Registered Agreements
Cases
McGowan & ors v Labour Court Ireland & anor
[2013] IESC 21
Supreme Court
“This Appeal
16 It may be appreciated that the appeal which arrived in the Supreme Court was one with myriad complications. As a result however of active case management by a member of this court, the parties ultimately agreed to narrow the issues that would be addressed on this appeal to two:
(a) Are the appellants entitled to raise the issue at (b) and; is the Supreme Court entitled to determine this issue in circumstances where although the issue was raised in the proceedings from which the appeal is taken, and argued before the High Court, the learned High Court judge expressly did not determine the issue?
(b) Does Part III of the Industrial Relations Act of 1946 or any section thereof contravene Article 15.2.1 of the Constitution by delegating the making, variation and cancellation of registered employment agreements to the Labour Court and the parties to such agreements?
“24 The contrast with the scope of power afforded under the 1946 Act is instructive. If the 1946 Act conformed to the same pattern as that established in the 1967 Industrial Training Act, then the relevant terms would be set by the Labour Court perhaps after consultation with other public bodies and subject to ministerial approval and Oireachtas review. Even if such a structure were in place the breadth of the power afforded would still be telling. An REA can make provision not merely for remuneration, as was the case in Burke, but can make provision for any matter which may be regulated by a contract of employment. Thus, it can determine wages, pensions, pension contributions, hours of work, health insurance, grievance procedures, discipline procedures, staffing levels, production procedures, approved machinery or equipment, and anything else in the employment relationship. It is in the words of Henchy J. in Burke, a delegation of a “most fundamental and far-reaching kind”. It involves a fundamental part of the person’s life (if an employee), and their business (if an employer).
25 The extent of the delegation is also of significance. What is unusual and possibly unique is that the law making power granted under the 1946 Act is granted over a broad area of human activity to private persons, themselves unidentified and unidentifiable at the time of the passage of the legislation. When an employer such as the third named appellant is the subject of prosecution for breach of a registered employment agreement, that amounts to a clear allegation that a part of the law of the State has been breached. In such a case the particular provision which it is alleged has been breached has been made by the private parties to the employment agreement which has been registered by the Labour Court. The Labour Court itself has no power of consultation or even (as is the case of an ERO made under Part IV of the 1946 Act) a power to comment and return the proposed order to the joint industrial council. Therefore, it is clear that this specific provision is being made, not by a subordinate public body governed by public law, but by participants in the industry who were empowered to make regulations for themselves and for all others within that industry who may be competitors and whose interests may not be aligned with the makers of the REA. This is not a grant of a power to make regulations over a limited area subject to explicit or implicit guidance and review. It is an unlimited grant of power in relation to employment terms, made to bodies unidentifiable at the time of the passage of the legislation and without intermediate review. On its surface therefore, this appears to be a facial breach of Article 15.2.1. “Law” is undoubtedly being made for the State, and by persons other than the Oireachtas. No direct statutory guidance is given for the exercise of the power. On its face, the Act does not define who might be parties to the agreement, or impose any limitation on the content of such agreement other than that it should relate to the conditions of employment. Such a far-reaching conferral of law making authority, can only be valid if it can be brought within the test outlined in Cityview Press. In the context of this case that can only be achieved if the process of registration by the Labour Court (which is essential to give statutory effect to an employment agreement) introduces sufficient limitation on the regulation making power granted by the statute to render that regulation no more than the filling in of gaps in a scheme established by the parent statute.
26 From a structural analysis of the Act , it is firstly significant that the power of approval and registration is itself delegated to an intermediate body, in this case the Labour Court. The degree of autonomy and discretion afforded to that body and the lack of a mechanism for appeal or review on the merits, means that any control of the exercise of the regulation making power is necessarily attenuated. A further noteworthy feature of s. 27 is that the only limitation imposed upon the regulating power is limited, indirect and negative. The structure of the section is such that registration is mandatory subject only to compliance with the subheadings of s.27. Section 27(3) provides that on an application being made to the Labour Court, that body “shall, subject to the provisions of this section, register the agreement”. There is therefore almost a double delegation: first of the power to set the terms; and second of the power to control those terms by refusing registration. Given the scope of any possible regulation, it is particularly significant that the power of the Labour Court in this regard is essentially limited and negative.
