Complainant

Respondent

Parties

Martin Grey

Metropolitan Films International 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-00033620-001

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033620-002

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033620-003

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033620-004

Withdrawn

09/01/2020

Mr Grey was a stagehand / labourer on films and television programmes developed by an employer who he refers to as “Metropolitan Films” with an address at Ardmore Studios, Bray, County Wicklow.  He said that he worked for the company and subsidiary companies since 1984, having worked in the business with his father.  In her submission, Ms Murray referred to Mr Grey as “a stagehand at the number one position on the permanent pool of stagehands employed by Metropolitan Film Productions Limited and World 2000 Entertainment Limited…”  At the hearing, Mr Grey said that he normally worked around 54 hours a week.  He and his colleagues were employed for the duration that a film was in production, and then they stopped working and waited for a new film to start.  Mr Grey said that he has been given no work since he was laid off on December 14th 2018 at the end of a production of “Vikings 6.”  He said that work started up again in November 2019 on a series to be shown on Netflix called “Valhalla,” but he was not offered work.  He believes that the reason he was not called back to work is because of his membership of IFWA.  When he was laid off in December 2018, his hourly rate of pay was €25.12. 

The register of the Companies Registration Office (CRO) shows that Metropolitan Film Productions Limited was established in July 1997 by James Flynn and Juanita Wilson.  Octagon Films Limited is registered as a company set up in September 2001 by Morgan O’Sullivan and James Flynn.  Another company, Octagon (LR) Films Limited was incorporated in April 2013 with James Flynn and Ronan Flynn as directors.  All three companies have as their registered address, Ardmore Studios, Bray, County Wicklow.  Filings to the CRO show that, in May 2013, Octagon (LR) Films Limited changed its name to Octagon Films International Limited and, in January 2014, Mr O’Sullivan became a director, with James Flynn and Ronan Flynn.  On June 9th 2015, the company changed its name to Metropolitan Films International Limited.

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…”

Sadly, James Flynn died in February 2023 at the age of 57.  For the previous 25 years, he and his co-directors were the driving force behind a raft of acclaimed television and film productions that helped to establish Ireland as film-making location. 

Government Support for Film Production

Section 481 of the Taxes Consolidation Act 1997 was enacted to encourage investment in the Irish film industry.  In his submission, Mr Loughran informed me that, originally, the “section 481” scheme was an incentive to individuals who could avail of tax relief by investing in approved film projects.  In 2015, the investment relief model changed and section 481 relief now operates as a corporation tax credit.  A credit of 32% may be offset against eligible expenditure, 80% of the cost of production or €70 million, whichever is the lower.  To qualify for section 481 relief, a qualifying company must be set up for the purpose of producing and distributing a single film or TV series.  The qualifying companies are established as designated activity companies or “DACs,” similar to what were formerly referred to as special purpose vehicles or “SPVs.”  The DAC must be a wholly owned subsidiary of the parent production company.  Mr Loughran explained that, once a film or TV programme is finished production, the DAC is audited, a compliance report is submitted to the Revenue Commissioners and the DAC is dissolved. 

This requirement for production companies to establish a DAC for every separate film or TV series is at the heart of a dispute between IFWA and Metropolitan Films.  Employees are recruited at the beginning of every production and dismissed when the production is finished, or when the aspect of the work on which they are engaged is completed.  Mr Grey and his colleagues have worked for many years on dozens of film and television productions, but, because they were treated as if they were employed by a newly established DAC each time a film went into production, they were not considered to be permanent employees.

Departure from Custom and Practice in the Engagement of Workers

Correspondence submitted by IFWA revealed that, in September 2018, notice of industrial action was issued to the employer on the production of the Vikings series and it appears that there was a brief work stoppage.  The respondent owns the qualifying company that produced Vikings and between November 2018 and March 2019, the late Mr Flynn had four meetings with IFWA to discuss the terms and conditions of its members, and according to Ms Murray, to consider a mechanism whereby their service would be recognised.  On November 25th 2018, Ms Murray wrote to Mr Flynn, summarising their discussions at a meeting the previous week and expressing concern about the departure from the “longest service first” practice for hiring IFWA members.  At a meeting in February 2019, the complainant said that Mr Flynn undertook to speak to the heads of departments and managers about the service of the workers.  However, on March 9th 2019, Ms Murray received a letter signed by several IFWA members informing her that they were resigning from the association.  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 the construction workers who resigned from IFWA and who were willing to forego their entitlements were called back to work.  IFWA continued to engage with Mr Flynn to have the service of its members recognised and the complainant thought he would be called back.  In April 2019, Mr Flynn became ill and he wasn’t able to participate in further discussions.

In November 2019, the complainant said that he heard that production was starting up again on “Valhalla” and he contacted the construction manager to ask him about a date to return to work.  He said that he was told that he wouldn’t be called back and that the construction manager refused to explain why.  Up until that film, he said that he was always called back when construction was starting on a new production.  It is his belief that he has been “blacklisted” because he is a member of IFWA. 

Complaints for Consideration

In breach of s.13 of the Protection of Employees (Fixed-term Work) Act 2003, Mr Grey claims that he was penalised when he asserted his right to a contract of indefinite duration.  In contravention of s.5 of the Payment of Wages Act 1991, he claims that he is entitled to wages from December 14th 2018 until December 1st 2019, when he was laid off from work without his consent and in the absence of any agreement regarding lay-off.  In breach of s.3 of the Terms of Employment (Information) Act 1994, he complains that he was never issued with a statement of his terms and conditions of employment.

On behalf of the respondent, Mr Loughran raised two preliminary issues.  Firstly, he submitted that Mr Grey was not employed by Metropolitan Film Productions Limited and that these complaints are against the wrong respondent.  Secondly, he argued that Mr Grey’ complaints have been submitted outside the statutory time limit at s. 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 Grey as “the complainant,” and to Metropolitan Films as “the respondent.”

The Respondent was not the Complainant’s Employer

For the respondent, Mr Loughran submitted that the complainant was not employed by Metropolitan Films but, by a succession of designated activity companies, the most recent of which was VK Six TV Productions DAC.  A Certificate of Incorporation submitted in evidence by the respondent shows that VK Six TV Productions DAC 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 and that he was paid a “trade rate” of €25.12.  A third document is a letter provided to the complainant for the Department of Social Protection in which the line producer states that the complainant’s employment with VK Six will terminated on December 14th 2018. 

It is the respondent’s position that VK Six TV Productions DAC was an entirely separate legal entity from Metropolitan Film Productions Limited.  Mr Loughran acknowledged that, in accordance with s.41(16) of the Workplace Relations Act, I, as the adjudication officer, may exercise discretion to substitute one party for another where the wrong party has been named on the WRC complaint form.  However, referring to the decisions of the Labour Court in the cases of in Starrus Eco Holdings trading as Greenstar Wastepal v Calvin Partner[1]and Sylwia Wach v Travelodge Management Limited[2], he said that it is not appropriate to do so where the naming of the wrong respondent is not an administrative or clerical error.  Mr Loughran also referred to the decision of the Labour Court in an appeal of a decision of an adjudication officer in Patrick Boland v World 2000[3], where the Court held that the complainant did not produce evidence to establish a relationship between him and World 2000, and, for that reason, the appeal failed.

