Brief Report from Labour Court Hearing Day 1      12/01/2009

The Hearing started a 10am.  The chairman began by stateing we had two matters to decide. 

1 Variation of agreement (€1.05 per hour)

2 Cancellation of agreement under section 29 (2) of the 1946 Industrial Relations Act. Click HERE to see Section 29

He then asked all parties to again state their positions on these two matters. TEEU at this stage refused to give a copy of their submission to NECI and NAG (Non Alined Group) because they were not part of the ENJIC.  The Chairman informed them that under the law any interested body or group were entitled to be represented and instructed that the TEEU submission be copied and given to all parties. The court waited for 10 mins. while the documents were copied. The written TEEU submission was then furnished to all parties.

TEEU Position.

Agree with €1.05 increase.  Stated that the employers were substantially represented in 1990 when the agreement was registered and are still substantially representative. Stated that no change had occurred in the Industry in the last 18 years.

ECA Position.

Have now changed their opinion of the €1.05 increase and are opposing the variation. In Favour of the continuation of the registered employment agreement.

AECI Position.

Not agreeing with the €1.05 increase. In Favour of the continuation of the registered employment agreement.

NECI Position.

Not agreeing with the €1.05 increase and of the opinion that the agreement and should be cancelled under section 29 because of changes in the Industry since 1990..

NAG Position.(NON ALIGNED GROUP)

Not agreeing with the €1.05 increase and of the opinion that the agreement is invalid in the first place and should be cancelled under section 29.

A discussion followed between NECI Senior Council and the chair regarding the role of the court in deciding a variation and the courts responsibility's under section 29.

The TEEU stated that the procedures for a variation under section 25 of the 1946 act were followed "to a tee"

Both ECA and AECI stated they would not be submitting any evidence to the court.

NECI Senior Council Roddy Horne was then asked to outline the NECI case which he proceeded to do in great detail. He stated that these agreements were most likely in breach of the competitions acts and that the facts that the employer body's never had a negotiation license was also questionable. He stated that Ireland was unique in Europe in we had a criminal sanction for employers who were never party to an agreement. He also questioned why if the TEEU was claiming that the Industry had not changed they were not providing any evidence to prove this.

The TEEU stated that their had been agreement between the "legitimate employers"

Council for the NAG then outlined in detail the case she would be presenting. She compared the agreement to "being in a forced marriage with no divorce"

The Chairman stated that the Labour Court had looked for the files from 1990 to see how the employer representation was decided and these files had not been kept.

NECI then directly asked the union what are the grounds to their opposition to canceling the agreement and what edivience they would produce to support this position.

The TEEU replied the agreement should not be cancelled because there had been no substantial change in the Industry.

An economist representing NECI Dr Moore Mcdowell was then called as the first witness. He spoke about the economic conditions in 1990 when the agreement was registered and about the economic conditions today. He stated he was surprised that any employer body would get involved in a legally binding agreement like this.

In conclusion he stated that agreements like this will result in "vertical disintragation of an Industry"

The first witness for the NAG spoke next. Mike Marshall was asked as a person experienced in the industry to describe conditions in the industry over the last 30 years. He also spoke regarding the fact that most contractors only learned of the agreement in the last 4 years. Mike stated that he was not in the court representing ECSSA but as a private person with a long knowledge of the Industry.

The NAG witness will continue tomorrow.

_____________________________________________________________________________________

Brief Report from Labour Court Hearing Day 2       13/01/2009

The hearing was due to begin at 10am. At 10am a legal member of each team was called out of the room for a private consultation. After about 10 mins. The NECI committee were summoned out by the legal team and informed regarding a legal problem.

Earlier that morning Dan Miller of the TEEU had been seen in a coffee shop with the employee member of the Court. He had been seen by the NECI Senior Council who was shocked by this and said it was legally unacceptable. It was decided that this employee member would step down and be replaced by another. The court recessed until 11am to allow this to happen.

At 11am because of the change of a member of the Labour Court it was decided to begin Mike Marshalls evidence again.

TEEU and ECA stated they have now decided they want to give evidence.

Evidence was given and cross examinations followed by

Mike Marshall   NAG      Dermot Troy     NAG             PJ Salmonn      NECI

All outlined their history in the electrical Industry and gave their views regarding the Registered Employment Agreement.

_____________________________________________________________________________________________

Brief Report from Labour Court Hearing Day 3        14/01/2009

Because some parties who on Monday said they were not giving evidence have now changed their minds the chair requested some information from these parties as to the extent of this evidence.

TEEU stated they would produce "3 witnesses all from a union background" to speak about economics and the desirability of the REA continuing.

ECA said they believed in the REA and in a level playing field and stated the REA had "served the Industry well". They stated they would produce one witness but no further details were provided.

AECI  "We will support the REA" Said their Representative but because "some parts of the agreement are out of date" we would like the recognized parties to talk about the agreement but (QUOTE) " We will stick to the REA"

TEEU stated that the agreement had always been enforced as it is now and that "no change had occurred in the level of enforcement" in recent years. They also stated that all employers big and small were inspected (By EPACE) equally.

NECI Senior Council said he had to disagree with this statement.

NAG Council stated that it was very important to note that most employers brought before the Labour Court were not there on the basis of complaints by employees.

Brian Kelly of the NAG proceeded to give his evidence. He as had the other witnesses had spoke about his experiences in the industry and stated he knew nothing regarding the agreement until 2003. He stated he did not have any employees because of the Agreement.

Denis Judge of NECI was next. He began giving his electrical industry background; this brought us to lunchtime and a break.

Dr Moore Mcdowell for NECI an Economist was again scheduled to appear at 2pm and the court recommenced with his opinions. He stated that it was not possible to continue with a fixed pay rate in the current economic climate and at the same time secure jobs. He stated that in order to remain competitive all Irish employees (Himself Included) would have to face up to the reality of pay cuts. He gave compelling reasons why the REA and a pay rate that could not be varied downwards was not a good prospect for employers.

After his evidence the NAG had another Economist to give evidence a Mr. Alan Aheran. He was also of the opinion that it was impossible to sustain pay rates as they are, and that a pay cut was needed.Dan Miller of TEEU stated QUOTE “there are economists and there are economists"

Jack Hegerty of AECI asked QUOTE “How will this affect his members paying the rate and how will this affect his members paying 14 euro per hour???”

The court was adjourned until 10am tomorrow.

__________________________________________________________________________________________

Brief Report of Labour Court Hearing Day 4               15/01/2009

Denis Judge of NECI continued his evidence. He was asked by NECI Senior Council about his experiences in AECI. He was asked to detail the formation of NECI and to outline the reasons why it was necessary to set up a new employer representative voice in the industry. Denis spoke about NECI and was asked if it included members of AECI and ECA. Denis spoke about his experience in the hospital in Ballinasloe when he lost a contract to a UK company because he was complying with the REA and was too expensive.

He was then questioned by the NAG council and stated that “This agreement was keeping him from winning jobs. And if you can’t win jobs you can’t employ people"

TEEU Dan Miller questioned Denis about the application form he filled in when he joined TEEU as a member during his apprenticeship. The chair asked Mr. Miller if he had this form?. Mr. Miller replied that he did not have the form but could produce it if necessary. Mr. Miller was told that he could not question Denis about a form if he could not produce it to the court.

Denis Judge then continued to speak very well about the negative effect of the agreement.

The AECI reperesentative confirmed he had spoken to Denis when he had lost the Hospital contract and also admitted that some contractors in AECI "were more aware of the agreement than others".

Denis than spoke regarding the out of date toolbox as required by the REA. Denis displayed to the court some tools needed by a modern electrician but not included in the tool box required. He displayed a multimeter to the court and compared it to the Test Lamp as required under the REA. He also produced a Rawltool and explained to the court how out of date this tool is.

The AECI reperesentative  questioned Denis regarding a membership fee for NECI. Denis responded that "NECI is a fledging organization" and that membership was confined to company's who signed the authorization form. We are in the process of setting up and the membership system will be reviewed at the first AGM on January 31 2009.

The chairman then addressed the court and stated that at this stage it had to be conceded by all parties the "change had occurred "in the electrical industry since 1990.

TEEU then called David Begg of the Irish Congress of Trade Unions to give evidence as an expert witness. Mr. Begg gave reasons why a registered employment agreement was a good idea for an industry and how it prevented a "race to the bottom"

Senior council for NECI asked Mr. Begg how many REAs were active in Ireland. Mr. Begg conceded he did not know. He asked Mr Begg if he had read the electrical REA and he said he had not. NECI senior council stated that if he were an expert called in by the Union how could it be possible he did not know how many REAs were in existence and could not be aware of the contents of the Electrical REA as he had not read it.

