Complainant

Respondent

Parties

Stephen Preston

Metropolitan Film Productions Limited

Representatives

Liz Murray, Irish Film Workers Association

Ciaran Loughran, Irish Business and Employers’ Confederation

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032861-001

11/12/2019

Metropolitan Film Productions Limited was established in 1997 as an Irish producer company of film and television projects.  The company’s website states that,

“…Metropolitan Films, through its international and production entities, develops, produces and provides production services to international film and television projects that locate in Ireland…”

Mr Preston has worked as a stagehand on films and television programmes developed by Metropolitan Films since 2002, when he started on a film about King Arthur.  At the hearing, he said that he generally worked around 54 hours a week.  His hourly rate of pay was €27.00.  Mr Preston said that he has been given no work since August 31st 2018 and, by not giving him work, he claims that the respondent has penalised him.  He claims that he is entitled to a contract of indefinite duration.  The respondent’s case is that Mr Preston was not employed by Metropolitan Films and, that his complaint has been submitted outside the statutory time limit at section 41(6) of the Workplace Relations Act 2015.

While the parties are named in this decision, for the remainder of this document, I will refer to Mr Preston as “the complainant,” and to Metropolitan Film Productions as “the respondent.”

Under section 481 of the Taxes Consolidation Act 1997, a film production company may be eligible for “section 481 film relief,” a credit against corporation tax.  A credit of 32% may be offset against eligible expenditure, 80% of the cost of production or €70 million, whichever is the lowest.   To qualify for film relief, a qualifying company must be set up for the purpose of producing and distributing a single film or TV series.  On behalf of the respondent, Mr Loughran said that the legislation requires the qualifying company, a designated activity company (DAC) to be a wholly owned subsidiary of the parent production company.  Each DAC must apply to the Revenue Commissioners for a Section 481 Certificate to qualify for film relief.  Once a film or TV programme is completed, the DAC is audited, a compliance report is submitted to the Revenue Commissioners and the DAC is dissolved.  

Mr Loughran noted that the use of section 481 reliefs is “not a circumvention of what would otherwise be employment rights of persons such as the appellant.”  Due to the uncertain nature of the work, the respondent does not employ full-time production crew such as painters, electricians or actors and Mr Loughran submitted that no employment relationship ever existed between the complainant and the respondent.

Mr Loughran said that the film industry “operates under a unique set of practices underpinned by a specific statutory regime.”  He said that in the main, it is “a freelance industry, not just for cast and crew but for producers also.”  

A Certificate of Incorporation submitted in evidence shows that a company called Badlands Three TV Productions DAC (“Badlands 3”) was established on May 5th 2017.  A copy of a “Schedule D” agreement between that company and the complainant in the capacity of an independent contractor shows that his start date was July 19th 2017.   The agreement states that his rate for five days was €1,806.86 and that he was at the grade of “Stagehand / Driver.”  Mr Loughran said that the complainant was engaged with Badlands 3 until August 31st 2018. 

Since 2002, the complainant has worked as an independent contractor with a number of qualifying companies / DACs, of which the most recent was Badlands 3.  He finished working on that series when it was completed on August 31st 2018.  The respondent’s position is that the complainant was not an employee, but that he was employed on a contract for service, and was an independent contractor.  He did not receive a salary or wages, but was paid on foot of weekly invoices under the title “Stephen Preston Services.”  No deductions were taken in respect of tax, PRSI or USC.  He was reimbursed for his vouched expenses and for the cost of using his personal vehicle.  Mr Loughran said that, throughout his engagement with the respondent, the complainant was satisfied with his status as a contractor and did not seek to challenge or clarify his employment position.

On this basis, Mr Loughran raised two preliminary points; firstly, he argued that the complainant was not employed by the respondent.  Secondly, as he submitted this complaint to the WRC on December 11th 2019, more than 12 months since he was engaged with Badlands 3, Mr Loughran submitted that the complaint is outside the time limit prescribed at section 41(6) of the Workplace Relations Act 2015. 

The Complainant’s Argument that the Respondent was the Employer

It is the complainant’s case that his employer was Metropolitan Film Productions Limited and that he was entitled to a contract of indefinite duration based on his “year on year” employment on various film and TV projects since 2002.  On his behalf, Ms Murray said that the complainant was employed on a series of fixed-term contracts which had no end-date.  She said that the respondent has refused to recognise his entitlement to a contract of indefinite duration and, until 2017, continued to issue fixed-term contracts.  They have provided no objective justification as to why a contract of indefinite duration has not been issued.  Ms Murray said that the role of stagehand is a fixed and permanent need of the respondent and that the complainant has been performing that role, a grade 2 stagehand, for 16 years.    

