FULL RECOMMENDATION
PARTIES : COMMISSIONER OF AN GARDA SÍOCHÁNA DIVISION :
SUBJECT: 1.Appeal of an Adjudication Officer's Decision No(s)ADJ-00028650, CA-00038353-001 The Adjudication Officer decided that the complaint was not well founded. Background. The Appellant is a clerical officer employed by the Respondent since September 2006. It is a feature of her duties that she operates a pallet truck. Another employee of the Respondent located at the same site is a store person and he receives a machine operator’s allowance in respect of his operation of the pallet truck. The Appellant does not receive a machine operator’s allowance. Relevant Law The Act, according to its preamble is ‘AN ACT TO PROVIDE FOR THE IMPLEMENTATION OF DIRECTIVE NO. 91/533/EEC OF 14 OCTOBER,1991 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES ON AN EMPLOYER’S OBLIGATION TO INFORM EMPLOYEES OF THE CONDITIONS APPLICABLE TO THE CONTRACT OR EMPLOYMENT RELATIONSHIP, TO AMEND THE MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT, 1973, AND TO PROVIDE FOR RELATED MATTERS.’ The Act at Section 7(2) in relevant part provides as follows 7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely — (a) declare that the complaint was or, as the case may be, was not well founded, (b) either — (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6 or 6C, or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, Summary position of the Appellant The Appellant’s duties include the opening and locking of her work premises and the operation of a pallet truck. Key holder and machine operator allowances are payable in respect of these duties. She was not paid either of these allowances and made an application for payment of both in or about 2016. The Respondent acknowledged her entitlement to a key holder’s allowance by letter dated 27thJune 2019, and she has received that allowance since that date and received retrospective payment of the allowance also. The Respondent has however continued to refuse payment of a machine operator’s allowance. The Appellant seeks an alteration to her terms and conditions of employment under Section 7(2)(b)(ii) of the Act and specifically an alteration of her terms and conditions of employment to correct the current inaccuracy or omission in her terms and conditions of employment. She contends that a collective agreement concluded in 2001 on behalf of the members of a Trade Union then called FUGE, to increase a then existing allowance, is applicable to her having regard to a merger between FUGE and IMPACT in or about 2006 and to the fact that that membership of FUGE is not a condition of entitlement to the allowance. Her representative submitted that the allowance in question relates to the work involved and not the grade of the person carrying out that work. Her representative submitted that she is one of two members of staff assigned to her area of work and that responsibility for key holding and operation of a pallet truck is shared between them. She is a clerical officer and her colleague is a store person. Her colleague has at all times been in receipt of both a key holder’s allowance and a machine operator’s allowance. The Appellant’s entitlement to a key-holder’s allowance was only acknowledged in 2019 notwithstanding that she performed the same duties as the store person for many years. The Appellant’s role involves a clerical function but, uniquely, also requires her to operate machinery. An allowance is typically paid in respect of the operation of the machinery used by her. The Appellant’s representative cited the decision inEagland v British Telecommunications [1993] I.C.R. 644which is a decision of Parker L.J in the Court of appeal. The case involved a legislative equivalent of the Act in the within matter and specifically involved a consideration as to the English equivalent of Section 7 of the Act. The Appellant’s representative said that, in that decision, Parker L.J. affirmed a test first set out inMears v Safecar [1982] I.C.R. 626as follows “In broad terms it is as follows. First one looks to see if there was a term expressly agreed. If not, whether there was a term which can be said to have been agreed by necessary implication. If not, whether such a term can be spelt out of all the circumstances, including the actions of the parties during the period which the employment had lasted, and, if not, then the industrial tribunal may be under a duty (as it is said in the report) to invent a term” Her representative submitted that there is nothing which precludes a person in a clerical role receiving the allowance and no evidence presented of a person operating relevant machinery who is not paid the allowance. Her representative submitted that the facts of the case allow the Court to find that the relevant term has been either agreed by necessary implication or that it can be spelt out of all the circumstances. The evidence in the case allows the Court to exercise the Section 7 jurisdiction and to correct the Appellant’s terms of employment to reflect her entitlement to a machine operator’s allowance. Summary position of the Respondent The Appellant is a clerical officer. It is stated in her job description that“any duties deemed appropriate. It should be noted that the work carried out may vary from that above depending on the business needs of the particular organisation”.The Appellant is required, amongst other duties, to operate a pallet truck. A store person is employed in the same location, pursuant to different terms and conditions of employment to those of the Appellant. Included in those terms and conditions of employment is an allowance for machine operating. This allowance is not applicable to clerical officers, who have different terms and conditions of employment. The machine operator’s allowance