In his submission, Mr Loughran explained that “the film and television industry operates under a unique set of practices underpinned by a specific statutory regime.”  He said that it is a freelance industry, not just for cast and crew, but also for producers.  He referred to the requirement for production companies to establish special purpose vehicles, or, more recently, designated activity companies, “DACs” for each individual production, and only that production.  Once a production is completed and delivered to its financiers, a compliance report is submitted to the Revenue Commissioners and the DAC is dissolved.  The DAC must exist solely for the purposes of producing one and only one film or television programme and funding is targeted at that production.

The respondent’s submission notes that the complainant was engaged on a number of film and TV productions on specified purpose contracts, the last of which was VK Six TV Productions DAC.  His employment ended on December 14th 2018, when the production of season 6 of Vikings ended. 

Mr Loughran submitted that “the application of the requirements under section 481 is in no way a circumvention of what would otherwise be employment rights of persons such as the complainant” and that “no employment relationship ever existed between the parties herein,” meaning between the complainant and Metropolitan Films Productions.  Apart from the regulations around section 481 relief, it is necessary for a DAC to be established for each production, because each project is financed differently.  Financiers will only want to contract with a newly incorporated company that is not affected by any other business in the producer group or which might have pre-existing security registered over it.

The Complaint has been Submitted Outside the Statutory Time Limit

Mr Loughran said that the complainant was last engaged with VK Six TV Productions DAC, a company that shares a director with the respondent, and that his employment with that company ended on December 14th 2018.  As these complaints were lodged with the WRC on January 9th 2020, well over 12 months since the complainant last worked with VK Six, they have been submitted outside the time limit set out at s.41(6) of the Workplace Relations Acts and, it is the respondent’s position that they should not be heard.

The Complainant’s Argument that the Respondent was his Employer

Ms Murray asked me to reject the respondent’s arguments in the absence of any evidence in support of their position.  She submitted that the fact that IBEC has entered an appearance on behalf of Metropolitan Film Productions is fundamental in determining the outcome of this case.  In the absence of sworn evidence, Ms Murray argued that the respondent’s position must be rejected, as must any documents submitted by third parties who are not before this hearing.  She asserted that the documents are not properly in the possession of the respondent unless they give sworn evidence to that fact.  Referring to the decision of my colleague adjudicator, Úna Glazier-Farmer in her decision regarding Siobhán Flahive and Muirdrum Limited Auctioneers and Estate Agents[4], Ms Murray asserted that a failure by a respondent to deliver a defence means that judgement in default must be given against the respondent.

Without prejudice to these arguments, Ms Murray said that the respondent is one of a group of companies that are associated.  To avail of tax relief under section 481 of the Taxes Consolidation Act 1997, the respondent is required to set up subsidiaries for the making of each film or television series.  A producer company cannot make an application for section 481 relief unless a certificate is issued by the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media.  There are two conditions associated with an application, referred to as “the culture test” and the “quality employment test.”  Ms Murray argued that the reference to quality employment must refer to secure employment.  Contrary to this provision, she said that the respondent’s policy is that “the employment relationship cannot survive the lifetime of the DAC.”  She said that the undertaking to be given by a producer company specifically refers to compliance by that company with s.9(2) of the Protection of Employees (Fixed-term Work) Act 2004:  

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

It is the complainant’s case that his employer was Metropolitan Films and that he was employed on various film and TV projects since 1984.  He was employed on a series of fixed-term contracts which had no end-date.  He was laid off when each film or TV project was finished and re-employed when the next one was starting up.  In this regard, Ms Murray referred to the decision of the Labour Court in Beary v the Revenue Commissioners[5].  Between 2004 and 2008, Mr Beary was employed as a temporary clerical officer on nine separate contracts, mainly covering for staff on maternity leave.  The Court held that, in accordance with the First Schedule of the Minimum Notice and Terms of Employment Act 1973, Mr Beary’s employment was continuous and that the breaks of between two and 24 weeks between his contracts must be regarded as periods of lay-off.  

Evidence of the Complainant

In his evidence, the complainant said that his father worked in construction in the film business and he joined him in Ardmore Studios in 1984, in what was then the National Film Studios of Ireland.  He said that at that time, around 42 tradesmen were employed, each having their own workshops.  All were government employees, with permanent, pensionable jobs.  With encouragement from one of the construction managers, he decided to become a freelance worker and, until December 2018, he always worked as a stagehand / labourer on film construction.  He said that there were breaks between productions.  Sometimes the break was as short as one week.  The complainant said that stage crew were not paid during the breaks between films.  They were not permitted to take holidays when they were working on productions, and they got holiday pay at the end, when they were laid off. 

The final assignment that the complainant worked on for the respondent was from June 2017 until December 2018 on the Vikings 6 TV series, during which he was based in Ashford, County Wicklow.  He said that he expected to be back at work in February or March 2019.

In December 2018, the complainant said that he knew that there was “a big clean-up” and he and his colleagues were not told what was happening.  In December 2019, he heard that “Valhalla” had started production and he rang the production office about coming back to work.  He was advised to apply by email.  He didn’t get a reply to his email and, in February 2020, when the production of “Valhalla” was up and running, he went to the site and he asked the construction manager, Mr Ed Norton why he wasn’t being given work.  He said that Mr Norton told him that he couldn’t talk to him and he threatened to get security to remove him from the site.  He said that he contacted all the construction managers he knew, but no one would give him work.  At the time, he was age 64 and he said that he felt forced to retire.

On the form he submitted to the WRC, the complainant stated that his former employer was “Metropolitan Films.”  In his submission on behalf of the respondent, Mr Loughran argued that the complainant has never been employed by a company named or trading as “Metropolitan Film Productions.” 

Publicly Available Information

On the website of the Companies Registration Office (CRO), the financial accounts for the year ending on July 31st 2018 (the complainant’s last year of employment) for Metropolitan Film Productions Limited shows that the company had an average of seven employees in that year, including the directors.  The CRO also provides a listing for Metropolitan Films International Limited and its subsidiaries (collectively referred to as the “Group”).  In the financial statement of that business up to April 30th 2018, VK Six TV Productions DAC is listed as one of 16 subsidiary companies.  The complainant’s evidence is that the last film on which he worked was Vikings 6 and that he finished up on that production in August 2018. 

The financial accounts for Metropolitan Films International Limited, up to April 30th 2018, shows that the average number “employed by the Group in its production company subsidiaries” was 1,301, of which, 1,283 were employed in production.  The report shows that the cost of wages and salaries for 2018 was just under €40 million.  The report also notes that,

“The above employee numbers are the average monthly number of employees as calculated by reference to Section 371(5) of the Companies Act 2014.  The nature of the Group’s trade resulted in the majority of employees being contracted for a condensed period.  Therefore, a significantly higher number of employees than the average reported were employed by the Group.”

Based on the filings in the CRO and the evidence of the complainant, I am satisfied that, until April 30th 2018, when he was registered as an employee of VK Six TV Productions DAC, the complainant was one of 1,301 employees of “the Group” of companies comprising Metropolitan Films International Limited and its Subsidiaries.  He continued to work on Vikings 6 until August 2018 and I am satisfied that he was one of the 332 production staff employed by the Group in the financial year 2019.  Over the course of these hearings, it became apparent that, for most of 2019, no films were in production and this is the reason for the difference in the numbers employed between 2018 and 2019.  The financial report for the Group for 2022 which Ms Murray included in her submission shows that by 2022, the employee numbers had risen to 785, of which, 783 were engaged in production. 