TEEU then called Mr. Paul Sweeny a union economist. Mr. Sweeny was objected to by NECI council as he had not made himself available when NECI and NAG had their economists giving their evidence. It was decided that Mr. Sweeny could give evidence but he had to produce a written summary and make himself available next week for cross examination by the NECI and NAG council.

The court recessed until 10am tomorrow

______________________________________________________________________________________

Brief Report from Labour Court Hearing Day 5           16/01/2009

Dave Butler was first to give his evidence this morning. He was 2 hours on the stand and was cross examined in detail by all parties. He clearly stated that he "only became aware of the agreement in 2006". He outlined the problems within the agreement as he saw them. He said that going by known figures there were at least 2500 contractors operating in the country in 1990 when this agreement was registered. Membership of AECI was 280 and ECA at max 50. This means that about "1 employer in 7" had a say into the agreement. Today if we take it that there are 4200 contractors who employ electricians and AECI have 280 and ECA 52  the situation is that "1 employer in 14" has a voice. "This is a substantial change and makes the agreement undesirable" he stated. He also described other changes in the industry as The More common use of company vans, Introduction of Mobile Phones and electronic communications, Toolbox in agreement out of date, out of state workers flooding the market, The increased use of subcontract Labour, Abuse of apprentice Labour, and of course the collapse of the economy.

Patrick Breslin from Donegal was next and he was followed by Clare Tunissen (Dublin) all of NECI.  After lunch we had Eamonn Barry (Cork), George Wilkins (Wicklow), Paul Lynch (Cavan), and Peadar Leddy (Cavan) all again from NECI. All spoke of their particular reasons for being dissatisfied with the agreement. All clearly told the court they had no knowledge of the agreement until between 2005 and 2007. Some were asked by the members of the court did they feel "Intimidated" by contacts from EPACE. All answered in the positive.

Last of the day was John Smith of NECI.  John spoke extremely well about the industry today and the changes that he saw that made the agreement undesirable. He outlined to the court the specific problems he encountered operating a franchise under the agreement. John stated in an answer to a question from the bench that there was "no comparison between his company and the big ECA Company's who remain in favor of the agreement". He also stated that he was "surprised that the 5% pay increase had been agreed between AECI and ECA". He was cross examined by TEEU and answered his questions well.

The case will now continue next week on Tuesday afternoon, and then Wednesday, Thursday and Friday morning.

______________________________________________________________________________________

Brief Labour Court Report Day 6  20/01/2009
 
Today's hearing commenced at 2pm. The NAG council spoke first and stated that they had 4 witnesses available to give oral evidence. The chairman told the court that they had read all the submissions and pointed out some High court cases that they would consider as prescience to this case. He stated that it was only fair to advise the legal teams they would be looking at these cases but he pointed out that they might not be relevant in this case.
Mr. Nick Murphy of NAG took the stand. He spoke about his early experiences in the industry, how he set up his own business, and outlined his first contacts with EPACE. He told the court he knew nothing about the agreement when first approached by EPACE, but was willing to work with them going forward to apply the agreement. They were not happy with this and demanded in excess of a quarter of a million euro in back moneys for pensions and rates. He informed them of the difficulties of paying back moneys when he had not costed this money into the prices when he had undertaken to work. He told the court that he was told by Rebecca Vega of EPACE that he could not join the CWPS pension if he did not join ECA and CIF. He also stated he had always paid subsistence and had offered his employees a PRSA pension through Eagle Star and that some had availed of this pension. Mr Murphy recounted how he had lost 6 contracts to a UK company. These contracts involved the fit-out of Musgrave premises.
He recounted in detail how the TEEU had asked him to distribute membership forms to all his staff which he included in their payslips. When none of his employees decided to join TEEU a Mr Charlie Prizeman informed him "He could let go any employee who did not join the union" He then stated he would not remain in business if the agreement stayed in place. He was asked questions by TEEU who asked him if he had received information from RECI in 2003 regarding EPACE. He said he did not.
TEEU questioned Mr Murphy about the new government scheme for apprentices and also about apprentice ratios. Mr Murphy said he knew nothing about the new apprentice grant scheme and gave his opinions regarding apprentice's ratios. He was questioned by members of the court and answered his questions well.
Next up was Mr Kieran Marshall of the NAG.  He stated that he set up business in 2004 and stated he did not comply with the agreement. He described very passionately how the REA was affecting his business, his life and his workers. He said he could survive if he had the ability negeoate directly with his employees.
 
A discussion followed as to whether it would be sufficient to allow the written submissions for the rest of the witnesses to be accepted into evidence. The chairman stated that the court had now got "a good idea of the flavour of the evidence"  It was decided that the evidence of Ben McGown would be accepted from his written statement.
Mr Roddy Horan Senior Council for NECI requested that he be allowed to ask Miss Rodgers some questions on her evidence, as he considered section 6 very important to the case. It was decided the court would reconvene at 10am tomorrow with Miss Rodgers taking the stand.

______________________________________________________________________________________

Labour Court Report Day 7   21/01/2009
 
(Without Prejudice This report and all others sent by NECI is independent and is simply relaying word for word what was actually said in the Labour Court)
 
Today's hearing commenced at 10am. Miss Dolores Rodgers took the stand. She was asked by the NAG Council to outline briefly her background in the Industry. She stated that her husband was a contractor and she did his bookwork and also that she had worked for AECI as operations manager for a short while. She was asked when did she become aware of the registered employment agreement and replied "when she started to work for AECI". Miss Rodgers was asked to outline how in her experience working inside AECI, and outline how that organization dealt with EPACE, TEEU and ECA. Miss Rodgers stated that AECI had received legal advice not to get involved with EPACE inspections as they were basically getting involved with a company who inspected its own members.
The chairman stopped proceedings at this stage and advised the NAG Council that it was not a good idea for any witness to speak regarding legal advice received by any association. He then asked was anyone from AECI present and would they be in a position to cross examine Miss Rodgers. Michael A Kelly the lone representative  indicated he was representing AECI. The chairman said that all parties including AECI had been circulated with Miss Rodgers written statement the week before the hearing, and all parties had been advised she would be appearing today. The chairmen asked Mr. Kelly if he had read Miss Rodgers statement. He replied he had, and was asked if he would be in a position to question Miss Rodgers.  The chair then said that Mr. Kelly would "of course be given the chance to question Miss Rodgers"
Miss Rodgers returned to her evidence and was asked to outline a presentation she had given to the executive council of AECI in July 2006. Part of this presentation included the funding system used for EPACE. She described in great detail how EPACE was funded. She described how employers and employees were funding organizations and were completely unaware of it. She outlined the makeup of EPACE directors at that time i.e. 2 AECI, 2 ECA, 2 TEEU. She explained how the whole system worked and outlined the payments received by AECI, ECA and TEEU from EPACE.
 
The presentation included phone comments she had written down from AECI members calling the office. These included "Who are this crowd EPACE" "Do I have to deal with them" and many more. Miss Rodgers was asked by NAG council what was the reaction of the AECI executive council after the presentation. "Nothing" was her reply. She was then asked "what was the awareness of the agreement at that time" "not a very good awareness" she replied
Miss Rodgers then stated "This agreement makes small contractors slaves to the big ECA members who themselves sub-contract the work to avoid the terms of the agreement." "This agreement is putting my husband out of business, this agreement is not about workers, this agreement is about money."
She went on to describe in detail how she had attended EPACE meetings where lists of contractors and their employees were passed around and information was shared by all. She described how it was discussed at meetings that the CWPS data base be linked to the EPACE data base.
Miss Rodgers then stated that she had been sacked by AECI. She expressed concern regarding the methods used to select companies for inspection by EPACE.
She then stated she had seen a list for inspection by EPACE and was concerned that many of the company's were "operating in the same area as the AECI president" She stated "where's the level playing field here"
 
 Mr. Roddy Horan Senior Council for NECI then questioned Miss Rodgers. He asked about the moneys being diverted from pension payments to third parties and asked "did she have to do a lot of research to find out this information?" She replied she did. Mr. Horan introduced a copy of a letter he had received this morning. "This is a letter that AECI sent to its members yesterday" he stated. He asked Miss Rodgers to read the last paragraph of the letter which she did. The letter stated that AECI were "not happy with the current REA" and that AECI had stated in the Labour Court that it "was agreed to seek a full & complete renegotiation of the agreement"
 

Mr. Horne stated "The renegotiation of the REA by AECI was never indicated to this court" The letter was lodged as evidence and copy's were given to the bench.
He again raised the point that members of the AECI executive council had encouraged EPACE to inspect contractors in their local area and asked Miss Rodgers if any ECA members had been inspected. She replied she did not know.
Miss Rodgers was asked if AECI were represented on EPACE now and replied that "as far as she knew they had removed themselves"  "So it is potentially the case that EPACE is being operated by ECA,and TEEU solely" said Mr. Horan.
 
