INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946
(REPRESENTED BY WATERS & ASSOCIATES SOLICITORS
- AND -
(REPRESENTED BY POLISH CONSULTANCY ENTERPRISE)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Mr O'Neill
1. Interpretation of a Registered Employment Agreement (REA).
2. The Applicant was employed by Glafy Limited formerly MCR Steelworks Limited as a Welder. The Company was engaged in the manufacturing of metalwork products such as staircases, balconies, balustrades and other similar items at it's plant in Newbridge Co. Kildare. The case before the Court concerns an application by the Worker who is seeking a direction from the Court as to whether or not the Construction REA applies in this case.
The Worker referred his case to the Labour Court on the 8th April, 2010, in accordance with Section 33(1) of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 22nd July, 2010
3. 1. The activity of welding and installing structures on building sites is covered by the Second Schedule of the Agreement.
2. The Central Statistics Office has classified the Company as either a Construction or Civil Engineering Company by assigning to it its NACE Code 45.21.
4. 1. The Employer contends that the work done by the Applicant in this particular case is not covered by any of the gradings within the REA's listing of skills and responsibilities. He therefore cannot be considered a Construction Worker within the meaning of the REA.
2. The Employer further contends that the principal business in which they are engaged in does not come within the ambit of the REA.
This matter came before the Court by way of an application made by a Worker (hereafter the Applicant) pursuant to Section 33(1) of the Industrial Relations Act 1946. In his application the applicant is seeking the decision of the Court on the applicability to him of the Registered Employment Agreement for the Construction Industry (Wages and Conditions of Employment) (hereafter the REA) in respect to his employment with Glafy Limited (hereafter the Respondent)
In the submission made to the Court on his behalf the Applicant sought the following declarations: -
1.“He is a construction worker of a particular grade
2.That travel as required by the REA was due to be payable to him while working on different sites in Dublin
3.The rate of pay properly payable to him during the period of his employment
4.Confirmation that after working 39 hours per week that he would be entitled to overtime rates in accordance with the Registered Employment Agreement and their appropriate grade of pay.
5.That he should have been joined into the CWPS Pension and Sick Pay Scheme.”
The Applicant was employed by the Respondent as a welder from 27th February 2007 until 8th June 2010. He contends that his duties mainly consisted of welding / installing prefabricated metal components in buildings, and in particular: -
- Boundry walls and fences
- Structural steelwork
The Court was also told that the Applicant also occasionally fitted glass in buildings.
It was submitted on behalf of the Applicant that by reason of his involvement in this activity he was covered by the REA during the course of his employment with the Respondent. It was further submitted that the Respondent is a building firm within the meaning of the REA and had acknowledged that its principal business was within the construction sector in its returns to the CSO Classification of Economic Activity survey, a copy of which was put in evidence. The Court was also referred to the Memorandum of Association of the Respondent and in particular to the objects for which the Respondent was established. At par (a) thereof the Respondent is authorise: -
- “To carry on the business of engineering specialising in the provision of ground works and civil engineering contracts, design, construction, commissioning, validation and associated services”
- “To erect, construct, lay down enlarge, alter and maintain any shops, stores factories, buildings, works plant and machinery necessary or convenient for the Company’s business, and to contribute to or subsidise the erection, construction and maintenance of any of the above”
Evidence was tendered concerning the breakdown of the Respondent’s wage costs as between its manufacturing activities and its site based work. These figures showed that the major part of its wage costs were accounted for by manufacturing activity rather than the work involved in fitting the products manufactured on sites.
The Respondent accepts that the Applicant carried out the activities referred to in the written submission presented on his behalf.
Conclusions of the Court
Based on the information before it the only matter upon which the Court can give a decision at this stage is the question of whether or not the Applicant is a worker to whom the REA relates. That is a question which involves the interpretation of the REA. The REA is an employment agreement between parties and should be construed in accordance with the rules normally applied in the interpretation of collective agreements (see Decisions of this Court inCK Decorators, REA072 andHoran HomesREA06120).
