INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Service Charge
2. The hotel opened a new bar (Toddy’s Bar) in 1990 and it was designated as a non-service charge area. All other service areas of the hotel receive a service charge increment, which is a percentage added to each customer’s bill. This percentage is divided among all employees. The service charge is divided into a number of different pools. There are a number of different employees allocated to each pool according to the department they work in. The Unions claim relates to a dispute with the hotel over the payment of service charge increments to a number of staff working in Toddy's Bar, which is not covered by the service charge agreement. The Union previously objected to the payments being made to 2 Managers and 3 Chefs, stating that Managers were not covered by the service charge agreement and the 3 Chefs employed in Toddy’s Bar were not covered, as this was a non-service charge area. The payment of service charge was withdrawn from the Managers by the Company. The Union's position is that the issue of service charge payment to the Managers has been resolved and the outstanding issue before the Court relates to the payment of service charge from the 2.5% service charge pool to Chefs employed in Toddy's Lounge. The Company rejects the claim in relation to the Chefs and further maintains that the removal of payments to the Managers concerned was done to avoid a strike situation previously threatened.
- The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 27th July 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 21st April 2005, the earliest date suitable to the parties.
3. 1. When Toddy’s Bar opened it was agreed between the Company and the Union that this would be a non-service charge area. The rates of pay that were agreed for the staff were higher than in the other areas to compensate for this. Bar staff in this area continue not to receive service charge.
2. When the bar opened, the Company employed new Chefs for the area and they received a higher basic rate and commission on food sales to compensate for the non-service charge arrangement. The Company has contended that the kitchen in Toddy’s Bar is only a service area and food is prepared in the main kitchen. This is the case, but Toddy’s Bar Chefs are distinctly separate from Chefs in the main kitchen, and both operate accordingly. When a Toddy’s Bar Chef is working in the main kitchen area he is only dealing with food for Toddy’s. These Chefs do not help out in the main kitchen, therefore, they are not generating any revenue for the service charge pool and the Company’s argument is not sustainable. Another difference between the two areas is that Toddy's Bar Chefs do not receive the additional annual leave entitlements similar to the Chefs in the main kitchen, who have a requirement to work Public Holidays. They are not required to work Public Holidays as Toddy's bar is closed.
3. The situation has arisen because the Company has over a period of time replaced the Chefs, who were on higher rates of pay and in receipt of commission, with others who have been placed in the service charge pool. This is unacceptable to the members, who have effectively subsidised these Chefs over a considerable period of time. The Union is seeking the removal with immediate effect of these Chefs from the service charge pool and that the Company pays compensation for the loss of earnings to the members covered by the 2.5% pool.
4. 1.All kitchen personnel are required to work in all kitchens where required. Personnel are not assigned solely to one specific area or kitchen. The personnel who work in Toddy’s kitchen report to the Executive Head Chef and the kitchen steward and are part of the main brigade of the kitchen. Normally Chefs are rotated between Toddy’s and the other areas, however, due to a current staff shortage this has not been as frequent as in previous months. The bar staff unlike the Chefs have contracts that state they work in Toddy’s Bar specifically. Toddy’s Bar has been open since 1990 but its area has only being questioned by the Union in the last two years.
2.The hotel disagrees with the Union’s position that certain Chefs in the kitchen of Toddy’s Bar should not be paid service charge and therefore the hotel should make up the short fall in their wages. The hotel also rejects the claim that the annual leave entitlements of the Chefs are different to their colleagues. All Chefs receive the same annual leave entitlements and work Public Holidays as required. The hotel has already removed the two Managers from the service pool, to avoid dispute, at a cost of €14,300 per annum. Concession of the Union’s claim would result in the hotel incurring extensive and prohibitive costs. The hotel cannot afford to incur further prohibitive costs.
3.Managers in different areas of the hotel have always been paid service charge increments. The two Managers in question, one a Beverage Manager, the other an Operations Manager have worked in the service area and been receiving the increments for the duration of their employment. Other Managers, including Executive Head Chef and the manager of Writer’s Bar have also always received service charge.
It appears that the referral to the Court from the LRC was made on the basis that the issue relating to Managers is no longer in dispute. If there is a continuing dispute on this matter it should be discussed between the parties having regard to the views of the Court expressed in the following paragraph of this Recommendation, and if necessary pursued separately to the Court.
The Court is satisfied that the Chefs concerned have been in receipt of the service charge payment for a prolonged period and have established an entitlement to those payments by custom and practice. In the circumstances it cannot be withdrawn. Accordingly, the Court cannot recommend concession of the Union's claim.
Signed on behalf of the Labour Court
29th April 2005______________________
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.