In her submission on behalf of the complainant, Ms Murray argued that the existence of a series of collective agreements between the respondent and SIPTU, and subsequently IFWA, means that the respondent was his employer.  In support of this argument, she referred to the decision of the High Court in Conway and Others v the Health Service Executive[1], a decision upheld by the Supreme Court on appeal.  The plaintiffs in Conway, a group of psychiatric nurses employed in Áras Attracta in County Mayo, claimed that their employer failed to investigate their conduct in respect of the treatment of residents in accordance with the HSE’s Trust in Care Policy and the disciplinary procedure.  Referring to the Trust in Care Policy, and arguing that this formed part of their contractual entitlements, the case made by the nurses was that,

“…the policy was intended to give rise to contractually binding obligations between the parties.  They further consider that it was intended to create legal relations between the trade unions, their members and the defendant and that it is sufficiently certain, unambiguous and clear to be capable of having contractual effect.”   

An extract from a 1991 agreement between Screen Producers Ireland (formerly Film Makers Ireland) and the Irish Congress of Trade Unions group of film unions was submitted at the hearing.  Clause 26 provides for paid sick leave based on continuous employment.

Ms Murray said that there has been in place “an implied Local Agreement on discounted rates of pay negotiated between the Parties and operable since 2012.”  To provide the company with an advantage when pitching for business in the United States, Ms Murray said that the complainant and his colleagues accepted a pay reduction of 12.5% and gave up allowances of €300 per week. 

In her submission, Ms Murray included a copy of a list produced by a construction manager following the conclusion of the local agreement in 2012 which shows that the complainant was second on the list of almost 60 stagehands available for work with the respondent.  As a condition of the agreement reached between IFWA and the respondent in 2012, Ms Murray said that “it was implied that the Crew would start in their order of service on each new phase of production,” meaning that their service would be recognised.  She said that the parties also agreed that a profit-sharing scheme would be set up. 

Ms Murray said that in early 2020, an investigation by the Scope section of the Department of Employment Affairs and Social Protection concluded that the complainant was an employee, and not an independent contractor.  In the early years of his association with the respondent, for example, when he worked on King Arthur, he was a PAYE worker.  She said that it is interesting to find that the respondent and not Badlands 3 DAC, is appealing the Scope finding.  Ms Murray said that “no such company exists as Stephen Preston Services” and that the weekly invoices provided in the respondent’s book of documents were not submitted by the complainant.  She said that all the amounts referred to on the invoices reflect his collectively agreed rate of pay.  Ms Murray said that the complainant didn’t know that there were no deductions from his wages for tax, PRSI and USC and that he was subsequently advised by his accountant that deductions should have been made. 

Departure from Custom and Practice in the Engagement of Workers

From late Autumn 2018 through to the Spring of 2019, Ms Murray said that the complainant was aware that she and the union’s shop steward were in talks with a director of the respondent company, Mr James Flynn.  She said that, at no time during these discussions, was it ever suggested that the employment relationship of any employee was in jeopardy.  In April 2019, Mr Flynn became seriously ill and he wasn’t available for further discussions.

Ms Murray said that, as the number two stage hand in the permanent pool of stagehands,  it was “a well-known fact of the agreement that Stephen would start in the order of his service” and he expected to return to work “in a matter of weeks.”  When he became aware of work being started by other production companies, Ms Murray said that the complainant phoned the construction managers on those productions, but he was not returned to work.

In her book of documents, Ms Murray included a copy of a reference dated February 8th 2018 for the complainant from a construction manager on the headed notepaper of his company, Nicky Mac Construction Limited.  The complainant was seeking a reference in support of an application for a car loan.  His manager wrote that he was a valued crew-member and “will continue to work for us for the foreseeable future as we have several upcoming productions both film and TV in the coming years.”  The complainant has never been an employee of Nicky Mac Construction, however, Ms Murray argued that “the clear import of the reference was that, as he had been employed by Metropolitan for the past 16 years, he would continue to be employed by Metropolitan into the future given that the Construction Manager Nicky MacManus worked on all the productions that Stephen worked on for Metropolitan.” 

On February 13th 2018, as part of a union delegation invited to a meeting of the Oireachtas Committee on Media, Tourism, Arts, Culture, Sports and the Gaeltacht, the union’s spokesperson, John Arkins, spoke about the failure of employers to recognise employment legislation.  He referred to the practice of “black-balling,” where, if a worker spoke out about issues, they were penalised.  IFWA claims that Mr Arkins and others, including the complainant, lost their jobs “because of that JOC hearing.”. 

