Worker

Employer

Anonymised Parties

A Painter

A Public Body

Representatives

Mr Ger Kennedy, Siptu

 Mr Eamon Hunt, LGMA

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000425

04/07/2022

On July 4, 2022, SIPTU lodged a claim against the Public Body for non-payment of a meal allowance and failure to respond.

The Employer has rejected the claim.

Both parties came to hearing having made comprehensive written submissions. Both Parties were represented at hearing.

This hearing was held on the Remote Platform as provided for in the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020.

The Worker has worked a Painter since 1990 at the Public Body. Initially, he operated from a static base of housing stock within the City Council.  In 2014, two municipal bodies merged within the County. The Worker is the sole painter employed by the merged body.

The Worker changed his base to work from home with the support of a Van from 2019. The Worker agreed to enhance his radius of operation, which he presumed would automatically attract a subsistence payment. He raised this topic with a senior Manager, who denied the claim as the worker was already in receipt of a daily allowance of €1.90 “eating on site allowance “

On July 2, 2020, the Union formalised a challenge to that position. A delay in engagement followed until the first meeting occurred under the grievance procedure on 3 December 2020.

A decision was taken to refer the case to adjudication, when the Employer did not furnish a response to the grievance.

The Union, in support of the workers grievance argued that he was entitled to receive subsistence at the national rate, when the location of his work satisfied the conditions for payment. The Union was critical of the 33-month delay in furnishing a response to the claim.,

In relying on LCR 22143, Clare County Council and Three Community Wardens, 2019, the Union requested that the Worker secure this payment, with retrospection and compensation for being overlooked in response to the claim.

On the day of hearing, the Union read the prepared submission into the record.

The Union outlined that existing craft workers are in receipt of a subsistence payment of €7.63 per day. The meal allowance is paid in respect of the hours 12 noon to 3pm.

The Union disagreed with the Employer position on cost increasing claim. They said they were seeking a fair and reasonable resolution for their member.

The Union also disagreed that this claim was prohibited by S 13(2) as it was not addressing pay rates but seeking access to an established allowance, already payable in the Public Health Service

The Grievance had been thwarted and not fairly processed. The Union contended that the worker was entitled to the greater of the two allowances i.e., to receive subsistence if he engaged in the recognised application of that subsistence.

The Union said that the application of the allowance was not expected to be enormous as the worker had not taken on mobile duties in recent times.

The Employer operates a large Public Body. The Employer outlined that the claim for payment of subsistence/ meal allowance has been considered and rejected by the Public Body.

The Employer confirmed that the Worker is a Painter, already in receipt of an “eating on site allowance “to the value of €1.90 per day. There are 10,000 employees in receipt of this embedded allowance.

Section 13(2) Industrial Relations Act, 1969

The Employer contended that the claim is prohibited at Adjudication as it is connected to rates of pay concerning a body of workers.

They argued that it was inappropriate.

Duplication of Claim:

The Employer submitted that SIPTU were currently active in pursuing a mirror claim for 9 Craft Workers at WRC Conciliation, ongoing over 2022 and 2023. The outcome of this will have implications beyond that figure of 9.

The Employer contended that for the Public Body to deal with this complaint at Adjudication, would prejudice the conciliation process.

Substantive case:

The Employer accepts that the Worker in this case is based mainly in the city area but has the potential to be requested to travel out of that zone for work.

His current arrangement reflects “an eating on site allowance “valued at €1.90 per day, premised on a set criterion “

Mr Hunt said that the Meal Allowance was a historical allowance paid to workers continuously absent from their base between 12 noon and 3 pm.

This was phased out and replaced from 1987 at national level by the introduction of a national

 “Eating on site allowance “

The Meal allowance was red circled to existing recipients, current value €7.44 per day. New employees received the new arrangement.

The Employer maintained that the problem in processing the July 2020 grievance in this case stemmed from the active WRC Conciliation. On Inquiry, the Employer confirmed that this not been explained to the Union before the day of hearing.

1.       The Employer relied on the contents of the Dept of Environment Circular letter EL 20/87

The Eating on Site allowance was projected as “replacing all existing local arrangements in due course …”

The Employer argued that the Eating on Site Allowance had since subsumed the Meal Allowance.

2 The Meal Allowance did not survive the 2012 DPER review, outside of the red circle group.

The Employer does not hold the authority to re -instate the meal allowance.

3 The Public Body Travel and Subsistence Policy

The Employer outlined the criteria for the “subsistence rate paid to outdoor employee … “

Claimed on weekly payroll.

Lunch must be eaten on site.

Not exceed 30 minutes

Attendance at work 1.5 hrs either side of lunch break

Work attendance 6.5 hrs

Mid-day meal only

Employees must not go home for lunch.

The Employer argued that concession of the claim would place the Worker on more favourable terms and leave the public body open for “knock on claim “

4 There is no contractual provision for payment of a “special subsistence “payment.

5 LCR 22143, Labour Court

This has no application in this case and the Union had given assurance not to seek its application.