applies only to members of FUGE by way of an agreement reached under the Civil Service Conciliation and Arbitration Scheme in 2001. The Appellant is not a member of FUGE and accordingly the agreement reached does not apply to her. The Respondent has complied with its obligations under the Act. There is no dispute that the Appellant received the statement of her terms of employment contained in the Garda Staff Handbook. The Court is asked by the Appellant to amend the terms and conditions of her employment to include the payment to her of the machine operator’s allowance payable to a store person employed at her work location. The Act at Section 7 does not provide for such amendment or alteration of the terms of her employment as sought by the Appellant. Corrections by the Court are limited to inaccuracies or omissions in the statement provided to her rather than the terms afforded to her. The Appellant contends that the Respondent conceded her entitlement to a key holder allowance arising from the FUGE agreement. This is incorrect. The Appellant made representations for payment her of such an allowance and, following engagement between the parties in the normal way, an allowance was conceded to her. In the UK Court of appeal decision referred to by the Appellant,Eagland v British Telecommunications [1993] I.C.R. 644it was decided that “Even in cases involving mandatory terms, i.e. essential terms which a written statement must contain, the industrial tribunal has no power to impose on parties terms which have not been agreed…” Discussion and Conclusions The Appellant, according to her written submission, seeks to have the Court, in exercise of what she submits is its jurisdiction to do so under Section 7(2)(b)(ii) of the Act, alter her terms and conditions of employment to correct the current inaccuracy or omission in her terms and conditions of employment. Her representative submitted that the facts of the case allow the Court to find that the relevant term has been either agreed by necessary implication or that it can be spelt out of all the circumstances. He submitted that the Act at Section 7(2)(b)(ii) allows the Court to correct the Appellant’s terms of employment to reflect her entitlement to a machine operator’s allowance. The Appellant’s representative asked the Court to consider the British Court of Appeal decision inEagland v British Telecommunications Plc [1993] I.C.R. 644 (1992),which he submitted was persuasive authority for the proposition that the Court has jurisdiction under the Act to create or import a term into the terms of the Appellant’s employment. He submitted that a central ratio of the UK case adopted the ratio of a previous decision inMears v Safecar [1982] I.C.R. 626where, he submitted, it was decided that ‘In broad terms it is as follows. First one looks to see if there was a term expressly agreed. If not whether there was a term which can be said to have been agreed by necessary implication. If not, whether any such a term can be spelt out of all the circumstances, including the actions of the parties during the period which the employment had lasted, and, if not, then the industrial tribunal may be under a duty (as it said in the report) to invent a term’ The Court sought clarity at its hearing as to whether the legislation at issue inEaglandwas intended to transpose the same Directive which was transposed in this jurisdiction by the Act. The Respondent submitted, and the Appellant’s representative agreed, that the decision to which attention was drawn was related to the UK Employment Protection (Consolidation) Act, 1978. The Respondent clarified, and the Appellant’s representative agreed, that this UK Act pre-dated the Directive. The Respondent submitted that the passage quoted by the Appellant’s representative was an obiter passage in theMearsdecision of Stephenson L.J and was identified as such by the Court of Appeal in Eagland. The Respondent submitted that, in fact, the Court of appeal, in the decision of Parker L.J, decided in relevant part “With respect to the Lord Justice, I have no hesitation in saying that, so far as non-mandatory terms are concerned, the tribunal have no power to include any such terms.” And further stated that “But I do not consider that even in mandatory cases the tribunal have power to impose on parties terms which have not been agreed” This Court concurs with the submission of the Respondent that the passages highlighted make clear that the decision inEaglandis not persuasive authority for the proposition that this Court, in exercise of a jurisdiction under Section 7(2)(b)(ii) of the Act, is permitted to alter or amend the terms of the Appellant’s employment. This is particularly so when the term of employment at issue between the parties, as it is in this appeal, is entirely disagreed. In the view of the Court, a plain reading of section 7(2)(b)(ii) of the Act leads to a clear conclusion that the jurisdiction of the Court is confined to alteration or addition to the written statement issued by the Respondent to the Appellant under sections 3, 4, 5, 6 or 6C of the Act for the purpose of correcting any inaccuracy or omission in the statement. The Court finds no basis in the submission of the Appellant’s representative to conclude that this section of the Act permits the Court to impose upon parties a term of employment which is not agreed between them. In the within matter, the Appellant’s representative submits that she is entitled to payment of a machine operator’s allowance and the Respondent clearly does not accept that contention. Payment of a machine operator’s allowance to the Appellant is therefore not a term of employment agreed between them. Entitlement arising from the 2001 Agreement Notwithstanding the express disagreement between the parties, the