FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 57(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : BUTLERS CHOCOLATES LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - NATIONAL EMPLOYMENT RIGHTS AUTHORITY (NERA) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. An application by Butlers Chocolates Limited (the Applicant) for a decision on whether a Joint Labour Committee (JLC) operates as respect certain of its premises and as to whether certain Employment Regulation Orders (ERO) apply to certain of its employees.
BACKGROUND:
2. The case concerns whether the Company's retail outlets (with seating) come within the scope of the Joint Labour Committee (JLC) for the Catering Industry and are covered by the Catering Employment Regulation Order (ERO). The Company is primarily a manufacturer of chocolates, ice creams and similar products. It operate two types of outlets - "take-away" and "coffee shops/seated" and it believes that both types are covered by the National Minimum Wage only. Some of the coffee shops do not provide seating but the majority do and NERA believes that it is these outlets that are covered by the EROs and the JLCs.
The Company referred the case to the Labour Court for interpretation under Section 57(1) of the Industrial Relations Act, 1946, on the 27th January, 2009. A Labour Court hearing took place on the 20th August, 2009.
COMPANY'S ARGUMENTS:
3. 1. The Company estimates that overall 61% of its business is take-away and 39% seated. The seated outlets are not primarily used for supplying food and drink to be consumed on the premises. More than half of all sales from seated areas are for consumption off the premises e.g. boxes of chocolates, gifts, take-away drinks and food.
NERA'S ARGUMENTS
4. 1. The majority of the coffee shops provide a seating area and they are located in areas covered by the Catering EROs, namely the County Borough of Dublin/Dun Laoghaire and the catering order for all other areas. As such, employees working in these coffee shops are covered by the EROs.
DECISION:
Introduction
This matter came before the Court by way of an application by Butlers Chocolates Ltd (the Applicant) for a decision on whether a Joint Labour Committee (JLC) operates as respect certain of its premises and as to whether certain Employment Regulation Orders (ERO) apply to certain of its employees. The application was made pursuant to Section 57(1) of the Industrial Relations Act 1946.
The application arose against the background of an assertion by an Official of the National Employment Rights Authority (NERA) that certain outlets operated by the Applicant came within the scope of the JLCs and the EROs. In these circumstances the Court invited NERA to appear before it and make submissions as alegitimus contradictorin the proceedings.
The JLCs
The application was made by letter from the Applicant dated 27th January, 2009, and relates to the JLCs for the catering industry. The first such JLC operates in respect to catering establishments in Dublin or Dun Laoghaire. The second JLC operates in respect to all other areas within the State. The EROs in issue are of like geographical application.Both EROs define their scope at Clause 1 as follows: -
“Workers to whom this Order applies
- This Order shall apply to workers employed in a catering establishment [in Dublin or D�n Laoghaire / except Dublin and Dun Laoghaire] who are engaged on any of the following work, that is to say:-
(a) the preparation of food or drink;(b) the service of food or drink;(c) work incidental to (a) or (b) and performed at any store or warehouse or similar place in the catering establishment.”
The ERO for Dublin and Dun Laoghaire defines a “catering establishment” as follows:
(a) "Catering Establishment" means a premises or part of a premises primarily used for supplying for reward to any persons, not for the time being resident on the premises, food or food and drink, for consumption on the premises, including fish and chip shops and ice cream parlours, but excluding
- (i) premises registered in the register of hotels, under the
provisions of the Tourist Traffic Acts, 1939 – 2003.
(ii) premises licensed under the Licensing Acts, 1833 - 1995
and having not less than 10 apartments normally available
for the sleeping accommodation of travellers.
The ERO for all other areas within the State defines such an establishment as: -
(a) "Catering Establishment" means a premises in respect of which a publican's licence (spirit retailers on-licence) under the Licensing Acts,1833 to 1995, is held and which serves hot food for consumption on the premises, and a premises or part of a premises primarily used for supplying for reward to any persons, not for the time being resident on the premises, food or food and drink for consumption on the premises, including fish and chip shops and ice cream parlours, but excluding
- (i) premises registered in the register of hotels, under the
- provisions of the Tourist Traffic Acts, 1939 – 2003.
- (ii) premises licensed under the Licensing Acts, 1833 - 1995
- and having not less than 10 apartments normally available
for the sleeping accommodation of travellers.
- and having not less than 10 apartments normally available
The two JLCs in issue were established by Establishment Orders made by this Court pursuant to s.36 of the Industrial Relations Act 1946. Those Orders are contained, respectively, in S.I. No. 351 of 1992, in the case of Dublin and Dun Laoghaire and S.I. No. 225 of 1977, in the case of all other locations. Both Orders are expressed to apply to a “Catering Establishment” which is defined as: -
- “…a premises or part of a premises primarily used for supplying for reward to any persons, not for the time being resident on the premises, food or food and drink, for consumption on the premises, including fish and chip shops and ice cream parlours”
The Facts
The issue in contention is whether a number of outlets controlled by the Applicant trading as “Butlers Chocolates Caf�” are catering establishments within the meaning ascribed to that term by the Establishment Orders and the EROs. It is acknowledged that these outlets provide food and drink for consumption on the premises. For that purpose tables and seating facilities are provided in each of the locations in issue.
