FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : DEPARTMENT OF JUSTICE, EQUALITY AND LAW REFORM - AND - MARGARET ENNIS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision PT12868/02/TB
BACKGROUND:
2. The Union submitted a claim on behalf of a part-time worker who is employed as a Traffic Warden with the Department of Justice, Equality and Law Reform. The worker has ten years' service with the Department and is based in Dun Laoghaire.
The Union claims that her employer is paying the worker and her colleagues a lower rate of travel allowance than that paid to her full-time colleagues and states that management is acting contrary to the provisions of the Protection of Employees (Part-Time Work) Act, 2001. There are approximately 70 Traffic Wardens of whom 21 are full-time and 49 part-time. However, only 15 of the part-time workers are affected by this claim.
Management rejected the Union's claim.
The dispute was referred to a Rights Commissioner for investigation. On the 17th July, 2003, the Rights Commissioner issued his Decision as follows:-
Findings
" The Department relies on Section 10 (1) of the Act to justify paying part-time wardens a pro-rata travel allowancei.e. part-time wardens work 50% of the hours of full-time wardens and therefore should be paid 50% of the allowance i.e. 1 hour.
However, Section 10 (2) of the Act qualifies Section 10 (1) in stating, that the condition of employment mentioned in 10 (1) is a condition of employmentthe amount of benefit of which is dependent on the number of hours worked by the employee.
The travel allowance in question is not dependent on the number of hours worked but rather is dependent on the distance from the GPO to the place of work."
Decision
" I hold that the complaint is well founded and require the respondent to treat the claimant no less favourably in respect of travel allowances than a full-time traffic warden."
The Department appealed the Decision to the Labour Court on the 26th August, 2003, under Section 17(1) of the Protection of Employee (Part-Time Work)Act, 2001. A Labour Court hearing was held on the 28th November, 2003.
DEPARTMENT'S ARGUMENTS:
3. 1. It is the Department's contention in appealing this case that as the travel allowance correctly refers to the remuneration of an individual, it is correctly payable on a pro-rata basis.
2. A Labour Court Determination (DEP972), which issued in 1997, dealt with a case under the Anti Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977, dealt extensively with this particular allowance.
3. In another case brought by part-time play centre workers against Dublin Corporation( Labour Court Recommendation LCR7699 refers) the Court recommended that part-time employees should be paid pro-rata to full-time employees.
4. In a previous case involving the Department, the Court stated in Labour Court Recommendation LCR13903 that the " present method of calculating the payment of travel-time to wardens is appropriate and correct."
UNION'S ARGUMENTS:
3. 1.Up to 2002, the travel allowance was paid on the basis of one hour per day for full-time Traffic Wardens and pro rata in the case of part-time Traffic Wardens.
2.As part of the Programme for Competitiveness and Work (PCW) it was agreed that Traffic Wardens would be redeployed from Dublin City Centre to suburban locations such as Dun Laoghaire, Artane, Blackrock, Dalkey, Lucan, etc.
3.As a consequence of redeployment the claimant, a part-time worker, has incurred extra travel time of up to 2 hours per day. The worker expected to be compensated for this time.
4.Management is paying the worker and her colleagues a lower rate of travel allowance than that paid to her full-time colleagues. This is contrary to the provisions of the Protection of Employees (Part-Time Work) Act, 2001.
5. The travel allowance paid is not contingent on the number of hours worked but is dependent on the distance travelled from the GPO to the place of work. This criteria applies equally to full-time employees.
DETERMINATION:
The complainant is employed as a traffic warden by the Department in a part-time capacity. She claims that the employer is in breach of the Protection of Employees (Part-Time Work) Act, 2001 (the Act) as she is treated less favourably than a comparable full-time worker in terms of their entitlement to travelling allowance. The part-time worker works 19. 5 hours per week, the full time comparator works a 39-hour week. The amount of travelling allowance paid to the part-time worker is half that paid to the full time worker. The complainant sought payment of the same allowance as that calculated and paid to the full-time workers.
