INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 32, INDUSTRIAL RELATIONS ACT, 1946
HEADLAND HOMES LTD
- AND -
BUILDING AND ALLIED TRADES UNION
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Construction Industry Registered Employment Agreement - Wages and Conditions of Employment
2. A Labour Court hearing took place on the 14th February, 2008.
This is a complaint by the Building and Allied Trades Union made pursuant to s32 of the Industrial Relations Act 1946 by which it is alleged that Headland Homes Ltd (the Company) contravened certain provisions of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment), as varied ( the Agreement).
The Union’s complaint, which was presented to the Court on 10th September 2006, alleged the following: -
1. A breach of Section 11 of the Agreement (procedure for resolving disputes) by the Company’s failure to meet with the Union within the time-frame prescribed by the Agreement and a failure to attend before the Construction Industry Disputes Tribunal as required by the Agreement
2. A breach of Section 10 of the Agreement by the Company’s engagement of
subcontractors who were not approved sub-contractors within the meaning of the Agreement.
3. A breach of Section 3 of the Agreement by the Company’s failure to pay bricklayers who are members of the Union the rates of pay prescribed by the Agreement.
4. A breach of Section 5 of the Agreement by the Company’s failure to pay bricklayers who are members of the Union in respect of a “Guaranteed Week” during times when work was interrupted by inclement weather.
At the hearing the Union told the Court that it was not proceeding with its complaint referred to at 2 above. It was further established that the substance of the complaint was (1) that the Company refused to abide by the dispute resolution procedure of the Agreement and (2) that the Company treated certain bricklayers, who it is claimed were workers, as self –employed contractors and therefore outside the scope of the Agreement.
These complaints are considered in turn.
Alleged breach of procedure
The salient facts, as found by the Court or as admitted, are as follows: -
1. In or about June 2006 a dispute developed between certain bricklayers and the Company in relation to working conditions. The bricklayers sought the assistance of the Union. On 12th June 2006 the Union made contact with the Company and requested a meeting in accordance with the first stage of the disputes procedure of the Agreement. The Company did not respond to the Union’s request.
2. On 14th July 2006 the Union referred the dispute to the Labour Relations Commission and requested that the matter be brought before the Construction Industry Disputes Tribunal.
3. The Labour Relations Commission arranged a meeting of the Construction Industry Disputes Tribunal for 2nd March 2007 to consider the dispute. This meeting was subsequently cancelled, as the Company was not available to attend. The meeting was rearranged for 9th March 2007. The Company attended this meeting but left after a short time. In consequence the Tribunal did not conclude its investigation and did not issue any findings in the case. The dispute was not resolved and it was referred to the Court pursuant to s26(1) of the Industrial Relations Act 1990.
4. When the matter came before the Court, the Company indicated that it was not willing to participate in the investigation and the Court could not proceed to hear the case.
In relevant part the Agreement, at Section 11, provides as follows: -
- PROCEDURE FOR SETTLING GRIEVANCES AND DISPUTES
If a trade dispute occurs between workers to whom this Agreement relates and their employers, no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with and the Labour Court has issued a recommendation.
Category A Disputes
For the purposes of this Agreement questions concerning local matters or matters of -an individual nature are regarded as category A disputes. Where these disputes arise, the following procedure shall be complied with:
(b) If the dispute is not resolved within 7 days, or such longer period as may be mutually agreed, the issue may be referred to a Construction Industry Disputes Tribunal (CIDT).(c) The CIDT will issue a decision within one week. The decision of the CIDT, where unanimous, shall be binding.(d) Other decisions may be appealed to a Rights Commissioner, the Labour Relations Commission or the National Joint Industrial Council (NJIC) as appropriate.(e) If the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.The purpose of the Agreement is, inter alia, to promote harmonious relations between employers and workers. The disputes procedure is a key provision of the Agreement by which that objective is achieved. The importance of disputes procedures in the general scheme of Registered Agreements is evident from the provision at s 27(3) of the Industrial Relations Act 1946 which precludes the Court from registering an agreement unless it contains such a procedure. It is also evident from the willingness of the Courts to grant interlocutory injunctive relief to restrain industrial action in breach of a disputes procedures contained in a Registered Agreement (see, for example,Acton and Jordon v Duff, High Court, Unreported, Carroll J, 12 July 1982)
In this case it is plain from the facts that the Company acted in total disregard of the disputes procedure in failing to engage with the Union at any level in seeking to address the issues in dispute. Such conduct undermines the standing and effectiveness of the Agreement and should be reproved whether it is engaged in by employers or trade unions.
Accordingly the Court must hold that the Union’s complaint is well-founded.
Pay and conditions of employment
The Company says that the bricklayers to whom this aspect of the complaint relates were engaged by K&E Construction Company Ltd, a subcontractor engaged by it to provide bricklaying services. In the alternative the Company submitted that the bricklayers were self-employed subcontractors and not workers within the meaning of s23 of the Industrial Relations Act 1990. On this basis the Company contended that those associated with the complaint were outside the scope of the Agreement.