In his evidence at the hearing, the complainant said that he started working as a stagehand with the carpenters and painters on film sets in 1984.  It is my view that the complainant was first employed by the respondent in 2001, when Octagon Films was established.  I accept that he worked from the 1984 in the film business, but it is not possible to say with certainty that, when he worked before 2001, he was an employee of the respondent.

The Effect of Section 481 of the Taxes Consolidation Act 1997

Section 481 of the Taxes Consolidation Act 1997 (“the 1997 Act”) was an acknowledgement by the government of the importance of film making to the promotion of Irish culture, the development of tourism and the growth of jobs.  The 1997 provisions were amended by section 26 of the Finance Act 2018.  The Revenue Commissioners published a series of Film Regulations governing the application for a section 481 certificate with the latest issued in Statutory Instruments (SI) 119 and 358 of 2019.  SI 358 is concerned with an uplift in tax relief for films made in the regions and the main regulations are set out in SI 119 of 2019.

In his submission on behalf of the respondent, Mr Loughran explained that “section 481 relief” was intended to promote investment in film production by granting individual tax-payers relief on their investment.  Until December 31st 2014, the relief was available as a personal tax credit to investors.  Section 481 is now referred to as the film tax credit and is only available to producer companies in the film production industry.  The financial statement for 2018 shows that, in that year, the Group received €25,483,667 in corporation tax credit under section 481.   

The website of the Department of Tourism, Culture, Arts, Gaeltacht, Sports and Media (“the Department”) has a useful Guidance Note on the Regulations and on the procedure for applying for relief.[6]   The Regulations provide that a producer company applying for section 481 relief must, in the first instance, apply to the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media (“the Minister”) for a qualifying certificate.  When the Minister issues a certificate in relation to a qualifying film, and all the other provisions of section 481 have been complied with, a producer company may make a claim for film corporation tax credit.  The relief may be claimed against the company’s corporation tax liabilities and is given at 32% of the lower of:

a) Eligible expenditure

b) 80% of the total cost of production, or

c) €70,000,000

We know that, to avail of this relief, a qualifying company must be established so that the cost of production is ring-fenced and can be audited by the Revenue Commissioners.  Section 481 of the 1997 Act defines a qualifying company as a company which –

(a) is incorporated in the State,

(b) is resident in the State and not resident elsewhere,

(c) exists solely for the purposes of the production and distribution of only one qualifying film, and

(d) does not contain in its name registered under either or both the Companies Acts, 1963 to 1990, or the Registration of Business Names Act, 1963, the words “Ireland”, “Irish”, “Éireann”, “Éire” or “national.”

From the perspective of the issue under consideration here, the important component of this definition is sub-section (c), that the qualifying company exists solely for the purpose of the production and distribution of one film. 

“Producer company” is not defined in the 1997 Act, however, Regulation 2 of SI 119 of 2019 states that,

“film group” means the producer company, the qualifying company and all businesses that are regarded as partner or linked business of either company[.]

I am satisfied that Vikings Six TV Productions DAC, being a subsidiary of Metropolitan Films International Limited, is an associated company of Metropolitan Films International Limited.  I am further satisfied that the qualifying companies which the respondent claims were the complainant’s employers were all associated companies and, before they were dissolved, were components of the Group known as Metropolitan Films International Limited. 

In accordance with the European Commission Communication on State aid for films and other audio-visual works, the Revenue Commissioners publishes the names of the recipients of section 481 tax credit.  In the documents she submitted at the hearing, Ms Murray included a copy of the list of companies who have benefited from section 481 credit.  This shows that, between 2016 and 2022, Metropolitan Films International Limited availed of tax relief of more than €150 million in respect of 25 individual productions.  Included in the list of productions is Vikings Six, which the complainant worked on until August 2018.

To support their case that the complainant was not employed by them, the respondent relies on the Revenue requirement for a producer company to establish a qualifying company to apply for tax credit for each individual film, arguing that “this is in no way a circumvention of employment rights…”  It would be an entirely irrational outcome if, as a consequence of the government’s policy to provide Exchequer funding to the film industry, employees were deprived of security of employment.  To this end, I have examined the 2019 Regulations and the Department’s Guidance Note (footnote 6).  It is apparent to me that the Regulations are intended as compliance measures to ensure that workers employed in film production have the same entitlements under employment law as employees in all other sectors of business. 

In the directors’ report for 2018 (and subsequent years), under the heading, “Principal risks and uncertainties,” the directors note that,

“A principal risk which could materially and adversely affect the Group’s future operating profit or financial position is compliance with the conditions set out in certificates issued under Section 481 Taxes Consolidation Act,1997 (as amended).”

The report gives no indication which condition or conditions of the section 481 certificate presents a risk and it does not state that they have not complied with the conditions. 

The Guidance Note refers to the application process for a section 481 certificate comprising “Tabs A to M.”  Section 4 of Tab A requires the producer company to,

“…demonstrate how, in promoting, developing and enhancing culture, the film acts as an effective stimulus to film making in the State through, among other things, the provision of quality employment and training opportunities.”

I agree with Ms Murray’s assertion that quality employment means secure employment.  This is underlined by the condition at Tab M of the application process:

“Tab M is an Undertaking in respect of quality employment. It should be completed and signed by a director of the producer company and a director of the qualifying company.

Quality employment is employment which complies in all material aspects with all applicable laws including but not limited to all obligations in the field of environmental, social and employment law that apply at the place where the Services are provided, that have been established by EU law, national law, and collective agreements in particular the provisions of the following as may be amended from time to time:

i. the Terms of Employment (Information) Acts 1994 to 2014

ii. the Safety, Health and Welfare at Work Act 2005

iii. the Protection of Employees (Fixed-Term Work) Act 2003 and in particular section 9(2) thereof

iv. The Organisation of Working Time Act 1997

v. The Employment Equality Acts 1998 to 2011

vi. The Equal Status Acts 2000-2015

vii. The Payment of Wages Act 1991

viii. The Protection of Young Persons (Employment) Act 1996

Quality employment also requires that the employer is in compliance with employment, remuneration, taxes, immigration and work permits for all personnel and has in place written policies and procedures on Grievances, Discipline and Dignity at work (including harassment, bullying and equal opportunity) as well as ensuring that any Workplace Relations Commission findings relating to the employer and to any related companies are being followed.

In her submission, Ms Murray noted the reference to s.9(2) of the Protection of Employees (Fixed-term Work) Act 2003 which is listed at sub-section iii above and which provides that,

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years. 

It is apparent that Metropolitan Films International Limited and its subsidiaries is a Group comprising, in different years, a varying number of qualifying companies, each of which is set up to produce one film and one film only, so that the producer company (as distinct from the qualifying company) can apply for section 481 tax credit in respect of each individual film. 

The Group’s financial report for 2018 list 16 subsidiaries and the report for 2022 lists 12 subsidiaries, of which, only two were listed in 2018.  This demonstrates the short life of the subsidiaries and the inability of these companies to comply with the conditions of the section 481 certificate regarding quality employment.