The object of the process is to ascertain the intention of the parties to the REA and, where there is ambiguity, to ascribe to it a meaning that comports with that intention. In its approach to that question the Court must have regard to the wording of the REA and must also consider how it has been applied by the parties thereto over time. Furthermore, in considering the question in issue the Court, as an expert tribunal, is entitled to rely on the knowledge and experience of its members. This was recently confirmed by the High Court inBunclody Electrical Contracting Ltd & Ors v Labour Court & OrsUnreported, High Court, Hedigan J 30th June 2010.
There are two questions to be decided in this case. Firstly the Court must decide if the occupational designation of the Applicant- that of welder- is covered by the REA. If that question is answered in the affirmative the Court must go on to considered if the Respondent is a building or civil engineering firm within the meaning ascribed to that term by the REA.
In that regard the mere fact that the Applicant was habitually employed on construction sites is not a determinative consideration. There are many categories of worker who work mainly on the construction or alteration of buildings but have never been regarded as covered by the REA. They include, for example, quantity surveyors, foremen, clerks of works, plant fitters, gas fitters, electricians, sheet metal workers etc.
Are Welders covered by the REA?
Clause 2 of the REA provides: -
- “CLASS OF WORKERS TO WHICH THIS AGREEMENT APPLIES
This Agreement applies to workers who are employed in one of the undermentioned capacities, by Building or Civil Engineering Firms (see Second Schedule to the Agreement for the definition of “Building or Civil Engineering firms”)
(a) Construction Craftsmen:
Carpenters and Joiners
Floorlayers (Dublin County Borough and County and Bray
Slaters and Tilers
and Apprentices to the foregoing craftsmen.
(b) Construction Operatives.”
The trade of “welder” is not included amongst the classifications of construction crafts. It was submitted on behalf of the Applicant that welding is included within the residual designation of “general operative” referred to a paragraph (b) of list of workers to whom the REA relates. The Court cannot accept that this submission is correct.
While welding is not a designated trade under the Industrial Training Act 1967, and the Labour Services Act 1987, it is recognised as a skilled occupation. If it were encompassed by the designation ‘general operative’ it would undoubtedly be classified as a grade A or, at least, a grade B skill. Yet the list of competencies set out in the LRC document entitled “Construction Operatives Responsibilities and Skill Ranking” (to which reference is made in the REA) does not contain a reference to welding.
In the Court’s view this is unremarkable. The Court is aware from its own knowledge that the non-designated trade of welder has always been regarded as an occupation associated with the engineering industry and has never been regarded as either a construction skill or part of a construction operative’s job. Consequently at the time the REA was negotiated and registered the parties thereto would not have intended that welders should come within its scope.
Accordingly the Court has reached the conclusion that the Applicant herein was not a person to whom the REA related in respect to his employment with the Respondent.
Having so decided it is unnecessary for the Court to consider if the Respondent is a building or civil engineering firm within the meaning of the REA. However, for the sake of completeness, the Court wishes to express its view that the mere breakdown of a firm’s wage costs as between on-site and off-site activity is not dispositive of the question of whether or not they are within the scope of the REA. In modern construction many structural components of a building are produced off-site. These frequently arise in the case of such building methods as precast concrete construction or timber frame housing. In such cases it would appear that the decisive consideration should be whether the activity in issue is an integral and indissociable part of the process of constructing buildings and not whether the components are produced in situ or off site. The real question is whether the activity in issue principally involves the construction of buildings or whether it involves the manufacture of components or materials to be used in the construction of buildings. However, for the reasons already explained it is unnecessary for the Court to make any definitive finding on that point.
For the reasons set out herein it is the Decision that the REA is not applicable to the Applicant herein.
Signed on behalf of the Labour Court
3rd August, 2010______________________
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.