Complainant

Respondent

Parties

Paul Hickey

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-00032863-001

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 Hickey has worked as a stagehand on films and television programmes developed by Metropolitan Films since 2013.  At the hearing, he said that he has been given no work since April 27th 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 Hickey 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 Hickey 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 claimant.”  Due to the uncertain nature of the work, the respondent does not employ full-time production crew such as painters, electricians or actors.  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 fixed-term contract shows that the complainant’s start date with that company was June 26th 2017, although it appears that he signed the contract on September 1st 2017.   The contract states that his hourly rate was €21.35 and that he was a stagehand in the construction department.  A third document is a letter dated April 18th 2018, with the title, “Termination of Engagement.”  This is to give the complainant notice that his employment with Badlands 3 would terminate on April 27th 2018. 

Mr Loughran raised two preliminary points; firstly, he argued that the complainant was not employed by the respondent.  Secondly, this complaint was submitted to the WRC on December 11th 2019, more than 12 months since the complainant worked with Badlands 3 and the respondent’s position is that it 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 2013.  On his behalf, Ms Murray said that the complainant was employed by a series of DACs on fixed-term contracts which had no end-date.  The DACs were established and controlled by the respondent and they have directors in common.  The DACs only come into existence when the respondent decides to make a film and to apply for section 481 film relief.  Ms Murray said that an analysis of the registration dates of the DACs on the register of the Companies Registration Office, show that, often, they are not registered at the time that a construction crew commences work on a production site.

Ms Murray said that the respondent has refused to recognise the complainant’s 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 doing that work for six 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 it is important to take account of an “an implied Local Agreement on discounted rates of pay negotiated between the Parties and operable since 2012.”  She said that custom and practice in the industry must also be considered, where employees are engaged by various production companies and laid off between productions.  Unlike other sectors where employees claim redundancy payments after being laid off, construction workers in the film sector expect to be re-employed when a new film or TV series goes into production.

Departure from Custom and Practice in the Engagement of Workers

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.”. 

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.

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.”

Ms Murray said that the workers who resigned from IFWA and who were willing to forego their entitlements “kept their jobs.” 

Ms Murray said that it was accepted as part of the agreement with the respondent that the complainant would back at work in the order of his service.  In November 2019, he became aware that work was starting on a film called “The Last Duel,” and he contacted his supervisor, Mr Arkins, to find about returning to work.  Mr Arkins told the complainant that “none of the IFWA crew who appeared before the JOC committee on Working Conditions and Development in the Film Industry were being returned to work.”  Ms Murray said that no disciplinary issues were ever raised in relation to the complainant and he does not know why he is being denied the right to earn his living.

Evidence of the Complainant

The complainant said that he worked with the respondent since 2013, on series one and two of the programme, “Penny Dreadful” and on series one, two and three of “Into the Badlands.”  He said that “every time a film came in, I got a call from John Arkins or Nicky MacManus.”  Mr MacManus is the construction manager.  In November 2019, he said that he heard that construction staff were re-hired for “The Last Duel,” but he wasn’t called back to work.  He said that it is his understanding that he has been “black-listed” because he is a member of IFWA.  He said that until he wasn’t called back in 2019, he was called in for every job.

Statutory Time Limit 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 April 27th 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 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.

As someone who was called in for every job, 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, 20 months after he finished working on Badlands 3.  It is apparent from the union’s submission that the objective of the meetings in late 2018 and early 2019 with the respondent’s director, James Flynn, was to resolve a dispute about IFWA members not being called for work on DACs controlled by the respondent.  I do not accept that from May 2018, when he wasn’t re-hired on any production, that the complainant was unaware that he was being excluded from work.  When he wasn’t called back to work before the end of 2018, when his union was in discussions with the respondent, it was open to him 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.  The only thing he said occurred at this time was a conversation he had with his shop steward, Mr Arkins.  However, it seems reasonable that, having been out of work since April 2018, he must have been in touch with Mr Arkins in the intervening 20 months to find out what was happening and to see if work was available.  It is my view that the latest date that the complainant was dismissed was around March 2019, when his former colleagues in IFWA were re-hired. 

I have reached the conclusion that, around March 2019 at the latest, the complainant was not re-employed by the respondent or by a company controlled by the respondent.  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