Contrary to the respondent’s assertion that it was necessary to assign the complainant to a succession of qualifying companies, the 2019 Film Regulations provide that workers must be employed in accordance with section 9(2) of the Fixed-term Work Act, meaning that they must be employed on a continuous basis and not on a succession of fixed-term contracts.  A qualifying company, because it “exists solely for the purpose of the production and distribution of one film,” cannot provide continuous employment and therefore, I am satisfied that the only rational and lawful employment relationship is between the complainant and the producer company, in this case, Metropolitan Films international Limited and Subsidiaries, collectively referred to in the Directors’ Reports as “the Group.” 

Collective Agreement Between the Respondent and the Complainant

The respondent submitted a copy of a contract of employment between the complainant and VK Six TV Productions DAC.  In his evidence, the complainant accepted that he signed this contract.  He said that holiday pay was conditional on employees signing contracts which named the qualifying company as the employer.  The document included in the respondent’s book of papers states (at page 2) that “The normal working week will be per the hours set out in the Local Construction Agreement.”

At the hearing, Ms Murray referred to this “Local Construction Agreement” between Metropolitan Films and IFWA which was to run from January 2017 until December 2020.  The Agreement sets out basic terms and conditions for film construction workers.  I understand that the 2017 Agreement was a successor to a deal agreed in 2012, when IFWA members agreed with the late Mr Flynn that they would give up subsistence allowances of €300 per week and accept a pay reduction of 12.5%.  In return, Ms Murray said that they were promised that their service would be recognised and that a profit-sharing scheme would be set up.  In January 2020, IFWA was informed that the respondent was treating the 2017 Local Construction Agreement “as at an end.” 

Ms Murray referred to a letter sent by Morgan O’Sullivan on April 24th 2012 to representatives of film construction workers regarding local arrangements “for crew at Ashford on Vikings and Octagon / World 2000 projects 2012.”  Ms Murray argued that the concluding of a collective agreement that governed terms and conditions of IFWA members from 2012 until 2020 demonstrates that there existed a legal employment relationship between Octagon / Metropolitan Films and IFWA members.  In support of this position, she referred to the decision of the Supreme Court in Goulding Chemicals Ltd v Bolger[7], where, considering the agreement between the company and the trade unions in that company, Mr Justice Kenny held that,

“It seems to me that the six-point agreement was intended to create legal relations and was intended to be a contract between the plaintiffs and the unions engaged in the negotiations…When an apparent agreement in relation to business relations is entered into the onus on the party who asserts that it was not intended to have legal effect is a heavy one.  In my opinion, the six-point statement and its acceptance created a valid enforceable contract between the plaintiffs and the unions who took part in the negotiations.”

Leaving aside the end of the Agreement in 2020, it is apparent that between 2012 and 2020, Metropolitan Films International Limited, and before that, Octagon Films International Limited, conducted itself as the employer of the complainant and his colleagues and engaged in negotiations regarding their terms and conditions. 

Error in the Naming of the Employer

The complainant submitted these complaints against “Metropolitan Films” and, in her submission on his behalf, Ms Murray referred to the employer as “Metropolitan Film Productions Limited.”  I am satisfied that that the correct name of the respondent is Metropolitan Films International Limited.  Therefore, on the form he submitted to the WRC on January 9th 2020, the complainant did not state the correct name of his employer.  Mr Loughran pointed out that s.41(16) of the Workplace Relations Act provides that,

An adjudication officer may, by notice in writing given to the parties to a complaint or dispute to which this section applies, correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute.

In my determination about whether to allow this complaint to proceed, I must give some consideration to the fact that the complainant has not named a wrong legal entity, but that he has made an error in the naming of his employer.

Mr Loughran referred to the case of Sylwia Wach andTravelodge (footnote 2) as an argument against amending the name of the respondent.  It is my view that this precedent is not useful to the respondent because the Labour Court determined that the issue in Travelodge was not a formal or verbal error, but that the wrong respondent was impleaded.  Based on his understanding that his employer was “Metropolitan Films” or “Metropolitan Film Productions Limited,” the complainant has made an error by neglecting to provide the full legal name of his employer.  It is my view that the respondent intentionally withheld from the complainant the correct name of his employer and that they relied on the technicality provided by section 481 of the 1997 Act to give the impression that he was employed by a qualifying company.

In its decision on Ballarat Clothing Limited and Ann Aziz in 2015[8], the Labour Court addressed the issue of an error in the naming of the employer.  Ms Aziz was not legally represented and, on the form she submitted to the former Equality Tribunal, rather than the name of the company she was employed by, she named two company directors.  In its finding that the respondent suffered no prejudice by being incorrectly named, the Labour Court referred to the decision of the High Court in O’Higgins v University College Dublin & Another[9], where Mr Justice Hogan held that,

“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if indeed, error it be)…In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

I am satisfied that, in the case under consideration, the respondent was always on notice of these complaints and in a position to defend them.  The office manager of Metropolitan Films International Limited attended the hearing and they suffered no prejudice by being incorrectly named.

Ms Murray referred to the decision of Mr Justice Barrett in Capital Food Emporium (Holdings) v John Walsh[10], where the judge drew a distinction between the jurisprudence in Sandy Lane Hotel Limited -v- Times Newspaper Limited[11]and the Capital Emporium case on the basis of the legal advice available to the parties, stating,

“Whereas in the within proceedings Ms Stewart is a so-called ‘ordinary’ person who was acting with the benefit of trade union assistance: she is not a sophisticated commercial group acting with the benefit of ‘blue chip’ legal and tax advice.”

The complainant is an ordinary person, acting with the benefit of trade union assistance.  Over many years, the respondent, “a sophisticated commercial group,” relied on a provision in section 481 of the Taxes Consolidation Act to contrive that he was employed by a sequence of subsidiaries.  Focussed on arguing against this false proposition, neither he or his trade union representative could be expected to know precisely the correct, legal name of his employer, although they were always aware of who the employer was.  In these circumstances, and, taking guidance from Mr Justice Hogan in his decision in O’Higgins v UCD, I find that it would be grossly disproportionate not to allow these complaints to be heard.   

For the respondent, Mr Loughran asked me to consider the decision of the Labour Court in Patrick Boland v World 2000 (footnote 3) as authority for a conclusion that the complainant was not employed by Metropolitan Films International Limited.  World 2000 is a film production company established by Morgan O’Sullivan in 1995.  Finding against Mr Boland in that case, the Court decided that IFWA produced no evidence to establish that he was an employee of World 2000.  In the case under consideration here, I am satisfied that the submission presented by Ms Murray, the evidence of the complainant and the publicly available information on the database of the CRO is entirely unambiguous, leading me to a conclusion that the complainant was employed Metropolitan Films International Limited. 

Conclusion

I have concluded that the complainant was an employee of Metropolitan Films International Limited, referred to in the directors’ report as the “Group.”  I find that he made an error in the naming of the respondent and that, in accordance with s.41(16) of the Workplace Relations Act 2015, I have jurisdiction to correct this error.  I reject the respondent’s case that the complainant was “last engaged” by VK Six TV Productions DAC.  It is clear to me that this is a technical response, intended to divert from the reality of the employment relationship.  I am satisfied that the complainant was one of 1,301 of the Group’s employees during 2018 and, although he worked in the film business from 1984, he was employed from 2001 by the same Group which, until June 2015, operated as Octagon Films International Limited, a company incorporated in September 2001, as Octagon Films Limited.

