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LCR22437

FULL RECOMMENDATION

CD/20/187

ADJ-00021915, CA-00028712-001, CA-00028721-002

DECISIONNO.LCR22437


SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

SEAN DOYLE GROUP T/A LAOIS SCAFFOLDING SERVICES LTD
(REPRESENTED BY MS. DOROTHY O'DONOVAN, B.L.)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:

Mr Foley

Employer Member:

Ms Connolly

Worker Member:

Mr Bell

SUBJECT:

1.Appeal of Adjudication Officer's Decision No(s). ADJ-00021915, CA-00028712-001, CA-00028721-002

BACKGROUND:

2.The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 10 June, 2020 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 7 May, 2020 the Adjudication Officer issued the following Recommendation: -

“...I have found in favour of the complainant and my decision is to award €3,416.49 in compensation in relation to the underpayment of wages (609 hours x €5.61) under this Act to the Complainant and I direct the respondent to pay €399.45 into the Construction Industry Pension Fund (15 weeks x €26.63).”

A Labour Court hearing took place on15 December, 2020.


DECISION:

This matter comes before the Court as an appeal by Sean Doyle Group t/a Laois Scaffolding Services Limited (the Appellant) against a decision by an Adjudication Officer in a complaint made by Brian Duff (the Complainant) under Section 23 of the Industrial Relations (Amendment) Act, 2015 (the Act).

The Adjudication Officer decided that the Appellant was an employer comprehended by the terms of S.I. No. 455 of 2017 – Sectoral Employment Order (Construction Sector) 2017 (the SEO), and that consequently the remuneration and pension terms of that Order should have been paid to the Complainant from 28thNovember 2018 to 15thMarch 2019 which was, according to the Adjudication Officer, the cognisable period for the original complaint made to the Workplace Relations Commission on 28thMay 2019.

The Adjudication Officer assessed the loss to the Complainant arising from the failure of the Appellant to comply with the terms of the SEO as amounting to €3,416.49 and he ordered the Appellant to make a payment in that amount to the Complainant. In addition, the Adjudication Officer ordered the Appellant to make a payment of €399.45 to the Construction Industry Pension Fund in respect of under payment of pension contributions set out in the SEO.

Preliminary matters

The Appellant had indicated in its written submission made to the Court in advance of the hearing that it would raise a preliminary matter at the hearing of the Court contending that the entity named as the Respondent in the decision of the Adjudication Officer was not the employer of the Complainant. In the event, no submission was made by the Appellant at the hearing supporting the contention made without supporting argument in the written submission of the Appellant. The Court concludes that no matter related to the identity of the Complainant’s employer was moved by the Appellant at its hearing and consequently no decision is required of the Court in respect of this matter.

The Appellant also raised as a preliminary mattery what it contended was the ‘presumed unconstitutionality’ of the Act at Section 16(5). The Appellant submitted that the Court had no jurisdiction to hear the within appeal pending the decision of the Supreme Court in respect of a challenge to Section 16 of the Act then in process. The Court responded to this preliminary matter by advising the parties that it would proceed with its hearing and would consider whether it was appropriate to issue a decision in respect of the within appeal after the hearing. Neither party raised an objection to this course of action.

In the event, as of the date of this decision, the Supreme Court has decided that the impugned section of the Act is constitutional. The preliminary matter raised by the Appellant is consequently moot.

Relevant Law

S.I No. 455 of 2017 is an order made in accordance with the provisions of section 17 of the Act. The order at issue in the within appeal established minimum arrangements for certain terms and conditions of employment in the Construction Sector in accordance with the Act at Section 16(5) which sets out the terms that may be addressed in an SEO as follows:

(a) a minimum hourly rate of basic pay that is greater than the minimum hourly rate of pay declared by order for the time being in force under the Act of 2000;

(b) not more than 2 higher hourly rates of basic pay based on(i) length of service in the economic sector concerned, or

(ii) the attainment of recognised standards or skills;

(c) minimum hourly rates of basic pay for persons who

(i) have not attained the age of 18 years,

(ii) enter employment for the first time after attaining the age of 18 years

(iii) having entered into employment before attaining the age of 18 years, continue in employment on attaining that age, or

(iv) have attained the age of 18 years and, during normal working hours, undergo a course of study or training prescribed by regulations made by the Minister under section 16 of the Act of 2000, reduced to the percentage set out in section 14, 15 or 16 of that Act for the category of worker concerned;

(d) minimum hourly rates of basic pay for apprentices;

(e) any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked, hours worked on a Sunday, or travelling time (when working away from base);

(f) the requirements of a pension scheme, including a minimum daily rate of contribution to the scheme by a worker and an employer; and

