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Cite as: [2004] IEHC 141

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HC 272/04

THE HIGH COURT

[1998 No. 1176 P]

BETWEEN/

TERNAN BURNS

PLAINTIFF

AND

BUILDING AND ALLIED TRADES UNION

AND FRED HOSFORD, DERMOT GREY AND JAMES FOLEY

DEFENDANTS

Judgment of Carroll J. delivered the 21 day of July, 2004.

The facts of this case are:-

The plaintiff is a bricklayer, having been apprenticed to his father at age sixteen in 1972. He became a member of the first defendant ("the Union") in 1974. The second, third and fourth defendants are trustees of the Union. The plaintiff worked a few times in England and was unemployed a few times. Since 1974 his union dues were collected by a shop steward if he was working. He rejoined a couple of times. He was on PAYE up to 1987 when he went to England. After 1990 he worked as self-employed. He started on a C45 (self-employed) form. He then worked as a sole trader and applied for a C2 tax certificate form. He was trading as "Burns Bricklayers" as a registered trade name. He did jobs in houses and employed people from time to time.

He rejoined the Union in 1997. The Union representative sent him to the Union for an interview. He said he told the Union representative he was on a C2 form. He claimed normally it is a question of paying back dues or agreeing an amount. He said the Union were well aware of his status that he was self-employed working as a contractor on a C2 form.

This was disputed by Patrick O'Shaughnessy, General Secretary of the Union since 1988. He said that at the meeting of 1995 which was a routine branch meeting at which the plaintiff applied to rejoin, if he flagged that he was a sub-contractor employing people he would not have been let back in.

I accept on the balance of probabilities that if he had informed the meeting of his tax status he would not have been re-admitted to membership.

However Mr. O'Shaughnessy said that since the plaintiff rejoined in 1995 he was still a member and no sanctions have been made or threatened against him. So in my opinion the issue of membership is not an issue in this case.

The plaintiff reverted to PAYE status in January, 2003 at a Blanchardstown site and has been on PAYE since then. His current status is that he was employed by Messrs. McInerneys, Builders, in May, 2003 as a foreman and as a PAYE worker.

Evidence given as to an unofficial strike at Blanchardstown in 2003 when the plaintiff was on PAYE has no relevance to this case.

Between the years 1994 to 1997 he did a substantial amount of work for Messrs. Cleary Doyle, Builders. He started on a C45 form and used a C2 form since about 1995. He sent in invoices for work done on agreed hourly rates or agreed price per block. At the end of each year he sent in forms to the Revenue Commissioners. He has had an accountant since 1991.

As far back as 1979 the Union had made a policy decision that bricklayers should be employed as PAYE workers because they got better pay and conditions with pension and holiday pay. The plaintiff was aware of this policy.

Site agreements that PAYE workers only will be employed are common with the Union but are not necessarily written. On new sites with new companies it may be committed to paper. With Cleary Doyle at site level there were rates of pay to be set. Cleary Doyle set an hourly rate and the rate was struck. Mr. Denis Farrell, Regional Organiser for the Dublin area of the Union was involved in the Clontarf site and oversaw the site agreement in 1997. He was on site on three occasions. The agreement on behalf of the Union was reached through Neville Farrelly the Shop Steward on site, in discussion with the Quantity Surveyor. He accepted that their members would be employed as PAYE workers. Mr. Farrell's work on the site was to check that all the PAYE workers were registered on the pension scheme. He confirmed that all were registered. An oral agreement was reached with Cleary Doyle at the end of November/beginning of December, 1997 but definitely prior to the 15^th December. Mr. Farrell could not give an exact time and date. Mr. Sullivan, the Contracts Manager for Cleary Doyle, the Quantity Surveyor and Neville Farrelly would have done the deal. I am completely satisfied that a site agreement to employ only PAYE members of the Union existed prior to and on 15^th December. The site agreement was for Clontarf site. It was not nationwide. The Union were working at the time with Cleary Doyle to change over to PAYE for their workers.

In December 1997 the plaintiff was working for Cleary Doyle with C2 form tax status at Baggot Street and he was asked to go to the Clontarf site for three days. He was not made aware by Cleary Doyle that there a site agreement. He turned up at 8 a.m. on Monday, 15^th December, 1997. James Carroll the site foreman looking after bricklayers said he first knew the plaintiff was coming when he arrived. He went to tell the plaintiff what to do. Then Neville Farrelly (who did not give evidence) saw the plaintiff on site and had a brief separate conversation with Mr. Carroll which the plaintiff did not overhear. Mr. Farrelly said the plaintiff could not start because he was a sub-contractor. Mr. Carroll could not remember details of his conversation with Neville Farrelly. Mr. Carroll understood the Union would not allow the plaintiff to work but he did not investigate. He asked him to leave as he did not want to disrupt the site. He just made up his mind unilaterally. There were 14 to 16 bricklayers plus helpers and he did not know their tax status. He was not aware of a site agreement. The quantity surveyor was not on site. Mr. Carroll did not know anything about discussions about PAYE. Those agreements were done with the quantity surveyor.

