Labour Court Database __________________________________________________________________________________ File Number: CD9522 Case Number: DEC952 Section / Act: S57(1) Parties: DAGGES NEWSAGENTS LIMITED (MAURICE D COUGHAN & ASSOC.) - and - DEPARTMENT OF ENTERPRISE AND EMPLOYMENT;AND EMPLOYMENT |
Interpretation of the Employment Regulation Order (ERO) for the Retail, Grocery and Allied Trades which came into effect on 4th May, 1992 (S.I. No 94 of 1992) and its application to the workers of the above mentioned Company.
Recommendation:
The Court having considered the submission of the parties believes
that the Inspector could have had greater co-operation from the
employer during the initial investigation of this case. Indeed
its inaction effectively left the Inspector with no other
alternative but to find that the Company did come within the scope
of the ERO.
The Court has examined the additional information presented by the
employer at the hearing and on the basis of that evidence
determines that the workers employed by the Company do not come
within the scope of the Retail Grocery and Allied Trades ERO.
The Court so decides.
Division: Ms Owens Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD9522 DECISION NO. DEC295
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 57(1), INDUSTRIAL RELATIONS ACT, 1946
PARTIES:
DAGGES NEWSAGENTS LIMITED
AND
DEPARTMENT OF ENTERPRISE AND EMPLOYMENT
SUBJECT:
1. Interpretation of the Employment Regulation Order (ERO) for
the Retail, Grocery and Allied Trades which came into effect
on 4th May, 1992 (S.I. No 94 of 1992) and its application to
the workers of the above mentioned Company.
BACKGROUND:
2. 1. The Company operates a retail newsagency. On 10th
February, 1994, an inspector from the Department of
Enterprise and Employment inspected the wages records of
the Company as provided for under the terms of the
Retail Grocery and Allied Trades ERO. The Company did
not accept that its business was covered by the terms of
the ERO as it claimed that most of its business
concerned items other than those specified by the ERO.
The Department sought written evidence from the Company.
2. The Retail Grocery and Allied Trades ERO, sets out in
paragraph 2 of part 1 that
"the Retail Grocery and Allied Trades" consist of the
sale by retail of:-
(a) bacon, ham, pressed beef, sausages, or meat so
treated as to be fit for human consumption without
further preparation or cooking but does not include
the sale by retail of other meat;
(b) all other food (including bread or flour
confectionery, articles of sugar confectionery and
chocolate confectionery and ice cream) or drink for
human consumption other than for immediate
consumption on the premises at which the sale is
effected;
(c) tobacco, cigars, cigarettes, snuff and smokers'
requisites.
3. In paragraph 1 of part 1 of the Order workers covered by
the Order are described as those
"employed anywhere throughout the State in any
undertaking or any branch or department of an
undertaking being an undertaking, branch or department
engaged wholly or mainly in the Retail Grocery and
Allied Trades and who are engaged on any of the
following duties, that is to say:
(a) operations in or about the shop or other place
where the sale by retail aforesaid is carried on
being operations for the purpose of such sale or
otherwise in connection with such sale;
(b) clerical or other office work carried on in
conjunction with the sale by retail aforesaid and
relating to such sale or to any of the operations
in (a) of this sub-paragraph.
4. The Department wrote to the Company on 28th April, 1994
seeking an inspection of the Company's wages records.
It stated inter-alia that from the Inspector's
observations "the business carried on by Dagges
Newsagents Limited appears to be one which is covered by
the terms of the Retail Grocery and Allied Trades ERO".
On 19th December, 1994 and 10th January, 1995, the
Company wrote to the Court seeking an interpretation
under Section 57 of the Industrial Relations Act, 1946
in relation to its workers. A Labour Court hearing was
held on 17th February, 1995.
DEPARTMENT'S ARGUMENTS:
3. 1. In the light of the failure of the Company to produce
any evidence to the contrary, it appears to the
Department that the undertaking is an establishment
engaged in the retail selling of cigarettes, tobacco,
sweets, chocolate, minerals. Part 1, paragraph 2 of the
ERO indicates that "Retail Grocery and Allied Trades"
consists of the sale by retail of a specific list of
goods which includes the items listed above.
2. It also appears that the duties carried out by the
workers of the Company are consistent with the duties
prescribed in the ERO in that workers are engaged in
"operations in or about the shop where the sale by
retail" of the above items is being carried on.
3. The Company has provided no evidence that it is an
undertaking which is "wholly or mainly" engaged in
operations outside the scope of the ERO. The ERO is
unclear as to what "wholly or mainly" means. It is the
Department's view that the Company's premises is engaged
in the sale of goods described in the ERO. The workers
are therefore employed in the retail sale of items
covered by the ERO and come within its scope.
COMPANY'S ARGUMENTS:
4. 1. The Department has decided that the Company is covered
by the terms of the Retail Grocery and Allied Trades
ERO. The Department based its decision on the
observations of the Inspector. The Department has not
established in law whether the ERO applies in this case.
It did not seek the appropriate information which would
properly assist it to reach the correct decision. It is
inappropriate for the Department to come to a conclusion
based on "observations".
2. It is for the Court to strictly interpret the provisions
of the Act. The Company would argue that it must be
construed against enforcement. The core issue for
interpretation is the phrase "wholly or mainly". The
Court must enquire into what the Company does sell not
what it might sell.
3. The Company would not be viable, given its premises's
internal dimensions, if it was "wholly or mainly"
engaged in Retail Grocery and Allied Trades. 24.72% of
the Company's turnover (details supplied), is derived
from the sale of goods of the type specified in the ERO.
Therefore, the Company is not engaged wholly or mainly
in the retail grocery and allied trades.
DECISION:
The Court having considered the submission of the parties believes
that the Inspector could have had greater co-operation from the
employer during the initial investigation of this case. Indeed
its inaction effectively left the Inspector with no other
alternative but to find that the Company did come within the scope
of the ERO.
The Court has examined the additional information presented by the
employer at the hearing and on the basis of that evidence
determines that the workers employed by the Company do not come
within the scope of the Retail Grocery and Allied Trades ERO.
The Court so decides.
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Signed on behalf of the Labour Court
13th March, 1995 Evelyn Owens
J.F./D.T. ____________
Chairman