Labour Court Database __________________________________________________________________________________ File Number: CD93446 Case Number: DEC933 Section / Act: S57(1) Parties: WILLIAM ROCHE - and - DEPARTMENT OF ENTERPRISE AND EMPLOYMENT;AND EMPLOYMENT |
Appeal by the employer against the decision of the Labour Inspectorate in relation to Employment Regulation Order / Retail Grocery and Allied Trades J.L.C., under Section 57 of the Industrial Relations Act, 1946.
Recommendation:
The Court, having considered the views expressed by the parties
and the descriptions of the work carried out by each of the
employees concerned, finds:
1. That in the case of Gregory Reddy, he was employed over a
period of 3 years at a rate of pay which remained constant
during that period. He worked on the preparation and sale of
meat and meat products which were covered by the Employment
Regulation Order;
Given all of the information put forward in respect of the
above-named, the Court finds that the above-named was not an
"apprentice beef butcher" and that he was a worker to whom
the Order applied and should be paid accordingly;
2. That, in the case of Ms. Siobhan O'Gorman, she is a worker
employed in an industry which is engaged mainly in the retail
grocery and allied trades and accordingly she should be
covered by the Employment Regulation Order of the Retail
Grocery and Allied Trades Joint Labour Committee.
The above determinations apply specifically to the undertaking
concerned and the circumstances applying in relation to the named
employees.
Division: MrMcGrath Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD93446 DECISION NO. DEC393
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 57(1)
PARTIES: WILLIAM ROCHE
(REPRESENTED BY TOM SMYTH AND ASSOCIATES)
AND
DEPARTMENT OF ENTERPRISE AND EMPLOYMENT
SUBJECT:
1. Appeal by the employer against the decision of the Labour
Inspectorate in relation to Employment Regulation Order / Retail
Grocery and Allied Trades J.L.C., under Section 57 of the
Industrial Relations Act, 1946.
BACKGROUND:
2. An Employment Regulation Order (E.R.O.) for the Retail
Grocery and Allied Trades came into effect on the 4th of May,
1992. The Labour Inspectorate of the Department of Enterprise and
Employment, in pursuit of its statutory obligations to enforce the
E.R.O., visited the above-mentioned employer on the 14th of
October, 1992. The employer was deemed to have been in breach of
the E.R.O. for the Retail Grocery and Allied Trades J.L.C. and
arrears were calculated for five employees. The employer claims
that the decision made by the Inspector, in relation to two of the
employees, Mr. Gregory Reddy (apprentice butcher) and Ms. Siobhan
O'Gorman (retail assistant), was incorrect.
Mr. Gregory Reddy
During the inspection, it was found that the rate being paid to
Mr. Reddy was below the statutory minimum rate prescribed in the
Retail Grocery and Allied Trades E.R.O. Mr. Reddy was described
as an "apprentice butcher" who, in the course of his duties,
handled pork products, bacon products and cold meats. The
employer contends that any butcher or apprentice engaged in the
sale of beef, lamb/mutton, pork, fowl (fresh or cooked) is outside
the scope of the E.R.O.
Ms. Siobhan O'Gorman
Ms. O'Gorman performs two distinct types of duties. Her work in
the tea-shop would normally be regarded as being covered by the
Catering E.R.O., and her work in the supermarket would normally be
regarded as being covered by the Retail and Allied Trades E.R.O.
The time spent by Ms. O'Gorman in her two locations varies
throughout the year. The Inspector took the view that, where two
E.R.Os apply, and where a decision has to be made between them,
the E.R.O. providing for the higher rate of remuneration (Catering
E.R.O.) should apply. The employer contends that the Retail
E.R.O. should apply as the worker is "wholly or mainly" engaged in
the duties of General Retail Assistant (Catering rate = #3.47 /
hour; Retail Rate = #2.49 / hour).
The dispute was referred to the Labour Court on the 27th of July,
1993, for investigation and decision. The Court investigated the
dispute, in Waterford, on the 26th of October, 1993.
EMPLOYER'S ARGUMENTS:
3. Mr. Gregory Reddy
1. Any butcher or apprentice engaged in the preparation and
sale of beef, lamb/mutton pork, fowl (fresh or cooked) is
outside the scope of the E.R.O. As 84.7% of the employer's
butchery sales is comprised of these groups of product, the
butcher's apprentice is wholly or mainly engaged in areas not
covered by the E.R.O. He is not engaged in the main duties
of a General Sales Assistant. (Details supplied to the
Court).
2. If butcher's apprentices should be paid the General
Retail Assistants' rate during their training period, they
must stay on that scale when they become qualified butchers.
In essence, as far as the Inspectorate's decision is
concerned, the classification of "butcher" within a small
supermarket will be defunct within four years.
Ms. Siobhan O'Gorman
1. The respective proportions of hours worked by Ms.
O'Gorman in the tea-room and on the Retail Floor are as
follows:
Tea Room 41.67%
Supermarket Floor 58.33%
While the tea-room serves tea, coffee, scones, confectionery
and sandwiches, no hot food is prepared and served there.
For 8 months of the year, Ms. O'Gorman is "wholly or mainly"
engaged in the duties if a General Retail Assistant. The
Retail rate should, therefore, apply.
2. Although Ms. O'Gorman is the junior employee,
servicewise, of those who work mainly in the supermarket, she
must now be paid 40% more than others who are both senior to
her and doing the same work. This anomaly has been noted by
the other staff who are claiming parity (a 40% rise) because
they have occasionally deputised for her in the tea-room
during her holidays or absence for other reasons.