The plaintiff left the site and went home to change. While a form has to be filled in for each site for each sub-contractor, the plaintiff did not fill in this form and sign it as the office staff had not arrived.

That morning he rang Denis Farrell, the senior union official already mentioned, on his mobile, who said he could change over to PAYE and there would be no objection. But he said refused as he was working for Cleary Doyle as self employed. He lost the three days' work. Mr. Farrell advised the plaintiff to come to the weekly branch committee meeting that evening.

The committee meeting that evening was chaired by Bill O'Brien. Brendan O'Sullivan a full-time officer and secretary of the Dublin branch of the union, attended as an official serving the branch. Mr. Neville Farrelly the shop steward also attended.

Mr. O'Sullivan said there was no formal discussion of the agenda before the meeting though Mr. O'Brien said he discussed the case prior to the meeting. He may have talked to some of the other members but if he did it had no relevance as no decision was discussed. Also at the meeting were D. O'Sullivan, Paddy Redmond, Ger Kerneck and T. Sampey.

The plaintiff explained that he was put off the site because he was on a C2 form. Neville Farrelly confirmed this. The plaintiff quoted the rule book specifically about self employment. He wanted to go back to work as self employed. He said the union could waive the rule and a person could be allowed. He agreed he was not expelled or dismissed from the union.

Mr. O'Brien said only the National Executive could waive a rule and he would have to write to them. His own understanding was if you were an employer you could not be a member of the Union. Mr. O'Sullivan said the branch were not aware he was operating as a contractor. It was the first he was aware of it. The plaintiff was advised he should make a request to the National Executive. The branch could not accede as it was bound by the rule.

The relevant rule in the rule book is Rule 3(e)

"A person who is an employer of members of the Union or who is the director or major shareholder in a company, firm or undertaking which employs or would normally employ members of the Union may not be a member of the Union and any member on becoming such an employer, director or major shareholder shall thereupon cease to be a member of the Union. The provisions of this rule shall not apply to a person appointed as the workers director in a company or undertaking or who is appointed as a nominee of the Trade Union Movement generally to be a director of any firm, company, undertaking or public body. The National Executive Council may, in its absolute discretion exempt any member from the provisions of the rule."

Mr. Farrell reckoned in the Dublin area on sites they achieved about 70% PAYE status for workers with about 30% being self employed.

He also said that a person in the same position as the plaintiff can go to the tax office and get a tax free allowance straight away and he could have gone back to work as a PAYE worker. He said his case was handled reasonably and he could either appeal to the National Executive or go back on a PAYE basis. He did neither. The plaintiff himself said he had not thought of going back as a PAYE worker and said probably for three days' work he would have turned it down.

On 6^th January, 1998 the plaintiff's solicitor wrote to the Union alleging inter alia that he was wrongfully forced off the Cleary Doyle site, that he was denied a formal hearing and called for an apology and confirmation that there was no objection to his being employed as a bricklayer.

Mr. O'Sullivan on behalf of the Union replied on 7^th January, 1998 that the plaintiff told the committee meeting he was registered for VAT and had a contractor's C2 certificate and requested approval to operate as a contractor and remain as a member of the union. He was informed that he could take the matter up with the National Executive Council. He did not do so. Mr. O'Sullivan pointed out that no charges for disciplinary action of any kind was discussed or raised at the meeting by the committee.

The plaintiff's solicitor again wrote on 21^st January seeking an undertaking that there was no objection to the plaintiff being employed as a bricklayer.

A plenary summons was issued on 30^th January, 1998. Interlocutory relief was applied on 29^th January, 1998 seeking various reliefs. The outcome of the interlocutory proceedings was an order by O'Donovan J. made the 30^th March, 1998, under which the union effectively undertook not to prevent the plaintiff from working on sites with contractors with whom the union did not have an agreement for the employment of PAYE workers. The motion was adjourned with liberty to re-enter.

In his statement of claim the plaintiff claims the following relief:

1. declaration that the plaintiff is a member in good standing of the first defendant's trade union;

2. declaration that the plaintiff has a personal right both at law and under the Constitution to make the choice more advantageous to him in terms of tax categorisation in his dealings with the Revenue Commissioners;

3. that the defendants in procuring and/or inducing the breach of the plaintiff's contract with Messrs. Cleary & Doyle Limited on the Clontarf site on 15^th December, 1997 arising from his tax status as a C2 self employed person unlawfully discriminated against the plaintiff;

4. that by their actions the defendants breached the terms of the plaintiff's membership of the defendant union whereby the plaintiff suffered loss and damage.