It is also acknowledged that the outlets are used for other purposes including the sale of food and drink for consumption off the premises and for the sale of chocolates.
The staff employed by the Applicant in the outlets in issue are involved in the preparation and sale of coffee, the sale of pre prepared foodstuff for consumption both on and of the premises and the sale of pre packed chocolates. Where loose chocolates are sold customers are served by dedicated staff who are not involved in the service of food and drink.
Position of the parties
It is the Applicants case that the outlets which form the subject matter of the application are notprimarily usedfor the supply of food and drink for consumption on the premises. In advancing that contention the Applicant relies on the value of sales, by percentages, between what are described as take away items and sit-in sales, are as follows:-
Outlet | Take-Away | Sit-in |
Liffey Street Dublin | 62.43% | 37.57% |
Wicklow Street Dublin | 70.17% | 29.13% |
Chatham Street Dublin | 68.18% | 31.82% |
Cork | 62.74% | 37.26% |
Swords Co. Dublin | 52.28% | 47.72% |
Dublin Airport | 62.39% | 37.61% |
Dundrum Dublin | 51.67% | 48.33% |
Blanchardstown Dublin | 57.28% | 42.72% |
In the calculation of the value of take-away sales no distinction is made in these figures between the sale of food and drink and the sales of other items including confectionary.
NERA submitted that once the outlets provide tables and seating for the consumption of food and drink supplied on the premises it comes within the ambit of the JLC and the ERO applies to those carrying out the prescribed functions therein.
The issue for consideration
There is some textual difference in the definition of a catering establishment contained in the ERO for Dublin and Dun Laoghaire and that for all other locations within the State. However, they both apply to a premises or part of a premises primarily used for the supply of food or drink on the premises. In the instant case the net issue for determination is whether the outlets, or part thereof, areprimarilyused for the aforesaid purpose.
It is noteworthy that the definition refers not only a premises but to part of a premises. It is submitted by NERA that the seating areas of the outlets in issue are part of the premises in which they are located and come within the statutory definition. If NERA are correct in that submission a collateral question arises as to whether those employed by the Applicant in the activities to which the JLCs and the EROs related are employed in that part of the premises which comes within the definition of a catering establishment.
Conclusions
The ERO is in the nature of secondary legislation. Hence, it appears to the Court, the proper approach in ascertaining the meaning to be ascribed to a word or expression appearing in the ERO is to apply the normal rules of statutory construction.
The expression “part of a premises” is an ordinary English expression which should be given its ordinary or colloquial meaning. It refers to any area within a premises. The areas in which tables and seating are provided within the Applicant’s outlets are undoubtedly a part of the premises in which they are located. It seems perfectly clear that the provision of a seating area in the various outlets is intended to accommodate the consumption on the premises of the food and drink supplied by the Applicant. It follows that the seating areas of these outlets are primarily used for the supply of food and drink for consumption on the premises. Hence they come within the definition of a catering establishment for the purposes of the EROs and the Establishment Orders.
The question then arises as to whether the staff who work in those outlets could be said to be employed in that part of the premises that constitutes a catering establishment. The same staff are involved in the preparationof coffeeandtheservice of food and drink to all customers of the outlets whether they consume the foodand drinkon or off the premises. While the staff clear tables in the seating area they are physically located outside that area during most of their working time.But they are as much employed in the provision of the services which the Applicant providesto customers using that part of the premises in which the seating is located as those who consume their purchases elsewhere. In these circumstances it would be wholly artificial and inconsistent with the smooth working of the system which the JLCs purports to regulate to hold that all of the staff involved in the activities designated byClause 1 of the EROsare not employed in a catering establishment.
It is noteworthy that the statutory definition refers to supplying for reward food and drink toany personsfor consumption on the premises.Hence the number or proportion of persons provided with food and drink for consumption on the premises is not material.What is required is that the workers concerned are employed in the preparation of the food and drink and the service of the food and drink which is consumed on the premises or part of the premises, or work incidental thereto.For the same reason the Court does not accept that the breakdown of sales in the premises overall is a relevant consideration in the instant case.
Decision
For all of the foregoing reasons the court is satisfied that the JLCs to which this application relates operates as respect the Applicant herein. The Court is further satisfied that the EROs also apply to the Applicant.
Signed on behalf of the Labour Court
Kevin Duffy
4th September, 2009______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.