FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : CONCRETE PUMPING LIMITED - AND - UNITE THE UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Construction Industry Registered Employment Agreement - Pensions Assurance and Sick Pay
BACKGROUND:
2. The case was referred to the Court for alleged breach of the Construction Industry REA on pension, assurance and sick pay on the 6th December, 2009. A Labour Court hearing took place on the 27th May, 2010. The following is the Court's Decision:
DECISION:
This matter came before the Court by way of a complaint by UNITE, under Section 32 of the Industrial Relations Act 1946, that Concrete Pumping Limited (hereafter the Respondent) breached the terms of the Registered Agreement (Construction Industry Pensions Assurance and Sick Pay) (hereafter the REA). The Agreement was registered with the Court pursuant to s.27 of the Industrial Relations Act 1946 on 7th March 1969 and varied for the twentieth time by the Registered Agreement (Construction Industry Pensions Assurance and Sick Pay) Variation Order (No.2) 2006, as from 19th May 2006.
The substance of the complaint is that the Respondent failed to enrol its employees in an approved pension, assurance and sick pay scheme in accordance with the terms of the REA.
Inherent in the complaint is a contention that the Respondent is a building firm within the meaning ascribed to that term by the REA. The Respondent contends that it is not such a firm. The Respondent contends that it is involved in the provision of hourly paid hired plant services to customers and the maintenance of its own equipment. The Respondent provides services to building contractors, local authorities, farmers, and private householders. The Respondent further contends that its employees are not construction operatives but pump truck drivers delivering concrete into sites. It was submitted that the work which they undertake is akin to that of many other haulage contractors engaged in the delivery of materials to construction sites.
The Complainant contends that the work undertaken by the Respondent is an integral part of the construction process and that it is a building firm as defined by the REA.
Conclusion of the Court
The REA applies to “a building or civil engineering firm”. That term is defined by Clause 1 of the First Schedule of the REA as follows: -
- “ A Building Firm is defined as “a firm the principal business of which is one or a combination of any of the following activities;
- (ii) The construction of foundations on such sites.
(iii) The construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings and the disposal of waste.
(iv) The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings.- (v) The making of roads and paths within the boundaries of such sites.
- (d) The manufacture, alteration, fitting, and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster.
- (ii) The construction of foundations on such sites.
A significant number of cases have previously come before the Court in which the applicability of the REA to what could broadly be described as plant hire companies has been considered. The Court has generally drawn a distinction between enterprises which supply plant and machinery to customers for hire, which is used in the construction process by employees of the customer, and enterprises which supply plant and personnel for the purpose of undertaking construction activity. Where plant and machinery only is supplied that Court has taken the view that the supplier is not a building firm as defined by the REA but where plant and personnel is supplied to undertake activity which is integral to the construction process, the supplier is encompassed by the REA.
In the present case the Respondent principal contracting activity involves the placing of concrete in situ on construction sites. The process involves the transmission of concrete, thought the pumping plant, to the location at which it is to be laid. Crucially, the plant is operated by an employee, or employees, of the Respondent who participates in spreading the concrete and laying it in situ.
In the Court’s view this is an integral part of the process of constructing buildings. Consequently the activity comes within the ambit of Clause 1(a) of the definition of a construction firm contained within the REA.
Classification of workers covered
Turning to the classification of the Respondent’s employees, the REA applies to a list of designated craft occupations and goes on to provide for an additional category of ‘general operative’. This has always been understood as a residual category encompassing manual workers who do not fall within the craft categories listed in the preceding provision of the REA. Those employees of the Respondent who undertake the work associated with the operation of the concrete pump and the spreading of concrete are properly classified as general operative within the meaning of the REA and are covered by its terms.
Determination
The Court determines that the Respondent is a building firm within the meaning of the REA and is covered by its terms. The Court note that the Respondent provides its employees with pension and mortality cover which, it contends, meets the requirements of the REA. The Complainant does not accept that the pension and mortality benefits provided meet the terms of the REA.
The parties should have further discussions with a view to resolving this aspect of the case. If agreement is not reached the Court will reconvene the hearing and make a further determination on this question.
Signed on behalf of the Labour Court
Kevin Duffy
15th June, 2010______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.