Labour Court Database __________________________________________________________________________________ File Number: CD89383 Case Number: LCR12538 Section / Act: S67 Parties: IRISH RAIL (WATERFORD AREA) - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claims for compensation for loss of earnings for (a) three locomotive drivers, (b) five yard depot persons, (c) three coaching guards and (d) increase in the manning levels at Knockmoylan and Kiltorcan Gate Crossings.
Recommendation:
16. In respect of the four matters at issue the Court recommends
as follows:-
Locomotive drivers/Compensation for Loss of Earnings
The Court does not consider this claim to be sustainable as
concession in principle would militate against traning
arrangements which are of themselves a benefit to all
concerned including ultimately the men directly concerned.
The Court does not therefore recommend concession of the
claim.
Yard Depotpersons/Compensation for Loss of Earnings
Since the loss involved derived directly from loss of business
by the Company the Court does not recommend concession of this
claim.
Loading Guards/Compensation for Loss of Earnings
The circumstances in which the losses occurred in this case
were clearly outside the control of the Company and the Court
therefore does not recommend concession of this claim.
Manning Levels/Gate Crossings
In common with all such crossings throughout the rail system
provision of cover on these crossings is clearly met by means
of the "Family Allowance" and the Court does not therefore
recommend concession of the Union's claim.
Division: Mr O'Connell Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD89383 RECOMMENDATION NO. LCR12538
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: IRISH RAIL (WATERFORD AREA)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claims for compensation for loss of earnings for (a) three
locomotive drivers, (b) five yard depot persons, (c) three
coaching guards and (d) increase in the manning levels at
Knockmoylan and Kiltorcan Gate Crossings.
GENERAL BACKGROUND:
2. Negotiations at local level failed to resolve the above issues
which are all individual cases. They were referred to the
conciliation service of the Labour Court on 17th November, 1988.
A conciliation conference was held on the 12th January, 1989. As
no agreement was possible both parties subsequently consented to a
referral to the Labour Court for investigation and recommendation.
A Court hearing was held in Waterford on the 19th July, 1989.
Claim (a) - Compensation for loss of earnings on behalf of 3
locomotive drivers
BACKGROUND:
3. The 3 workers concerned commenced training as locomotive
drivers on the 14th July, 1986. The normal training period for
locomotive drivers is approximately 18 months. The workers here
concerned were appointed as locomotive drivers in May, 1988. The
Union is claiming compensation for loss of earnings on the basis
that the workers concerned should have been appointed drivers in
December, 1987. The Union has quantified the loss at #2,500 for
each driver. This amount is based on the difference between
probationary driver and appointed driver rate plus loss of Sunday
premia and overtime earnings. The Company rejected the claim.
UNION'S ARGUMENTS:
4. 1. The drivers concerned were part of a group of 7 who were
trained as drivers. The other four, not from Waterford area,
were appointed a week after their final exam in January, 1988.
The workers here concerned had to press for a date for their
final exam which eventually was held in February, 1988. They
passed their exams but were not appointed until May, 1988. In
keeping with normal practice they should have been appointed a
week after their exam especially as there was a need for
drivers in the Waterford area.
2. During the period prior to their appointment the drivers
were operating on pilot working as qualified drivers were
required to work extra trains and their pilot work fell to the
workers here concerned. As a result the workers lost out on
Sunday working, public holiday working and overtime through no
fault of their own.
3. No reason for the delay in arranging the exam or the
subsequent delay in their appointment was ever given to the
workers concerned by the Company.
COMPANY'S ARGUMENTS:
5. 1. While the normal training period was reduced by the
Company from about 2 years to approximately 1.50 years, there is
no agreement that a trainee must be appointed after 1.50 years.
The delay in appointing these men arose due to over-estimation
of requirements for drivers at Waterford, and no vacancies
were available in December, 1987. However, between then and
May, 1988, there were three exits from the service, in
Waterford, and this eased the problem relating to the
appointments.
2. The principle, governing payment of compensation, where
such is payable by the Company, is that the payment is made to
cushion the effect of a reduction in the level of earnings
which an employee actually had over an extended period. In
this case, the claim is for loss of prospective or potential
earnings, and compensation has not previously been paid for
this. Furthermore, if these men were appointed in November or
December, 1987, this would mean sharing the workload amongst a
greater number of drivers, and a consequent loss for the
existing drivers. The delay in appointing these probationer
drivers did not mean any monetary gain, whatsoever, to the
Company.
3. If the claim were conceded, a new principle, governing
compensatory payments, would be established, which would have
considerable repercussions in respect of many grades of
employees throughout the Company. This is because various
difficulties can and do arise, which cause unavoidable delays
in effecting promotions or appointments, from time to time.
Claim (b) - Compensation for loss of earnings on behalf of five
yard depot persons
BACKGROUND:
6. In September, 1986 the rosters of the workers' concerned were
changed from commencement at 22.00 hours on Monday and finish at
4.40 hours on the following Sunday to an 00.05 start on Monday and
a finish at 7.10 hours the following Saturday. This eliminated
the requirement to work from 22.00 hours on Saturday to 04.40 on
Sunday morning. The depotperson on this duty was paid double time
for the Sunday work. The Union is claiming compensation in
respect of loss of earnings for each worker of 4 hours 40 minutes
double time which they incurred each 8 weeks as a result of the
revised roster. The Company has rejected the claim.