27 Thus the restrictions imposed by s.27 are critical if the scope of the power conferred by s.27 is to be brought within constitutional boundaries. However no express guidance is given to the Labour Court as to how it should exercise its powers, and any implicit guidance to be deduced from the provisions of s.27 is necessarily limited. Section 27(3) provides as follows:
“Where an application is duly made to the Court to register in the register an employment agreement, the Court shall, subject to the provisions of this section, register the agreement in the register if it is satisfied –
(a) that, in the case of an agreement to which there are two parties only, both parties consent to its registration and, in the case of an agreement to which there are more than two parties, there is substantial agreement amongst the parties representing the interests of workers and employers, respectively, that it should be registered.
(b) that the agreement is expressed to apply to all workers of a particular class, type or group and their employers where the Court is satisfied that it is a normal and desirable practice or that it is expedient to have a separate agreement for that class, type or group,
(c) that the parties to the agreement are substantially representative of such workers and employers,
(d) that the agreement is not intended to restrict unduly employment generally or the employment of workers of a particular class, type or group or to ensure or protect the retention in use of inefficient or unduly costly machinery or methods of working,
(e) that the agreement provides that if a trade dispute occurs between workers to whom the agreement relates and their employers a strike or lockout shall not take place until the dispute has been submitted for settlement by negotiation in the manner specified in the agreement, and
(f) that the agreement is in a form suitable for registration.”
….
29 The provisions of s.28 relating to variation of an REA are a further illustration of what is absent from the scheme. Because the regulation made by the parties to the agreement is, and retains its character as, an agreement between private parties, s.28 is at least consistent in limiting the power of variation of the agreement to the original parties thereto. The logic of this position however ignores the fact that by registration, the agreement becomes part of the law binding on all present and future employers and employees within the sector. Parties who were not represented at the time of the making of the agreement are nevertheless at risk of enforcement by prosecution or civil claim, but cannot seek a variation of the agreement. Nor can the Labour Court itself initiate any process of variation even if that court considered that the agreement had become unduly restrictive of employment or now involves an inefficient and unduly costly machinery or mechanism of work, or was otherwise generally undesirable. The Oireachtas cannot vary the provision or direct that variation be considered. It was argued that the Labour Court had power to cancel the agreement and that non-parties to the agreement could invite the Labour Court to invoke the power of cancellation under s.29(2). It appears the Labour Courtnow takes the view that cancellation is not limited to the parties. Even if that is correct, that power is limited , and only exercisable if the Labour Court considers that there has been “such substantial change” in the circumstances of the trade or business that it is now undesirable to maintain registration. Even this power of cancellation highlights therefore rather than cures the absence of a similar power of variation.
30 There can be little doubt therefore that Part III of the 1946 Act raises serious issues of compatibility with Article 15.2.1. What appears to be law is being made by persons other than the Oireachtas. But this case does not really raise the troublesome questions of detail and degree that can sometimes arise in this area. There is not here a grant of a limited power to a subordinate body subject to review as there was for example in the Cityview Press case. Instead there is a wholesale grant, indeed abdication, of lawmaking power to private persons unidentified and unidentifiable at the time of grant to make law in respect of a broad and important area of human activity and subject only to a limited power of veto by a subordinate body. In effect, Part III allows the parties to an employment agreement to make any law they wish in relation to employment so long as the Labour Court considers them to be substantially representative of workers and employees in the sector, and does not consider the agreement itself to be unduly restrictive of employment or make provision for unduly costly or inefficient methods of work or machinery, and otherwise complies with the formal requirements of s.27. No guidance or instruction is given to the Labour Court as to how the matters of representativity or restriction on employment or inefficiency or costly methods of work, are to be gauged. The process permitted by Part III cannot be said to be merely the filling in of gaps in a scheme already established by the Oireachtas: in truth the Oireachtas which enacted the 1946 Act could have no idea of even those areas which may be subject to regulation in an employment agreement sought to be registered under the Act, and no conception still less control of the possible range of regulation that might be made in respect of each such matter. Nor did the Oireachtas retain any capacity for review either by the Oireachtas or by a member of the Executive responsible to it, of the agreements actually made. Whatever may be thought of a scheme which permits parties to an agreement to clothe that agreement with certain legal consequences including the possibility of enforcement by criminal proceedings, once such an agreement purports to become binding on non-parties pursuant to s.30 of the Act, it passes unmistakably into the field of legislation which by Article 15 is the sole and exclusive preserve of the Oireachtas. The limited and essentially negative limitations imposed by s.27(3)(d) are plainly inadequate to bring the exercise of such power within constitutional limits.
