FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILKENNY BOROUGH COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGHMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing Rights Commissioner's Decision r-134490-ir-13/JT.
BACKGROUND:
2. The Claimant has been employed by the Borough Council since 2005. He originally worked as a Driver but in 2013 he accepted the post of Traffic Warden/Pay Station Attendant/Cash Collection Officer. The Claimant is seeking the continued payment of the higher Driver's subsistence allowance rate as was the practice for staff transferring to other posts. The Council submits that he does not qualify for the subsistence rate as he is never away from base in excess of two hours. The claim for red-circling of the Driver's rate of pay was not before the Labour Court.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th March, 2014, the Rights Commissioner issued his Recommendation as follows:-
"I have considered the submissions of both parties. The Hearing had requested evidence of 'red circling' of posts on transfer. A name of one individual was provided on behalf of the Claimant. However, the Respondent advised that the post concerned is at present a temporary one.
In any event, I am satisfied that the Claimant knowingly accepted the post of Traffic Warden fully aware of the terms and conditions and is now trying to change them. The terms for this post have already been ruled on by a Rights Commissioner. I, therefore, do not find the claim well founded and it fails".
On the 30th April, 2014 the Worker appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 29th October, 2014.
UNION'S ARGUMENTS:
3.1. The Claimant transferred from his post as a Driver to Traffic Warden with the clear expectation that he would retain the subsistence allowance as per the agreement with the Council.
2 The Council is in breach of Clause 10 of the Local Government Staff Negotiations Board Agreement. The Claimant is entitled to the payment of full retrospection of the subsistence allowance
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant does not spend more than two hours away from base at lunchtime in order to qualify for higher subsistence allowance rate.
2. He is like other colleagues and is entitled to theeating-on-site allowance.
DECISION:
The appeal before the Court concerns a claim by the Union on behalf of a worker for retention of subsistence allowance in lieu of an eating-on-site allowance backdated to
25thMarch 2013. The Rights Commissioner did not find in favour of the Claimant's claim.
The Claimant was employed by the Council as a Driver since 2005 until he transferred to the role of Traffic Warden on 25thMarch 2013. As a Driver, the Claimant was in receipt of a subsistence allowance of €28.35 per week. As a Traffic Warden he is entitled to an eating-on-site allowance of €1.90 per day. The Union on behalf of the Claimant sought retention of the higher allowance as it submitted that this was provided for under Clause 10 of the Local Government Staff Negotiations Board Agreement of 1987 which states:-
- “Where existing allowances in respect of subsistence are more favourable than the eating-on-site allowance, they will continue to apply on a personalised basis until the new allowance matches the personalised allowance. Existing allowances should be frozen at their current rates.
New employees will only be entitled to the eating-on-site allowance.”
Management disputed the Union’s interpretation of Clause 10 and stated that the Claimant must meet the conditions of payment for a subsistence allowance i.e. the employee must be away from base for two hours at lunchtime. This provision applies to existing beneficiaries who meet those criteria only as all new employees since 1987 are only entitled to the eating-on-site allowance. Management stated that the Claimant did not meet the criteria for payment of subsistence allowance. However, he does qualify for an eating-on-site allowance.
Having considered the submissions of both parties the Court notes that the 1987 Agreement introduced an eating-on-site allowance for all General Operatives and Craftsmen including supervisors and related grades which provided for payment on a daily basis once certain conditions are met. For those who were previously in receipt of a subsistence allowance at the time, they were protected under the agreement with personalised arrangements and all new employees were entitled to the eating-on-site allowance. However, for those employees who meet the criteria for payment of the subsistence allowance e.g. drivers away from base for two hours or more at lunchtime they qualified for payment of the subsistence allowance.
In all the circumstances of this case the Court is of the view that the Claimant is not entitled to the higher allowance as he commenced employment after 1987 and he does not meet the criteria for payment of the subsistence allowance. Accordingly, the Court upholds the Rights Commissioner’s Recommendation and rejects the Union’s appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th December, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.