 
 Mr Miller of the TEEU Asked Miss Rodgers if she was aware that in 2003 EPACE had sent out 3300 letters to contractors informing them about the REA. She replied she was not aware of this. Mr. Miller asked her if she had proof that EPACE was "targeting contractors" She replied that she had seen lists in AECI and in her opinion that was targeting. She stated that she could only speculate as to the final selection used by EPACE but he should know as he was involved in EPACE.
Mr. Miller read out the letter that he said EPACE had sent out and then read some adverts that EPACE had placed in various newspapers.
Miss Rodgers said she was not aware of any letters or adverts. She congratulated  Mr Miller for doing a great job for employees in the agreement and stated "Fair play that was his role".
 "My problem is that we have not been well represented by the employer body's" she stated. Miss Rodgers was then questioned by ECA who asked about letters she had written to various government body's regarding the REA.
 
Michael A Kelly of AECI asked  "while you were employed by AECI how many of the members you took calls from were new" He displayed to the court the Union rates and the charge-out rate sheet sent out by AECI yearly, and defended the position that AECI did not inform its members.
Miss Rodgers replied "If they were well informed how come they did not know"
He questioned her regarding signing checks for EPACE and about the address for EPACE being at McKinley House. He stated that EPACE never occupied the building.
"I put it to you that you were not sacked by AECI" he stated. "I was told my services were no longer required "she replied.
Mr. Kelly then asked if it were "possible that correspondence referred to by TEEU was received by contractors" Miss Rodgers replied "Why would people who know about the REA ring the office and say they did not know"
Mr. Kelly then referred back to the AECI letter, holding it up he said "were the contents of this letter not made clear to the court" There was no response to this by anyone.
 
The chairman at this stage informed all present that himself and Mr. O Neill had had a previous involvement CWPS benevolent fund & health trust.
 
Members of the bench questioned Miss Rodgers and she was again asked to outline the amounts of money that EPACE had given AECI, ECA, and TEEU. "We have just heard about these amounts today" Stated one member. Miss Rodgers answered all questions in great detail.
 
The ECA reperesentative was asked who her witnesses would be and replied , there will be 2 witnesses ,Mr. Liam Redmond an ECA member, and also director of the CIF.
AECI were asked if they would have any witness appearing. Mr. Kelly indicated he would call the president of AECI during the time Miss Rodgers was employed there, but would have to confirm if he could be available.

______________________________________________________________________________________

Labour Court Report Day 8  22/01/2009
 
 (Without Prejudice This report and all others sent by NECI is independent and is simply relaying word for word what was actually said in the Labour Court)
 

The hearing was to start with two people giving evidence for ECA. Council for the NAG (non aligned group) stated they had an issue with the fact (as revieled yesterday) that two members of the bench had been trustees on the Construction Workers Pension Scheme (CWPS). One was a trustee for 18 years. She said that the evidence by her client on a written submission before the hearing and the bench should have been aware that the evidence contained issues regarding CWPS. "this is day 8 and my clients have incurred costs of €100000 to date, is it fair that we should only be given this information at this stage" ? The Chairman stated  if I was only to be involved in any case where I had no involvement in any organisation in the past "I would be a very idle man" "I would like to assure people that this case will be dealt with objectively and in accordance with the law" the discussion continued for some time.  Roddy Horan senior Council for NECI stated "I am concerned but I cannot collapse this case"
Dan Miller of the TEEU said "I have concerns, I am not a lawyer, I am a trade union official, I am not used to being in this position"  he continued "  I am saying very clearly that people are giving information to this court under oath that is not true"
The Chairmen replied to Mr. Miller "We are dealing with the fact that certain people have a concern that myself and Mr O Neill cannot deal with this matter objectively"
Owen Wills of TEEU said "People have come to this court which was set up for workers and employers!!!!"  NECI Senior Council replied "I am not going to be attacked by these people, I am not going to be intimidated by these people, Chairmen you have to put manners on these people" "it is utterly utterly improper that I be bullied by two trade union officials" " If this continues I will have to walk out of this court"  the chairman attempted to calm things down "This is a very different type of Labour Court sitting than we are used to"  The Chairman said. The question has to be asked" can this go on" Mr O Neill said from the bench "I am feeling very uncomfortable at the moment"
Jack Hegerty of AECI said "My problem is this can go on and on, electricians are going down a very dark road at the moment, the faster we can deal with these very serious issues the better. We can't wait any further at some stage we will all have to get together and sort this out"
The Chairman stated "Things change when people are legally represented, I can absolutely assure you we will deal with this matter objectively" The court continued on this discussion for a while and then after two adornments for parties to consider their positions the hearing continued.

ECA called Mr Eddie Keenan a director of the CIF. He was questioned regarding the merits of a registered employment agreement by the ECA representative.  He stated there was a system for new body's to get involved in the ENJIC. "We always said if people feel they are not represented they should approach us" he said
 
Jack Hegerty of AECI asked him "do you think its time for the industry to take a good hard look at the REA and see if it is serving the industry well ?" Mr Kerian replied" I agree it could be time to take a good look at it"
Mr Keenan was short of time and it was decided he would return Monday to be cross examined.  Mr Liam Redmond was asked up next but he stated "I would prefer to listen to Mr Keenan first and then give my evidence, In case I put my foot in it "
 
The Hearing will contuinue at 10am tomorrow

______________________________________________________________________________________ 

__________________________________________________________________________________________

Articles From Irish Electrical Review          LINK TO IER WEBSITE   http://www.ier.ie

__________________________________________________________________________________________

Labour Court REA Hearing Continues

Monday 19th January 2009

Neil Steedman, IER Features Editor, reports.

Despite a full week of public sessions, from Monday 12th to Friday 16th January 2009, the Labour Court hearing into two applications concerning the electrical contracting industry’s Registered Employment Agreement had not been completed by close of business on Friday 16th January. The Court has therefore scheduled four half-day public sessions from Tuesday 20th to Friday 23rd January. A further day may also be required for legal submissions.

The Court is considering two applications: the first is for the Court to register a variation in the REA to increase the craft basic rate by €1.05 per hour, from €20.74 to €21.79 (a 5% increase), and with proportional increases applied to other rates; the second is for the Court to cancel the REA in its entirety. Wage Variation (SUBHEAD) The wage variation was originally determined by reference to the set of analogue companies as in September 2007, as specified in Clause 25 of the REA.

Wage Variation

The variation was originally agreed to by the three parties to the REA – the TEEU, ECA and AECI – but was not registered with the Labour Court or implemented by the due date of 1st April 2008.

Two groups rapidly formed early last year among non-represented electrical contractors to object to the proposed wage variation and, indeed, to the validity of the REA itself. These are the National Electrical Contractors of Ireland (NECI) and a group of independent electrical contractors (referred to here as the Non-Aligned Contractors, or NAC). When the Labour Court met on 22nd May 2008 to hear these groups’ objections, the AECI stated that, while it continued to support the REA and had to continue to support the application, it also pleaded an inability to pay the proposed wage increase.

Various matters were then taken to the High Court – and a judicial review sought by NAC as to the validity of the REA remains outstanding there.

When the Labour Court hearing opened on Monday 12th January 2009, there were significant changes in the employer bodies’ respective positions. The ECA stated: “Because of the worsening situation, in construction generally and electrical contracting in particular, we are no longer able to support the TEEU in its application. While we fully support the REA and accept Section 25 (on wage review), our members simply cannot afford the proposed wage variation.”

The AECI had also hardened its position: “We are not consenting to the €1.05 increase. We have balloted our members and have been mandated not to accept the proposed variation.”

The TEEU argued: “Within the terms of the REA, the employers do not have the facility to change their position. Clause 25 states that the analogue system ‘shall be the sole method of wage determination’. This process was followed by all parties to the agreement and the wage variation of €1.05 determined. The TEEU has kept to the full requirements of the REA and at this point in time the employer bodies are flagrantly in breach of the agreement.”

In response, the Labour Court Chairman, Kevin Duffy, summarised the position as: “The TEEU has made an application to vary the agreement, and the ECA and AECI are now opposing the increase.”

Senior Counsel for the NECI then stated: “It is hugely significant that the ECA and AECI are now objecting to the increase. The construction industry is in a catastrophic situation. Statements made on affidavit that electrical contractors are being decimated were not challenged. It is beyond gainsaying that nobody can afford to pay the increase. If the larger bodies cannot afford to pay it, how can the smaller bodies possibly do so? The application is utterly unsustainable.”

