Labour Court Database __________________________________________________________________________________ File Number: CD87415 Case Number: AD8754 Section / Act: S13(9) Parties: BUS EIREANN - and - NBU |
Appeal by the Company against Rights Commissioner's Recommendation No. CM/17328 concerning compensation for loss of earnings to a worker.
Recommendation:
5. Loss of earnings in C.I.E. has traditionally been calculated
on the basis of a comparison of total earnings before and after
the relevant change. The Court considers that having regard to
the origin of these payments in C.I.E. the 20% bonus which
attaches to this drivers work now must be counted. The Court
therefore upholds the Company's appeal and decides that the driver
be paid the sum originally offered to him i.e. #1,476.80.
Division: CHAIRMAN Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD87415 THE LABOUR COURT AD5487
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 54 OF 1987
PARTIES: BUS EIREANN
AND
NATIONAL BUSWORKERS' UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. CM/17328 concerning compensation for loss of
earnings to a worker.
BACKGROUND:
2. The worker concerned was a driver of a two person operated
stage carriage service between Sligo and Galway. This service was
reorganised and converted to an expressway service which led to a
reduction in overtime and other bonus payments as the equated
hours worked by the crew dropped from 73 hours and 57 minutes to
58 hours and 39 minutes based on the operating board. The service
was subsequently converted to a One Person Operated (O.P.O.) on
the retirement of the bus conductor on 10th July, 1985. The
driver's earnings increased with the payment of the 20% O.P.O.
bonus and the equated hours on the board increased to 70 hours and
14 minutes. In May, 1986 the Union claimed compensation for loss
of earnings on behalf of the worker and indicated that the 20%
O.P.O. bonus should not be included in the calculation by the
Company. The Company offered compensation of #1,476.80 which was
equal to 2.50 times the annual loss taking into account the 20%
O.P.O. bonus. This offer was rejected by the Union and the matter
was referred to a Rights Commissioner for investigation and
recommendation. Following an investigation held on 25th February,
1987, the Rights Commissioner issued the following recommendation
dated 2nd March, 1987:-
" Had the worker's bus not become One-Person-Operated he would
have qualified for compensation on the method sought by the
Union. The 20% bonus coming later was a reward for the
additional duties and responsibilities for being a one man
crew. Consequently I recommend that the bonus be excluded
from the calculations."
The Company appealed the recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal in Sligo on 23rd June, 1987.
Company's arguments:
3. (a) The Company cannot accept that bonus payments arising
from the re-organisation should be excluded when
calculating loss of earnings. The Company has in a
number of cases paid compensation for loss of earnings
to employees who had a traditional level of earnings
reduced because of schemes of re-organisation
introduced to improve services and generate new and
increased business. The compensation in such cases is
a payment to enable the individual to adapt to the
lower level of earnings which he/she will have for the
future. The Company, assesses the loss of earnings in
what is the traditional and accepted manner by
comparing the employees total equated hours in the year
preceding the reorganisation with the total equated
hours in the year following the reorganisation and in
such cases the 20% O.P.O. bonus must be included.
(b) The Union's position would appear to be that the bonus
payment for O.P.O. should be excluded when assessing
the employees loss. The Company's view however has
been upheld on previous occasions by the Court and a
Rights Commissioner in relation to similar arguments
regarding the exclusion of shift premium and other
bonus payments (details supplied to the Court).
(c) In this particular case the worker's gross earnings
actually increased in the year after the
re-organisation (details supplied to the Court). By
offering compensation on the basis of the actual
reduction in equated hours on the operating board and
not the worker's earnings he has benefited and the
Company is treating him in a very fair and reasonable
way.
Union's arguments:
4. (i) The Union claimed loss of earnings based on the fact
that the board carried a level of earnings as
operated two person.
(ii) The payment for operating O.P.O. is for a specific
type of operator that demands greater ability,
concentration and alertness and also demands a wide
knowledge of ticketing transactions. The driver
becomes the total substitute for the conductor hence
the bonus of 20% for the operation. The driver has
now to work much harder to earn that bonus and it has
no relationship with the losses incurred in the
change from stage carriage to expressway.
(iii) The unsocial aspect of the board remains the same as
the new duty finishes at 19.30 each day as against
19.40 previously.
DECISION:
5. Loss of earnings in C.I.E. has traditionally been calculated
on the basis of a comparison of total earnings before and after
the relevant change. The Court considers that having regard to
the origin of these payments in C.I.E. the 20% bonus which
attaches to this drivers work now must be counted. The Court
therefore upholds the Company's appeal and decides that the driver
be paid the sum originally offered to him i.e. #1,476.80.
~
Signed on behalf of the Labour Court.
John M. Horgan
___9th___July,____1987. ___________________
M. D. / M. F. Chairman.