FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : FRANK MCGRATH CONSTRUCTION LTD (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Interpretation of the Registered Employment Agreement for the Construction Industry.
BACKGROUND:
2. The case before the Court concerns a request by the union BATU for an interpretation of whether or not the word "worker" contained at clause 2 of the Construction Industry Registered Employment Agreements applies to workers who are not in the paid employment of a Building or Civil Engineering Firm i.e.unemployed workers.
The dispute arose between BATU and the Company in relation to the lay-off/ redundancy of bricklayers and transfer of said bricklayers to other sites. The Union contend that former workers of Frank McGrath Construction Ltd. were entitled to engage in a Trade Dispute with the Company on this issue.
The Construction Industry Federation (CIF) and the Company contended that all such disputes are covered by the dispute procedures of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment).
The dispute could not be resolved at local level and was referred to the Labour Court under Section 33(1) of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 15th October, 2008.
UNION'S ARGUMENTS:
3. 1. The Registered Employment Agreement's are notexpressedto apply tounemployed workers. Clause 3 of the wages and conditions of employment REA specifies that the workers to whom the agreement applies are workers who receive a wage.
2. It is the Union's contention that workers who are unemployed and engage in a dispute with their former employer are entitled to rely on Section 11(1) of the 1990 Act in furtherance of their trade dispute as they are not workers to whom the REA's apply.
COMPANY'S ARGUMENTS:
4. 1. The CIF contends that it is not possible to define the word 'workers' outside of the context within which the trade dispute arose between the Union and the Company. The real issue before the Court is the application of the trade dispute procedures in the industry.
2. In the context of the Industrial Relations Agreement agreed between employers and representatives of workers in the industry, all trade disputes must comply with the procedures as set out in the Registered Employment Agreement.
DECISION:
The Union have sought an interpretation of the Registered Employment Agreements for the Construction Industry (Wages and Conditions of Employment and Pensions Assurance and Sick Pay). The actual issue referred for interpretation is the meaning to be ascribed to the word “worker” for the purpose of the Agreements. It is the Union’s contention that the word describes a person in actual employment and does not include a person who is unemployed.
The question arose in the context of a dispute between the parties as to whether or not the disputes resolution procedure prescribed by the Agreements apply to a dispute concerning dismissal. The Union had proposed to engage in industrial action in a dispute concerning the dismissal of members of the Union by the company. It did not use the disputes procedure before initiating the industrial action. The CIF, on behalf of the company contended that the proposed action was contrary to the Agreements, which provide, in effect, that no form of industrial action will be taken by workers to whom the Agreements relate until the procedure prescribed in the Agreements has been resorted to and exhausted.
The Union contends that the Agreements apply to “workers who are employed by a building and civil engineering firm”. They say that since a person who has been dismissed is not employed by anyone they cannot be regarded as a worker for the purpose of the Agreements.
Conclusions of the Court
The issue between the parties concerns the applicability of the disputes procedure of the agreement in disputes concerning dismissal. This Court has consistently held that in construing an employment agreement, including a registered employment agreement, the words and expressions used should be given a common sense and practical meaning which is the presumed intention of the parties. In discerning that meaning it is useful to look at how the agreement has been applied by the parties over time.
In that regard it is clear that the procedures of the Agreement have frequently been invoked by Trade Unions in disputes concerning dismissal and it has never previously been suggested that they are inapplicable in such circumstances. It is reasonable to infer that the intention of the parties is reflected in the manner in which they have used those procedures in the past. On that basis alone the Court would be prepared to hold that the procedures are applicable to disputes concerning dismissal.
There are other considerations which should be taken into account. The REA must be interpreted in harmony with the Industrial Relations Acts 1946 to 2004. This is the clear import of the decision of the High Court inBuilding and Allied Trades and Valentine Scott v The Labour Court and The Construction Industry Federation and Gerry Fleming ,High Court, Unreported, 15th April 2005. In that case the High Court expressly adopted the definition of the term worker contained at s. 23 of the Industrial Relations Act 1990 as applicable for the purpose of defining the scope of the REA. That definition must include both those in current employment and those who are temporally unemployed and seeking work. Were it otherwise this Court would not have jurisdiction to investigate a dispute concerning dismissal. Such a result would be absurd.
The Court is also conscious that the Superior Courts have considered a similar question to that arising in this case in interpreting the expression “workman” as used in the now repealed Trades Disputes Act 1906. This expression was defined under the Act as meaning“all persons employed in trade or industry”.InGoulding Chemicals v BolgerIR 211 it was contended that this definition could not extend to unemployed persons who are no longer so employed. The Supreme Court declined to ascribe a literal interpretation to the expression. Instead it followed the earlier decision of the High Court inFerguson v O’Gorman[1937] IR 620 and held that the expression must be interpreted as referring to a person’s occupation or way of life rather than to their current employment status. Thus the Court gave a purposive rather than a literal meaning to the language used in the statute.
In the Court view the expressions “worker to whom the agreement relates” and“workers employed by a building and civil engineering firm”, should be similarly construed. Accordingly the expressions in issue should be understood as referring to a worker whose trade or occupation is of a type which comes within the ambit of the REA and who normally works for an employer covered by the Agreement. On this basis, where the context so requires, the expressions can apply to a person who has been dismissed and is unemployed. When so construed it is clear that the disputes procedures of the Agreements apply to all disputes including disputes concerning dismissal. This construction accords with the clear intention of the parties to the Agreements as evidenced from the manner in which they have been applied over time.
The Court interprets the Agreement accordingly
Signed on behalf of the Labour Court
Kevin Duffy
30th October, 2008.______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.