The representative of the Union told the Court that it had never been denied that its members worked for the Company and that he had never previously heard of K&E Construction Company Ltd. Counsel for the Company told the Court that the contract between K&E Construction Company Ltd had not been reduced to writing. It was further accepted that the Company paid the bricklayers directly by cheques drawn on the Company’s account. Tax was deducted by the Company and an RCT1 was issued by it to each of the bricklayers concerned. It was further accepted that the bricklayers provided services personally to the Company.
On the evidence before it the Court is satisfied that at all material times the bricklayers associated with this claim worked for Headland Homes Ltd and not for K&E Construction Company Ltd. The Court is further satisfied that any arrangement entered into between the Company and K&E Construction Company Ltd was a sham and a colourable device to obfuscate the true nature of the relationship between the bricklayers and the Company.
The bricklayers' status.
Section 23 of the Industrial Relations Act 1990 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 express or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or of a contract personally to execute any work or labour”
In the instant case the Company treated the bricklayers as being engaged under a contract for services although the Union contended that they were in reality employees. Counsel for the Company, Mr Curran, B.L., accepted that the bricklayers provided services personally and would be workers if the dictum of Murphy J were to be applied.
Counsel submitted, however, thatBuilding and Allied Trades Union and Another v the Labour Court and Othersshould not be followed in this case. In advancing that argument Counsel submitted that the law had developed since that decision and that it is now established that bricklaying “gangs” are not to be regarded as workers. In support of that proposition Counsel opened to the Court a decision of the Employment Appeals Tribunal for England and Wales inBamford v Persimmon Homes UK EAT 1149/04.
The Court cannot accept that submission. Even if there is a conflict between the decision inBuilding and Allied Trades Union and Another v the Labour Court and Othersand that of the UK Employment Appeals Tribunal inBamford v Persimmon Homes(a decision handed down some nine months before the BATU decision) this Court is bound as a matter of law by the legal doctrine of precedent (orstare decisisas it is technically known) to follow the decision of the High Court in the BATU case. However, for the sake of completeness, the Court has considered the decision onBamford v Persimmon Homesand is satisfied that the two decisions are not in conflict.
TheBamfordcase was concerned with the definition of the terms “worker” under Regulation 2(1) of the UK Working Time Regulations, 1998, as amended. That definition is materially different to the definition applicable for present purposes. The UK definition contains an express exception in the case of a person who provides services personally to a client or customer of any profession or business carried on by that person. There is no corresponding exception contained in our law although it is unlikely that a person who provides a service in the course of a business undertaking in which they are engaged would be regarded as a worker within the meaning of the 1990 Act.
TheBamfordcase turned on a finding by the EAT that the putative workers were in fact engaged in a business undertaking. In reaching that decision the Tribunal was influenced by the fact that the “gang” carried their own public liability insurance, they tendered as a unit for work, they received a gross payment for the work and they decided as between themselves how the money was to be divided. There is no suggestion of a similar pattern of working in the instant case.
The type of circumstance in which the client / customer exception should apply was considered further by the UK EAT inCotswold Development Construction Ltd. v Williams IRLR 181, Here Langstaff J stated (at par 53): -
- It is clear that the statute recognises that there will be workers who are not employees, but who do undertake to do work personally for another in circumstances in which that 'other' is neither a client nor customer of theirs – and thus that the definition of who is a 'client' or 'customer' cannot depend upon the fact that the contract is being made with someone who provides personal services but not as an employee. The distinction is not that between employee and independent contractor. The paradigm case falling within the proviso to 2(b) is that of a person working within one of the established professions: solicitor and client, barrister and client, accountant, architect etc The paradigm case of a customer and someone working in a business undertaking of his own will perhaps be that of the customer of a shop and the shop owner, or of the customer of a tradesman such as a domestic plumber, cabinet maker or portrait painter who commercially markets services as such. Thus viewed, it seems plain that a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls.
It is not suggested that the bricklayers associated with this complaint are in business on their own account in the sense described in this passage. Consequently, even if the jurisprudence of the UK EAT were applicable in this jurisdiction, the case relied upon by the Company would not be apposite in the instant case.
The Court is satisfied that: -
1. The Company contravened Section 11 of the Agreement in failing to comply with the procedures for resolving disputes contained there.
2. The bricklayers associated with the Union's complaints are workers within the meaning of s23 of the Industrial Relations Act 1990 and are accordingly covered by the Agreement. They are accordingly entitled to the rates of pay and the benefit of the Guaranteed Week provided for by Sections 3 and 5, respectively, of the Agreement.
The Court directs the Company to comply with the Agreement.
Signed on behalf of the Labour Court
11th March, 2008______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.