(g) the requirements of a sick pay scheme

There is no dispute between the parties that the Complainant was a scaffolder and that had he been employed in the construction sector, he would be comprehended by the SEO. The parties disagree however as to whether the Appellant is an employer comprehended by the SEO. The SEO defines the sector to which the SEO has application as comprehending a Building Firm or a Civil Engineering Firm defined as follows:

Building Firm be defined as an undertaking whose principal business is one or a combination of any of the following activities;

(a) The construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings;

(b) The installation, alteration, fitting, repair, painting, decoration, maintenance and demolition in any building, or its site, of articles, fittings, pipes, containers, tubes, wires or instruments (including central heating apparatus, machinery and fuel containers connected thereto) for the heating, lighting, power or water supply of such buildings;

(c) (i) The clearing and laying out of sites for buildings

(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.

A Civil Engineering Firm be defined as an undertaking whose principal business is one, or a combination of any of the following activities:

(a) the construction, reconstruction, alteration, repair, painting, decoration and demolition of:

roads, paths, kerbs bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage and all work in connection with building their sites and mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion; cattle markets, fair grounds, sports grounds, playgrounds, tenniscourts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or like material, any boundary walls, railings, fences and shelters erected thereon

Summary Position of the Appellant in relation to the substantive matter.

The Appellant submitted that it is a scaffolding contractor whose only business is the provision of scaffolding services to the construction sector and to certain events outside of that sector including concerts and other outdoor events. The Appellant, in response to a request for clarification from the Court at its hearing, submitted that only a minority of its work was involved in the hiring, erection and dismantling of scaffolding for events outside the Construction Sector. The Appellant was unable to set out to the Court the percentage of its business which is involved in the provision of scaffolding services to concerts and other outdoor events.

The Appellant submitted that a contractor engaged in the provision of scaffolding services is not a building firm or a civil engineering firm within the meaning of the SEO. As a result, the terms of the SEO had no application to the Appellant. In those circumstances the within complaint cannot succeed.

Summary position of the Complainant

The Complainant was employed as a scaffolder by the Appellant from 18thSeptember 2018 until 15thMarch 2019. His hourly rate of pay was €11.43 per hour and he normally worked 39 hours per week. He was employed exclusively on construction sites where the Appellant provided, erected and disassembled scaffolding.

The SEO provides for payment of €17.04 per hour to a scaffolder as a category 1 worker which is defined in the SEO as a skilled operative with more than one year’s service.

The SEO required an employer to register each worker with the Construction Workers Pension Scheme and the Appellant failed to register the Complainant with the scheme or to make any pension scheme on his behalf.

The Appellant is engaged in the hiring out, assembly and dismantling of scaffolding. The provision and assembly of scaffolding, which is the principal business of the Appellant, is an integral part of the construction sector. None of the activities set out in the definition of either a building firm or civil engineering firm in the SEO could operate without scaffolding being a key element of the sector. Scaffolders are specifically identified as a category of worker in the SEO.

Discussion and conclusions.

There is no dispute between the parties that the Complainant is a scaffolder and as such meets the definition of a worker set out in the SEO. There is no contention that the rate of pay and pension contributions for the worker were at the level required as a matter of law by the SEO.

The within appeal turns on whether the Appellant’s principal business is one or a combination of the activities set out in the SEO as being the activities of a building form or civil engineering form.

The Court notes that the definition of a General Operative Grade A worker in the SEO is expressed to include and consist of “Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience”.

The Court is satisfied that, on the Appellant’s own submission at the hearing of the Court, the principal business of the Appellant is the hire, erection and disassembly of scaffolding to the construction sector. The definition of a building firm in the SEO includes a firm whose principal business is the construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings.

The Court is satisfied that, as a matter of plain fact, the hire, erection and disassembly of scaffolding is an essential element of the activity of construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings and the demolition of building

The Court concludes that the activity of scaffolding hire, erection and disassembly in the construction sector cannot be understood as standing apart from these activities insofar as these activities do not take place in the absence of the erection, assembly and disassembly of scaffolding.

Having reached that conclusion the Court must conclude that the Appellant is a building firm within the meaning of the SEO and the Appellant is consequently required to comply with its terms.

Decision

The complaint of contravention of S.I. No. 455 of 2017 is well founded. The Court therefore requires the Appellant to pay to the Complainant compensation in the amount of €3,815.94, being the amount the Court considers to be just and equitable having regard to all of the circumstances.

The court so decides.


Signed on behalf of the Labour Court

Kevin Foley

27 July 2021

______________________

CC

Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.