UNION'S ARGUMENTS:
7. 1. Through the change in roster the Company was able to
provide for fuelling of trains on Sunday night and to give
additional service to Bellferry. The Union is satisfied that
there is a significant productivity element involved in the
change and that there is therefore justification for
compensation for the workers concerned.
COMPANY'S ARGUMENTS:
8. 1. The reason the rosters were altered was because the
Saturday mail train operating at 20.00 hours each week on
Saturday was discontinued. The workers concerned rotated each
week on fuelling this train. This train ceased to operate
because An Post introduced a 5 day week operation. Therefore
the losses incurred by the workers arose as a result of loss
of business to the Company.
2. Given its serious financial position and the fact that no
savings accrued to the Company there are no justifiable
grounds for paying compensation in this case.
Claim (c) - Compensation for loss of earnings for Coaching Guards
BACKGROUND:
9. In April, 1985 a bridge known as the Barrow Bridge was
rendered inoperable for a period of time as a result of a ship
colliding with it. As a consequence the rosters of the three
guardsmen employed on the Waterford to Wexford trains were cut, as
these trains had to be cancelled. The Union is claiming
compensation for loss of earnings of 6 hours 20 minutes pay for
each every four weeks. The Company has rejected the Union's
claim.
UNION'S ARGUMENTS:
10. 1. The Company in rejecting the claim, have argued that the
cut in rosters was due to an incident outside of its control.
However when a similar incident occurred in Rosslare, and the
workers there threatened industrial action their rosters were
maintained. The Union finds it unacceptable that some of its
members should be penalised while other employees remained
unaffected through the threat of industrial action.
2. This disruption arose from an accident occasioned by a
third party accordingly the Company was in a position to
recoup any losses incurred and should not therefore have
penalised the workers concerned.
COMPANY'S ARGUMENTS:
11. 1. The Company rejected the claim for compensation as it was
not responsible for the damage to the bridge and its
consequences.
2. The Company itself suffered a heavy loss because of
limitation of liability provisions in the Merchant Shipping
Act, 1894. It was only able to receive 50% of the actual loss
suffered.
3. Even if the full loss had been recouped it would not have
been possible to pay the workers for loss of overtime
earnings. According to the Company's legal department, such a
claim would have to be pursued by the workers themselves.
Claim (d) - Increase in manning levels at Knockmoylan and
Kiltorcan level crossing Gates
BACKGROUND:
12. The level crossing gates in question are known as "A" type
gates. These type of level crossings are located on minor roads
and are operated manually. There is one gatekeeper at each
crossing. The two gatekeepers concerned who attend the two
crossings live in rent free accommodation beside the crossings.
It is an expected condition of employment that these gatekeepers
provide 24 hour (full day) cover. They are also paid a weekly
wage plus a premium of 1/6th for Sunday working. The weekly rate,
on the basis of a 12 hour attendance on Monday to Saturday is
#104.55. This rate is in accordance with rate agreed with the
Rail Operative Trade Union Group in 1981 and has been adjusted to
include rate increases since then.
13. It is traditional in such cases to pay a special allowance
known as a "Family Allowance" over the agreed rate to provide for
24 hour coverage of the crossing. This averages about #18 per
week countrywide. The Union have lodged a claim for 2 man cover
at each of the two crossings. The Company rejected the claim on
the basis that it was paying the gatekeeper at Kiltorcan an extra
#34 aweek for 24 hour cover, and offered to pay an extra #18 to
the keeper at Knockmoylan in recognition of the small differential
paid over the agreed rate.
UNION'S ARGUMENTS:
14. 1. The terms of employment of the gatekeepers concerned
provide for 12 hours cover a day which means that they have no
responsibility for the gates outside these hours.
2. The Company, in the interest of safety should provide
cover for the 12 hours at night without delay.
COMPANY'S ARGUMENTS:
15. 1. The Company pays an allowance to the gatekeepers concerned
to provide for 24 hour cover. It cannot agree to employ
additional gatekeepers due to the high cost involved. The
cost in respect of gatekeepers in the Waterford district is
#780,000 per annum due to the high number of crossings there.
2. Concession of this claim would have repercussions in other
locations where the situation is similar to that of Kiltorcan
and Knockmoylan.
RECOMMENDATION:
16. In respect of the four matters at issue the Court recommends
as follows:-
Locomotive drivers/Compensation for Loss of Earnings
The Court does not consider this claim to be sustainable as
concession in principle would militate against traning
arrangements which are of themselves a benefit to all
concerned including ultimately the men directly concerned.
The Court does not therefore recommend concession of the
claim.
Yard Depotpersons/Compensation for Loss of Earnings
Since the loss involved derived directly from loss of business
by the Company the Court does not recommend concession of this
claim.
Loading Guards/Compensation for Loss of Earnings
The circumstances in which the losses occurred in this case
were clearly outside the control of the Company and the Court
therefore does not recommend concession of this claim.
Manning Levels/Gate Crossings
In common with all such crossings throughout the rail system
provision of cover on these crossings is clearly met by means
of the "Family Allowance" and the Court does not therefore
recommend concession of the Union's claim.
~
Signed on behalf of the Labour Court
John O'Connell
_________________________
29th August, 1989 Deputy Chairman.
M.D./J.C.