The respondent’s position is that “the employee relationship between the complainant and VK Six TV Productions DAC ended on December 14th 2018” and that his complaint has been submitted outside the statutory time limit set out at section 41(7) of the Workplace Relations Act 2015 (“the 2015 Act”).  Ms Murray argued that the complainant was laid off between December 14th 2018 and December 1st 2019 and that he could not have known he was dismissed until he wasn’t called back when construction work commenced on a film called “Valhalla.”  

On December 14th 2018, the complainant finished up working on a TV series, “Vikings 6,” produced by VK Six TV Productions DAC, one of Metropolitan Films International Limited’s group of companies.  We know that the respondent made no films during most of 2019.  The complainant said that in November 2019, he heard that production was about to commence on a new film and he phoned the construction manager, asking when he would start back.  When he was informed that he wouldn’t be called back, he concluded that he was dismissed.  On January 9th 2020, he submitted these complaints to the WRC.

The issues for consideration are: 

1.       Was the complainant laid off between December 14th 2018 and December 1st 2019?

2.       If he was laid off, when was his employment terminated?

3.       With the date of termination established, are his complaints within the statutory time limit at s.41(6) and (8) of the 2015 Act?

In his evidence, the complainant said that in the 34 years he worked with the respondent, he was laid off when production on a film ended, and he was one of the first to be called back when production commenced on a new film.  When he was laid off, he got a letter from the construction manager stating that the company had no more work and the purpose of this was to apply for unemployment benefit.  He said that film work was his priority and the period from December 2018 until December 2019 was the longest period that he was laid off in 34 years. 

The concept of “lay-off” is defined at s.11(1) of the Redundancy Payments Act 1967 as follows:

(1)  Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and -

(a)  it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b)  the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The facts show that, over a period of 17 years of employment with the respondent, the complainant’s employment ceased intermittently when the respondent was unable to provide work for him to do.  Each time production ended, he received a letter from the construction manager stating something along the lines of “production is now coming to an end and we have no further work.”  It is evident that, over the years, the cessation of work was temporary, because the respondent called the complainant back when work was available again.  It is apparent that the complainant and the respondent co-operated based on the expectation that, when there was no work, the complainant’s employment would cease, and when work was available again, he would resume working on a new film.  While s.11(1)(b) above requires the employer to give notice that the cessation will not be permanent, it has generally been held that this is not essential and notice can be implied from the practice in the workplace and the understanding of the parties.

I am satisfied that, on December 14th 2018, the complainant was laid off with the same letter and in the same manner as he had been in previous years.  While his employment ceased, he was not dismissed and he had a legitimate expectation that he would be called back to work when construction started on a new film.  Although no films were in production in 2019, IFWA, represented by Ms Murray and the shop steward, John Arkins, were in talks with the late Mr Flynn about terms and conditions for their members.  The talks ended around April 2019, when Mr Flynn became ill. 

In support of the complainant’s case that he was laid off for 12 months, Ms Murray referred to the 2011 decision of the Labour Court in Beary v the Revenue Commissioners (footnote 5).  Between 2004 and 2008, Mr Beary was employed by the Revenue Commissioners as a temporary clerical officer.  When he was not called back to work after November 1st 2008, he argued that, as he had been employed for more than four years on a succession of fixed-term contracts, in accordance with s.9(2) of the 2003 Act, he was entitled to a contract of indefinite duration.  Finding against Mr Beary, the Court concluded that, in accordance with s.7(1) of the 2003 Act, there were objective grounds for not offering him a contract of indefinite duration, those grounds being the requirement for the Revenue Commissioners to have recourse to a panel of relief clerical officers. 

From the point of view of the instant case, the important outcome from Beary is not the Court’s finding in relation to him not being entitled to a contract of indefinite duration, but, its examination of the meaning of “continuous fixed-term contracts,” used at s.9(2) of the 2003 Act, and the phrase “successive fixed-term contracts” used in clause 5 of Council Directive 99/70/EC concerning the Framework Agreement on Fixed-term Work.  Having considered that the objective of section 5 of the Directive is to prevent the abuse of fixed-term contracts, the chairman, Mr Duffy, concluded that, to interpret the meaning of “continuous fixed-term contracts” at s.9(2) of the 2003 Act as meaning successive and continuous was incompatible with and would limit the rights enshrined in the Directive: 

“There can be no doubt that on a literal construction of the language used in the Framework Agreement and the Act there is incompatibility.  While all periods of employment which are continuous are necessarily successive, not all employment which is successive is necessarily continuous.  Prima facie, at least, s.9 is, therefore, unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not continuous.”

In support of this conclusion, Mr Duffy referred to the decision of the Court of Justice of the EU (CJEU) in case 2-212/04 Adeneler and others v Ellinkos Organismos Galaktos[12], which concluded that a provision in Greek law in which fixed-term contracts separated by more than 20 days of lay-off were not continuous was incompatible with clause 5 of the Directive.  The decision of CJEU in case C364/07 Spryidon Vassilakis and others v Dimos Kerkyras[13], held that fixed-term contracts separated by less than three months can be regarded as successive.  Mr Duffy found that this is authority for the proposition that a member state may provide in domestic law that contracts separated in time by more than three months may not be regarded as successive.  While it was open to the Oireachtas to enact such a provision, it did not do so and Mr Duffy concluded that it was not open to the Labour Court to import such a provision into the statute.

Having reached this conclusion, Mr Duffy noted that the statutory provision regarding the definition of continuous employment is at s.9 of the 2003 Act and the First Schedule of the Minimum Notice and Terms of Employment Act 1973.  This provides that the service of an employee is deemed to be continuous unless they are dismissed or voluntarily leave their job.  S.3 of the Schedule provides that,

“A lay-off shall not amount to the termination by an employer of his employee’s service.”

On similar grounds to the argument put forward by Mr Loughran on behalf of the respondent, counsel for the Revenue Commissioners in Beary argued that each time his fixed-term contract came to an end, he was dismissed.  Mr Duffy found that such a literal interpretation of the First Schedule of the Minimum Notice and Terms of Employment Act would mean that there could be no continuity between fixed-term contracts unless the expiry of each was followed by immediate renewal.  He held that “such a result would be at variance with the object pursued by the Directive and could not be adopted.”  He went on:

“The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive.  In that regard, it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently.  Hence it could be reasonably said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous.” 

The complainant was engaged to “do the same job intermittently” over a period of 34 years, being laid off each time construction finished on the film to which he was assigned.  Based on the definition of continuous service at paragraphs 1-3 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 and, taking my authority from the decision of the Labour Court in Beary, that, “a lay-off, regardless of its duration, does not break continuity of service,” I am satisfied that, between December 14th 2018 and December 1st 2019, when he was not called back to work, the complainant was laid off and that the effective date of his dismissal is December 1st 2019.  As he submitted these complaints to the WRC on January 9th 2020, they have been submitted within the statutory time frame and I am satisfied that I have jurisdiction to proceed with my enquiries.

I intend now to consider the substantive complaints under the Protection of Employees (Fixed-term Work) Act 2003, the Terms of Employment (Information) Act 1994 and the Payment of Wages Act 1991.  The respondent was on notice of these complaints, a member of their management team attended the hearing, but, adhering to their position that I have no jurisdiction to hear the complaints, they produced no witnesses and Mr Loughran did not cross-examine the complainant.  I have therefore reached the conclusions set out below based on the uncontradicted evidence of the complainant.