Junior Counsel for NAC said: “The application has at no point put forward a case as to why an increase is required – and even in so far as the REA method was adhered to, 1st April 2009 would have to be the earliest date of introduction of any wage variation. It is not just the economic climate but also the REA itself that has been putting NAC and NECI members out of business.”

The Court has yet to rule on the wage variation application, but summing up comments made by the Chairman on Monday may be indicative: “It is the TEEU’s case that the REA is ‘self-executing’. However, a role of the Court is to register agreements – and by so registering an agreement’s ambit is extended beyond that of the partners to the agreement. This should also apply to variations. As regards this application there is no agreement between the parties to the REA, or with other parties – so are we stuck at the first hurdle?”

Cancellation of REA

The remainder of the week was devoted to hearing the case made by NECI and NAC that the Labour Court should cancel the REA in its entirety. Sworn affidavits had previously been lodged by numerous witnesses and oral evidence was taken under oath by a number of them. In addition, two rebuttal witnesses have given evidence on behalf of the TEEU. Further witnesses are to give oral evidence this week on behalf of the application. The ECA and AECI initially indicated that they would not be calling witnesses, but the ECA has since indicated that it may also call witnesses to argue against the application.

In addition, Counsel for NECI has indicated that he may wish to make “certain legal submissions” and summarised their nature as follows:

• REAs are anti-competitive
• In 1990 (when the REA was first registered) neither the ECA nor AECI held a negotiating licence (“as a matter of law, you cannot ‘borrow’ a negotiating licence”)
• No other EU country has an REA that subjects parties to criminal sanction
• The argument that ‘chaos would ensue’ if the REA was cancelled is “patent nonsense” – a BATU case “petrified” an agreement for six years, “yet the construction employers and employees got through it”
• The parties could apply to register a new agreement

As regards whether the REA was properly and legally registered in 1990, the Chairman stated: “It is to be assumed that the Labour Court acted properly in 1990. We cannot judicially review ourselves – that would have to be done elsewhere. We have looked high up and low down, but we don’t keep records for that length of time. If you wish for the application to cancel the agreement to be adjourned until the High Court decision, then the Labour Court might be disposed to it.

“The Court can only deal with this application with regard to Clause 29(2).” (This is the section of the Industrial Relations Act, 1946, under which the Labour Court can decide to cancel an REA.) “There are two questions to be answered: Has there been substantial change (in the electrical contracting industry since 1990)? Is it such as to make it unreasonable to maintain the REA?”

Expert witnesses to date have included three economists (for NECI, NAC and the TEEU), Michael Marshall (for NAC), and ICTU General Secretary David Begg (for TEEU). Other witnesses to date have been electrical contractors Denis Judge, David Butler, Patrick Breslin, Claire Tunissen, Dermot Troy, PJ Salmon, Brian Kelly, Eamon Barry, George Wilkins, Paul Lynch, Peadar Leddy, and John Smith.

A detailed summary of the evidence given will be published by Irish Electrical Review in its next issue (and posted on this website), once the giving of oral evidence has been completed.

Representation Levels

None of the parties to the REA have to date put forward any statistics as to the numbers of electrical contractors in the country in 1990 – or, indeed, challenged assertions made by NECI and NAC witnesses that there were 2,500 – 3,000 at the time the agreement was made and registered. Also, the Labour Court, according to the Chairman, has sought but not found any records from 1990.

From its files of issues published between 1989 and 1995, Irish Electrical Review has determined the following:

1. In 1990 the AECI had 258 members and the ECA had 60 members, a total of 318 between them (assuming there were no dual memberships).
2. The Register of Electrical Contractors of Ireland was formally unveiled on 14th April 1992 and “approximately 350 contractors have now been approved for membership certification” (April 1992 issue).
3. Within six months, “already over 1,000 electrical contractors have been registered” (November 1992 issue).
4. Within two years, RECI membership “now stands at approximately 1,600 with a potential for as many as 1,800” (RECI Chairman Noel O’Riordan, March 1994).
5. By the end of 1994 RECI had “almost 1,700 fully paid-up members” (Noel O’Riordan, January 1995).

If there were 1,800 electrical contractors in Ireland in 1990, the two employer parties to the REA represented 17.66% of them. ECSSA was established in 1997 and within one year had up to 1,000 members, most of whom would have been ‘beyond the RECI radar’ until then. If there were as many as 2,500 electrical contractors in 1990, the ECA/AECI level of representation was lower, at 12.72%.

Today the AECI has 285 members and the ECA 52 members, a total of 337 between them. The combined membership of RECI and ECSSA is 5,278 electrical contractors, but there are a small number of dual memberships (although these are no longer permissible since 5th January 2009). It is also a matter of conjecture how many of these are employers under the terms of the REA – or, indeed, would be employers as and when they win contracts requiring an increased workforce.

In 2005, in evidence to a Joint Oireachtas Committee, Gerry Goggin of the AECI stated: “As regards non-aligned contractors, there are in excess of 4,000 registered electrical contractors in the State, of whom almost 550 are members of trade associations such as the AECI and ECA. It is clear that approximately 3,500 electrical contractors are not represented by this system. That is a major part of the problem.”

If there are now, say, 5,000 electrical contractor employers, the AECI/ECA represent 6.74% of them. If a ‘generous allowance’ of 1,000 is taken as the number of non-employer registrations, then there are currently some 4,300 electrical contractor employers, of which 7.84% are represented by the AECI/ECA.

___________________________________________________________________________________________

Neil Steedman - Irish Electrical Review 25 November 2008

Labour Court Schedules 5-day Public Hearing in January

At a case management meeting convened by the Labour Court on Monday 17th November, the Court determined against an application made by the Non-Aligned Contractors for a further adjournment until all issues relating to the electrical industry’s Registered Employment Agreement had been determined in the Four Courts.

The Court then decided to schedule a five-day public hearing, commencing on Monday 12th January 2009, at which the application for a variation to the REA, and the opposing applications for the REA itself to be cancelled, will be considered together. Oral submissions will be taken at the hearing, but written submissions, affidavits, and witness statements that outline who each proposed witness is and their main points, are to be filed with the Labour Court – and served on all other parties – by Wednesday 7th January.

At the High Court on Monday 20th October, the stay previously granted to the NAC preventing the Labour Court from considering the applications was lifted, the NAC having stated that its members were not in a position to give an undertaking as to damages, as requested by the TEEU, and costs of the High Court case were subsequently awarded against the NAC. Following that, the Labour Court convened the case management meeting, which was attended by representatives of the TEEU, ECA, AECI, NAC and NECI.

Four Positions

Each of the five parties set out its current position in turn – with four different positions resulting:

• The TEEU and the ECA are in agreement in support of the proposed variation of a €1.05 increase in the basic rate and also as to the validity of the REA.
• The AECI stated that due to the economic changes it is not now supporting the proposed variation and that, while it is happy for the REA to continue in place, it questions the manner in which variations are determined.
• The NECI is opposed to the variation and contends that, due to changes in the electrical industry, the existing parties to the REA (the ECA, AECI and TEEU) are not now representative of the industry and that the REA should be cancelled. However, NECI takes no position on the validity of the REA from the time of its establishment in 1990.
• The NAC is opposed to the variation and contends that the REA was invalid in 1990 and that, even if it was then valid, it is now invalid due to changes in the industry.

Adjournment
 
In seeking an adjournment of the entire proceedings until after the issues had been determined in the Four Courts, counsel for the NAC stated that the initial request for an adjournment made on 22nd May was based on insufficient time being given, that the position changed by 11th June to timing and a case stated, while now there was a third basis, a High Court application for a judicial review.

The TEEU countered that there was no justice in its members not having received the proposed increase to which they were entitled (since 1st April 2008) and that an adjournment can be used simply to frustrate the variation application being considered. “The Labour Court has to make the assumption that the 1946 Act is valid unless and until it is decided otherwise by another court – and therefore we are entitled to have our case heard,” said the union representative.

The ECA regarded the constitution and judicial review as a separate issue, the AECI was happy for the Labour Court to consider the issues, and the NECI had no view on the application for an adjournment.

After private deliberation, the Court emphasised that it has a statutory obligation to hear and determine an application for a variation, and that it must consider an application on the basis of the 1946 Act and presume the Act to be legal and presume that the REA is properly registered. It was also concerned that significant prejudice could accrue to union members – and also that further delay could lead to possible disharmony between employers and employees. On the other hand, there was considerable agreement between the parties that the two main issues could be heard together. Therefore, the Court felt that it was appropriate to deal with the application before it and to not grant an adjournment.