31 Finally, it may be worth considering the use of terminology in this area. The term “delegated legislation” is, as a description, perhaps unexceptional. It has entered our law from the law of the neighbouring jurisdiction. In a constitutional regime where a parliament is supreme, any provision may be made including presumably, the delegation to others of part of its law making function. But it is worth recalling however, that in the constitutional dispensation created in 1922 and extended in 1937, the position is somewhat different. As Hanna J. observed in the Pigs Marketing Board case and as the Gavan Duffy, O’Donoghue, and Lynch exchange in 1937 illustrates, if in truth any piece of regulation amounted to truly delegated legislation, it would offend Article 15, since it is plain from the very language thereof, and indeed the constitutional structure, that the function of legislation is one that cannot be delegated by the Oireachtas to any other body. Indeed the case law since that time can be understood as an attempt to seek to delineate the boundary between permissible subordinate regulation, and the abdication, whether by delegation or otherwise, of the lawmaking authority conferred on the Oireachtas by the People, through the Constitution.
32 Accordingly, this appeal will be allowed, and the court will make a declaration that the provisions of Part III of the Industrial Relations Act 1946 are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland.”
Building and Allied Trades Union & Anor v. Labour Court
[2005] IEHC 109
Murphy J.
“1 Industrial relations in Ireland was facilitated by the Industrial Relations Act, 1946. The act was to make further and better provision for promoting harmonious relations between workers and their employers. It provided machinery for regulating rates of remuneration and conditions of employment and for the prevention and settlement of trade disputes. It also set up a body known as the Labour Court to fulfil the functions assigned to it by that Act.
The Industrial Relations Act, 1990 had a similar objective and amended the law relating to trade unions and amended the 1946 to 1976 Act and the Trade Union Acts, 1871 to 1982.
The Department of Labour was established in 1966 when the general state of industrial relations was then, and for sometime thereafter, perceived to be one of serious disorder. Kerr: Trade Union and Industrial Relations Acts (2nd Edition) refers to unofficial industrial action as being widespread with frequent disruptions to essential services and a significant number of inter union disputes. Proposals that the rules of a trade union should be deemed to require that, before the service of a strike notice, a majority of members entitled to vote and voting in a secret ballot should have approved of a strike notice and that members taking on official action would lose the immunities provided by the Trade Disputes Act, 1906, evoked strong opposition from the trade union movement. It was conceded that the only legislation that would work was that in which trade unions would co-operate.
The Commission of Enquiry on Industrial Relations reported in July 1981, made some controversial recommendations which were not implemented.
Within the construction building and civil engineering industry the basis of the 1967 Registered Employment Agreement and the establishment of a Joint Industrial Council brought together all parties including the predecessors of both the applicant and the Construction Industry Federation. The agreement applied to workers who were employed, in one of the certain mentioned capacities, by building or civil engineering firms, as defined in the schedule thereto. The capacities mentioned were craftsmen (including brick and stone layers) and apprentices, lorry drivers and labourers.
It is common case that problems did arise in the 1970s with the increase in construction activity, taxes and social welfare problems and health safety and welfare issues. Working “on the lump” involved groups of workers being engaged from site to site as independent contractors.
2 The Labour Court had played a leading role in relation to the construction as well as other industries. The registration of agreements relating to wages and conditions of employment was an important contribution. An employment agreement meant an agreement made between a trade union of workers and an employer or trade union of employers or made at a meeting of a registered joint industrial council between members of the council representative of workers and members of the council representative of employers. It appears from the Labour Court Annual Report of 2000 that, in relation to that year, there were 43 employment agreements on the register but that, according to Kerr, op. cit, only seven were active. The more active employment agreement was that of the construction industry which, as already stated, was subject to 21 variations. Section 28 of the Industrial Relations Act, 1946, provided that any worker to an agreement which provided for variation, could apply to the Labour Court. The court had to consider the application and hear all persons appearing to the court to be interested and desiring to be heard. After such consideration the court could refuse or make an order varying the agreement in the manner as it thought proper. Once an order was made the agreement had effect as so varied.
