LCR22143

• This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 26 April 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990.

• 1. The 2003 agreement relied on by the Union relates only to Environmental Patrol Wardens.2. Historically, only Officer Grades were entitled to receive the Subsistence Allowance.
  
  3. The Community Warden post is a non-Officer grade.

The within dispute concerns the payment of Subsistence Allowance to three Community Wardens (‘the Workers’) employed by Clare County Council (‘the Council’).

Two of the Workers had been in receipt of the Subsistence Allowance from the date of their appointment (2008 and 2010, respectively) until the Council discontinued the Allowance in 2017. The third Worker was appointed in 2017 and has at all times been paid an Eating-on-Site Allowance. SIPTU engaged with the Council in relation to this disparity of treatment and sought to have the Subsistence Allowance paid to the third Worker. The Council took the view that the Subsistence Allowance had been incorrectly paid to the Worker’s colleagues. The Council, however, agreed to continue the payment to them pending a referral of the dispute to conciliation at the Workplace Relations Commission. The payment was discontinued with effect from 23 April 2018.

Submission on behalf of the Workers

The Union relies on an agreement entered into in 2003 between the Council and SIPTU whereby the Council agreed to pay a daily Subsistence Allowance of €14.34 (non-taxable) to Environmental Patrol Wardens “in recognition of the necessity to be away from base”. The Union submits that the Subsistence Allowance is properly payable to all three Workers having regard to the 2003 agreement.

The Council’s Submission

The Council submits that historically only Officer Grades were entitled to receive the Subsistence Allowance. It refers to 1986 national agreement that provided for payment of an Eating-on-Site Allowance for non-Officer Grades.

It is also the Council’s submission that the 2003 agreement relied on by the Union relates only to Environmental Patrol Wardens which is a different grade that is subject to a different pay scale.

The Council told the Court the first Worker who took up the role of Community Warden in 2008 did so on a temporary basis. This Worker’s had been working as an Officer Grade employee immediately prior to his temporary appointment and, therefore, retained the Subsistence Allowance for the duration of his temporary appointment. The Council is of the view that payment of the Subsistence Allowance should have been discontinued when the Worker’s appointment as Community Warden was made permanent. However, he continued to claim and be paid the Subsistence Allowance. The second Worker took up his appointment in 2010 and, in like manner to his colleague, claimed and was paid the Subsistence Allowance. The issue only came to light in 2017 when the third Community Warden was appointed and sought to be treated in the same manner as her colleagues.

Discussion and Recommendation

The Court recommends reinstatement of the Subsistence Allowance, with retrospection, to the Workers who had been in receipt of it from their respective date of appointment as Community Wardens until 23 April 2018. The Court further recommends the payment of the Subsistence Allowance with retrospection to the date of her appointment to the third Worker.

This Recommendation is strictly confined to the three Workers on whose behalf the within dispute was referred to the Court and is not to be regarded as setting any precedent for future claims.

The Court notes the considerable reliance placed by the Council in its submission on the distinction between Officer and non-Officer Grades which distinction appears to the Court to be quite anachronistic in the twenty-first century.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
29 November, 2019Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.