NJIC Accommodation?

After discussion concerning whether oral evidence should be accepted and, if so, the number of possible witnesses, and hence the time required, and when a hearing could in practice be convened, the Court opted to allocate a full week in early January.

The chairman undertook to give a decision as quickly as possible after the hearing and then made an interesting suggestion. “As there are differences between the three NJIC parties, could the time before the hearing be put to good use within the NJIC to reach an accommodation between them?” he asked.

IER understands that this suggestion is to be acted on by the ECA, AECI and TEEU.

THANKS TO IRISH ELECTRICAL REVIEW

_________________________________________________________________________________________

Neil Steedman - Irish Electrical Review 20 September 2008  LINK TO IER WEBSITE   http://www.ier.ie

High Court Judgement Reserved on Labour Court Injunction Hearing

At the High Court on Thursday 11th September, the hearing adjourned from 28th July into the application by the Technical Engineering and Electrical Union for an injunction granted to ‘Non-Aligned Contractors’ on 13th June to be lifted was concluded after an additional three and a half hours of submissions and arguments by senior counsel, following which judgement was reserved.

On 13th June 2008, the High Court had awarded an injunction to O’Sullivan & Others (415 named Non-Aligned Contractors, i.e. not members of either the Electrical Contractors Association or of the Association of Electrical Contractors Ireland). This injunction put a stay on the Labour Court from considering a proposed variation to the Registered Employment Agreement in the electrical contracting industry before the REA’s current validity was determined, which had resulted in a further adjournment of the Labour Court hearing that had been adjourned to 16th June from 22nd May.

Submissions were made by senior counsel on behalf of the Non-Aligned Contractors, the National Electrical Contractors of Ireland, and the Labour Court, and a response made by senior counsel for the TEEU. No submission, response or argument was made on behalf of the ECA or AECI.

NAC Submission

Senior counsel for the Non-Aligned Contractors reiterated that Clause 27 Subsection 3 Paragraph C of the Industrial Relations Act, 1946, requires that the Labour Court must be satisfied that parties to a Registered Employment Agreement are substantially representative of the industry.

However, at the time of the electrical industry REA being first registered in 1990, there were approximately 2,500 electrical contractors, of which only around 500 – 20% – were represented by the ECA and AECI, which were the two electrical contractor organisations party to the agreement, along with the TEEU. Furthermore, subsequent changes in the industry have been such that there are now some 4,500 electrical contractors, of which only 420 – less than 10% – are now represented by the ECA/AECI. In contrast, some 950 – or 21% – are now represented by the NAC/NECI.

“Some electrical contractors may not even be aware of the application for a variation, even though they are statutorily obliged to comply with the REA and that failure to comply makes them subject to criminal prosecution,” she said. “The risk of serious injustice is clearly apparent. One contractor has already been prosecuted and such prosecutions are continuing.

“None of my clients are party to the agreement but they are bound by it – and yet they cannot run their businesses economically if they comply even with the current basic rate, apart from the proposed increase. What are additionally onerous are the additionally payments that must be paid, such as the €168 per week for maintenance for work over 11 miles from base, and the travel time of 1.75 hours per day for a job up to 11 miles from base – which still has to be paid even if the employer supplies a van and drives the employee there!

“In addition, there is sick pay, for which electrical contractors are bound by the REA to the terms of another sectoral agreement – that for construction – to which not even the three parties (ECA, AECI and TEEU) had any input.”

(At this point, senior counsel for the TEEU interrupted to claim that: “a critique of the merits of the agreement cannot influence this case”. However, the judge reiterated the points that the Non-Aligned Contractors see the REA has having penal terms and also ties them to another agreement.)

Counsel then continued: “On 22nd May a huge number of contractors were saying to the Labour Court that the agreement is invidious – and one would have thought that the Labour Court would be concerned that the agreement was equitable. In summary, however, the Labour Court’s position was that: ‘We are going to deal with the variation first’ and the hearing was adjourned to 16th June – insufficient time for us to prepare affidavits and creating a huge logistical gulf.

“My clients sought further time, but this request was refused. One client sought application for a meeting and again this was refused. All the indications were that the variation would be accepted on 16th June and on that basis the injunction was sought. A stay was granted but made returnable the following week – my clients issued a motion seeking an interlocutory injunction and simultaneously the TEEU issued the motion now before us.

“The undertaking sought (by the TEEU) as to damages re the loss of wages that would allegedly be suffered is brought because the Labour Court cannot rule on a variation on a retrospective basis. There is an issue as to whether an application for a variation can be made at all at the time that it was – but I will return to that later. My clients’ position is that not all electrical contractors can afford to pay the proposed increase – ipso facto they cannot afford to give such an undertaking.

“I do not dispute that this Court has jurisdiction to request an undertaking, but what is more relevant is the suggestion that this is a given. My submission is that it is not a given but is within the discretion of the Court.”

After citing case law, she continued: “It would be invidious to expect my clients to give undertakings that would subsidise other contractors. Two of my clients have offered it on affidavit to their own employees. My clients have also suggested that the AECI/ECA members should, in fairness, give undertakings on behalf of their own employees – but they are refusing either to pay the proposed increases or give undertakings. The AECI/ECA members are entirely at liberty to pay the increases sought, but they are not prepared to, so you can see the invidiousness of my clients’ position.

“Electrical contractors have not been aware of the agreement but are being subject to investigation and enforcement proceedings; the current economic situation now makes it impossible to apply the agreement; and, in addition, as a result of a judgement by the European Court of Justice, cross-Border and other out-of-State EU contractors and their employees are not subject to the agreement.

“Clause 24 of the agreement sets out a formula to be applied in September to reach a figure to be applied from 1st April of the following year – and clearly infers that application for variations must be made to the Labour Court after 1st September and before 1st April for determination and registration. This year application was made to the Labour Court on 9th April, but there is no provision in the agreement for parties to make applications on 9th April – the ‘window’ had passed for this year. It is now open to the parties to agree a proposed increase and to apply for it to be determined and registered for implementation from 1st April 2009.

“The parties to the agreement cannot seek to fudge the agreement when it suits them. Their case for an undertaking is based on acceptance of the fact that the Labour Court cannot register a variation retrospective to 1st April! Employees can suffer no loss because there can be no increase until 1st April 2009.”

She concluded by advising that written submissions had been made regarding the validity of the agreement, public law, and constitutional issues, and, at the request of the judge, highlighted particular sections for the judge to consider.

NECI Submission

Senior counsel for the NECI commenced: “At this juncture I represent over 530 electrical contractors. My clients have identical interests to those of the Non-Aligned Contractors – we may not make their constitutional arguments, but we agree on every other respect.

“I have a difficulty with the TEEU making this application at all. The union has not and will not suffer any loss and it makes no case on affidavit of suffering any loss … In Mr Wills’ affidavit, the union has pledged to take its grievance to the Labour Court under industrial relations law. That is the appropriate response and that should be the end of it. The union could also legally engage in industrial action.

“No workers have sworn affidavits and none of my clients’ employees have made hardship cases to them. There is no evidence that workers are suffering severe hardship.”

Referring to the 22nd May hearing as “heated”, he said: “The Labour Court was determined to proceed, notwithstanding submissions by two junior counsel and notwithstanding the presence of several people wishing to give aural evidence. The Labour Court approach was oppressive and unfair and it was shutting my clients out on that occasion. Manifestly there was a huge opposition to the application on the day – even the AECI adopted a neutral position.

“If the variation had been proceeded with on 16th June – and clearly it would have been – my clients would have been put out of business, as evidenced by a number of affidavits to this Court. Businesses are being decimated by the existing agreement – never mind the proposed variation – and it will be to the detriment of my clients if the injunction is lifted.

“The balance of convenience clearly favours my clients and the Non-Aligned Contractors. Also, there is no appeal on what the Labour Court does – another factor that goes to the balance of convenience. This case is about issues of law, not damages. An undertaking as to damages has become a rule of practice, but is not a statutory rule.”

TEEU Response

Responding to the above two submissions, counsel for the TEEU said that: “The effect of the stay made it inadmissible for the Labour Court to consider not only the variation but everything, including cancellation of the agreement – the very issue that they want considered!

“Courts decide on the balance of convenience on the assumption that there will be an undertaking as to damages. Undertakings are often given by people who do not have the means to honour them.

“There is a high level of presumption being made in this case. If the Labour Court considers the variation, it has a statutory obligation to refuse the application if it considers that the parties making the application are not substantially representative.”

The judge intervened to ask: “Are you saying that the Labour Court would have to consider ‘substantial representation’ when considering a variation application?”
Counsel replied: “If the Labour Court were to act properly under Section 28. We do not know what the Labour Court would have determined in relation to the variation application … It is within the discretion of the Labour Court whether to take the variation or cancellation issue first.”