3 The court finds that the applicant was an active participant at relevant meetings between 1991 and 1996 when the sub-contracting amendment was negotiated. It made submissions to the council meeting of 31st March, 1998. It was a participant in the CIC and ICTU. Through the CIC the unions had properly applied to the Labour Court to vary the agreement of 15th March, 1967. The variation did deal with abuses referred to in Mr. Scott’s affidavit. The court notes finds that there was no ballot of the applicant’s members. In so far as is relevant neither Mr. Scott’s averment that “no one in his union believed that the proposal would improve quality of employment” nor Mr. O’Shaughnessy’s statement that members were “deeply divided” on the issue, can be proven.
The applicant says that the introduction of sub-contractors it goes beyond the original agreement of the 15th March, 1967. It does so in relation to extending the definition of worker which, it was submitted, was equivalent to that of employee and accordingly, could not extend to sub-contractor.
4 A variation should not extend beyond the registered employment agreement itself. The applicant relies on Serco Services Limited v. Labour Court, High Court, July, 12th 2000, where Carroll J. struck down an order made by the Labour Court in 1999 varying the registered employment agreement for the electrical contracting industry on the basis that the variation order purported to extend the scope of the agreement so as to apply its provisions to workers to whom it did not apply prior to its being made.
In that case the applicant was a limited liability company in the business of facilities management, providing a wide range of technical and support services within a single contract to clients, including electrical services. In September 1990, the Labour Court had registered an employment agreement made between the Electrical Contractors Association and the Association of Electrical Contractors (Ireland) which related to conditions of employment and applied to all electricians employed in the general electrical contracting industry and their employers and to all electrical contractors engaged in the industry. An electrical contractor was defined in the agreement as the proprietor of a business whose main activity was the performance of electrical work on a contract or sub-contractual basis for any third party.
The notice party, TEEU, an electrical trade union, had twice requested the applicant to comply with the provisions of the 1990 agreement. The applicant maintained that it was not bound by the provisions of that agreement as it was not an electrical contractor within the meaning of the agreement. The TEEU then sought to vary the scope of the agreement which the Labour Court agreed to do. The variation changed the definition of electrical contracting, removing the requirement that it be the main activity of a business.
Carroll J. found that the Labour Court had acted ultra vires. Section 28 provided that a registered employment agreement could only be varied in its application to any worker to whom it applies and the Labour Court had widened the category of employers to whom the agreement applied thereby including workers not previously included.
Carroll J. in dealing with the difference in meaning between the 1990 Registered Employment Agreement and the variation in 1999 stated as follows:
“The first question is whether there is a difference in meaning between the two versions (1990 and 1999) which cannot be described as mere classification.
The first difference is the addition of ‘charge hands, foremen and apprentices’ and ‘electricians’. I have no problem in accepting this as a clarification as all of these additional categories were mentioned in the 1990 agreement and provision was made for them.
The next difference is in changing the phrase which qualifies electricians from ‘who are engaged in the general electrical contracting industry’ to ‘who are engaged in electrical contracting work’ which is defined in the next paragraph as ‘the performance of electrical work on a contractual or sub-contractual basis for any third party’.
In my view an electrician who is described as performing electrical work on a contractual or sub-contractual basis for a third party is in a much wider category of worker than an electrician who is engaged in the general electrical contracting industry. If the description of worker is changed and widened then the class of employers is also widened.
…The effect of these changes is to include all electrical contractors whether engaged in the industry or not and regardless of whether the main activity of their business was the supply of electrical work or not. Therefore it widened the category of employer to include electrical contractors who were not engaged in the general electrical contracting industry but who supplied electrical work on a contractual basis to a third party and included electrical contractors whose main activities was not the supply of electrical work on a contract basis for a third party, who had previously been excluded by definition.
Therefore in my opinion the variation widened the scope of the agreement to include workers who were not previously included, thereby widening the category of employers, and it widened the category of employers, thereby including workers who were not previously included.