The Employer concluded that there was just no scope or authority to grant concession of the claim and it should fall at Adjudication.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I have listened carefully to both Parties as they outlined the depth of this Dispute.

It is important for me to set the scene of the parameters of my jurisdiction in this case in accordance with Section 13 of the Industrial Relations Act, 1969

Rights commissioners. (Adjudicators, since the passing of the Workplace Relations Act, 2015)

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

As the Parties can see, my role comes into play in Section 13(3) (1) on making a Recommendation setting forth my opinions on the merits of the dispute.

However, before that, I must be satisfied that this claim arises outside of the limitations of Section 13(2) of the Act.

On a careful reading of the claim lodged on July 4, 2022, I note the syntax as:

“Council have not responded to a grievance regarding the non-payment of meal allowance initially lodged 17 July 2020 “

I then reviewed the wording of the grievance lodged on that date:

I am looking to claim for meal allowance. I believe that I am entitled to the meal allowance as I am currently working 41 km outside the city and working a duration of 5 hours plus on site per day “

While signed by the employee, it is void on the date received by a Section head. I did not receive any Union letterheaded documentation in pursuance of this claim, outside of reminders.

I am grateful to the Employer who outlined a comprehensive chronology on the origin of the “eating on site allowance “and differentiated it clearly from the “Meal Allowance “(red circled).

I have read the Circulars and Documents Exhibited by the Parties and I wish to address the following Preliminary Issue myself in the first instance.

1 Recognition of an Employee Grievance:

This claim comes to the WRC an unrealised grievance from the Union.  It is clear to me that the Employer has not played its part in seeking to resolve this claim locally and within an efficient time frame.

Yes, the parties did convene in December 2020, where the worker attended whilst on sick leave. The minutes reflect a stated commitment to investigate the matter on behalf of the Employer. this was not disputed at hearing.

The matter appears to have entered an IR Vortex after this date.

I appreciate that the genesis of the claim arose during the Covid 19 pandemic, but the Grievance Procedure remained live. In fact, I noticed that the Parties launched a new grievance procedure in September 2020.

The management of this grievance falls significantly short of best practice and the parameters of the commitment to working collegially in Building Momentum.

While I understand that the Employer feels strongly about not being met with competing claims at duplicate fora, I am satisfied that the Employer did not explain any of this to the Worker during the lifetime of the grievance.

I am satisfied that the Union was hearing it for the first time at hearing.

It may well be that the Union is progressing parallel claims, However, it is my opinion that the Worker had a right to a respectful progression of his grievance within the workplace. He has been denied this.

I have read the Councils Grievance Procedure and note a significant departure from its stated agreed objective.

“… the purpose of an individual grievance procedure is to provide a framework for dealing promptly and fairly with individual; staff members concerns or complaints about working environment, terms and conditions or workplace relationship which have not been or cannot be resolved through the normal working relationship.”

It is important for me to seek to observe a mutual adherence by both parties to this shared and agreed objective.

I cannot accept the argument extended by the Employer on the application of Section 13(2) as the Worker is accepted by both Parties as being the sole Painter employed by the Employer. This not a claim which affects a body of workers.

The Employer has argued that the claim is prohibited as a Cost increasing claim.

Building Momentum:  

5.6 No cost increasing claims.

 5.6.1 The parties agree that there will be no cost increasing claims for improvements in pay or conditions of employment by trade unions, Garda and Defence Force associations, or employees during the period of the Agreement.

The Union has argued that the claim is not cost increasing as it involves the worker seeking access to an established allowance and he is entitled to receive the greater of the two allowances.

 I can see that the chronological documents give mention to the stand-alone subsistence payment in the Public Sector, and it expressly forbids payment of two allowances on the same day.

This for me at the very minimum suggests that the public body pays both allowances of eating on site and subsistence, therefore it is not a cost increasing claim.

My opinion is that the Worker has made a mistake in the formulation of his grievance when he referred to the now extinct and red circled Meal allowance. The mention of “meal allowance “appears to have confused the process and cast the employer back to a bygone day long concluded by red circling.

Instead, from a careful listening at hearing, the worker is claiming what he says a relative  and fellow painter is paid in the health service, a subsistence payment.

Ironically, the Employer has already  summarised the allowance claimed at the grievance meeting at the value of the subsistence payment and not the meal allowance.

While no Agreement is immutable and time has moved significantly on since 1987, I can identify that there is provision in paragraph Section 10 of the Eating on Site Allowance, November 1987 to at the very minimum address this for the parties. I would like the Parties to travel to that floor space.

The claim at the centre of LCR 22143 is not analogous as it addressed the unilateral withdrawal of an acknowledged subsistence payment.

I have found that the parties skipped ahead past the end stage grievance procedure. The Labour Court has habitually declared that an IR Dispute eligible for Adjudicator investigation is one that has been exhausted locally.

I agree with this pronouncement, which comes into sharp focus in this case as the employment relationship is live and worth fortifying after a period of administrative lag.

I have found merit in the Dispute.

Claim for Meal Allowance / Subsistence and the Grievance Procedure associated with the claim