INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(5), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
UNION OF CONSTRUCTION, ALLIED TRADES AND TECHNICIANS
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Pay and conditions of employment.
2. The Gama Group was founded in 1959 and GAMA Endustri was established in 1970. GAMA Endustri only activity in Ireland is the secondment of employees mainly Turkish Nationals to GAMA Construction Ireland Limited. ("GAMA Ireland") a company incorporated in and having its only place of business in Ireland.
The dispute concerns a claim by the Unions that the workers employed by the Company worked significant amounts of overtime for which they were not paid. The Unions are also claiming increases in pay for various categories of employees who are not covered by the Registered Employment Agreement (REA) for the Construction Industry.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. Following rejectionby the workers and the Unions of proposals put forward by the Labour Relations Commission, the Labour Court exercised its power under Section 26(5) of the Industrial Relations Act, 1990 to investigate the dispute. Both parties cooperated fully with the Court in its investigation. At the request of the Court picketing was discontinued for the duration of its investigation. A Labour Court hearing took place on the 26th and 27th May, 2005.
3.1Arrears of Overtime
The Unions claim that workers were working in excess of 80 hours per week for a basic rate of €2.20 per hour, with hours in excess of 248 per month paid for at €3.00-€3.30 per hour.
2.Workers not covered by Registered Employment Agreement (REA)
The Unions claim that a number of workers such assurveyors, canteen staff, cooks, van drivers are paid below the legal minimum rate and are seeking that they be paid no less than the minimum general operative rate for the industry with retrospection.
3.Time Recording and Pay Slips
Irish workers employed by the Company are required to clock-in and are furnished with normal payslips. Turkish workers have neither a proper time recording or payslip system
4.1Arrears of Overtime
The Company claims that the workers in dispute are making grossly exaggerated claims of overtime. The vast majority of workers have made no such claims of a standard 80-90 hour working week.
2. Planning permission granted in respect of the development of the disputed sites impose very clear and strict requirements as to the hours during which work can be carried out, so as not to interfere with the amenity of the existing residential areas which surround these sites.
3.Workers not covered by Registered Employment Agreement (REA)
The Company believes that non REA workers are properly paid in accordance with their contracts of employment, it is prepared to consider any evidence that the Unions wish to present, that these workers should be paid at a higher level than is currently the case.
4. The Company does not accept or believe that these workers are underpaid. Regard must also be had to accommodation and food provided by the Company to the workers which is over and above their basic salary, plus travel costs paid on their behalf by the Company.
5.Time Recording and Pay Slips
The Company has now put in place a more comprehensive system for recording hours of work and ensuring that no further disputes similar to the current one can arise in relation to hours.
The Company have agreed to furnish to the workers copies of their secondment agreements which were entered into with the workers who are seconded to Ireland.
This dispute centres on claims by the Union that its members employed by the Company were required to work hours in excess of the statutory maximum of 48, for periods ranging from a number of months to three years, for which they were not paid. It is also claimed that certain categories of employees who are not covered by the Registered Employment Agreement for the Construction Industry were paid unacceptably low rates during the currency of their employment. The Company comprehensively and categorically denies these allegations.
Approximately 80 workers are associated with the claims, all of whom are Turkish Nationals. A strike in furtherance of the dispute has been in progress for some seven weeks. It has been the subject of conciliation at the Labour Relations Commission but a solution was not achieved. Following consultation with the Commission the Court exercised its powers under Section 26(5) of the Industrial Relations Act, 1990 to investigate the dispute. Both parties cooperated fully with the Court in its investigation. At the request of the Court picketing was discontinued for the duration of its investigation.
In submissions to the Court both sides provided conflicting information concerning the events surrounding the allegations giving rise to the dispute. This information is not in itself conclusive and, without more, would not be sufficient to enable the Court to reach definitive conclusions as to the salient facts in contention. The Court explored with the parties the possibility that, in the peculiar circumstances of this case, it could embark upon the unusual procedure of conducting a full investigation of all factual matters in dispute by way of oral sworn evidence from relevant parties and independent witnesses. The Court also explored the possibility of seeking to find an industrial relations solution to the issues in dispute without necessarily reaching a concluded view on the veracity of either side’s assertions. For reasons which are quite different, both sides indicated to the Court their preference for the latter approach.
Having regard to the wishes of the parties to achieve a final resolution of this dispute, and having fully considered all of the written and oral submissions made to it, the Court makes the following recommendations in full and final settlement of the issues forming the subject matter of this dispute:
Lump Sum Payments
Each of the workers associated with this claim (circa 80) should be paid a lump sum of €8,000 in respect of each completed year of service with the Company and pro-rata in respect of part years. A minimum payment of €2,000 should apply. This amount should be paid by the Company without admission of liability and should be accepted by the Union in full and final discharge of all claims by the Union in respect of alleged unpaid overtime. In addition, on the termination of their assignment in Ireland each worker should receive an ex-gratia severance payment equal to one months salary.
Workers Not Covered by the REA.
The Union claim that certain categories of workers not covered by the REA are being paid less than the norm for Irish workers. The Company deny that this is the case but have indicated their willingness to consider any evidence which the Union wish to present in that regard.
The Court believes that in the circumstances of this case the workers concerned should be paid not less than the minimum General Operative rate for the industry. The Court recommends that workers whose rate of pay is less than that amount should be brought up to that rate back-dated to their commencement date subject to a maximum of 12 months retrospection. This should be without prejudice to any claim which any worker may have under the National Minimum Wage Act, 2000 in respect of a earlier period.
Time Recording and Pay Slips
All workers employed by the Company, regardless of their nationality should clock in and out of work and be issued with pay slips each week which comply with the requirements of the Payment of Wages Act, 1991. There should be no distinction in these matters between workers of Irish or Turkish nationality.
Return to Work.
On acceptance of these proposals all industrial action should cease and there should be a full resumption of normal working. Where workers wish to terminate their assignment in Ireland this should be accommodated by the Company and any outstanding amounts due to them, arising from this recommendation or otherwise, should be paid immediately. Those remaining should return to work on the basis proposed by the LRC.
It is noted that wages due to workers in respect of April have either been paid or are in the course of being paid.
Copies of all documents signed by workers, including those concerned in this dispute, in relation to their assignment in Ireland should be furnished to them in their own language.
All other aspects of the LRC proposals which are not superseded by this recommendation should be implemented.
Signed on behalf of the Labour Court
27th May, 2005______________________________
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.