Labour Court Database __________________________________________________________________________________ File Number: CD87868 Case Number: AD883 Section / Act: S13(9) Parties: GALLAHER (DUBLIN) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal, by the Company, against a Rights Commissioners Recommendation (BC 163/87) concerning compensation for loss of meal allowance.
Recommendation:
5. Having considered the submissions made to it at the hearing of
the Employer's appeal against Rights Commissioner's Recommendation
No. BC 163/87 the Court is satisfied that the Commissioner took
full cognisance of the facts in the case before him as they
related to the particular circumstances in the Company, and does
not find grounds for altering this Recommendation.
The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD87868 APPEAL DECISION NO. AD388
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: GALLAHER (DUBLIN) LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal, by the Company, against a Rights Commissioners
Recommendation (BC 163/87) concerning compensation for loss of
meal allowance.
BACKGROUND:
2. As part of a rationalisation programme the Company reduced the
number of vans servicing the Dublin area from four to three. This
change involved a van crew of a driver and helper being displaced.
One of the workers accepted voluntary redundancy and the other one
was transferred from the transport section to a position in the
warehouse. A daily meal allowance of #5.54 is paid to workers in
the transport section who could not use the Company's canteen.
The Union agreed to accept the Company's proposal provided
compensation for loss of the meal allowance could be agreed for
the worker transferring to the warehouse. The Union claimed
#3,400 compensation payment. The Company did not propose to
compensate the worker. Local negotiations took place during which
the Company offered #900 compensation payment. This was not
acceptable to the Union. The matter was referred to a Rights
Commissioner. On 30th October, 1987 the Rights Commissioner
issued his Recommendation as follows:
"I recommend that Gallaher Ltd. pay to the person transferring
from the van to the plant at Tallaght the sum of #2,500 and this
is accepted by the trade union in full and final settlement of
this claim and without prejudice to the Company's essential
position."
On 12th November, 1987 the Company appealed the Rights
Commissioner's Recommendation to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 14th December, 1987.
COMPANY'S ARGUMENTS:
3. 1. The daily allowance of #5.54 is paid solely to compensate
a worker for expenses legitimately incurred in the course of
his duties. The amount of the payment matches that paid to
members of the public service who are entitled to
reimbursement of meal expenses. It is paid on a tax free
basis which is also in line with practice in the public
service.
3. 2. Section 116 of the Income Tax Act, 1967 provides that all
expenses paid to employees shall be subject to income tax
except in respect of money expended "wholly, exclusively and
necessarily in performing the duties of the office or
employment". It is unreasonable that the worker had this
benefit in compensation of "necessary" expenses and now seeks
compensation for its removal when these expenses are no
longer incurred.
3. The Company's agreement with the Union on compensation
only applies in respect of loss of remuneration or earnings.
It does not apply to loss of expenses. Remuneration or
earnings cannot include payments legitimately paid for out of
pocket expenses. The Employment Appeals Tribunal when
calculating loss do not take account of such payments.
4. The nearest situation is compensation for redundancy. In
the Company redundancy compensation is based on pensionable
pay which does not include expenses, this situation is
accepted by the Union.
5. While the Company did make an offer prior to the Rights
Commissioner's hearing the existence of that offer, which was
withdrawn, does not indicate the Company's acceptance of any
validity in the Union's arguments. The offer was made as
part of a normal industrial relations negotiating position.
6. The Company subsidies its canteen to the extent of
#140,000 per year. The worker can now avail of the canteen's
services. One of the reasons for the daily payment was to
give to workers offsite an equivalent benefit to that enjoyed
by their indoor colleagues. The worker will suffer no loss
as the benefit of the canteen will now be available to him on
an ongoing basis.
UNION'S ARGUMENTS:
4. 1. There is an agreed formula between the Union and the
Company for buy outs of this kind of 2.50 times the annual
amount. As the meal allowance is #5.54 per day the Union's
original claim was for #3,400.
2. The meal allowance is one of the attractions of a job in
the transport section as it is paid tax free. It formed a
substantial sum of the workers' take home pay and would be a
big loss to the worker concerned.
3. The meal allowance was part of a negotiated set of
conditions for transport workers. Workers who did not buy
meals while on the road were still entitled to the allowance.
The Company recognised this by offering a sum #900 as a buy
out of the allowance.
4. 4. The Union believes that when the Rights Commissioner
didn't recommend full concession of the claim he took account
of the fact that the worker would have the benefit of a
subsidised canteen.
5. There will be ongoing savings to the Company of a worker
less on meal allowance and a van less on the road.
6. This situation resulted from the Company's desire to
reduce its transport fleet. Therefore the Company should be
obliged to compensate the worker for losses or changes in his
working conditions.
DECISION:
5. Having considered the submissions made to it at the hearing of
the Employer's appeal against Rights Commissioner's Recommendation
No. BC 163/87 the Court is satisfied that the Commissioner took
full cognisance of the facts in the case before him as they
related to the particular circumstances in the Company, and does
not find grounds for altering this Recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
___12th___January,___1988. ___________________
T. O'M. / M. F. Deputy Chairman