INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
GAMA CONSTRUCTION IRELAND LTD
- AND -
BUILDING AND ALLIED TRADES UNION
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appointment to direct employment and compliance with Construction Registered Employment Agreement
2. GAMA Construction Ltd is involved in the building of local authority housing for South Dublin County Council. The issue before the Court concerns three Union members (herein referred to as the workers) employed as carpenter/joiners on the GAMA construction site in Balgaddy, Clondalkin from October 2004. The Union claims that the three workers were informed when commencing employment that they would work on a PAYE basis and be paid on an hourly rate with the opportunity, when available, to work on a price structure. Soon after commencing employment they were informed that they were now working on a sub contract basis and would be working on a price only basis. There was confusion as to who the actual employer was. The workers rejected the proposal and stated that they only worked as PAYE workers and wanted their holiday and pension entitlements honoured. In November 2004, the workers were informed that their employment was terminated. A dispute ensued resulting in GAMA successfully applying for a High Court injunction. The services of the Labour Relations Commission and the Labour Court were sought to resolve the dispute.
- The dispute could not be resolved at the conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 30th November, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 18th January, 2005, the earliest date suitable to the parties.
3.1. The Union and its members believe that the Company is largely responsible for the problem that arose. The member’s genuinely accepted that their conditions of employment would be secure on a Local Authority site that has been completed by a major company. As a result of the Company’s failure to monitor their sub-contractor or to ensure that they complied with their obligations, the workers were placed in an unacceptable situation.
2. The Union now requests that GAMA Ltd should employ the workers directly on a PAYE basis and that their unpaid wages should now be paid.
3.The Union rejects the attempt by the Company to exploit the issue regarding racial background and will not participate in such a dangerous game.
4.1. The workers were never employees of the Company and the High Court has accepted this, therefore the Company has no obligation whether legal or moral to make any payments to the workers.
2. At no time during the High Court proceedings was any claim put forward other than the grievance in relation to non-payment of wages. The first time the claim for re-employment was mentioned was at the conciliation hearing. The claimant’s claim for direct employment by the Company is spurious and it would be intolerable for the Company to agree to employ them.
3. The workers by their actions in racially abusing other workers are in gross breach of standard good industrial practice and normal employee behaviour. The Company claims that to employ the claimants would be in gross breach of its obligations under Health and Safety legislation. The Company would also be in breach of their duty to other workers if they agreed to engage the claimants.
The Court recommends that the parties meet with a view to establishing the actual amount due and owing to the claimants in respect of outstanding wages. GAMA Construction Ireland Ltd should undertake to ensure that the amount so established is paid to the claimants. In the event of it not being possible to agree the amount owing, the Court recommends that the issue be referred to a Rights Commissioner pursuant to the Payment of Wages Act 1991. If the amount awarded ( if any ) as being due to the claimants is not recoverable against the person against whom the award is made, GAMA Construction Ireland Ltd should accept liability for the amount involved.
In the circumstances of this case the Court does not recommend concession of the Union's claim that the claimants be employed by GAMA.
Signed on behalf of the Labour Court
20th January, 2005______________________
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.