Da Silva v Rosas Construtores S.A.
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] IEHC 152 |
| Docket Number | [2012 No. 2012/9535P] [2012 No. 9538P] |
| Court | High Court |
| Date | 18 March 2016 |
[2016] IEHC 152
THE HIGH COURT
Keane J.
[2012 No. 2012/9535P]
[2012 No. 9537P]
[2012 No. 9538P]
Employment – Damages & Restitution – Breach of contract – Construction Industry Registered Employment Agreement (CIREA) – Underpayment for work – Reasonable standard of accommodation
Facts: The plaintiffs in all the concerned proceedings sought an order for damages for breach of a contract of employment entered into between the plaintiffs and the defendants. The plaintiffs contended that the defendants in breach of the contract of employment had failed to pay them for all the hours worked and that the deductions made from their salaries for accommodation, lodging and other services were not justified owing to the sub-standard facilities provided to them.
Mr. Justice David Keane held that the plaintiffs were entitled to recover the full amount of the underpayment of their wages, deductions in full for sub-standard accommodation, laundry services, and benefit in kind as damages for breach of contract together with interest at a specified rate from the date of cause of action till the date of the present judgment. The Court found that the written contract entered into between the plaintiffs and the defendants was markedly different than what was orally explained to the plaintiffs who being the Portuguese citizens were unable to comprehend the language of the contract. The Court, after considering the expert evidence in relation to discrepancies in daily log sheets, low quality of accommodation, and unreasonable deduction for laundry services, held that the defendants had procured and executed the relevant contracts for unlawful purpose of avoiding compliance with requirement of CIREA. The Court opined that the persons covered by registered employment agreement were covered under s. 20 of the Protection of Employees (Part-Time Work) Act 2001.
In these three linked sets of proceedings, the primary relief sought by each plaintiff is damages for the alleged breach of his or her employment contract with the defendant partnership.
The 27 plaintiffs are Portuguese. With one exception, they are all construction workers. The fourth plaintiff in the second set of proceedings, Maria Piedosa Ribeiro Cardosa Gastalho, is married to another plaintiff and was employed by the defendants as a cleaner.
The defendants are three Portuguese companies that traded in Ireland as a partnership ('RAC Eire'), having its registered office at Mill House, Henry Street, Limerick. RAC Eire traded in the State as a contractor or sub-contractor to a consortium known as Bóthar Hibernian, itself comprised of three companies: Mota-Engil (Portugal); Michael McNamara and Company; and Coffey Construction Limited. In November 2006, Limerick County Council awarded Bóthar Hibernian the public works contract to design and build 'the N7 Nenagh to Limerick High Quality Dual Carriageway' ('the project').
Each of the plaintiffs was employed under written contract by the defendants for some part of the period between 2007 and 2009 in connection with the project.
Leaving aside the contract entered into by Mrs Cordosa Gastalho, those signed by the other plaintiffs are in very similar, if not identical, terms. Each states, in material part:
'6. Rate of Remuneration
The rate of remuneration to which you are entitled is in accordance with the Construction Industry Registered Employment Agreement.... This remuneration is subject to the deduction specified in clause 7 below.
...
Board, Lodgings and Laundry services
As part of the terms and conditions of your employment, [RAC Eire] agrees to provide you with accommodation, meals and laundry service for the duration of your employment under this contract. In consideration of the provision of these services, [RAC Eire] will make a deduction from your hourly rate of pay as set out in clause 6 of this agreement in the amount of:
Board: 15€/day
Lodging: 17.50€/day
Laundry service: 3.75€/kg
You hereby authorise [RAC Eire] to make the said deduction on a monthly basis for the duration of the agreement.
8. Working Time
(a) Hours of Work
Normal hours of work are Monday to Thursday from 8.30 am to 5.00 pm and from 8.30 to 4 pm on Fridays. It is a condition of your employment that when requested to do so, you will be available to work overtime.'
It is not disputed that it was a term of the contracts between the defendants and each of the plaintiffs that the former would pay the latter in accordance with the Construction Industry Registered Employment Agreement ('the CIREA'). Thus the defendants were contractually bound to abide by the payment terms of the CIREA, regardless of whether it was otherwise enforceable as a matter of statute law. A Registered Employment Agreement ('REA') is a construct that was first given statutory force by Part III of the Industrial Relations Act 1946 ('the 1946 Act').
As the Supreme Court explained in McGowan & Ors v The Labour Court [2013] IESC 21 ( per O'Donnell J, nem. dis.):
'...Under Part III an employment agreement, defined as an agreement regulating remuneration and conditions of employment of work and made between trade unions and an employer or a group of employers or at a meeting of the registered Joint Industrial Council, may on the application of the parties thereto, be registered by the Labour Court. On any such application the Labour Court is obliged to register the agreement if it is satisfied that the conditions of six subparagraphs of s.27 of the Act have been complied with...Once registered, an REA...becomes incorporated in the contract between the employer and employee and is enforceable by criminal prosecution. The agreement may be varied by application brought by the parties to the original agreement, and may be cancelled by the court either on a joint application of the parties, or if the Labour Court is satisfied that there has been substantial change in the trade or business. But most significantly for present purposes, an REA...applies not just to the parties thereto and those they represent, but to every worker and employer in the sector, whether or not they were a party at the original agreement, or represented in the conclusion of the agreement, or even in existence at the time it was made. Thus, s.30(1) of the Act provides: "A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class, type or group to which it is expressed to apply, and his employer, notwithstanding that such worker or employer is not a party to the agreement or would not, apart from this subsection, be bound thereby."'
S. 32(1) of the 1946 Act made provision for complaints to be made by a trade union representative of workers affected by an REA. In the event of such a complaint being made the Labour Court was required to consider the complaint and, after hearing from all interested parties desiring to be heard, and if satisfied that the complaint was well-founded, was empowered, pursuant to s. 32(1)(b) of the 1946 Act, to make an Order directing the employer in default to take such steps as were considered necessary to comply with an REA. S. 32(4) of the 1946 Act made failure to comply with such an Order a criminal offence. S. 10 of the Industrial Relations Act 1969 stated that an employer, or a trade union representative of employers affected by an REA, could make a complaint to the Labour Court if they believed that another employer was in breach of any of the terms of that REA.
In McGowan, the Supreme Court held the provisions of Part III of the 1946 Act invalid as repugnant to Article 15.2.1 of the Constitution on the grounds that they delegated an excessive degree of law-making power to the Labour Court and established no guidelines to assist the Labour Court in determining when and under what conditions to accede to an application to register a particular employment agreement. The registration of such an agreement had the effect of requiring all employers in the sector or industry concerned to abide by the terms and conditions of employment laid down in it.
The CIREA began life as an agreement between the Construction Industry Federation ('CIF') - the principal representative body of construction enterprises in the State...
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