This was contrary to the express provisions in s. 28 which gives the courts jurisdiction to vary the application of a registered agreement in its application to any worker or workers to whom it applies. This is not an error of law within jurisdiction. It goes to the root of its jurisdiction.”
In holding that the Labour Court had acted ultra vires Carroll J. was of the view that the applicant was outside the 1990 registered agreement. She said that the reading of the two agreements showed that the type of work arrangements and workers remuneration in working conditions were radically different to those pertaining to the applicants’ employees.
5 In the present case there is no evidence of any widening of category of employers. The dispute relates to classification rather than to augmentation. There is no evidence of any distinction regarding the main activity of businesses supplying work on a contractual or sub-contractual basis. There would not appear to be any widening of the category of worker or the class of employer such as had occurred in Serco. All have been engaged in the general building and civil engineering contracting industry. There is no attempt, as there was in Serco, to widen the scope by including those electricians who were engaged in building and civil engineering work generally. There was no evidence whatsoever that the variation sought to include a greater number whether by way of category of worker. Insofar as it could be said that the class of employers’ were widened by including sub-contractors, not alone are the circumstances different from that obtaining in Serco, but sub-contractors are within the definition of employer as already found.
Accordingly, in the present case, the variation proposed on 8th September, 1997 and referred to in the letter from CIC and CIF of 17th February, 1998 and decided on by the Labour Court on 15th May, 1998, did not change nor widen the definition or description of worker. There was no evidence of a separate category of sub-contractor who had previously been excluded by the Registered Employment Agreement of 15th March, 1967.
In this regard it is necessary to examine the definition of worker.
6 “Worker” in the Industrial Relations Act, 1946 to 1976, is defined by s. 23 of the Industrial Relations Act, 1990 as follows:
” ‘Worker’ means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be express or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or of a contract personally to execute any work or labour…”
Most persons excluded, employees of the State, teachers are governed by separate schemes of conciliation and arbitration.
The definition of worker for the purpose of trade disputes in s. 8 of the same Act is a different definition:
” ‘Worker’ means any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises…”
The latter definition, for the purpose of trade disputes, does not appear to be as extensive as the definition under s. 23.
The former definition, which was the relevant definition for the purpose of this application, refers, in addition to a contract of service or of apprenticeship, to “a contract personally to execute any work or labour”. This would seem to imply a contract for services and, accordingly, to include an individual worker acting as contractor or sub-contractor. “Person” is not defined but is limited to persons aged 15 years or more and, accordingly, would not appear to include legal persons, such as companies or partnerships.
Employer, on the other hand, is defined by s. 8 of the 1990 Act as meaning:
“A person for whom one or more workers work and have worked or normally work or seek to work having previously worked for that person.”
Such workers are not defined as employees. It seems, accordingly, that a ‘worker’ is wide enough to include an individual sub-contractor. The sub-contracting company, on the other hand would appear to be an employer as defined by s. 8 of the Act. Accordingly, both a worker as an individual sub-contractor or sub-contractor as an employer of workers would appear to be within the ambit of the Registered Employment Agreement of 1967.
7 The Labour Court had regard to the industrial relations practice in dealing with sub-contractors in the industry. Its recommendation LCR 13374 referred to a specific agreement of 3rd June, 1981 and recommended that in the interests of good industrial relations that it should be applied. It is clear from this recommendation that, while the court does not consider the industrial relation agreement as being agreement in the legal sense of the word, it recommends the implementation of the clauses of the agreement and recommends that the company should ensure that sub-contractors conform to the terms of the agreement. Moreover, it is clear from the overall objective of the Industrial Relations Act, to make further and better provisions for promoting harmonious relations between workers and their employers, that the Labour Court was entitled and, indeed, no issue has been taken in relation to that entitlement either then or now, to make recommendations in relation to the industrial relations agreements appended to the main agreement. Despite there being no provision in the Industrial Relations Acts for industrial relations agreements.
