FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 57(1), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : BUSY BEE BAGELS LTD TRADING AS "THE BAGEL BAR" - AND - NATIONAL EMPLOYMENT RIGHTS AUTHORITY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Determination As To The Scope Of An Employment Regulation Order
BACKGROUND:
2. The issue before the Court concerns the applicability of theCatering Industry Joint Labour Committeeto the Company andthe Catering Industry Employment Regulation Orders toits employees. The Company is one of 6 food outlets located in a shopping centre food court. In the food Court seating and tables are provided by the shopping centre. Following an inspection of the premises, the National Employment Rights Authority found that the Company was not a take-away and was covered under the scope of the Catering Industry Joint Labour Committee and the Catering Industry Employment Regulation Order. The Company argues that it is a take-away and that no food or drink is consumed on its premises.
The Company requested that the Labour Court under Section 57(1) of the Industrial Relations Act, 1946 make a Decision on the matter.
NERA'S ARGUMENTS:
3. 1 The Company is engaged in the sale of food and drink which is placed on trays and carried to the adjacent seating area for consumption.
2 The food is not habitually given to customers in bags or other wrappings for consumption at a remote location.
COMPANY'S ARGUMENTS:
4. 1 No food or drink is consumed on the business premises. Its trade is entirely take-away. The product is provided in a brown paper bag to be consumed elsewhere.
2 The Company has no liability for any area outside of its premises.
DECISION:
Introduction
This matter came before the Court by way of an application by Busy Bee Bagels Limited t/a “The Bagel Bar”, (the Applicant) for a decision on whether the Catering Industry Joint Labour Committee (for areas other than those known prior to 1994 as the County Boroughs of Dublin and Dun Laoghaire) (JLC) operates as respect its premises at Mahon Point, Cork with respect to the employer and as to whether certain Catering Industry Employment Regulation Orders (ERO) apply to 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 the premises operated by the Applicant in the Mahon Point Food Court, Mahon Point Shopping Centre, Cork comes within the scope of the JLC and the ERO. In these circumstances the Court invited NERA to appear before it and make submissions as alegitimus contradictorin the proceedings.
The Catering Industry JLC
The application was made by letter from the Applicant dated 10th February, 2009, and relates to the Catering Industry JLC (for areas other than those known prior to 1994 as the County Boroughs of Dublin and Dun Laoghaire) in respect to catering establishments. The ERO defines its scope at Clause 1 as follows: -
“Workers to whom this Order applies
This Order shall apply to workers employed in a catering establishment (for areas other than those known prior to 1994 as the County Boroughs of 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 defines a “catering establishment” as follows: -
(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.
The JLC was established by Establishment Orders made by this Court pursuant to section 36 of the Industrial Relations Act 1946. The Order is contained in S.I. No. 225 of 1977. The Order is 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 the premises “The Bagel Bar”, operated by the Applicant in the Mahon Point Food Court, Mahon Point Shopping Centre, Cork is a catering establishments within the meaning ascribed to that term by the Establishment Order and the ERO. The Applicant contends that it is not a “catering establishment” for the purposes of the ERO, as no food or drink is consumed on the business premises. NERA contended that in no sense of the word could the business be considered as a “take away” premises.
Position of the parties
It is the Applicants case that the business operates a take away tea/coffee/bagel outlet located within the Mahon Point Shopping Centre. No food or drink is consumed on the business premises, trade is entirely take away, the product is provided in a brown paper bag to be consumed elsewhere. In support of its view the Applicant provided business plans for its outlet in the Shopping Centre, showing where the business begins and ends. He also provided a copy of the Shopping Centre Unit specification document, stating that the business has no responsibility/liability for any area outside of it.
NERA submitted that the business unit “The Bagel Bar” is one of six food outlets engaged in the sale of food and drink located in the Foodcourt on the 1st floor of Mahon Point Shopping Centre. Adjacent to the outlets, seating and tables are located for use by customers of the food and drink outlets. The seating and tables are provided by the Shopping Centre, as are trays for use by customers availing themselves of the services of the Foodcourt outlets. Cleaning, janitorial and refuse services for the general seating area are provided by the Shopping Centre and the workers engaged in those duties are employees of the Centre. It submitted that customers’ orders from “The Bagel Bar” are prepared, placed on trays and carried by the customer to the adjacent seating area for consumption. On occasions customers’ orders are delivered by the Applicant’s employees to the seating area.
NERA further submitted that there can be no dispute about the user of the premises in question; it is used primarily [if not exclusively] for supplying, for reward, food and drink to non-residents. However, what is in dispute is whether the applicant’s employees are employed at a catering establishment within the meaning ascribed to that term by the ERO
NERA submitted that when the respective Catering JLC’s were first established, Food Halls with multiple food outlets sharing common seating areas in large shopping centres were not a feature in this jurisdiction. Therefore, NERA submitted that as legislation has to be prospective and take account of new developments the Court must take a purposive approach rather than a merely literal interpretation of the legislation to test its applicability or otherwise to these developments.
The Issue forConsideration
The definition of a catering establishment contained in the ERO applies 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 outlet, or part thereof, isprimarilyused for the aforesaid purpose.
It is submitted by NERA that the seating area of the Foodcourt in the Shopping Centre is part of the premises in which the business at issue is located and comes within the statutory definition.
Conclusions
It appears to the Court that the ERO was intended to apply to restaurants, caf�s and similar establishments in which patrons are provided with food and drink for consumption on the premises. When the Establishment order was promulgated in 1977 facilities such as Foodcourts of the type in issue were largely unknown. It is, however settled law that a legislative provision must be given an updated meaning. This is now expressly provided for by section 6 of The Interpretation Act 2005, which provides: -
6.—In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit.
A Foodcourt is clearly a facility the purpose of which is to provide patrons with food and drink for consumption on the premises. In that respect it is a facility analogous to a restaurant or caf� all be it in a less formal setting. The Foodcourt is in a premises that comprises the shopping centre. It is a part of the premises, which is primarily used for the supply of food or drink on the premises. The outlet which is the subject matter of this application is located in that part of the premises and is leased to the applicant by the owners of the shopping centre for use in conjunction with the purpose for which the Foodcourt is intended. Those employed in the outlet are engaged in the supply of food and drink for consumption within the Foodcourt. In that regard it is noteworthy that the ERO does not provide that in order to come within its terms the employees must be wholly or mainly engaged in the supply of food or drink for consumption on the premises. It is sufficient that they be engaged in the specified activity and employed in a catering establishment.
The Court is satisfied that the Foodcourt is a catering establishment with the statutory meaning of that term. The Court is further satisfied that the outlet which is the subject of this application is an integral part of the Foodcourt in its purpose and user. It follows that those employed in the outlet who are engaged in activity within the ambit of the ERO are covered by the terms of the ERO.
Decision
For all of the foregoing reasons the Court is satisfied that the JLC to which this application relates operates as respect the Applicant herein. The Court is further satisfied that EROs also apply to the Applicant.
Signed on behalf of the Labour Court
September, 2009______________________
DNCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.