FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : METROPOLITAN FILMS/ WORLD 2000 (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IFWA) DIVISION :
SUBJECT: 1.Breach of Collective Agreement The Claimant contends that his employer has breached a collective agreement and that he has lost his service with the employer as a result. He similarly complains that the breach of the collective agreement has resulted in a loss of benefit in the form of profit share and a 1% pension contribution. He also made reference to loss of allowances but makes no claim for redress in respect of this matter. The Respondents to the matter referred to the Court are, apparently, two distinct entities. Both of those entities acknowledge that they are parties to a collective agreement covering the Claimant’s terms and conditions of employment but both contend that they never employed the Claimant. They say that he was at all material times employed by Designated Activity Companies (DAC’s) in which the Directors of the Respondent entities were involved. Notwithstanding that the two Respondents contend that they do not employ anybody covered by the collective agreement they concluded with the Claimant’s Trade Union and which governed the terms and conditions of employment of the members of the Trade Union; the Respondents submitted that they, the Respondents terminated the agreement in 2019. The Respondents pointed to a clause in the agreement, which was due to expire at the end of 2020, to support the proposition that the purported termination of the agreement was provided for in the agreement. The clause concerned reads as follows:
No agreement has been reached in the period from 2017 to the date of this hearing to terminate the collective agreement and, as set out above, no provision was, in the view of the Court, contained in the collective agreement for its termination by either party prior to the agreed date of expiry. The Court therefore concludes that the purported termination of the collective agreement (in January 2019 as contended for by the Respondents or by letter dated 6thJanuary 2020), in itself represents a breach of the agreement. Against that background, the complaint before the Court is that the responding parties, who deny that they employ anybody but nevertheless accept that they concluded a collective agreement with the Trade Union covering the terms and conditions of employment of the members of the Trade Union employed by a series of DAC’s, breached that collective agreement. Specifically, the Claimant contends that the breach of the agreement has resulted in the loss of his service with the Respondents, the loss of a 1% pension contribution by the Respondents and the denial to him of a profit share entitlement arising from the collective agreement amounting to 2.5% for the years 2016 to 2018 and for which he seeks redress. He has made mention of loss of allowances but has not sought redress in respect of that matter. The Respondents accept that the agreement was accompanied by a commitment to pay a 2.5% profit share but stated that no profit had been made at any material time on any production on which the Claimant worked. The Respondents denied that any agreement existed as part of the 2017 collective agreement to provide a service mechanism. The Court has examined the text of the collective agreement at issue and identified a provision for payment (presumably by the Respondents, who are the only party to the written agreement apart from the Trade Union wherein this explicit commitment was made), of a 1% pension contribution rising in .5% increments each year to a maximum of 2.5%. That commitment was contingent on the proposition that an “employee” would make a matching contribution but could “opt out” of the arrangement. Where, according to the written agreement, an “employee” did “opt out” no contribution would be made by the Respondents. The Claimant before the Court appears to have made no contribution to his pension from 2017 to date. In those circumstances the Court concludes that, in accordance with the terms of the written agreement, no liability for pension contributions rests upon the Respondents. The Court’s examination of the written agreement did not identify any clause making provision for profit share or as regards service. Both parties accepted before the Court that while the claim before the Court is based on an alleged breach of a written collective agreement, the document capturing that agreement made no mention of either matter now alleged to have been the subject of the alleged breach. The Court notes however the Trade Union’s assertion that the provisions concerned were inherent elements of the written collective agreement rather than an explicit provision of the written agreement. The Respondents, who asserted that they never employed the Claimant, accept that the collective agreement, through some understood mechanism, provides for payment of a 2.5% profit share but makes no provision explicitly or implicitly for a service arrangement. In all of the circumstances, the Court recommends that the Claimant, represented by his Trade Union, should engage with the Respondents to examine the operation of the agreed profit share scheme for 2016 to 2018 in his case and to agree his entitlement, if any, to benefit from the profit share agreement in those years. The Court is unable to establish that any agreement exists or existed between the parties from 2017 to date in relation to service and consequently makes no Recommendation in relation to this matter. The Court so recommends.
NOTE Enquiries concerning this Recommendation should be addressed to Heather Murray, Court Secretary. |