Labour Court Response

Counsel for the Labour Court said: “There is a contested question of fact as to what occurred at the 22nd May hearing as between what Mr Duffy (Chairman of the Labour Court) asserts on affidavit and what (counsel for the Non-Aligned Contractors) asserts – and you cannot determine today on this issue of fact.

“The Labour Court made clear that both the issues would be taken at the same meeting and that the issues of cancellation would be taken into account when considering the variation application.”

NAC Response

Counsel for the Non-Aligned Contractors responded that: “It is clear that there are two separate issues and counsel for the TEEU’s assertion is clearly contrary to the Labour Court’s own proposal to consider the variation and cancellation separately.

Judgement in the case was reserved.

FOOTNOTE:

Irish Electrical Review was present at the Labour Court hearing on 22nd May 2008 and reported as follows: “At the Labour Court on 22nd May, when adjourning the hearing to 16th June, Chairman Kevin Duffy had indicated that the Court could then decide to determine on the application to vary the REA, while separately continuing to consider after that date submissions that the REA itself is invalid – if not from its first registration in 1990 then from recent times due to changed circumstances and representation levels by bodies within the industy

High Court Adjourns Labour Court Injunction Hearing to September

At the High Court on Monday 28th July, an application by the Technical Engineering and Electrical Union for an injunction granted to ‘Non-aligned Contractors’ on 13th June to be lifted was adjourned until 11th or 12th September 2008, due to there being insufficient time on the day to complete the submissions and the unavailability of Senior Counsel for the remaining three days of the legal term.

On Friday 13th June 2008, the High Court had awarded an injunction to O’Sullivan & Others (415 named Non-aligned Contractors, i.e. not members of either the Electrical Contractors Association or of the Association of Electrical Contractors Ireland). This injunction put a stay on the Labour Court from considering a proposed variation to the Registered Employment Agreement in the electrical contracting industry before the REA’s current validity was determined, which had resulted in a further adjournment of the Labour Court hearing that had been adjourned to Monday 16th June from Monday 22nd May.

Party Positions

The 28th July High Court hearing did not commence until 12.30pm, when Counsel for various parties briefly outlined their clients and their positions. The TEEU sought the lifting of the stay or, in the event that it was to continue, for the applicants (the Non-aligned Contractors) to be required to give an undertaking as to payment of damages in the event that the proposed craft basic rate increase of €1.05 was subsequently registered.

The position of the Labour Court was one of “qualified neutrality”, while that of the AECI was “neutral as to the outcome of this application”. The Non-aligned Contractors opposed the lifting of the stay, as did the National Electrical Contractors Ireland.

On the public benches, those attending from the Non-aligned Contractors and NECI sat together in the back row, while those from the TEEU, ECA and EPACE sat together in the row in front. (IER sat alone to the side of the Court, its position being “unqualified neutrality”!)

TEEU Submission

Senior Counsel for the TEEU spoke for over an hour and a half, outlining the background to the Registered Employment Agreement, the variation agreed on 14th March 2008 between the TEEU, ECA and AECI, the 22nd May Labour Court hearing on objections to the proposed variation, and the injunction granted by the High Court. During the submission he highlighted sections of various affidavits lodged. He then addressed, with references to case law, the TEEU’s right to be given undertakings as to damages.

"There is a serious question as to who the applicants represent,” he said. “What is at issue here is the enforceability of Registered Employment Agreements down through the years. The applicants have effectively brought the Agreement to a standstill as far as the electrical contracting industry is concerned. Their application to cancel the Agreement was to be considered (by the Labour Court) on 16th June. The public interest in this case is synonymous with those who would benefit under the Agreement, if (the variation is) registered. In the absence of an undertaking (for damages) being given, the stay should be lifted.”

Judge’s Questions

A 90-minute lunch break enabled the judge to read all the affidavits lodged except one, a lengthy submission by Denis Judge of NECI.

During the TEEU submission, the judge posed a number of pertinent comments and questions, including: “So the applicants are among the 4,500-plus electrical contractors but not the 400 ECA/AECI members?” “Is there to be one hearing or two hearings – it is in the singular here?” (This referred to the two issues before the Labour Court – the proposed variation and the validity of the REA.) “If the applicants are ultimately successful, what is the effect – and what would happen if monies were paid pursuant to it?”

Labour Court Submission

Senior Counsel for the Labour Court said: “My clients do not suffer any loss, and clearly are not in a position to seek an undertaking as to damages. They will be contesting all the reliefs sought by the applicants at the trial of these proceedings.

“My client raised queries as to the status of the applicants. How many of them are currently employers?” After quoting from an affidavit, he continued: “Now we have gone from ‘employers’ to ‘employers, former employers and potential employers’. There is an onus on the applicants to establish who they are.”

Non-aligned Contractors Submission

Senior Counsel for the Non-aligned Contractors said: “I represent some 400 electrical contractors. Some have been prosecuted in situations where they were not aware of the Registered Employment Agreement.

“My clients were effectively bounced into Court. The Labour Court said by 11th June that it would deal with the variation ‘come what may’ – in clear breaches of fair procedures. Some 700 electrical contractors were represented at the Labour Court meeting, and they did not get a voice in the short space of time.

“Neither independent electrical contractors nor NECI members are party to the agreement but are bound by it – and can be criminally prosecuted if they do not adhere to its terms.

“The Labour Court was not prepared to consider the validity of the Registered Employment Agreement before proceeding to consider the proposed variation.”

Hearing Adjourned 

By this time it was 4.10pm and when the judge asked Counsel how long her submission was likely to take she replied: “If (Senior Counsel for the TEEU) can speak for one hour and a half, I am certainly going to speak for half an hour.”

Counsel for the NECI would also then have to make his submission.

The judge emphasised the desirability of the matter not being delayed and said: “I am available until Thursday, but more than likely I will have to reserve my judgement, to be fair to everybody.”

However, Senior Counsel for the TEEU and the Non-aligned Contractors were not available for the remainder of the week, and the judge therefore determined that the hearing be adjourned until Thursday 11th or Friday 12th September 2008.

The contact for the NECI Steering Group is Denis Judge, Tel/Fax: +353 (0)90 964 5544, Mobile: +353 (0)87 254 0080. Email; denisjudge@eircom.net

THANKS TO IRISH ELECTRICAL REVIEW

________________________________________________________________________________________________________________

Irish Electrical Review JUNE 2008

Labour Court Adjournment

At the Labour Court on 22nd May, when adjourning the hearing to 16th June, Chairman Kevin Duffy had indicated that the Court could then decide to determine on the application to vary the REA, while separately continuing to consider after that date submissions that the REA itself is invalid – if not from its first registration in 1990 then from recent times due to changed circumstances and representation levels by bodies within the industry.

Monday 16th June had been the next date available to the Court, other than adjourning the hearing into the autumn. The Chairman stated that, while this gave only a short time to the parties contesting the variation application to assemble evidence and affidavits to support their contentions, the Court wished to be fair to all parties and was conscious of the fact that: “We can only register any agreed pay rate from a current date.”

This was counter to the TEEU representative’s assertion that any pay award would be retrospective to 1st April 2008.

Strike Ballot

Meanwhile, the Technical Engineering and Electrical Union has begun holding a national strike ballot in the event that the agreed increases are not paid. “This will lead inevitably to industrial action against any non-compliant employer who fails to pay the agreed increases,” it says.

NECI Website

On its website, NECI claims to have become the largest electrical contractors representative association in Ireland.

“We have now crossed a major milestone and have become the largest representative organisation for Irish electrical contractors,” it says. “Supporters are still joining and the bigger we get the stronger our collective voice will be. No longer will others make decisions for the 90% of contractors who up to now had no voice.”

Industry Numbers

There continue to be widely varying claims as to how many electricians work in the industry.

The TEEU asserts that “there are over 10,000 workers employed in the electrical contracting industry”, while NECI estimates that the TEEU has 8,000 members working in the industry compared to an estimated 28,000 electricians in total.

NECI Warns of Job Losses

On 22nd June, NECI had issued the following statement: “The injunction was granted by the High Court on 13th June to prevent the Labour Court from varying the Registered Employment Agreement in the electrical contracting industry until such time as the REA’s validity is proven, as the employer parties to the agreement only represented an estimated 10% of the industry.

“The proposed increase will mean that employing an electrician, just qualified out of FAS, working for 39 hours a week, for one year including pension, PAYE, PRSI and holiday pay, will cost the employer €71,062.24 per year. That is without any safety training or safety equipment or safety clothing being provided.