Ms Murray referred to s.13(1) of the Protection of Employees (Fixed-term Work) Act 2003 (“the 2003 Act”) and the obligation on an employer to not penalise a fixed-term employee for invoking their right to a contract of indefinite duration, as provided for at s.9. of the Act.  Section 13(2) provides that an employee is penalised if he or she is,

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

It is the complainant’s case that he was penalised when, as the stagehand at the number one position in the permanent pool of stagehands employed by the respondent, he was not called back when work resumed in December 2019.  Referring to the Labour Court decision in Dublin Institute of Technology and Paul Scott[14], Ms Murray submitted that the complainant has “locus standi,” meaning that he is entitled to bring a claim under the 2003 Act.  In the case of Mr Scott, the Court held that he was a permanent employee and not working under a fixed-term contract of employment.  It concluded however, that his employer “ignored that reality” and treated him as a fixed-term worker and sought to terminate his employment on the expiry of the fixed-term contract. 

As the complainant was recruited by Mr Morgan O’Sullivan in the early 1990s, Ms Murray argued that he long ago acquired a contract of indefinite duration and he is therefore a permanent employee, which is defined at s.2 of the 2003 Act as “an employee who is not a fixed-term employee.” 

Ms Murray submitted also that the respondent is in breach of s.7 of the 2003 Act, in that it provided no objective justification for renewing the complainant’s fixed-term contract after he acquired a contract of indefinite duration.  In this regard, she referred to the decision of the Labour Court in NBK Designs Limited and Marie Inoue[15] where the Court held that, for the reasons for renewing a fixed-term contract to be objectively justified, they must,

(a)    correspond to a real need on the part of the undertaking,

(b)    are appropriate with a view to achieving the objective pursued, and,

(c)     be necessary to that end.

Ms Murray referred to the decision of the decision of the CJEU in Adeneler (footnote 12), which addressed the conditions attached to the objective reasons for renewing a fixed-term contract:

“…the concept of ‘objective reasons,’ within the meaning of clause 5(1)(a) of the Framework Agreement on Fixed-term Work must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.  

“Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a Member State.

“On the other hand, a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner by a rule of statute or secondary legislation does not accord with the requirements as stated in the preceding two paragraphs.”

I will return to this important decision in the section below under the heading “Findings and Conclusions.”

Without prejudice to the complainant’s position that he was never a fixed-term worker, until 2017, in breach of the 2003 Act, the respondent continued to issue him with fixed-term contracts.  Given that he was employed by the respondent for 17 years, the work he provided amounted to an ongoing and permanent need.  Since he has been excluded from the respondent’s workforce, others have been recruited to do the work he was formerly employed to do.

Section 13(1)(d) of the 2003 Act prohibits an employer from

…dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

Ms Murray submitted that the decision of the Labour Court in Rionach Power and Clare County Council[16]is supportive of the complainant’s case, where the Court concluded that there were “compelling reasons” for construing that s.13(1)(d) is applicable to both the non-renewal of a fixed-term contract and to dismissal.  In its decision in Power, the Court concluded that,

“…real and effective judicial protection against abuse of fixed-term contracts can only be guaranteed if the non-renewal of a fixed-term contract, when used as an instrument of abuse, is rendered unlawful.” 

Ms Murray concluded her submission by asserting that there is an overwhelming body of evidence to support the complainant’s case that he was penalised by the respondent by not being given an objective reason for renewing his fixed-term contract on repeated occasions, and by dismissing him in December 2019 when he was not called back to work after being laid off in December 2018.

No witnesses were called by the respondent to defend this complaint under the Protection of Employees (Fixed-term Work) Act 2003.  In the submission he presented at the hearing, Mr Loughran asserted that, “There is no record of the Claimant being engaged by the respondent and the Claimant has clearly not submitted his claim within the period of six months beginning on the date of termination and therefore his claim should not be heard.”

The Relevant Law

The complainant alleges that he has been penalised in contravention of section 13(1)(d) of the Protection of Employees (Fixed-term Work) Act 2003 which provides that,

(1) An employer shall not penalise an employee—

(Sub-sections (a), (b) and (c) are not relevant to this complaint),

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

Section 13(2) of the Act provides that an employee is penalised if they are dismissed or if unfavourable changes are imposed on their conditions or if they suffer any unfair treatment arising from seeking to exercise their rights under the 2003 Act.

We know that the genesis of the legislation is Council Directive 1999/70/EC concerning the Framework Agreement on Fixed-term Work.  Clause 1 of the Directive states that the Social Partners have agreed that its purpose is to,

(a)  improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

(b)  establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

Clause (b) above has been transposed into Irish law by section 9 of the 2003 Act which addresses the issue of successive fixed-term contracts:

(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

“Locus Standi,” the Right to Bring a Complaint under the 2003 Act

I have concluded (at page 14) that the complainant was employed by the respondent from 2001 and that he was laid off intermittently when there was no longer a need for his work as a carpenter on a film set.  I concluded that his employment was continuous, and it follows therefore, that when he was not called back to work in December 2019, he was not a fixed-term employee.  The Labour Court addressed this issue in its decision in Dublin Institute of Technology and Paul Scott (footnote 14) which was cited by Ms Murray.  In 2007, Mr Scott was recruited on a fixed-term contract to cover for an employee who was seconded to an “acting up” position.  When that employee returned to work in mid-2008, Mr Scott remained in employment.  In January 2009, he was offered another fixed-term contract to cover for another employee on secondment.  He was dismissed in July 2013, “in accordance with the terms of your contract of employment with the Institute.”  The Labour Court concluded that, when the first person for whom Mr Scott was providing cover returned to work, he was employed from that point on “something other than a fixed-term contract.”  As the 2003 Act defines a “permanent employee” as “an employee who is not a fixed-term employee,” it was held that, “for the purpose of the Act, the complainant was at that point, a permanent employee of the Respondent.”  It found however, that his employer “ignored that reality” and issued him with a new fixed-term contract in January 2009.  As a permanent employee, Mr Scott would not have been entitled to have a complaint heard under the 2003 Act.  Considering this conundrum, the Court stated,  

“In that context, the Respondent could not seek to benefit from its own behaviour and deprive the complainant of the benefit of permanency by treating him as a fixed-term worker while simultaneously benefiting from his loss of locus standi under this Act.”

Like Mr Scott, although with vastly longer service, I am satisfied that the complainant was a permanent employee.  He was issued with a succession of fixed-term contracts which led him to believe that he was a fixed-term employee on specified purpose contracts.  Following the authority of the Labour Court in the Scott case, I have decided that the respondent is not entitled to benefit from its actions and I am satisfied that the complainant is entitled to have his complaint under this Act adjudicated upon.

