Daru Blocklaying Ltd v Building and Allied Trades Union

• Jurisdiction: Ireland
• Judge: Mr Justice Kelly
• Judgment Date: 12 July 2002
• Neutral Citation: [2002] IEHC 125
• Docket Number: [2002 No. 8502P]
• Court: High Court
• Date: 12 July 2002

[2002] IEHC 125

THE HIGH COURT

No 8502p/2002

DARU BLOCKLAYING LTD & MASONFIELD LTD v. BUILDING & ALLIED TRADES UNION & ORS

BETWEEN

DARU BLOCKLAYING LIMITED

And By Order

MASONFIELD LIMITED

Plaintiffs

and

BUILDING AND ALLIED TRADES UNION, BARRY McCORMACK AND VINCENT CONROY

Defendants

Citations:

INDUSTRIAL RELATIONS ACT 1990 S11(1)

G & T CRAMPTON LTD V BUILDING & ALLIED TRADES UNIONS UNREP LAFFOY 20.11.1997 1998/7/1880

BECTON DICKINSON & CO LTD V LEE 1973 IR 1

IRISH BISCUITS LTD V MILEY UNREP 3.4.1972

MERCHANTS WAREHOUSING CO V MCGRATH UNREP 27.4.1974

WALTHAM ELECTRONICS IRL LTD V DOYLE UNREP 15.11.1974

KIRE MANUFACTURING CO LTD V O'LEARY UNREP 29.4.1974

INDUSTRIAL RELATIONS ACT 1990 S19(2)

NOLAN TRANSPORT (OAKLANDS) LTD V HALLIGAN UNREP KEANE 22.3.1994 1994/5/1550

INDUSTRIAL RELATIONS ACT 1990 S14 PARA A

INDUSTRIAL RELATIONS ACT 1990 S19(2)(F)

INDUSTRIAL RELATIONS ACT 1990 S14(2)(F)

NOLAN TRANSPORT (OAKLANDS) LTD V HALLIGAN 1999 1 IR 128

Synopsis:

- [2002] 2 IR 619 - [2003] 1 ILRM 227

Facts: The plaintiffs issued proceedings seeking to restrain the defendants from picketing at a construction site. The first plaintiff carried on the business on being a block-laying subcontractor and had engaged a number of independent subcontractors to do block-laying work. The second defendant and some others had been engaged by the first plaintiff to carry out block-laying work. The second defendant maintained that they were to be taken on as employees but the first plaintiff disputed this. Matters came to a head and members of the first defendant engaged in picketing on the site pursuant to the provisions of the Industrial Relations Act, 1990 ("the 1990 Act"). It fell to be decided as to whether an injunction should issue to prohibit same. Both parties alleged that there had been a failure to comply with employment agreements registered with the Labour Court.

Held by Mr. Justice Kelly in issuing the injunction. The argument by the plaintiffs that none of the individual defendants had ever been in the employment of the first-named plaintiff, and thus the provisions of the 1990 Act did not apply, raised a serious issue to be tried. Others issues relating to the conduct of the actual picket and other matters remained to be resolved at trial. Very substantial losses had been suffered by the first plaintiff as a result of the picketing. Irreparable damage had been caused by the picket. The balance of convenience would lie in favour of granting the injunction. There had been a failure by the defendants to comply with the provisions of the 1990 Act in regard to the balloting of members. Consequently the defendants were not entitled to the protection of the 1990 Act against the granting of the injunction sought. An injunction would issue in respect of the activity complained of.

1 JUDGMENT of Mr Justice Kelly delivered the 12th day of July, 2002.

Introduction

2 The plaintiffs seek a series of interlocutory injunctions against the defendants. The object of such injunctions is to bring to an end industrial action in the form of picketing, watching and besetting which has been conducted by the defendants at a site at Bunbury Gate, Swords, Co Dublin.

The Parties

3 The first plaintiff (Daru) is a limited company which carries on business as a block laying sub-contractor. It provides a block laying service to the construction industry. It is carrying on that business at eight sites in the Dublin area and in particular the Swords site already mentioned. The second plaintiff is the parent company of Daru. It has entered into a contract with an entity called Kingscroft Developments Limited for the block laying work for a substantial number of houses at the Swords site. That contract contains a prohibition on the assignment or subletting of any portion of the works save with the prior consent of Kingscroft. The works in question are in fact being carried out by Daru but this is being done without objection on the part of Kingscroft.

4 The eponymous first defendant is a registered trade union and the second and third defendants are fully paid up members of it.

