Worker

Employer

Anonymised Parties

Painter

Local Authority

Representatives

SIPTU

 Local Government Management Agency (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 - 00002481

12/04/2024

The worker referred his dispute to the WRC on 12/4/2024 concerning the refusal of the employer to pay him subsistence allowances.

The worker has been employed as a painter with the employer since 1990.

He earns a gross fortnightly salary of €1,800

This dispute concerns the refusal of the employer to concede the worker’s claim for payment of subsistence allowances in accordance with the nationally agreed subsistence rates for craft workers for the days on which he travelled beyond his base. The rate applicable at the time he was absent from his base for a period in excess of five hours was €17.97, and this rate ought to apply to the worker where he satisfied the necessary criteria as opposed to the allowance which he does get which is called the Eating out Allowance and amounts to €1.90 per day. On the 04 February 2011, a Registered Employment Agreement (REA) included painters among the list of craft workers eligible for the subsistence rate of €17.97.

There were 15 such days in June 2022 when he worked away from base from 8.00-16.30, 15 days in November 2020 when he worked away from base from 8.00-16.30 and 26 days in 2021 when he worked away for base for the same full days. His claim is confined to these 56 days. The worker used the employer’s van so a claim for mileage does not arise.

He has used the stages of the grievance procedure and the WRC to get to this point

The union submits that when the worker was away from his base on these 56 days, for periods in excess of 5 hours and for distances beyond 8 km, he met the criteria set out in the relevant circular letter, C/L 05/2015 and the criteria in the employer’s Travel and Subsistence Policy, 2018 and should enjoy the subsistence allowance as opposed to the Eating out Allowance which was negotiated in 1987.

He is the only painter in the particular authority and contrary to the employer’s objections, concession of his claim would not have wider implications.

The union asks the adjudicator to recommend in the employee’s favour.

The employer states that Section 13(2) of the Industrial Relations Act, 1969 provides that an employee cannot pursue an individual complaint where that complaint affects a group of employees. It provides as follows:

(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.”

This claim challenges the payment arrangements which apply to all craft workers. If conceded, it could be employed to amend the payment arrangements for all craft workers within the employer’s workplace.

The operative document governing entitlement to subsistence allowances for craft workers or what are termed outdoor workers is E/L 20/87 which introduced the Eating on Site Allowance for craft workers. A subsequent Registered Employment Agreement included painters in the list of craft workers.

The employer maintains that concession of the worker’s claim, would apply to 59 craft workers in their employ and approximately 10,000 workers nationally in the local authority sector and who could, therefore, reasonably look for payment of this allowance were they to concede it.

The employer maintains that the current Public Service Pay Agreement constrains them from conceding this claim as it is a cost increasing claim and is precluded under the provisions of the said Agreement.

No claim for subsistence rates for outdoor workers has been lodged by the union.

The claim should be made under section 20 of the Industrial Relations Act, 1969.

The employer asks the adjudicator to find in their favour.

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

This dispute has been submitted on behalf of one worker and I note that the union seek the subsistence allowance for this worker only and only for a fixed number of days which occurred in 2020. The union’s other main argument is that C/L 05/2015 which sets out the rates payable to all workers in the public service can be interpreted to apply to this worker.

But there is the issue of E/L 20/87 which sets out the rate for what are termed outdoor workers, and which has survived to this day, unchallenged, to appear in subsequent circulars and its most recent iteration is found in the employer’s Travel and Subsistence Policy, 2018. Section 10.6 of this policy states that the subsistence allowance for outdoor workers is the Eating on Site Allowance which is the allowance paid to this worker.

The worker seeks a payment that departs from all of the agreements and practices governing the policy on travel and subsistence and is paid to no other outdoor worker in his workplace. All other outdoor workers within this employment are paid the Eating on Site allowance. This is not what is envisaged by a trade dispute as found in section of the Act.

The merits of the claim for the same set of subsistence rates for this worker as are payable to another set of workers is another matter. An outdoor worker has to bear the same costs for meals while away from base as a worker whom the employer maintains is covered by a more generous set of travel and subsistence allowances. The antiquated distinction between outdoor and non-outdoor worker or between officer and non- officer grade which serves to perpetuate this differential is certainly deserving of review.

Section 12 of the respondent’s Travel and Subsistence Policy, 2018, provides for such a review.

I recommend that the union seek an immediate review of the employer’s 2018 policy which perpetuates an arrangement born in 1987, and that the employer commences same within a month to address the anomaly which sees less favourable subsistence rates paid to this worker relative to other workers.

Section 13(2) Industrial Relations Act, 1969.