3. In order to compete with the multiple stores a number of
independent retailers have opened similar tea-room services
for their customers and are using spare capacity in the their
workforce to help out in such areas, normally junior staff.
If the Inspectorate's decision is upheld then the inevitable
result of the implications is the closure of the tea-rooms
and unemployment of staff.
4. There is no doubt, in the view of the employer that Ms.
O'Gorman is primarily a general Retail Assistant and not a
General Catering Worker, as determined by the Inspectorate.
DEPARTMENT'S ARGUMENTS:
4. MR. GREGORY REDDY
1. The issue arising is whether or not Mr. Reddy, by virtue
of the activities which he carries out, is a worker coming
within the scope of the E.R.O. The E.R.O. clearly excludes
apprentice beef butchers from its scope. However, the Order
also specifies in part 1 2(a) of the Schedule that the sale
by retail of bacon, ham, pressed beef, sausages, or meat so-
treated as to be fit for human consumption without further
preparation or cooking, is part of the "retail grocery and
allied trades" and is the type of activity which comes within
the scope of the E.R.O. The sale by retail of other meat is
not part of the "retail grocery and allied trades" for the
purposes of the Order. The Department has sought to clarify
the position in relation to Mr. Reddy by adverting to the
J.L.C. and by seeking further information from the employer.
Clarification was also sought regarding Mr. Reddy's title
i.e. "apprentice butcher" or "apprentice beef butcher". In
the absence of any additional information, in relation to Mr.
Reddy's job-title or specific duties, the Department formed
the opinion that he was a worker to whom the Order applied ;
it has never been clarified to the Department that Mr. Reddy
is an "apprentice beef butcher".
It has been indicated that he engages - as part of his duties
- in tasks which would come within the scope of the E.R.O. as
general sales-assistant duties. Therefore, while it is not
denied that Mr. Reddy may do some apprentice beef butchering
work, it has not been established that these are his sole or
predominant duties such as to justify his classification as
an "apprentice beef butcher" and therefore, his total
exclusion from the E.R.O.
2. The J.L.C. did not provide in the Order for the
exclusion of all "apprentice butchers" and appears to have
had a more restrictive concept of the category of workers
which it intended to be excluded. This interpretation
appears to be supported by the additional information which
the J.L.C. felt it required in relation to Mr. Reddy's job
title and specific duties, before it would give an opinion.
The Department is not aware of any other precedent cases
which could provide clarification on the specific issue
arising. However, it does not appear that the J.L.C.
intended to exclude all apprentice butchers and it is even
less likely that it was intended to exclude workers who were
partially engaged in the preparation and sale of meat and
meat products covered by the E.R.O. and partly engaged in
general butchering activities.
SIOBHAN O'GORMAN
1. Both the Catering E.R.O. and the Retail Grocery and
Allied Trades E.R.O. contain provisions which exclude workers
covered by another E.R.O. from coming within their remit.
The difficulty arising here is, therefore, whether a worker,
covered by two E.R.Os, can have his/her entitlements
determined on an hourly basis under each E.R.O. This would
not appear to be the case given that it is, in fact, a single
employment and the exclusion provisions in the two E.R.Os
exclude workers covered by another E.R.O.
2. The Department had taken the view that, where two
E.R.Os applied, and a decision had to be made between them,
the E.R.O. providing for the higher rate of remuneration
should be chosen. Such a decision, it was felt, would be in
line with the approach adopted in relation to exclusions
where other employment agreements applied as provided for in
Part 1 (5) of the Schedule of the Retail Grocery and Allied
Trades E.R.O. In these situations, workers could only be
excluded from the E.R.O. if the terms of the other agreement
were not less favourable than those in the E.R.O.
On that basis and also based on information furnished by the
employer to the Inspector on the initial visit, the
Department decided that Ms. O'Gorman was a worker to whom the
catering E.R.O. applied, and calculated arrears accordingly.
3. The Department feels that the key issue in this instance
is which E.R.O. should apply in Ms. O'Gorman's case? If, as
appears likely, her work cannot be covered proportionately
under the two E.R.Os , is it justifiable to grant the worker
the less favourable entitlements solely under the Retail
Grocery E.R.O. ? This is what the employer is requesting and
it would appear particularly inequitable in this case as Ms.
O'Gorman's work is almost exclusively in the catering-area at
certain times of the year.
DECISION:
The Court, having considered the views expressed by the parties
and the descriptions of the work carried out by each of the
employees concerned, finds:
1. That in the case of Gregory Reddy, he was employed over a
period of 3 years at a rate of pay which remained constant
during that period. He worked on the preparation and sale of
meat and meat products which were covered by the Employment
Regulation Order;
Given all of the information put forward in respect of the
above-named, the Court finds that the above-named was not an
"apprentice beef butcher" and that he was a worker to whom
the Order applied and should be paid accordingly;
2. That, in the case of Ms. Siobhan O'Gorman, she is a worker
employed in an industry which is engaged mainly in the retail
grocery and allied trades and accordingly she should be
covered by the Employment Regulation Order of the Retail
Grocery and Allied Trades Joint Labour Committee.
The above determinations apply specifically to the undertaking
concerned and the circumstances applying in relation to the named
employees.
~
Signed on behalf of the Labour Court
20th December, 1993. Tom McGrath
M.K./A.L. _______________
Deputy Chairman