Complainant

Respondent

Parties

Nigel Murphy

Metropolitan Film Productions Limited

Representatives

Liz Murray, Irish Film Workers Association

Ciarán 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-00032867-001

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…”

At the hearing, Mr Murphy said that he started working as a stagehand for the respondent on a production of the “Vikings” series in July 2016.  He worked on three seasons of the programme and his employment was terminated on October 12th 2018.  He said that he hasn’t worked for the respondent since then, 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 Murphy 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 Murphy 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 VK Six Productions Designated Activity Company (“Vikings 6”) was established on May 9th 2017.  A copy of a fixed-term contract shows that the complainant’s start date with that company was July 30th 2018.  It appears that he signed the contract on the same day.   The contract states that his hourly rate was the “trade rate” of €25.12 and that he was a stagehand in the construction department.  A third document is a letter dated September 28th 2018, on the headed paper of “VK 6 Productions DAC.”  This gave the complainant notice that his employment with Vikings 6 would terminate on October 5th 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 Vikings 6 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 employment as a stagehand on the production of the Vikings series since July 2016.  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 2018, 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 thee 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 has been penalised and denied the right to earn his living.

Evidence of the Complainant

At the hearing, the complainant said that he expected to go back to work when production started back.  He said that he wouldn’t be called back before someone who started before him.  He is not sure when construction started back on the set of Vikings.  He heard that the job had started back and he got a phone call from a colleague who said that someone was in his job who was never there before.  The person who phoned him had left the union and was re-employed.  He said that he doesn’t know why he wasn’t called back.

The complainant said that he sent an email to a production manager and that he got a reply telling him that his “position is not there.”  He then said that he may not have got a reply.  He said that, when the IFWA shop steward, John Arkins, spoke at the Oireachtas Committee, anyone who was in IFWA wasn’t taken back on.

During canvassing for the last general election, the complainant said that he met the Minister for Finance, Mr Paschal Donohoe, who is a TD for his area.  He said that he told Minister Donohoe that the respondent was claiming that he wasn’t an employee.  He said that the minister’s response was that, in accordance with the conditions of section 481 film relief, Metropolitan Films has an obligation to employ him.

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 October 5th 2018, the complainant finished up working on a TV series, Vikings 6, made by the respondent company through a DAC.  At the opening of the hearing, the complainant said that he expected to be laid off for between two and four months.  He said that his colleagues in IFWA weren’t called back to work after the appearance of their shop steward at an Oireachtas Committee hearing in February 2018.  From the perspective of this complaint of penalisation, the complainant claims that the penalisation occurred when he wasn’t called back to work on the making of “The Last Duel” in November 2019.

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.  The issue was clearly on the union’s agenda in October 2018, and, as the complainant was laid off in the same month, this was an opportune time to 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.  I have reached the conclusion that he was dismissed around December 2018 or January 2019, when he wasn’t re-employed as he expected, after two or three months.  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