Labour Court extends Retail Grocery JLC terms to petrol stations

Note 1.

The National Minimum Wage is currently €8.65 per hour. The Government is proposing to reduce this to €7.65. Under the Employment Regulation Order (ERO) the rate for a ‘General Sales Assistant’ is €9.59 rising to €9.90 after 3 years. There are other benefits also not available as a matter of right to workers not covered by an ERO.

THis link will bring you to the ERO

Note 2 Added March 1st

  • Independent review of ERO/REA system ordered by EU/IMF due to report relatively quickly. More here
  • LABOUR COURT DECISION (DEC106) Edited

    ‘The Court determines that the Topaz Carlow retail unit situated at Green Lane Carlow is a Department of an undertaking engaged wholly or mainly in the retail grocery and allied trades. The nominated employees comes within the scope of the Joint Labour Committee and is subject to the provisions of the relevant Employment Regulation Order.’

    This was an action by NERA against TOPAZ / ARD SERVICES represented by IBEC concerning the  Applicability of Retail Grocery and Allied Trades ERO to a service station

    Text of Recommendation

    2. The central issue for the Court to determine is whether or not the Retail Grocery and Allied Trades Joint Labour Committee (JLC) and the Employment Regulation Order (ERO) (Retail Grocery and Allied Trades Joint Labour Committee S.I. No.374 of 2009) operates as respects workers in Ard Services trading as Topaz, Green Lane Carlow and specifically to Mr Patrick Burns who is employed there.

    The ERO in setting out the definition of Workers who come within the remit of the ERO states that they are: – All workers employed anywhere throughout the State in any undertaking or any branch or department of an undertaking being an undertaking, branch or department engaged wholly or mainly in the retail grocery and allied trades and who are engaged on any of the following duties, that is to say:
    (a) operations in or about the shop or other place where the sale by retail aforesaid is carried on being operations for the purpose of such sale or otherwise in connection with such sale;
    (b) clerical or other office work carried on in conjunction with the sale by retail aforesaid and relating to such sale or to any of the operations in (a) of this sub-paragraph.
    he ERO goes on to exempt some retail operations which are not relevant in this case.

    The ERO goes on to state

      • For the purposes of this schedule “the retail grocery and allied trades” consist of the sale by retail of:
         a) bacon, ham, pressed beef, sausages, or meat so treated as to be fit for human consumption without further preparation or cooking but does not include the sale, by retail, of other meat;
        (b) all other food (including bread or flour confectionery, articles of sugar confectionery and chocolate confectionery and ice cream) or drink for human consumption other than for immediate consumption on the premises at which the sale is effected;
        (c) tobacco, cigars, cigarettes, snuff and smokers’ requisites.
         
        3. For the purpose of this schedule:

    (a) in determining the extent to which an undertaking or branch or department of an undertaking is engaged in a trade or group of trades, regard shall be had to the time spent in the undertaking, branch or department on work in those trades; 

      • (b) an undertaking or branch or department of an undertaking which is engaged in any operation in a trade or group of trades shall be treated as engaged in those trades.Accordingly the Court must in the instant case determine
        a) whether a relevant undertaking, branch or department within the meaning of the ERO is in operation at the service station
        b) whether such undertaking, branch or department is engaged wholly or mainly in the retail grocery and allied trades and; 
    • c) whether the employee cited is engaged on any of the duties specified in section (a) or (b) above.

    a) The existence of the relevant undertaking, branch or department

    Ms Ruth McDonagh, M.G. Ryan Solicitors on behalf of Topaz Carlow submitted that the relevant undertaking for the purposes of the ERO is Topaz Carlow whose main activity is the sale of fuel and fuel related products that are not encompassed by the ERO. She said that fuel and non-ERO products in the current year accounted for 78% of turnover. Accordingly, she said, the undertaking was not wholly or mainly engaged in the retail grocery and allied trades and does not come within the scope of the relevant JLC and ERO.

    Mr Alan Haugh Solicitor on behalf of NERA submitted that the undertaking comprises a convenience store that is engaged in the retail sale of all items listed in the order and a facility for the retail sale of fuel (petrol and diesel). Accordingly he submitted that the undertaking came within the scope of the relevant ERO and JLC.

    Findings of the Court:

    The Court is satisfied that the ERO is so worded as to encompass not only an “undertaking” but also a “branch” or “department” of an undertaking when determining the relevant unit of operation for the purposes of determining whether and to what the ERO applies. The Court, on the basis of the evidence presented to it by the parties to the dispute, is satisfied that in the instant case, while the overall undertaking might be described as a service station within that undertaking there are several branches and departments as follows:
    · the main undertaking which is a retail petroleum fuel sales undertaking,
    · A department which sells services related to the main undertaking including car wash and other vehicle maintenance services such as vacuum and air services and
    · A department which is a retail shop.

    The Court is mindful that the purchase of motor fuel is not a precondition for the purchase of items in the retail unit. The retail unit and the purchase of motor fuels are not inextricably linked, interdependent or necessarily part of a continuous transaction. The selling of fuel and the retail unit are separate and distinct entities with different trading patterns, operating in different market places, against competition of different types. The Court accepts that they are mutually supportive from a business perspective i.e. business in one area may lead to business in the other, but that does not mean that they are so interdependent as to create a single homogenous unit. The retail shop undertaking could close or change the items stocked without affecting the capacity of the fuel sales business to operate and vice versa.
    The Court is therefore satisfied that the retail shop is a department of an undertaking within the meaning of that term in the ERO.

    b) Engaged wholly or mainly in the retail grocery and allied trades:

    The second issue for the Court to decide is whether the undertaking, branch or department is engaged wholly or mainly in the retail grocery and allied trades.