8 It seems to me that the approach of the Labour Court in its recommendations from the early 90s has been to encourage the parties to the Register of Employment Agreement of the 15th March, 1967 and their successors to meet and attempt to agree on the updating of and not the expansion of the parties to that agreement. In relation to the considerations of the proposed variation in relation to sub-contractors and in considering the submissions and representations of all parties including the applicant at the meeting of 31st March, 1998, which led to the order of May, 1998, the Court acted within jurisdiction. The parties before it were all the relevant parties; all but the applicant had agreed to the changes, the application to vary was made by the appropriate parties. More significantly, the parties and the Labour Court sought to clarify that those that were already within the agreement could not opt out of the terms of the agreement as varied by the expedient of claiming that they were not workers or employers.
Most importantly the Labour Court followed the procedure laid down by s. 28 and achieved substantial agreement after detailed consultation negotiation between 1990 and 1998.
The court is also satisfied that the Labour Court took in to account the opposition of the applicant Union.
Moreover the applicant Union participated, without objection at that time, in the deliberations of the Construction Industry Committee of the ICTU. No objection had been made of the status of the JIC.
While not decisive to the Court’s decision, it is noted that the matter did not reach a hearing until almost seven years from the date leave was granted.
The Labour Court did not act in an arbitrary or irrational manner not did it simply rubber stamp a request by the parties to register the variation. Proper procedures were followed. In the circumstances, the court refuses the reliefs sought.
Mythen Brothers Limited v Building and Allied Trade Unions
REA0591
2. This is a complaint by BATU (the Union) alleging a breach of the Registered Employment Agreement (REA) (Construction Industry Wages and Conditions of Employment), (the Agreement) by Mythen Brothers Ltd (the Employer). The Union’s complaints are as follows:
“1. The company has refused to abide by the “Procedure for Settling Grievances and Disputes” as outlined in Section 11 of the R.E.A.
2 The Company are in breach of Section 10 of the R.E.A. “Engagement of Subcontractors” in that they are employing subcontractors who are not compliant with the criteria laid out in clauses A, B, C, D, E, F, G, and H”
The Company submits that it has not breached Clause 11 of the REA as this is not a dispute which was properly taken through the REA. The Company also submits that it has not breached Section 10 in relation to named sub-contractors identified by the Union. On the 29th August, 2005, the Union referred the complaint to the Labour Court Under Section 32 of the Industrial Relations Act, 1946. Court hearings took place on the 11th December, 2005, and on the 21st November, 2005.
The following is the Court’s Decision.
DECISION:
In its submission to the Court the Union particularised its complaints as follows:
“1. The company has refused to abide by the “Procedure for Settling Grievances and Disputes” as outlined in Section 11 of the R.E.A.
2 The Company are in breach of Section 10 of the R.E.A. “Engagement of Subcontractors” in that they are employing subcontractors who are not compliant with the criteria laid out in clauses A, B, C, D, E, F, G, and H”
The Agreement was registered in the Register of Employment Agreements on 15th March 1967 and was varied for the twenty-third time by the Court under Section 28 of the Industrial Relations Act 1946, with effect from 27th May 2005.
Ascal Electrical Ltd v TEEU
NT071
BACKGROUND:
2. In July 2006, the TEEU made a complaint to the Labour Court under Section 32 of the Industrial Relations Act 1946, alleging breaches of the Registered Employment Agreement (Electrical Contacting Industry) [REA]. Subsequent to the Labour Court hearing held on 17th November 2006, the Union made an application to the Court for an interpretation of Clauses 13 and 23 of the Agreement. The Union is claiming that apprentices are employees under the terms of the REA and are entitled to be registered in Pension and Mortality Schemes if over the age of 20. The Union further claims that, with regard to travelling time for employees, the Employer’s registered address can be defined as a shop under Clause 13 of the REA.
DECISION:
This matter came before the Court by way of a complaint by the TEEU (the Union) alleging a breach of the Registered Employment Agreement for the Electrical Contracting Industry by Ascal Electrical Limited (the Employer). The substance of the complaint is that the Employer contravened Clause 23 of the said Agreement in failing to enrol apprentices over 20 years of age in an approved pension scheme. It is further alleged that the Employer contravened Clause 6 of the Agreement in failing to pay travelling time to workers to whom the Agreement relates.
