Labour Court Database __________________________________________________________________________________ File Number: CD8890 Case Number: AD8813 Section / Act: S13(9) Parties: CORAS IOMPAIR EIREANN - and - TRANSPORT SALARIED STAFFS' ASSOCIATION |
Appeal by the Company against Rights Commissioner's Recommendation No. CM/18019.
Recommendation:
5. The Court accepts that the changes made involving the worker
concerned were due to a fall-off in business in the Tours
Department. Accordingly the Court considers that compensation is
not warranted in these circumstances. The Court therefore decides
that the Company's appeal be upheld.
Division: Mr Fitzgerald Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
CD8890 APPEAL DECISION NO. AD1388
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: CORAS IOMPAIR EIREANN
and
TRANSPORT SALARIED STAFFS' ASSOCIATION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. CM/18019.
BACKGROUND:
2. The worker concerned in this case joined the Company in 1971
and commenced employment in the Tours Department in Abbey Street
in 1976. She was attached to the conference section within the
Department, and worked overtime therein. Her overtime earnings
for the year 1986/1987 was £1,614. Since the rationalisation of
the Tours Department, the worker has transferred to a clerical
officer 1 position in Dublin Bus, where no overtime is worked.
The Union on behalf of the worker served a claim on the Company
for compensation, arising from the worker's expectation that the
overtime would continue and that commitments had been entered into
arising from these expectations. The Union claims that the work
formerly undertaken by the worker concerned has been dispensed
amongst the remaining staff, who continue to work overtime at peak
periods. Thus the Union contends that the change in the worker's
circumstances is due to a re-organisation on the part of the
Company. The matter could not be resolved at local level, and was
referred to a Rights Commissioner for investigation and
recommendation. At the Rights Commissioner's hearing the Company
representative maintained that the worker's loss of earnings was
directly attributable to a fall off in business and that it was
Company policy not to compensate for earnings lost in such
situations. On 28th October, 1987, the Rights Commissioner made
the following recommendation -
"On the assumption that she will be able to recover at least
some of her earnings loss, I am recommending a compensatory
payment of £650.00"
On the 17th December, 1987, the Company appealed the Rights
Commissioner's recommendation to the Labour Court, under Section
13 subsection 9 of the Industrial Relations Act., 1969. A Court
hearing took place in Dublin on 26th February, 1988.
ASSOCIATION'S ARGUMENTS:
3. 1. Since the rationalisation of the C.I.E. Tours Department
the worker has transferred to a C.O. 1 position in Dublin Bus
where no overtime is worked. The worker is not unwilling to
do overtime. Since her transfer she has been offered it once
only and at very short notice.
2. Whilst the rationalisation of the Tours Department in
1986 was necessary in the light of the fall off in tours
business the fact is that the work heretofore undertaken by
the worker remains in the Tours Department with the duties
and responsibilities and indeed the relevant overtime working
having been re-deployed to other staff working within the
Department.
3. The worker's claim arises from an expectation that the
overtime working in the Tours Department would continue, and
that commitments entered into as a consequence could be met.
As the work which she formerly undertook has been dispersed
amongst the remaining staff who continue to work overtime in
the peak periods, the losses incurred by the member arise
directly from the re-organisation and therefore compensation
should be paid in accordance with the Agreement, which the
Association has with the Company. (Details with Court).
4. In the course of the Rights Commissioner's hearing the
Company representatives asserted that the member's loss of
overtime earnings was a direct result of a fall off in
business. It is a fact however, that a member of staff was
released under the voluntary severance arrangements and that
release was funded per the productivity scheme which also
provides for payment of compensation where re-organisation
causes a loss in earnings.
COMPANY'S ARGUMENTS:
4. 1. The Company is under constant pressure from the Clerical
and Supervisory Group to reduce the incidence of overtime
working. We have no quarrel with the Group on this matter.
Good management calls for the reduction of overtime to the
absolute minimum consistent with good service. The work flow
in the Tours Department as in Booking Offices in the Rail
section or in the Sales Office in Dublin Bus is periodic and
can best be met by overtime working rather than by the
employment of additional staff. However, no-one in CIE or in
the constituent companies of the Group have a guarantee of
continuous overtime. Hours of work have to be adjusted to
meet the exigencies of the service.
2. The worker has moved from the Tours Department to Dublin
Bus. Her new posting also has a high incidence of overtime
working. Last September, before the date of the Rights
Commissioner's hearing had been fixed, we were informed by
Management of Dublin Bus that the worker was an extremely
satisfactory and flexible officer but that due to her present
circumstances she did not wish to work overtime unless it was
absolutely essential. Dublin Bus has confirmed that overtime
is available and has been offered to the worker. She has not
availed of the overtime which it is offering, stating that
she was not interested for the time being but would like to
have the offer made again in a few months time.
3. As regards the statement that the worker should be
compensated in accordance with the agreement, there is no
such agreement covering compensation for loss of earnings
arising out of a reduction in business or recession. There
is a productivity agreement for clerical and executive staff
which makes provision for the payment of compensation for
loss of earnings arising out of re-organisation, but this
agreement specifically excludes loss of traffic or
retrenchment.
4. The Association contends that the worker's redundancy was
occasioned by re-organisation because work she was doing is
still being carried out. This is an over-simplification of
the position. The Tours Department is still operating, but
at a reduced level and so far as the Dublin Office is
concerned, with 15 fewer employees. In 1987 for example the
Tours Department handled a number of conferences which was
work the officer concerned had been engaged on in 1986. This
work had to be processed in the Tours Department utilising
the remaining staff. The alternative was to refuse the
business or to return the worker to the Tours Department for
odd weeks on and off while existing staff of the Tours
remained idle. It has been well established in industry that
companies are not required to pay compensation where a loss
of earnings is the result of a reduction in business. It has
never been the practice of the Company to pay compensation
where a loss of earnings is a result of a reduction in
business, the recession, cut back in capital programme,
normal changes in working, or economies introduced to curtail
expenditure in the face of the Company's critical financial
position.
5. Similar claims to the one here concerned have arisen in
the past, and the Court in the light of the circumstances
prevailing did not recommend concession of the claims.
(Details supplied to the Court).
DECISION:
5. The Court accepts that the changes made involving the worker
concerned were due to a fall-off in business in the Tours
Department. Accordingly the Court considers that compensation is
not warranted in these circumstances. The Court therefore decides
that the Company's appeal be upheld.
~
Signed on behalf of the Labour Court
23rd March, 1988 Nicholas Fitzgerald
P.F./P.W. Deputy Chairman