    Section 3 (a) provides that for the purpose of the schedule

      • ”in determining the extent to which an undertaking or branch or department of an undertaking is engaged in a trade or group of trades, regard shall be had to the time spent in the undertaking, branch or department on work in those trades;”
        Section 3(b) goes on to state: -(b) an undertaking or branch or department of an undertaking which is engaged in any operation in a trade or group of trades shall be treated as engaged in those trades.
         
        Ms McDonagh on behalf of Topaz Carlow submitted that 78% of turnover on the site comes from fuel, fuel related and non ERO items. She submitted that turnover was the most appropriate measure for determining whether the undertaking was wholly or mainly engaged in activities encompassed by the ERO. She referred the court to its decision in the case of Dagges Newsagents Limited v Department of Enterprise and Employment [DEC952 1995]. She submitted that the Court applied the turnover test in this case when deciding whether or not Dagges Newsagents came within the scope of the ERO. Applying this test in the instant case would mean that the undertaking was not wholly or mainly engaged in the retail grocery and allied trades as defined in the ERO. She also submitted a Daily Time Sheet that showed the standard time required of a named sales assistant to perform the different duties expected of him on the site. In submitting the document she advised the Court that no measurement of the actual time spent took place in the preparation of the time sheet. Rather it was the company’s best estimate of the time required to discharge the relevant duties associated with the operation of the site. From this document she concluded that 51% of the Shop Attendant’s time is spent at the Tills and 49% of time is spent attending to other exempted duties. She went to say that 22% of sales by value are of products covered by the ERO whilst 78% are of sales of fuel and non ERO products. She submitted that the Court is required to have regard to the time spent in the undertaking, branch or department on work in those trades and that it was clear that the sales assistant only spent a minority of his working day engaged on work associated with products that came within the scope of the ERO. She submitted that in a case such as this where the assistant spent the majority of his time dealing with matters which did not come within the ambit of that department which fell within the ERO, then even if a department could be identified which fell within the ERO the fact that the person who worked within that department spent the majority of their time on duties which did not fall within the ambit of the ERO meant that the person themselves could not fall within the ambit of the ERO.Mr Haugh on behalf of NERA submitted that turnover was an arbitrary criteria for determining this matter and was no more meritorious than floor space, profit margin, contribution to overhead or any other metric. He submitted that the ERO did not specify turnover as the appropriate metric to be employed in determining this matter and that the Court should ignore the evidence submitted in this regard as irrelevant and inappropriate. He said that Section 3(a) and (b) of the ERO requires the Court to have regard to the time spent in the undertaking on work in those trades. He submitted that the time spent by workers on work in these enterprises is wholly or mainly in the convenience store rather than on the forecourt. He further said that in the majority of cases, the workers in question have little or no forecourt duties, the enterprise in question being self service in relation to petrol / car wash duties. He further said that the workers were engaged in operations in or about the shop which invariably included one or more of those listed at paragraph 1(a) and (b) of Part 1 of the Schedule to the Order which brings them within the scope of the JLC and the provisions of the ERO. Findings of the Court:

    The ERO refers to “time spent in the undertaking, branch or department on work in those trades”.

      •  It would appear from this wording that being available at the till to process purchases within the shop or being available on a deli counter attending to customers constitutes work in those trades. Moreover duties are defined as “operations in or about the shop ….. being operations for the purpose of such sale or otherwise in connection with such sale”. Again this would suggest that being available to deal with customer purchases meets the criteria also. As this availability appears to be an ever-present feature of work in the retail unit along with operations for the purpose of transacting the sale of such products, the time spent in the undertaking appears to be indistinguishable from the opening hours of the unit. Taking all of these factors into account the Court determines that the retail unit is a Department of an undertaking wholly or mainly engaged in the retail grocery and allied trades and comes within the scope of the JLC and the ERO.c) Duties of the WorkerThe final question for the Court to address is whether the Worker cited is engaged on any of the duties specified in Section 1 (a) or (b) of the ERO.The Court notes that the terms “wholly or mainly” governs the business transacted in the undertaking, branch or department but does not explicitly govern the work undertaken by an individual employee. Section 1 of the ERO says that any worker employed in an undertaking, branch or department who performs “any” of the “following duties” is covered by the Act. The ERO then goes on to specify the following duties as : -(a) operations in or about the shop or other place where the sale by retail aforesaid is carried on being operations for the purpose of such sale or otherwise in connection with such sale;

        In its own submission Topaz Carlow acknowledges that the worker cited Mr Patrick Burns carries out some of the operations specified in Section 1 ( c ) of the ERO. As the Court has already found the business of the retail unit brings it within the scope of the ERO the Court finds that Mr Patrick Burns comes within its scope also.

        DECISION :

        The Court determines that the Topaz Carlow retail unit situated at Green Lane Carlow is a Department of an undertaking engaged wholly or mainly in the retail grocery and allied trades. The nominated employees comes within the scope of the Joint Labour Committee and is subject to the provisions of the relevant Employment Regulation Order.

        The Court so decides.

        Signed on behalf of the Labour Court

         Brendan Hayes
        8th October, 2010 ______________________
        JF Deputy Chairman
          

        NOTE
        Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.