“This is simply unrealistic in today’s economic climate. NECI says this proposed increase will only lead to massive job losses within the industry and the winding up of many long established electrical contracting firms. Realistically we should be talking about pay freezes and trying to maintain employment in our industry. These rates are simply unobtainable outside the big cities and by contractors working in the domestic side of the industry.

“NECI wants a grading system to be implemented, whereby top performing experienced electricians can be rewarded much more than what the existing REA allows. Today, based on the REA, top performing experienced electricians only receive 75 cent per hour more than the newly qualified inexperienced ones. The old pre ‘Celtic tiger’ grading system works on a time served basis and not on quality, experience and qualifications, as we would like it to be based upon.

“It is the opinion of NECI that this REA is flawed from its inception, as the parties who negotiated and signed this REA were not ‘substantially representative of such workers and employers’ as per Section 27 (3) of the Industrial Relations Act, 1946, which states clearly: ‘(c) that the parties to the agreement are substantially representative of such workers and employers’. They only represented an estimated 10% of the industry.

“Pursuant to Section 29 of the Agreement, it is provided that: ‘(2) The Court may cancel the registration of an employment agreement if satisfied that there has been such substantial change in the circumstances of the trade or business to which it relates since the registration of the agreement that it is undesirable to maintain registration.’

“The entire industry has gone through radical change since 1990, when this REA was registered. Preliminary results of NECI’s national survey clearly show that 90% of the industry do not know, or have never been educated correctly, about the REA or on their legal requirements and responsibilities to their employees. It is our goal to ensure that a certified educational programme be implemented across the entire industry on a new balanced and fair national Registered Employment Agreement.

“The apprentice ratio, only allowing a company to have two apprentices to every qualified electrician employed, thereby ensuring excellent training practices and quality of workmanship for the apprentice, and ensuring excellent workmanship for the customers, has not been adhered to or regulated in such a long time. Many companies now have 20 or 30 apprentices to every one qualified electrician employed and are using this system to keep down costs.

“The issue of the throughput of apprentices leaving FAS every year, flooding the industry with poorly trained and expensive to employ electricians, due to the REA agreement, must be addressed urgently. Their only option for work within the industry is to become contractors themselves, taking on apprentices, and as you know, poorly trained craftsmen training apprentices leads to very poor and dangerous electrical work being carried out.”

TEEU Response

On 16th June, following the granting of the injunction by the High Court and the consequent adjournment of the Labour Court hearing, the Technical Engineering and Electrical Union had issued a statement (subsequently revised) accusing “non-compliant employers” of trying to undermine the national REA in order to defer paying workers.

“Non-compliant employers are showing gross disrespect to our union, the courts and over 10,000 workers by their efforts to frustrate a tried and tested system for setting pay and conditions in the electrical contracting industry,” said Dan Miller, TEEU Assistant General Secretary.

“This organisation, which does not even have a negotiating licence, obtained an injunction on Friday that was only served on the Labour Court late that evening, long after the close of business, and was only received by us at 9.00 am this morning, an hour before the Labour Court was due to sit. As far as we are concerned it is an attempt by a group of dissident electrical contractors to frustrate a system that has worked well for over 60 years in meeting the needs of workers and employers in the industry.

“It is no coincidence that some of these contractors have been found to be in breach of employment rights legislation… This is yet another example of the growing trend by some employers to use the law to undermine and frustrate our voluntary industrial relations system.

“However, they are misled if they think these tactics will buy them time in terms of having to pay increases already agreed for the industry by contractors representing the majority of employees and the TEEU, which represents those workers. The TEEU executive is to consider holding a national strike ballot in the event that the agreed increases are not paid. This will lead inevitably to industrial action against any non-compliant employer who fails to pay the agreed increases.”

The TEEU claimed: “There are over 10,000 workers employed in the electrical contracting industry. This covers all electrical work involving the installation and care of plant and electrical networks. It covers industries as varied as power generation, construction and manufacturing.”

NECI Steering Group

A well-attended meeting of the new National Electrical Contractors (Ireland), which had been held on 7th June at the Radisson Hotel in Athlone, had elected a steering group to address the NECI’s opposition to the Registered Employment Agreement and to prepare for the adjourned Labour Court meeting.

At the Athlone meeting, NECI representatives stressed that their objective is to be involved in the negotiations for a new Registered Employment Agreement that is fair to all employers and workers in the sector – and not, as claimed by some parties, to reduce all electricians’ pay to the minimum wage. NECI is seeking “a proper and fair grading system for electricians in the new agreement where top-performing employees could be paid more than the existing rates”.

NECI also aims “to gather the support of the many companies who have never been educated in their responsibilities under the existing Registered Employment Agreement. NECI has been shocked by the level of companies who are operating in the industry and who know little or nothing about the agreement.”
NECI’s short-term aims and objectives are cited as follows:

• To stop the unsustainable wage increase until proper structures and procedures are in place where all employers have input into pay increases.

• To stop the existing Registered Employment Agreement, as this Agreement is fundamentally flawed in that there is no substantial representation for employers.

NECI stresses that the purpose of this act is not to reduce the industry to a ‘free for all’ but rather to ensure a level playing pitch for all contractors and to ensure fair conditions of employment for workers. “We envisage that a new REA will be properly representative of all electrical contractors and establish fair conditions and terms of employment for all workers and all employers, not just the contractors who are members of the ECA and AECI.”

NECI claims that: “The operation and imposition of the current REA has caused severe hardship and loss of employment in the industry and is anti-competitive. It has caused severe stress and upset and has caused cancellation of contracts for electrical contractors.”

NECI Meeting Forms Steering Group

A well-attended meeting of the new National Electrical Contractors of Ireland, held on 7th June at the Radisson Hotel in Athlone, elected a steering group to address the NECI’s opposition to the Registered Employment Agreement and to prepare for the adjourned Labour Court hearing on Monday 16th June 2008.

In addition, several county meetings are being held to gather support for the new organisation.

At the Athlone meeting, NECI representatives stressed that their objective is to be involved in the negotiations for a new Registered Employment Agreement that is fair to all employers and workers in the sector – and not, as claimed by some parties, to reduce all electricians’ pay to the minimum wage. The NECI is seeking “a proper and fair grading system for electricians in the new agreement where top-performing employees could be paid more than the existing rates”.

The NECI also aims “to gather the support of the many companies who have never been educated in their responsibilities under the existing Registered Employment Agreement. NECI has been shocked by the level of companies who are operating in the industry and who know little or nothing about the agreement.”
The contact for the NECI Steering Group is Denis Judge, Tel/Fax: +353 (0)90 964 5544, Mobile: +353 (0)87 254 0080.

THANKS TO IRISH ELECTRICAL REVIEW

_______________________________________________________________________________________________________

Irish Electrical Review MAY 2008

Labour Court Adjourns REA Decision to 16th June

At the public hearing of the Labour Court on Thursday 22nd May 2008, held to consider the contested application to vary the Registered Employment Agreement for the electrical contracting industry, Chairman Kevin Duffy adjourned the hearing until Monday 16th June 2008.

He indicated that the Court could then decide to determine on the application to vary the REA, while separately continuing to consider after that date the contentions made that the REA itself is invalid – if not from its first registration in 1990 then from recent times due to changed circumstances and representation levels by bodies within the industry.

Monday 16th June was the next date available to the Court, other than adjourning the hearing into the autumn. The Chairman stated that, while this gave only a short time to the parties contesting the application to assemble evidence and affidavits to support their contentions, the Court wished to be fair to all parties and was conscious of the fact that: “We can only register any agreed pay rate from a current date.” This was counter to the TEEU representitive’s assertion that any pay award would be retrospective.

Applicants

The application to vary the REA to provide for a €1.05 per hour increase to the existing craft basic rate was initially made by the three parties to the agreement, the ECA, AECI and TEEU.

At the commencement of the hearing, representatives of the ECA and TEEU confirmed their support for the application. However, Michael Kelly of Galway, representing the AECI, said: “The AECI recognises the method used to determine the rate of increases, but wishes to state an inability to pay at the present time. There is less work being done and one option that electrical contractors have is to let go of operatives – however, these then become self-employed as electrical contractors, creating even more competition.”

At this point, Chairman Kevin Duffy asked: “So are you supporting or opposing the application to vary the agreement, or are you adopting a neutral position?”

Mr Kelly replied: “We have a neutral position because of an inability to pay – but we have to agree to the system for determining a rate increase.”

After the Chairman again asked: “So for the purposes of this hearing are you supporting or opposing the application?” Mr Kelly stated that the AECI had to support the application.