5. A declaration that the defendants their servants or agents acted in violation of the plaintiff's constitutional right of association and or disassociation.

6. A declaration that the requirements of constitutional and natural justice were violated by the defendants their servants or agents in preventing the plaintiff following his trade on the building site at Clontarf Castle on 15^th December, 1997 by procuring a breach of contract between the plaintiff and his employer Messrs. Cleary and Doyle Contracting Limited.

7. An injunction restraining the defendants, their servants or agents or any person with knowledge of the making of such an order, from interfering with the plaintiff's constitutional right of association or otherwise seeking to negative the plaintiff's constitutional right to earn a livelihood.

8. An injunction restraining the defendants their servants or agents from in any manner or through the agency of any persons from treating the plaintiff otherwise than as a member of the defendant union in good standing.

9. An injunction restraining the defendants their servants or agents or any person with a knowledge of the making of such an order from

(a) wilfully interfering with the plaintiff's business relations and/or economic interests and/or of his labour as he thinks fit in his chosen trade while a member of the defendants union

(b) procuring or inducing breaches of the plaintiff's commercial contract

(c) threatening strike or other industrial action against any person prepared to enter into contractual relations with the plaintiff

(d) without prejudice to the reliefs sought in the above paragraph, an injunction restraining the defendants their servants or agents from placing an embargo on the plaintiff's engagement in the construction industry in this country and in particular on construction sites operated by Cleary and Doyle Contracting Limited and any other contractor in Dublin City and County where the plaintiff normally pursues his trade as a bricklayer

10. An injunction restraining the defendants, their servants or agents from interfering with the plaintiff's constitutional right to earn his livelihood.

11. Damages inter alia for breach of the plaintiff's constitutional right to earn a livelihood and for inducing breach of contract injuriously affecting the plaintiff.

12. Further and other relief.

13. Costs of these proceedings.

It is my opinion that on the facts of this case, this action is totally misconceived. Cleary Doyle had a site agreement with the Union affecting this site in Clontarf to employ only PAYE bricklayers prior to the 15^th December, 1997. When they failed to inform the plaintiff of the existence of the site agreement and asked him to attend for three days with his C2 tax status, a possible breach of the site agreement was averted by the foreman asking the plaintiff to leave the site and the plaintiff leaving. The union did not procure a breach of the plaintiff's contract with Cleary Doyle. The site agreement was in existence prior to his arrival on site. While the plaintiff was entitled to decide that he wanted to work as a contractor on a C2 form, this did not entitle him to choose the building sites he wanted to work on. He could work on any site where the builder did not have this site agreement with the union concerning employment of PAYE workers only. He was not entitled to breach a site agreement providing for PAYE workers.

When the plaintiff attended the meeting on the evening of 15^th December the Union committee was quite correct in saying they could not exempt the plaintiff from the rule 3(e). That was for the Executive Committee. The rule specifically states the National Executive Council may in its absolute discretion exempt any member from the provisions of the rule. The plaintiff chose not to apply to the National Executive to interpret what was meant by the rule and if necessary seeking an exemption from

the rule. Since the plaintiff did not seek a ruling by the National Executive there was no breach of the terms of the plaintiff's membership of the union.

There is no evidence that the Union acted in violation of the plaintiff's constitutional right of association or disassociation or that any of the plaintiff's constitutional rights including a constitutional right to work, were violated by preventing the plaintiff from working at the Clontarf site in breach of the site agreement.

1. The declaration sought at paragraph 1 of the relief sought in the statement of claim will not be granted. The issue of the plaintiff's membership was not in issue in the case.

2. The declarations sought at paragraphs 2, 3, 4 and 5 will not be granted. While the plaintiff can choose the tax categorisation under which he wishes to work he is not entitled to work on any site of his choosing. Further, on the facts, the defendants did not procure a breach of the plaintiff's contract with Messrs Cleary Doyle and there is no proof that the defendants breached the terms of the plaintiff's membership of the union. The defendants did not act in violation of the plaintiff's constitutional right of association and disassociation.

6. The defendants did not procure a breach of contract between the plaintiff and Messrs. Cleary Doyle.

7. No basis exists for injunction sought at paragraph 7

8. No basis exists for granting an injunction sought at paragraph 8. The plaintiff's membership of the Union is not an issue in this case.

9. No basis exists for granting the injunctions sought.

10. No basis exists for granting the injunction sought.

11. No claim for damages arises.

The case is dismissed.