Background
Up until February, 2002, the allowance paid was based on one hour per eight hours worked, consequently part-time workers received a pro rata payment to full time workers. This system was changed following an agreement to redeploy traffic wardens from Dublin City Centre to suburban locations. The complainant was redeployed from O’Connell Street to Dun Laoghaire. In February, 2002, the Department agreed and sanctioned a new scale of travel allowance based on theradial distancefrom the GPO in Dublin, i.e.
Distance Payment
0 – 4 miles 1 hour per day
4 – 5 miles 1.25 hours per day
5 – 6 miles 1. 5 hours per day
6 – 8 miles 1.75 hours per day
8 – 12 miles 2 hours per day
Union’s case
The Union stated that to compensate the complainant for the distance travelled in the new location, this newradial distanceallowance was devised. The complainant, a part-time worker, has precisely the same distance to travel and incurs the same cost to get to work as a comparable full-time colleague and should be paid the same amount. As she is paid half the rate - based on a pro rata calculation – she is accordingly treated less favourably than the comparable full time worker.
The Union points out that the travel allowance is not contingent on the number of hours worked and is dependent on the distance travelled from the GPO to the place of work and, therefore, the respondent cannot rely on the provisions of Section 10 (1) and (2) of the Act. The Union contends that the treatment of the complainant in this instance is based on her part-time status and, accordingly, is not an objective ground for less favourable treatment.
The Union asks the Court to uphold the findings and decision of the Rights Commissioner.
Department’s case
The Department appealed the Rights Commissioner’s recommendation on the basis that this allowance is an intrinsic part of the basic pay of the complainant and it is, therefore, consistent with the provisions of the Act to pay the allowance on a pro rata basis.
The Department outlined the history of the allowance – while it had commenced as an allowance for construction workers, it had with its acceptance into other areas and Departments acquired the nature of remuneration. It was pointed out that in DEP972 under the Anti-Discrimination Act, 1974, and the Employment Equality Act, 1977, when the Union sought to have the travel time treated as an allowance for the purpose of establishing a case of gender discrimination, the Labour Court upheld its status as being part of remuneration. At the time, the Labour Court made extensive reference to previous hearings in seeking to establish whether it could in fact treat travel time in such a manner.
The respondent also referred to the Court’s recommendation in Dublin Corporation LCR No: 7699 in which the Labour Court held that the allowance had become part of the basic pay and that it was, therefore, appropriate to pay the travel allowance on a pro-rata basis. A third case involving this Department, LCR No: 13903 was quoted by the respondent where the Court was satisfied that the allowance was “an allowance in the nature of pay which forms part of the weekly remuneration package”.
In appealing the Rights Commissioner’s recommendation, it is the Department’s contention that as the travel allowance correctly refers to the remuneration of an individual, it is correctly payable on a pro-rata basis.
Court’s findings
The Council Directive Concerning the Framework Agreement on Part-Time Work, Directive 97/81/EC provides that “part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.”
No objective grounds were put forward in this case.
The Protection of Employees (Part-Time Work) Act, 2001 was enacted to transpose into national law, European Council Directive 97/81/EC. Clause 4 of the Directive states: -
“where appropriate, the principle ofprorata temporisshall apply.
The Court is of the view that, regardless of its interpretation prior to February, 2002, when the nature of the allowance changed to aradial distancebased system; it cannot now be regarded as “an allowance in the nature of pay which forms part of the weekly remuneration package” but must be seen as compensation for the time and expense involved in the distance travelled.
The Court is satisfied that the nature of the change was directly related to the redeployment and the extra distances involved in travelling to their work location (determined by the distance from the GPO) and is not dependent on the number of hours worked.
Therefore, in accordance with Section 9 of the Act, the part-time complainant should not be treated less favourably than the comparable full time employee, and must not be paid an allowance which compensates for only half the distance travelled. The Court is satisfied that to do so would be to treat the part – time worker in a less favourable manner than the comparable full-time worker.
Determination
The Court determines that the respondent's policy of paying half the travel allowance to the complainant constitutes a contravention of section 9(1) of the Act.
In accordance with its powers under section 17 (1), the Court determines that the complaint is well founded and upholds the decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th January, 2004______________________
LWDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.