Labour Court Database __________________________________________________________________________________ File Number: CD89458 Case Number: AD8962 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUSWORKERS' UNION |
Appeal by the Union against Rights Commissioner's recommendation No. CM9264, concerning the payment of an additional day's pay in respect of Sundays not worked prior to a Monday Public Holiday.
Recommendation:
5. The Court, having considered the submissions, does not
consider that the appeal by the Union is well founded. The Court
accordingly upholds the recommendation and rejects the appeal.
The Court so decides.
Division: Ms Owens Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD89458 APPEAL DECISION NO AD6289
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BUS EIREANN
AND
NATIONAL BUSWORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. CM9264, concerning the payment of an additional
day's pay in respect of Sundays not worked prior to a Monday
Public Holiday.
BACKGROUND:
2. The driver concerned has been working on the Dundalk/Galway
Express service since 1978. This service operates 7 days a week
except Sundays prior to a Monday Bank Holiday, because there is no
demand for the service on such a Sunday. The driver is paid two
days pay for working a Sunday but on Sundays not worked he is paid
one day's pay in accordance with Clause 7 of the National
Agreement, which states:-
"...Men for whom Sunday forms part of their normal week
(i.e. whose rest day is other than Sunday) and whose
services are not required on a Sunday maybe advised
in advance to that effect and released from duty for
the day. As they are not required to work on the
Sunday they do not qualify for payment of the Sunday
bonus rate."
The Union claims that as Sunday is part of the driver's normal
working week he should be paid as for a normal Sunday on which the
service runs and not a flat day's pay. The Company rejected the
claim and the matter was referred to a Rights Commissioner for
investigation. On 28th June, 1980, the Rights Commissioner issued
the following recommendation:-
"...I believe that I have no choice in this case but to
uphold the Agreement which specifically declares that
men for whom Sunday forms part of their normal week,
and who are advised in advance that they will not be
required on a particular Sunday, do not qualify for
payment of the Sunday bonus rate".
The Union rejected the Rights Commissioner's recommendation and
appealed it to the Labour Court on 10th February, 1989. The Court
heard the appeal on 19th July, 1989, in Dundalk.
UNION'S ARGUMENTS:
3. 1. On Sunday 25th December, 1983, the Company decided that
they would not operate services in Dublin City on that day.
The Company also decided that they would only pay a flat day's
pay for that particular day. This was unacceptable to the
Union and the matter was referred to a Rights Commissioner who
issued recommendation CM/14610 on 29th December, 1983. In his
recommendation the Rights Commissioner recognised the 'reward
package' and workers' expectations. The Company appealed the
recommendation, however, this was rejected. This
recommendation was at total variance with the decision which
was taken in 1980 and indeed, the Company applied the
recommendation, on Sunday, 25th December, 1988, to all its
workers who would normally be working that day. This group
included the driver involved in this claim.
2. What is happening to the driver in this case can only be
deemed to be discrimination of the highest order. There is no
reasonable grounds for denying him his payment for Sunday
which is his normal working day just because the following day
happens to be a Public Holiday. What justification is there
for denying him his rightful payment and at the same time,
when it falls on the 25th December, i.e. on Sunday then he is
paid. He is available to work and indeed would have to work
if required, even on the Sunday which preceded the bank
holiday Monday. The conditions under which he applied for the
service are that the service carried Saturday day off and he
works the other six days and he cannot opt out any day that
suits himself.
3. The Union requests the Court to allow the appeal and
recommend that the worker should be compensated for the loss
that he has incurred since December, 1983, when it was
established that Sunday work was part of the normal weekly
earnings. There is no justification for this discriminatory
practice against the worker.
COMPANY'S ARGUMENTS:
4. 1. The Union has argued that Clause 7 of the National
Agreement no longer applies because of Rights Commissioner's
recommendation No. CM14610, which recommended payment of the
Sunday bonus for Sunday, 25th December, 1983, which was not
worked. That recommendation concerned drivers and conductors
in the Dublin City Bus Services, who had a 5.4 day week
agreement. The driver here concerned is not covered by that
agreement, he is covered by the terms of the National
Agreement, which provides for the payment of a basic day's pay
when not required to work on a Sunday. The National Agreement
is still applicable and has not been superseded by any
subsequent agreement.
2. The Company is faced with a serious financial situation.
Expenditure has far exceeded revenue, including Government
subvention. Private operators have also become a major
competitive force. In these circumstances the Company cannot
afford to pay bonus payments for time not worked.
3. The driver concerned has not suffered any loss of earnings
when his wages are compared one week to another because of the
fact that he works the Monday Public Holiday.
4. The extremely long delay of nine years in appealing the
Rights Commissioner's recommendation should be a relevant
factor in the Court's decision. The Company believes the
appeal should be rejected.
DECISION:
5. The Court, having considered the submissions, does not
consider that the appeal by the Union is well founded. The Court
accordingly upholds the recommendation and rejects the appeal.
The Court so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
___23rd___August,___1989. ___________________
B. O'N. / M. F. Deputy Chairman