The High Court declared that Philip Kirwan “is and continues to be employed” by the Technical Engineering and Electrical Union under a contract of service, after finding that his near-continuous work as a union delegate was governed by contractual arrangements outside the union’s rules.
Miss Justice Laffoy delivered the judgment on 14 January 2005. The sole relief sought in proceedings begun in 1998 was a declaration about Kirwan’s employment status. The court said it was deciding the issue on the evidence presented and common law principles, not reviewing the earlier Social Welfare Appeals Officer’s decision.
Kirwan had been branch secretary of the Drogheda branch since 1981, first with a predecessor union and then with the defendant after its 1991 amalgamation. Following his 1982 voluntary redundancy from Irish Cement Limited, he continued as branch secretary and regularly represented members in workplace and other industrial relations matters. The court said that from 1983 he was, in effect, the branch’s permanent delegate. He received hourly remuneration for delegate work, as well as travel and subsistence expenses, and later used the minimum basic union rate for his craft.
The union’s rules provided for elected branch officers and delegates, including a quarterly salary for a part-time branch secretary and specified payments for delegates. But the judge found that the rules did not contemplate an otherwise unemployed member acting as a delegate almost continuously over a long period and being paid by the hour for the work.
A Social Welfare Appeals Officer had decided in December 1997 that Kirwan’s employment was insurable at the standard Class A PRSI rate. The union accepted and implemented that decision, including paying arrears, while disputing that Kirwan was employed under a contract of service. The High Court stressed that the appeals officer’s decision did not determine the question before it.
Applying the evidence about how the arrangement worked in practice, the judge found that Kirwan performed personal services in the union’s business, was paid according to work done, used the branch office and its equipment, and was not in business on his own account. She concluded that his delegate work and its payment were governed by contractual arrangements outside the rules, and that the relationship amounted to a contract of service.
The court noted concerns that the arrangement might have been anomalous under the union’s rules, and that the declaration was sought without determining the contract’s precise terms or its wider ramifications. The order was the declaration sought; the judgment did not resolve those broader matters.