On March 9th 2019, Ms Murray received a letter signed by a group of IFWA members informing her that they were resigning from the union.  The letter states:

“We the undersigned wish to formally notify you that we are resigning our membership with the union. 

We feel that membership of IFWA will be detrimental to any future employment.

Please accept this letter as our official notice of resignation effective immediately.”

The complainant said that this group of workers who resigned from IFWA and who were willing to forego their entitlements “kept their jobs.” 

Towards the end of 2019, the respondent commenced production on a film called “The Last Duel” and Ms Murray said that the complainant expected to get a call for work.  The custom was that the construction manager would contract the construction crew with start dates and when this didn’t happen, the complainant telephoned the construction manager.  He claims that the explanation he received for not being called in to work was that “he was too close to John Arkins and IFWA and could not be trusted to go to work if IFWA mounted a picket for any reason.”  He claims that he was told that it is “unlikely that he would ever get work with James [Flynn] again.”

It is the complainant’s case that he was informed by his construction manager of 16 years that he was being “black-balled” and penalised because, as part of the union, he had been advocating for many years for recognition of his right to a contract of indefinite duration.  Ms Murray said that whether the line manager had authority to refuse to re-hire the complainant is a moot point because the respondent never made enquiries about why the complainant was not at work and why his job as a grade 2 stage hand was given to someone else.  Ms Murray said that “someone further down the list who resigned from IFWA has replaced him.”  She claims that it is clear that the respondent “is complicit in the penalisation and most likely directed it.”

Evidence of the Complainant

The complainant said that he got no film work after August 2018, when he finished on Badlands.  He said that he expected to be called to work by his construction manager, but he didn’t get a call.  The complainant said that he contacted the construction manager who told him that he was “too close to John and IFWA” and that they couldn’t risk anything happening, like a work stoppage.  He said that the construction manager told him that he “wouldn’t be working with them ever again.”  The complainant said that, after that conversation, the construction manager refused to take his calls.

Statutory Time Limits for Submitting a Complaint

As a first principle, before moving to consider the substance of this complaint, I must establish that I have jurisdiction under the relevant statute.  The time limit for submission of a complaint under the Fixed-term Work Act is set out in section 41(6) of the Workplace Relations Act 2015.  This provides that a complaint must be submitted no later than six months after the date of the contravention to which it relates.  Section 41(8) provides that, for reasonable cause, an extension of the time limit of up to 12 months may be permitted.  No application has been made for an extension of the time limit.

On August 31st 2018, the complainant finished up working on a TV series, Badlands 3, made by the respondent company through a DAC.  In his evidence, he said that he didn’t know until the end of November 2019, that he wasn’t being called back to work.  His case is that, in contravention of section 13(2) of the Protection of Employees (Fixed-term Work) Act 2003, he was penalised when he was not re-employed by the respondent on another production after he finished up on Badlands 3.

We know from the evidence of the complainant that there was a work stoppage in September 2018, during the production of Vikings 6.  The complainant was second on the list of construction stagehands, next to the IFWA shop steward, John Arkins, who was first on the list.  As the second person on the list, it seems to me that the complainant must have had a reasonable expectation that he would be called in to work sooner than November 2019, 14 months after he finished working on Badlands 3.  It is apparent, that, in September 2018, the union had concerns about their members not being hired on the production of Vikings 6.  As he was not re-employed, it was open to the complainant to submit a complaint to the WRC at that time or shortly afterwards.

A further indication that the complainant was not going to be offered work with the respondent or any related company occurred in March 2019, when the construction crew who resigned from IFWA were re-hired.  At this stage, the complainant must have known that he was in dispute with his former employer; however, he did not submit a complaint to the WRC. 

Having examined the complainant’s evidence, I do not accept that he realised he was dismissed in November 2019 because he pointed to nothing of any significance that occurred at that time that could have led to this assumption.  It is my view that he was dismissed around March 2019, when his former colleagues in IFWA who were further down the list described by Ms Murray as “the permanent pool of construction stagehands” were re-hired.

Having reached this conclusion, and, as this complaint was submitted to the WRC on December 11th 2019, it is statute-barred and I have no jurisdiction to conduct an enquiry. 

I have decided that this complaint has been submitted outside the time limit prescribed at section 41(6) of the Workplace Relations Act 2015.  For this reason, I have no jurisdiction to make any further enquiries.

Expiry of the time limit for submitting a complaint.