FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : SEAMUS FITZGERALD ELECTRICAL LIMITED - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Alleged breach of the Electrical Contracting Industry Registered Employment Agreement
BACKGROUND:
2. This case concerns a dispute between the Technical, Engineering and Electrical Union (TEEU) and Seamus Fitzgerald Electrical (represented by Irish Business and Employers Confederation (IBEC) in relation to a worker who was employed by the Company from May 2004 until August 2004.
The Union's claim relates to the fact that the worker, who is a qualified Electrician, was not paid the correct entitlements under the Registered Employment Agreement (REA) for the Electrical Contracting Industry in respect of the correct rate of pay, annual leave, travelling time, overtime and pension and sick pay contributions. The Company position is that the worker was not employed as an Electrician as there were no such vacancies at that time. It contends that the worker was employed as a General Operative and paid the appropriate rate of pay. The Company accepts there is an entitlement relating to Travelling Time (5 hours per week for six weeks - 30 hours in total) and arrears due to the Industry Pension and Sick Pay Contribution as well as outstanding annual leave entitlement of a quarter days pay but that rate of pay arrears do not apply.
The Union referred the case to the Labour Court on 20th February, 2006. Labour Court hearing took place on 14th December 2007 and 9th April, 2008. The following is the Court's Decision.
DECISION:
On the 20th February 2006, the Technical Electrical and Engineering Trade Union (the complainant) on behalf of Mr. Conor Leyden (the claimant) complained to the Court that Seamus Fitzgerald Electrical (the respondent) alleging a breach of the Electrical Contracting Industry Registered Employment Agreement on pay, traveling time, annual leave, Pensions Assurance and Sick Pay, made pursuant to section 32 of the Industrial Relations Act 1946.
This section provides that a complaint alleging a breach of a Registered Employment Agreement may be made by the Trade Union which is party to the agreement.
The Union’s claim on behalf of the claimant related to the period from 24th May to 20th August 2004, and amounted to a total of €14,329.55 being made up of €13,313.87 in respect of an underpayment of rates of pay due to the incorrect application of the appropriate rate under the REA; non payment of the traveling time for each day of that period when the Union say that the claimant was working away from base; €777.00 in respect of non-payment of compensation for 5 ¼ days outstanding annual leave; non-payment of sick leave for a period of one week from 16th to 20th August 2004 and non-payment of contributions into the approved sick pay and pension scheme, as is required by the Agreement, quantified as €238.68 due to the scheme.
The Court was presented with a conflict of evidence between the parties on many issues. The Court took witness testimony and documentary evidence from both sides and the Court subpoenaed one witness to give evidence.
Having heard the submissions of both parties and having considered all the evidence gathered, the Court is satisfied that the respondent neglected to pay the claimant travel money for Monday mornings and Friday evenings for a period of five weeks from 31st May to 9th July 2004, when the claimant was required to attend to a site in Ballybunion. This amounted to a sum of €333.00, which is now due.
The Court is satisfied that the Union’s claim for travel money on each day during this period is not well founded as the Court is satisfied that he was paid Country Money in accordance with the REA.
Having considered all the evidence, the Court has concluded that on the balance of probabilities the claimant was carrying out electrical duties while he was employed at the Ballybunion site and therefore, the Court accepts that he should be paid the appropriate rate for an Electrician during that time. Furthermore, the Court is satisfied that the Respondent was engaged on that site from 31st May to 9th July 2004, it accepts the Respondent’s contention that the work ceased on 9th July and recommenced on 17th August 2004, at which time the claimant was on sick leave, prior to the termination of his employment on 20th August 2004. Therefore, the Court decides that the Respondent must pay the claimant the sum of €2040.00 in respect of the period from 31st May until 9th July, 2004.
While there was a conflict of evidence on the nature of the work undertaken by the claimant after 9th July 2004, the Court is satisfied that the evidence points to the claimant having been engaged on a variety of jobs after that date, where he was engaged on General Operative duties and not as an Electrician. Accordingly, the Court is satisfied that he was not incorrectly paid, in accordance with the REA from 12th July until 20th August 2004.
The claim before the Court included a claim for overtime payment due on 3 Saturdays, no evidence was given to substantiate this position, the Company indicated that he worked 2 Saturdays during this period, and was paid the appropriate overtime. The Court is not satisfied that this claim is well founded.
The Court is satisfied based on the uncontested evidence given, that compensation for 5 ¼ days annual leave is due to the claimant, which when calculated in accordance with the provisions of the Organisation of Working Time Act, 1997 is quantified as €584.77. Based on the details of all payments made to the claimant the Court is satisfied that he was paid for the week commencing 16th August 2004 which was certified sick leave.
It is noted that the Respondent accepted that he was liable to include the claimant in the Industry Pension Assurance and Sick Pay Scheme and therefore, all monies due should be paid over to the Scheme.
Order
Pursuant to its powers under Section 32(1)(b) of the Industrial Relations Act, 1946, the Court orders that, in accordance with Rule 22 of the REA, the respondent is required to pay the claimant in the amount of €2957.77 and to pay all contributions due to the industry Pension Assurance and Sick Pay Scheme in respect of the claimant.
Signed on behalf of the Labour Court
Caroline Jenkinson
1st May 08______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.