INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 32, INDUSTRIAL RELATIONS ACT, 1946
HEADLAND HOMES LIMITED
- AND -
BUILDING AND ALLIED TRADES UNION
Chairman: Mr McGee
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Construction Industry Registered Employment Agreement - Pensions Assurance and Sick Pay.
2. A Labour Court hearing took place on the 11th February, 2008.
3. 1. The workers concerned are employees of Headland Homes Limited, and not sub-contractors.
2.Section 32(1) of the Act only required the complaint to be made by “a Trade Union representative of workers” which is party to the REA, and BATU is such a Trade Union
4. 1. All the workers named by the Union should have been present at the Court hearing (as per the judgement of Geoghegan J in "the Ryanair case"); and
2. As these workers were not members of BATU the case should have been taken by the Construction Industry Monitoring Agency instead.
3. The workers were not employees of the Headland Homes Limited. The workers were sub-contractors, employed on the basis of a price-by-brick by K & E Construction Company Ltd.
This case is a complaint by BATU (the Union) pursuant to Section 32 of the Industrial Relations Act 1946 wherein it is alleged that Headland Homes Limited (the Company) contravened the Registered Employment Agreement (the REA) by not having workers, all of whom were identified, registered in the Pensions Assurance and Sick Pay Scheme (the Pension Scheme).
Prior to the hearing the Company’s Counsel put forward the following preliminary objections to the Court’s jurisdiction: -
(1) All of the workers named by the Complainant should be present (as per the judgement of Geoghegan J in “the Ryanair case”); and
(2) BATU could not represent those workers who were not members of BATU and the case should have been taken by CIMA in any event.
The Court finds in relation to these preliminary points as follows:
(1) It was not deemed necessary by Geoghegan J in “Ryanair v the Labour Court and Others”to produce all of the workers. What is necessary is that credible and cogent evidence (if required) be given by the complainants as to the status of their complaint. In the instant case one worker appeared in Court and testified that he had worked for the Company. This is sufficient, given the admitted relationship between the workers and the Company, to establish that the identified employees were the workers referred to by the Union in the instant case;
(2) Section 32(1) of the Act only required the complaint to be made by “a Trade Union representative of workers” which is party to the REA. BATU is such a Trade Union. Therefore the complaint is properly founded.
The six bricklayers, one first, then two and finally all six, worked on one of the Company’s sites. They contacted the Union which requested that the Company deal with it in regard to the alleged breach of the REA.
The Firm was contacted in regard to its obligations under the Pension Scheme on 1st June 2006. By 11th July 2006, the matter not being resolved, the case was referred to the Labour Court.
The Company alleged that the workers were sub-contractors and not employees of the Company. They were engaged on the basis of a price-by-brick by a subcontractor for the Company, K & E Construction Company Ltd.
The Union alleged that bricklayers were "workers", as defined by Section 23 of the Industrial Relations Act, 1990, which defines the term “worker” as follows: -
- "Worker" means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour”
It was accepted on behalf of the Company that, within the above definition, the bricklayers would be workers. It was, however, put to the Court on behalf of the Company that the correct definition of the word "worker" was contained in a UK Employment Appeals Triunal case,Bamford v Persimmon HomesNW UK EAT 1149/04 which it is alleged, established that "gangs" of bricklayers should not be regarded as "workers".
It is the view of the Court, however, that:
(a) The UK case preceded the "BATU" case
(b) The definition of "worker" is not the same in UK and Irish law, specifically turning on the definition of a bricklaying "gang" operating as a "unit" rather than a group of workers and which would carry its own unitary insurance liability and be paid as a "unit", dividing out money among its members. This was not the situation in the instant case.
(c) Even if the decisions conflicted, this Court is obliged under the doctrine ofstare decisisto follow the Irish High Court decision.
In regard to the ontention by the Company that the bricklayers to whom this conflict relates were engaged by K & E Construction Company Ltd, a bricklayer sub-contractor or, alternatively, were self-employed subcontractors and therefore outside the scope of the REA, there was no evidence of engagement or employment by K & E Construction Company Ltd, and the bricklayers were paid directly using Headland Homes Ltd cheques. Tax was deducted by Headland Homes Ltd, RCTI forms were issued to the bricklayers and it was accepted that the bricklayers provided their services personally. The Court is therefore satisfied that all relevant times the bricklayers worked for Headland Homes Ltd rather than for K & E Construction Company Ltd.
Given all of the above:
- the Court is satisfied that the bricklayers in question were employed by Headland Homes Ltd and are workers covered by the provisions of the REA.
The Court directs the Company to enter the workers into a Pension Scheme as prescribed in the REA and to make such payments as will ensure their entitlements under the Scheme.
Signed on behalf of the Labour Court
2nd April, 2008.______________________
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.