The relevant Clauses provide as follows:
Clause 23
PENSIONS AND MORTALITY SCHEME
A Pension and Mortality Scheme equal in conditions and benefits to the terms of the pension and mortality scheme of the Registered Agreement for the Construction Industry to be provided for all employees between the age of 20 and 65 years. In this connection each employee between the age of 20 and 65 years to be entered in the Construction Federation Pension and Mortality Scheme. Under the terms of this Scheme each employee is entitled to one pension scheme stamp per week to be fixed to his pension card (while in the employment of the firm) by his employer. The Scheme is contributory and the cost of each stamp is to be borne jointly by the employer and the employee. The responsibility of seeing that stamps are fixed when due rests with the employer.
Clause 6
STARTING ON SITE
(A) Where within a distance of 11 miles by road from the shop, an electrician starts on site instead of in the shop, travelling time shall be paid in accordance wit the following scale:-
over 4 up to 5 miles – a quarter hour per day
over 5 up to 6 miles – a half hour per day
over 6 up to 7 miles – three quarters hours per day
over 7 up to 8 miles – one hour per day
over 8 up to 9 miles – one and a quarter hours per day
over 9 up to 10 miles – one and a half hours per day
over 10 up to 11 miles – one and three quarter hours per day
A shop is defined by clause 13 as follows:-
(a) The following is the definition of shops:-
Premises which are used for the purpose of general electrical trading as distinct from one contract or one or more contracts upon any site.
In its defence the Employer contended that apprentices are not employees and are therefore outside the scope of Clause 23 of the Agreement. It also contended that Clause 6 is inapplicable in the circumstances of the Employer as its office is not a shop within the meaning of Clause 13 of the Agreement.
Interpretation
Clause 23.
The Employer contended that the word “employee” as it appears in Clause 23 should be understood as referring to a person employed under a contract of service and not to an apprentice.
The word can be understood as a legal term of art or it can bear an ordinary colloquial meaning. As a term of art it is defined in Murdoch’s Dictionary of Irish Law, 4th Edition, at p 462 as follows:-
“A person who is under a contract of service to another person called the employer”
The Oxford Dictionary of English, Second Edition, defines the terms as meaning:-
“A person employed for wages or salary”
The Agreement should be construed in accordance with the ordinary rules of contractual construction (seeAdams & Others v British Airways plc [1995] IRLR 577). 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 the meaning intended by its authors. The Agreement was drafted by industrial relations practitioners and is addressed to employers, employees and their trade unions. Moreover, the primary role in interpreting the agreement is assigned to this Court and not to a Court of law. This indicates an intention on the part of the Oireachtas that such agreements should be constructed in a way that takes account of industrial relations realities and that words and expressions should be given the meaning which they would bear in an industrial relations setting.
In ordinary parlance the word “employee” connotes a person who is employed by an employer for a wage or salary. An apprentice is so employed. The Court is satisfied that in referring to “employees” in Clause 23 of the Agreement the parties thereto intended to bring all persons employed within the ambit of the Clause, including apprentices.
The Court interprets Clause 23 accordingly.
Clause 6.
The applicability of Clause 6 of the Agreement to the Employer essentially turns on the true construction of the definition of a shop as contained at Clause 13 of the Agreement. The definition (which is recited above) refers to a premises which is used for general electrical trading. The Employer is an electrical contractor. It carries out its business from premises situated at Crumlin Business Centre in Dublin. In evidence the principal of the business told the Court that tenders for work are prepared at the premises and that payments are made and received at the premises. Records relating to contract and to employees are also maintained at the premises.
The Court is in no doubt that the Employer is carrying on general electrical trading from the premises and, in consequence, it is the Employer’s “shop” for the purpose of the Agreement.
The Court interprets Clause 13 of the Agreement accordingly.
Conclusion
In light of the interpretations set out above the Court is satisfied that:-
The Employer is required by Clause 23 of the Agreement to enrol apprentices over 20 years of age in an approved pension scheme.
The Employer’s premises situated at Crumlin Business Centre is its shop for the purpose of calculating travelling time in accordance with Clause 6.
Based on these findings the Court must conclude that the Union’s complaint made pursuant to Section 32 of the Act is well – founded.
The Court will not make any Order at this stage and will allow the parties an opportunity to negotiate in the light of the Court’s findings. An appropriate Order will be made after the expiry of a period of one month from the date of this decision on application being made to the Court by either party in that behalf.
Concrete Pumping Limited v Unite the Union
REA1049
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
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.