineering and building contractors.

He also provided a payslip for period 12/2018 when the logo had changed.

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.

It’s 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 went on to argue that 1.54% to 2% 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.

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. 29 tasks were identified and the time the Complainant spent on each task identified.   The greatest time undertaking related to 19.17% of time and was spent on 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 1.54% of annual time spent.  

When questioned the Respondent explained further about the work that was subcontracted out from year to year. It explained that this could be 20% of the turnover of the Respondent.   It went on to explain this is work that the Complainant was not himself involved in. Evidence was given that the turnover of the company was €8 million, €3 million related to work that was subcontracted and €5 million related to maintenance work.

The Respondent explained that it had ten staff, seven operatives on the ground, two supervisors and one admin person.

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 person.

The Respondent explained the change in branding as not unusual and it did not change the relationship between the Complainant and its employer. The Respondent has its own tax and VAT number and the wages were paid by the Respondent to the Complainant.

The Respondent submitted that none of the works in 28 out of the 29 categories listed 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 him. 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.

The facts of the case are not in dispute. The Complainant was in employment at the time of the hearing with the Respondent.

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 the sector 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 just about 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.

They SEO sets out that a Building Firm be 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.   It’s principal business in terms of time and turnover does not relate to any of the activities listed in the defintions of a Building or Civil Engineering firm as set out in the SEO.     Consequently, I find that it is not a Building or Civil Engineering firm itself.

The complaint is not well founded.

Sectoral Employment Order (Construction Sector) 2017, SEO

General Operative, a Building Firm, A Civil Engineering firm