Opponents

Legal representatives of a group of ‘non-aligned’ electrical contractors and of the recently constituted NECI (National Electrical Contractors of Ireland) then set out their reasons for contending that the initial registration of the REA in 1990 was null and void, and that, even if its initial registration was valid, the agreement must now be found to be null and void due to the changed circumstances within the electrical contracting industry.

The REA is based on Section 27 (3) Part C of the Industrial Relations Act, 1946, which states that the Labour Court must be satisfied that parties to the agreement must be substantially representative of the bodies for which they are speaking.

The non-aligned contractors’ representative stated that in 1990 the ECA and AECI had a combined membership of about 500 electrical contractors compared to an estimated 2,500 non-members. In 2008 there are more than 4,500 contractors compared to a combined ECA / AECI membership of around 400. “I have here signatures of some 500 non-aligned contractors,” she said. “In addition, some AECI members have signed up in opposition to the proposed amendment. Clearly these contractors were not balloted or consulted before the proposed agreement was made.”

She then stated that the proposed new craft basic rate of €22.54 would be equivalent to a charge out rate of €45.72 per hour. “There is not a building contractor in Ireland prepared to pay €45.72 for domestic electrical work,” she said, “and, indeed, very few prepared to pay €30.00. They can get work done for as low as €20.00 per hour by Polish contractors, for example, who are not subject to the REA and are willing – and are entitled – to do so.”

The NECI representative then urged the Court to accept the previous submission and emphasised that the Court may decide to cancel an existing REA if it is satisfied that the circumstances within the industry have significantly changed.

“The two registration bodies, RECI and ECSSA, have combined memberships of 5,257 electrical contractors,” he said. “Of these, 1,250 are non-employers and as such are not subject to the REA, leaving 4,007 who are. However, the ECA has 60 members and the AECI 360 members, a total of 420 members, and thus together they represent little more than 10% of electrical contractors. The Court should hold an enquiry to explore the origin of the agreement and to establish whether there has been a substantial change in the industry – and should defer making a decision on the present application until such an enquiry has been completed.”

He also referred to Section 33 (1) of the Act, which empowers the Court to restrict the operation of the REA to ECA and AECI members only.

Industry Representation

In response, Chairman Kevin Duffy said: “You both raise serious questions on the validity of the agreement. However, I don’t know how we question a decision made by another Court 18 years ago. A second question is whether this Court should cancel the agreement – we can do so, but this is not part of today’s hearing. This Court is a creature of statute, and we are required to fulfill certain duties laid down by statute, which mandates us to consider such an application as that before us to vary terms of the agreement.

"We want to be fair to everybody. The Court can only consider such questions on evidence – and the onus is on proponents of such propositions to provide such evidence. Clearly, an important part of such evidence would be not only the number of firms engaged in electrical contracting, but also the number of electricians employed by those firms. The purpose of an REA is fundamentally for the benefit of the employees and I anticipate that this will be an argument to be used. Striking down the REA would be a serious matter and the Court would have to be convinced that the circumstances set out by the Act do exist.”

The ECA representative responded that the ECA members were the 60 largest contractors in the State and that they employed over 5,000 electricians. Neither the TEEU nor AECI representatives stated how many electricians their respective organisations each represented.

No doubt, there will be feverish activity within all the representative bodies in the electrical contracting industry over the days leading up to Monday 16th June to maximise memberships, to collate employer and employee numbers that each represents, and to obtain as many signed statements and affidavits as possible.

It should be an interesting meeting!

THANKS TO IRISH ELECTRICAL REVIEW

From Irish Electrical Review            http://www.ier.ie

Report From Labour Court Hearing 22nd May 2008

At the public hearing of the Labour Court on Thursday 22nd May 2008, held to consider the contested application to vary the Registered Employment Agreement for the electrical contracting industry, Chairman Kevin Duffy adjourned the hearing until Monday 16th June 2008. He indicated that the Court could then decide to determine on the application to vary the REA, while separately continuing to consider after that date the contentions made that the REA itself is invalid – if not from its first registration in 1990 then from recent times due to changed circumstances and representation levels by bodies within the industry. Monday 16th June was the next date available to the Court, other than adjourning the hearing into the autumn. The Chairman stated that, while this gave only a short time to the parties contesting the application to assemble evidence and affidavits to support their contentions, the Court wished to be fair to all parties and was conscious of the fact that: “We can only register any agreed pay rate from a current date.” This was counter to the TEEU representitive’s assertion that any pay award would be retrospective.

Applicants

The application to vary the REA to provide for a €1.05 per hour increase to the existing craft basic rate was initially made by the three parties to the agreement, the ECA, AECI and TEEU. At the commencement of the hearing, representatives of the ECA and TEEU confirmed their support for the application. However, Michael Kelly of Galway, representing the AECI, said: “The AECI recognises the method used to determine the rate of increases, but wishes to state an inability to pay at the present time. There is less work being done and one option that electrical contractors have is to let go of operatives – however, these then become self-employed as electrical contractors, creating even more competition.” At this point, Chairman Kevin Duffy asked: “So are you supporting or opposing the application to vary the agreement, or are you adopting a neutral position?” Mr Kelly replied: “We have a neutral position because of an inability to pay – but we have to agree to the system for determining a rate increase.” After the Chairman again asked: “So for the purposes of this hearing are you supporting or opposing the application?” Mr Kelly stated that the AECI had to support the application.

Opponents

Legal representatives of a group of ‘non-aligned’ electrical contractors and of the recently constituted NECI (National Electrical Contractors of Ireland) then set out their reasons for contending that the initial registration of the REA in 1990 was null and void, and that, even if its initial registration was valid, the agreement must now be found to be null and void due to the changed circumstances within the electrical contracting industry. The REA is based on Section 27 (3) Part C of the Industrial Relations Act, 1946, which states that the Labour Court must be satisfied that parties to the agreement must be substantially representative of the bodies for which they are speaking. The non-aligned contractors’ representative stated that in 1990 the ECA and AECI had a combined membership of about 500 electrical contractors compared to an estimated 2,500 non-members. In 2008 there are more than 4,500 contractors compared to a combined ECA / AECI membership of around 400. “I have here signatures of some 500 non-aligned contractors,” she said. “In addition, some AECI members have signed up in opposition to the proposed amendment. Clearly these contractors were not balloted or consulted before the proposed agreement was made.” She then stated that the proposed new craft basic rate of €22.54 would be equivalent to a charge out rate of €45.72 per hour. “There is not a building contractor in Ireland prepared to pay €45.72 for domestic electrical work,” she said, “and, indeed, very few prepared to pay €30.00. They can get work done for as low as €20.00 per hour by Polish contractors, for example, who are not subject to the REA and are willing – and are entitled – to do so.” The NECI representative then urged the Court to accept the previous submission and emphasised that the Court may decide to cancel an existing REA if it is satisfied that the circumstances within the industry have significantly changed. “The two registration bodies, RECI and ECSSA, have combined memberships of 5,257 electrical contractors,” he said. “Of these, 1,250 are non-employers and as such are not subject to the REA, leaving 4,007 who are. However, the ECA has 60 members and the AECI 360 members, a total of 420 members, and thus together they represent little more than 10% of electrical contractors. The Court should hold an enquiry to explore the origin of the agreement and to establish whether there has been a substantial change in the industry – and should defer making a decision on the present application until such an enquiry has been completed.” He also referred to Section 33 (1) of the Act, which empowers the Court to restrict the operation of the REA to ECA and AECI members only.

Industry Representation

In response, Chairman Kevin Duffy said: “You both raise serious questions on the validity of the agreement. However, I don’t know how we question a decision made by another Court 18 years ago. A second question is whether this Court should cancel the agreement – we can do so, but this is not part of today’s hearing. This Court is a creature of statute, and we are required to fulfill certain duties laid down by statute, which mandates us to consider such an application as that before us to vary terms of the agreement. "We want to be fair to everybody. The Court can only consider such questions on evidence – and the onus is on proponents of such propositions to provide such evidence. Clearly, an important part of such evidence would be not only the number of firms engaged in electrical contracting, but also the number of electricians employed by those firms. The purpose of an REA is fundamentally for the benefit of the employees and I anticipate that this will be an argument to be used. Striking down the REA would be a serious matter and the Court would have to be convinced that the circumstances set out by the Act do exist.” The ECA representative responded that the ECA members were the 60 largest contractors in the State and that they employed over 5,000 electricians. Neither the TEEU nor AECI representatives stated how many electricians their respective organisations each represented. No doubt, there will be feverish activity within all the representative bodies in the electrical contracting industry over the days leading up to Monday 16th June to maximise memberships, to collate employer and employee numbers that each represents, and to obtain as many signed statements and affidavits as possible. It should be an interesting meeting!

__________________________________________________________