The Right to a Contract of Indefinite Duration

A review of decisions of the Labour Court concerning appeals under the 2003 Act[17] demonstrate the importance of the findings of the CJEU in 2004 in Adenelerand others v Ellinkos Organismos Galaktos (footnote 12), a case referred to by Ms Murray at this hearing.  I referred to this decision in my examination of the importance of the Beary decision regarding the effect of periods of lay-off on continuous service (page 15).  Mr Adeneler and others were employed by a Greek dairy business, “ELOG,” on several fixed-term contracts lasting for eight months, with breaks in between of from 22 days to almost 11 months.  They sought a ruling from their national court that their contracts must be regarded as contracts of indefinite duration.  The issue was referred to the CJEU for a preliminary ruling.  Finding that breaks of more than 20 days did not break their continuity of service, the Court of Justice held that the basic premise of the Framework Agreement is that contracts of indefinite duration are the general form of employment relationship.  Ms Murray quoted the following section from the decision of the CJEU in Adeneler:

Thus, to admit that a national provision may, automatically and without further precision, justify successive fixed-term employment contracts would effectively have no regard to the aim of the framework agreement, which is to protect workers against instability of employment, and render meaningless the principle that contracts of indefinite duration are the general form of employment relationship.

The decision in Adeneler underlines the principle enshrined in the Directive that, when there is an ongoing requirement for work to be done, a contract of indefinite duration is the standard norm according to which workers ought to be engaged.  An ongoing requirement does not exclude the right of an employer to lay off employees when there is no work.  When the same work is available again, and when it can be done by the same employees, then an ongoing need is established.  In the case of the complainant, he worked as a stagehand for the respondent for 17 years and he was laid off when there was no work.  It is apparent that there was an ongoing need for him to do the work.  The obligation on an employer in the film industry to ensure that workers are protected from “instability of employment” is recognised by the requirement of a producer company availing of s.481 relief to provide an undertaking regarding quality employment, which includes an undertaking of compliance with s.9(2) of the 2003 Act:

Subject to subsection (4), where, after the passing of this Act, a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

I am satisfied that, after the passing of the 2003 Act, as he had worked for the respondent on more than two fixed term contracts, the aggregate duration of which was in excess of four years, that, by operation of law, the complainant acquired a contract of indefinite duration.

Objective Reasons for Renewing a Fixed-term Contract

Section 9(4) permits the renewal of a fixed-term contract “where there are objective grounds justifying such a renewal.”  It is the complainant’s case that, in breach of s.7, there was no legitimate objective for keeping him employed on successive fixed-term contracts and no evidence that such treatment was appropriate or necessary.  In breach of s.8, he was not informed in writing of the objective reasons for employing him on successive fixed-term contracts.  Adeneler also provides valuable guidance concerning an interpretation of the concept of “objective justification” for the renewal of a fixed-term contract:

Where objective reasons are necessary to justify the renewal of successive fixed-term contracts, the concept of “objective reasons” (in clause 5(1) of the Framework Agreement) requires the use of fixed-term contracts to be justified by the presence of specific factors relating, in particular, to the activity in question and to the conditions under which the activity is carried out.

“Objective reasons” refers to precise and concrete circumstances characterising a given activity. These circumstances must be capable, in their particular context, of justifying the use of successive fixed-term contracts. The circumstances may result, in particular, from the specific nature of the tasks being carried out, from the inherent characteristics of the work, or from the pursuit of a legitimate social policy objective of a Member State.

In 2007, the decision of the CJEU in Angelidaki v Organismos Nomarkhiaki Aftodiikisi Rethimnis[18], held that clause 5(1) of the Directive precluded successive contracts which were, in fact, found to be meeting the employer's “fixed and permanent needs.”

The respondent argued that s.481 of the Taxes Consolidation Act made it necessary for the qualifying company to be the complainant’s employer and, necessary for him to be employed on short, specified purpose contracts.  Based on the objective of Directive 1999/70/EC, and the jurisprudence in Adeneler and Angelidaki, I find the respondent’s position in this regard to be fundamentally wrong.  Ireland has decided that it is a legitimate social policy to provide exchequer funding to the film industry.  However, in so doing, the government has also sought to protect the rights of workers by inserting into SI 119 of 2019 an objective which specifically provides that, a company availing of s.481 relief must employ people in accordance with s.9(2) of the 2003 Act.  The effect of this is that the aggregate duration of two or more fixed-term contracts “shall not exceed 4 years.”  The respondent will likely argue that the complainant was not issued with successive fixed-term contracts, but that he was employed by a succession of legally separate entities, all of which had the same director.  As I have previously set out, this is an artificial portrayal of the facts and is not in keeping with the reality of the employment relationship.

Conclusion

The complainant claims that, in breach of s.13 of the Act, he was dismissed when he attempted to invoke his right to a contract of indefinite duration.  From his evidence at the hearing, and from the submission of his union representative, I am satisfied that, with the support of IFWA, believing that he was employed on a fixed-term contract, the complainant was involved in an effort to invoke his rights to permanent employment.  I have reached the conclusion that, in contravention of s.13(1)(d) of the 2003 Act, he was penalised when that effort resulted in his dismissal.

I have concluded also that the respondent was in breach of s.7 of the Act when there was no legitimate objective for the complainant to be employed on successive specified purpose contracts.  Finally, the respondent breached s.8 of the Act when it failed to provide the complainant with a written statement setting out the reasons for employing him on a specified purpose contract.

I have decided that this complaint is well founded.  Considering the issue of redress, the complaint was submitted to the WRC in January 2020, and, at the hearing, the complainant said that he has retired.  Five years have passed since he last worked for the respondent.  Taking these facts into account, in accordance with s.13 of the 2003 Act, I have decided that the most appropriate form of redress is compensation.  I direct the respondent to pay the complainant compensation of €25,000 for the breach of s.13 of the Act, regarding his dismissal, and €5,000 for the breach of ss. 7 and 8, regarding the absence of objective reasons for employing him on a specified purpose contract.

In accordance with s.192A of the Taxes Consolidation Act 1997, this award is for a breach of an entitlement under a relevant Act and is not subject to deductions for tax, PRSI or USC.

The complainant’s case is that he was not issued with a statement of his terms and conditions of employment in accordance with the requirements of s.3 of the Terms of Employment (Act) 1994.  In his evidence, he said that he was issued with contracts which gave as his employer the name of the qualifying company or the “DAC” which was set up to ensure compliance with s.481 film relief.  He said that stage crew were not allowed to take holidays during production, and that it was a condition of being paid holiday pay at the end of production that that contracts were signed.  The complainant said that he didn’t sign the contract which was included in the respondent’s book of papers and which gives the impression that it was signed by him.  Despite this, he said that he received his holiday pay.

In response to this complaint, Mr Loughran submitted that “there is no record of the Claimant being engaged by the Respondent and the Claimant has clearly not submitted his claim within the period of six month beginning on the date of termination and therefore his claim should not be heard.”  He referred to the issuing to the complainant of a contract by “a separate legal entity.”  This 14-page document was included in the respondent’s book of papers and is headed, “Into the Vikings – Season 3” and underneath, “VK Six TV Productions DAC.”  The main terms and conditions are set out on page 1, under the heading “Construction Crew Deal,” where the complainant is referred to as a “crew member” on the “trade rate” of €25.12.  On this page, there is a reference to “the Local Construction Agreement dated 9th June 2017,” and a statement that this is available for review in the Production Office.  A copy of this Local Construction Agreement was included in the complainant’s book of documents.  The parties are stated to be,

“Construction workers who are members of and represented by IFWA and who are employees of production companies who are signatories to this agreement together with those signatory production companies.”

The Agreement is signed by the late Mr James Flynn “on behalf of Metropolitan Film Productions Limited” and by the shop steward, John Arkins, on behalf of IFWA.