Appellant’s representative contended that the terms of a General Council Report dating from 2001 and drawn up under the Civil Service Conciliation and Arbitration Scheme, confers an entitlement to the allowance upon her. That general Council report dealt with a claim for an increase in the“supervisory, paperkeeper duties, franking, machine, switchboard, keyholding, driving and fork lift allowances payable to members of FUGE”. It is common case that FUGE was a then existing Union representing, among others, store persons. It is also common case that the allowance held by the store person colleague of the Appellant was increased as a result of that General Council report. There is no contention before the Court that the members of FUGE referred to in the General Council Report of 2001 included clerical officers of the Civil Service. The Appellant’s representative submitted that FUGE, since 2001, has merged with other Trade Unions to form IMPACT Trade Union and subsequently with other Trade Unions to form FORSA. He submitted on that basis, and on the basis that the allowance in question related to the work in question rather than the category of worker carrying out the work, that the Appellant had an entitlement to a machine operator’s allowance arising from her use of a pallet truck. He submitted that a number of workers had been recruited since 2001 and that the allowance had been paid to them. He confirmed when questioned that the workers concerned were store persons. The Respondent submitted that the 2001 collective agreement related to a specific category of staff and that it has no application to the clerical officer grade and consequently the terms of the 2001 Report are not applicable to the Appellant. The Court was not provided by either party with the base collective agreement which created the allowance at issue, and which was increased in 2001 in the Report dealing with members of FUGE. It is clear however, that both parties accept that such a collective agreement must exist. The Court has not been provided with any collective agreement which creates or applies a machine operator’s allowance to clerical officers. Similarly, the Court has not been provided with any basis to conclude that the General Council Report of 2001 has, by subsequent agreement of the parties concerned in that matter or of any other parties, developed any application outside of the parties to that collective agreement, namely the members of FUGE and the ‘Official Side’. For completeness, the Court must make clear that it has been provided with no basis to understand that the evolution of FUGE through mergers in the intervening period has, by itself and by agreement of the parties, altered the application of the 2001 collective agreement so as to include grades not originally comprehended by its terms. For these reasons, the Court concludes that no basis exists in the 2001 General Council Report to create or imply an entitlement to a machine operator’s allowance on the part of the Appellant. Amendment of statement of terms Whereas the Appellant’s complaint before the Court was that the Court should alter or add to her terms of employment in order to correct an omission or inaccuracy rather than alter the written statement of those terms, the Court did, for completeness, ask the Appellant’s representative at its hearing to identify whether a statement of her terms is contended to carry an omission or inaccuracy. The Appellant’s representative clarified in response that it was his submission that the statement given to her in pursuance of the Respondent’s obligations under Section 3 of the Act was inaccurate or carried an omission. The statement in writing given to the Appellant in discharge of the Respondent’s obligation under the Act at Section 3 is, according to both parties, contained in a document entitled Garda Staff Handbook. The Appellant’s representative further submitted that the element of the statement given under Section 3 of the Act which purports to discharge the employer’s obligation to provide the particulars required by the Act at Section 3(1)(m) was inaccurate or carried an omission. That section of the Act places an obligation upon the Respondent as follows: 3.(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say— (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. The Appellant’s representative confirmed to the Court that he did not have possession of a collective agreement establishing or creating a machine allowance and could make reference only to the 2001 General Council Report referred to earlier. The Appellant’s representative, however, asked the Court to amend or alter the statement given to the Appellant pursuant to Section 3(1)(m) of the Act so as to be consistent with the statement given to her colleague store person. The Court was, however, not provided with the statement given to the colleague. In any event, for the reasons set out above, the Court can find no basis for concluding that any absence in the written statement of the terms of her employment given to the Appellant, of a reference to a collective agreement dating from 2001 concluded between FUGE on behalf of its members and what is referred to in that agreement as ‘the Official Side’, can be regarded as an omission or inaccuracy in the statement such that the Court could alter or add to that statement in exercise of its jurisdiction under Section 7(2)(b)(ii) of the Act. Decision The Court decides that the Respondent is not in breach of the Act at Section 3(1)(m) and that no basis for alteration or addition to the statement furnished to the Appellant under Section 3 of the Act has been made out. The Appeal fails and the decision of the Adjudication Officer is affirmed. The Court so decides.
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