Method of Work

5 Apart from two apprentice block layers and a labourer Daru does not employ any other building workers. The labourer is the only employee deployed by Daru on the Swords site.

6 In carrying out its work Daru follows what it contends is a wide spread practice in the construction industry. It engages independent subcontractors to do the block laying work. It does not employ them as direct employees. At any one time approximately 40 – 50 block layers would be so contracted. Payment to them is by way of cheque with 35% being deducted from the payment prior to it being made. That sum is forwarded to the Revenue Commissioners and the recipients are then issued with a C45 certificate confirming that the deduction has occurred. This arrangement has been in place for in excess of fifteen years and Daru's accountant has given evidence that it has never been questioned by the Revenue Commissioners.

7 The first defendant (BATU) has no liking for such an arrangement. Its general secretary has said that it is and has been for many years the policy of BATU to have block layers employed directly as employees paying PAYE and PRSI. He and the union are of the view that direct employment produces a better quality of employment for block layers than when they work as subcontractors. They believe that they get better rates of pay and conditions of employment including a better health and safety regime when directly employed.

The Events Complained Of

8 As this is an application for interlocutory relief I am precluded from making final or binding determinations of either fact or law. In the course of this judgment I do not purport to do so. Some facts are not in dispute but a great deal are and where such is the case I will so indicate where necessary.

9 It appears to be common case that the first contact which Daru had with the second defendant (Mr McCormack) was when the latter contacted Mr Michael Lynch, the managing director of Daru. Mr McCormack was seeking work for himself and some other block layers who comprised what in the trade is known as a "gang". Mr Lynch agreed to engage them. On the evidence of Mr McCormack, (rather surprisingly perhaps), there was no discussion about pay or conditions. He says that he assumed that he would be employed on a PAYE basis and went to work together with his colleagues on the Swords site. Mr Lynch says that when the gang commenced work he was not provided with any documents to suggest that the individuals were intending to be employees of the plaintiff and neither a P60 nor a P45 certificate was produced. He also says that the gang varied in size from day to day. He furthermore says that he negotiated with Mr McCormack on the price for doing the job. He has sworn that he agreed that he would pay the gang by a method calculated on the "bottom" of a pair of houses which means the laying of blocks from the ground floor to the first floor and not by numbers of individual blocks. The gang was not paid by time worked. Accordingly, work would commence at irregular times and Mr Lynch says that he had no day to day control over the gang which determined its own manner of work. He would make out a cheque to either Mr McCormack or one of the other members of the gang for the total amount owing to the gang. It was then up to the payee of the cheque to divide the money amongst the gang. Mr Lynch says that he had no say as to how this was done. He contends that he negotiated the price for the job and payment for it with Mr McCormack.

10 On the third or fourth Friday after commencing work it is contended that Mr Lynch called to Mr McCormack and suggested that it would be better to spread the cheques around so that a single individual would not be hit for all the tax. Mr McCormack thought that there was something "fishy" about this arrangement and says that he made contact with an official of BATU. He explained the circumstances of his employment and after that a letter was written by BATU to Daru to which I will turn in a moment.

11 It is clear that there will be substantial conflict at the trial as to the terms of engagement between Daru and the second and third defendants. That cannot be resolved at this stage. There is in my view a serious issue which arises as to what occurred as a matter of fact at the time of engagement and indeed as to the legal consequences which flow from the engagement.

The Letters

12 On the 14th May, 2002 BATU wrote to Daru in the following terms:

"Dear Sir"

13 I would be grateful if you would contact me with a view to arranging a meeting as per the fastrack disputes procedure to discuss the union's claim as follows:

14 (a) Regularisation of PAYE status of our members employed by your company.

15 (b) Rates of pay including piece work rates to be agreed.

16 (c) General conditions of employment including compliance with a construction operatives" pension scheme.

17 As negotiations as per stage 1 of the procedure must take place within three days, I would appreciate you contacting me at 087–2742894 with a view to agreeing a mutually convenient time, date and venue for our meeting. Thanking you for your attention.

18 Yours faithfully

19 Brendan O'Sullivan

20 Regional Organiser"

21 This letter was followed by a further one on the 22nd May which informed Daru that as it had failed to adhere to the agreed procedures the members of BATU, following a ballot, had voted to serve notice of intent to engage in industrial action up to and including the placing of pickets on sites where Daru operated with effect from Thursday 30th May, 2002.

22 On the 30th May, 2002 Daru replied to both letters. It said:

23 No employee of Daru Blocklaying Limited is a member of your trade union and this...