The Relevant Law

The complainant’s case is that he was not provided with a statement of his terms and conditions of employment in accordance with s.3(1) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”).  As his employment commenced in 2001, I will consider this complaint as a breach of the 1994 Act prior to its amendment on March 4th 2019 by the Employment (Miscellaneous Provisions) Act 2018 (commenced by SI 69/2019). 

Prior to its amendment, s.3(1) of the 1994 Act required an employer to “give or cause to be given to the employee a statement in writing containing the following particulars:”

(a)  The full name of the employer and the employee;

(b)  The address of the employer;

(c)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d)  The job title or the nature of the work that the employee is required to carry out;

(e)  The date that the employee commences in the job;

(f)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g)  The rate or method of calculation of the employee’s pay;

(h)  The frequency of pay;

(i)  Any terms or conditions relating to hours of work (including overtime);

(j)  Any conditions relating to paid leave (other than paid sick leave);

(k)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(l)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m)  Details of any collective agreement which affects the employee’s terms and conditions of employment.

Findings

In response to this complaint, Mr Loughran referred to a contract of employment which, she said, was issued to the complainant by “a separate legal entity,” VK Six TV Productions DAC.  It is clear to me from the respondent’s filings to the CRO that VK Six TV Productions DAC is a company in the Metropolitan Films International Limited group of companies and that, as a legal entity, it is not separate from, but is a subsidiary of and is fully owned by the respondent.  It is my view that the issuing of a contract which purports to show that the complainant’s employer is VK Six TV Productions DAC is a contrivance and is false.  I accept the evidence of the complainant that he was not given this contract, or that he refused to accept it, and that the signature shown on the document is not his.

Page 1 of the document contains the following statement, in bold type and underlined:

Please sign and return all parts of this contract where indicated to signify your agreement to and acceptance of the engagement of (sic) the above terms.  If not returned within five (5) working days it will be assumed that you have accepted and agreed to this offer and its terms and conditions.”

It is a concern that, as the respondent provided for a situation in which an employee might not sign the “contract,” that his signature was inserted without his consent. 

It is apparent to me that the 14-page document submitted by the respondent is a cobbling together of clauses that are mostly relevant to a person engaged on a contract for service, with a significant focus on the rights of the Producer and the obligation on the service-provider to waive their rights to any future benefits arising from their services.  It seems to me that these clauses are relevant to actors and creative content providers who might seek to assert rights to future earnings from the successful distribution of a film or TV series.

Conclusion

It is my view that that document submitted by the respondent was drafted and retained to comply with s.3 of the 1994 Act and I accept that it was signed by the complainant, as he said that it was his belief that he would not be paid holiday pay otherwise.  I find that the contract issued to the complainant is deficient and in breach of sections 3(1)(a) and (b), as it does not show the correct name and address of the employer.  It is also deficient in relation to the requirement at s.3(1)(e) to show the start date of the complainant, which, given as it is shown as July 24th 2017, is incorrect.

I refer to the decision of the Labour Court in the case of Megan Hayes Kelly and Beechfield Private Homecare[19], where Ms Hayes Kelly claimed that her employer was in breach of the 1994 Act because there were omissions and errors in her contract of employment.  In his determination on that complaint, the chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  I intend to follow the authority of the Labour Court and make the maximum award in the case under consideration here.

I decide that this complaint under the Terms of Employment (Information) Act 1994 is well founded and I direct the respondent is to pay the complainant compensation equivalent to four weeks’ pay.  When he was laid off in December 2018, the complainant’s hourly rate of pay was €25.12.  The Local Construction Agreement of June 2017 shows that employees were required to work 48 hours per week “comprised of 39 hours at single time and 9 hours at time and a half.”  The Agreement also provides a guarantee of five hours’ overtime on Saturdays, “to be paid at double time.”  This results in weekly pay of €1,148.30, calculated as follows:

39 hours x €25.12 = €983.58

9 hours at time and a half, €37.68 = €339.12

5 hours at double time, €50.24 = €125.60

Based on these calculations, I direct the respondent to pay the complainant compensation of €5,979.20.  In accordance with s.192A of the Taxes Consolidation Act 1997, this award is for a breach of an entitlement under a relevant Act and is not subject to deductions for tax, PRSI or USC.

It is the complainant’s case that he was laid off on December 14th 2018 and that he anticipated that he would return to work sometime in the first half of 2019.  Although, in discussions with the late Mr Flynn up to April 2019, the union was given to understand that there were projects coming on stream, work commenced on “Valhalla” only in December 2019.  Ms Murray argued that, in the absence of a specific provision for lay-off in a contract of employment, the failure to pay the complainant his wages when he was laid off between December 2018 and December 2019 is an illegal deduction from his wages and a breach of s.5 of the Payment of Wages Act 1991.

The respondent made no response to this complaint, arguing that the respondent was not the complainant’s employer and that his complaint was submitted outside the statutory time limit.

On the first preliminary point, I have concluded that the respondent is Metropolitan Films International Limited.  On the second preliminary point, I have concluded that the complainant was dismissed on December 1st 2019 and that his complaint was submitted on time.

In my findings on the second preliminary point, I dealt in some detail with the issue of lay-off and I concluded that the complainant was laid off when he finished working on Vikings 6 on December 14th 2018.  He was never informed in writing of his employer’s intention to lay him off from work and there is no provision for lay-off in the “Local Construction Agreement.”  In his evidence, the complainant explained the pattern by which, over a period of 34 years, he was laid off and he returned to work when construction on a new film started up.  He received no wages when he was laid off.  It is my view that, by accepting this pattern of work, and by agreeing to return to work when he was called, there was an implied agreement between the complainant and the respondent regarding lay-off.  Contrary to Ms Murray’s argument that the complainant did not consent to being laid off, it is my view that he accepted this arrangement as a feature of working for the respondent.

Wages Properly Payable

The statutory entitlement of an employer to lay off an employee when there is no work is provided for at s.11 of the Redundancy Payments Act 1967 which I referred to at page 16 above.  The question of whether wages are payable in these circumstances is addressed at s.5(6) of the Payment of Wages Act 1991:

Where -

(a)  the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefore that fall to be made and are in accordance with this Act), or

(b)  none of the wages that are properly payable to an employee by an employer on any occasion (after making any deductions as aforesaid) are paid to the employee,

then, except insofar as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on that occasion.

The issue of wages during a period of lay-off was considered by the Labour Court in the case of William P Keeling & Sons Unlimited Company and Barbara Ciszewska[20].  Ms Ciszewska was a fruit picker and her contract provided for the possibility that she may be laid off if there was no work in that seasonally impacted business.  The Court noted that Ms Ciszewska’s complaint was under the Payment of Wages Act and the issue for consideration was not the fairness or otherwise of the decision to lay her off, but whether there had been an illegal deduction from her wages.  Considering Ms Ciszewska’s claim, the Labour Court concluded that,

“There is no provision in the Payment of Wages Act that requires that wages be paid in periods of lay-off.”

Conclusion

Having considered this matter and, having reviewed this decision of the Labour Court, it is clear to me that, during a period of lay-off, when an employee does no work for their employer, wages are not “properly payable,” and the failure to pay wages is not an illegal deduction.

For the reasons I have set out above, I decide that this complaint under the Payment of Wages Act 1991 is not well founded.

Name of the respondent, statutory time limits, lay-off, statement of terms and conditions of employment, wages properly payable