Labour Court Database __________________________________________________________________________________ File Number: CD89319 Case Number: AD8941 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUSWORKERS UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. ST 111/89 concerning payment for time lost during an industrial dispute.
Recommendation:
5. It is obvious that there was a good deal of confusion on the
morning of the incident and that there were faults on both sides
which gave rise to this situation. The Court is of the view that
the Rights Commissioner struck a fair balance in recommending as
he did.
The Court accordingly upholds his recommendation.
The Court so decides.
Division: Mr Fitzgerald Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD89319 APPEAL DECISION NO. AD4189
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BUS EIREANN
and
NATIONAL BUSWORKERS UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. ST 111/89 concerning payment for time lost
during an industrial dispute.
BACKGROUND:
2. There are two workers concerned in this dispute. They are
employed as drivers on the Dublin/Cork route, and operate out of
the Broadstone Garage in Dublin. Following a re-organisation of
the service in 1988, an arrangement was entered into whereby a
meal allowance would continue to be paid, despite the fact that
within the strict terms of the rules a meal allowance was not
appropriate. Drivers on the Cork/Dublin leg of the journey were
not in receipt of the allowance, although they worked identical
hours. Following the raising of the issue by the Cork drivers,
the drivers in Broadstone were informed that their meal allowance
was going to be discontinued. The drivers were instructed by
their Union not to operate the service unless they received the
meal allowance, which was part of their agreement. On 22nd March,
1989 a stoppage occurred at the drivers' place of work in
connection with the dispute. The details of how the stoppage
occurred are disputed between the parties and there appears to
have been a degree of confusion on the ground regarding the status
of the meal allowance and the instruction to the drivers. The
issue of the meal allowance has subsequently been resolved, but
the two drivers were at a loss of pay for the time when there were
pickets on the depot. The Union contends that the workers were
prepared to work under the terms of their agreement with the
Company and therefore they should be at no loss. The Company
contends that the drivers were offered time to make up for that
which they had lost, but this was refused. The Company stated
that it was not prepared to pay for the time when the drivers were
"refusing instructions" particularly when they had been told that
the meal allowance would be paid. The outstanding issue of the
day's pay was referred to a Rights Commissioner for investigation
and recommendation. On 13th April, 1989, the Rights Commissioner
issued the following recommendation in the matter:
"The L.C. Recs. submitted by the Company referred to claims
for pay, arising out of lost time due to forms of Industrial
Action. In this case the claimants were ready for work under
contract, as they understood it, at that time, but were not
allowed - they submit - work under those terms.
L.C. Rec 11,688 refers to removal from the pay roll for
refusal to carry out instructions which the Court found were
not covered specifically by the O.P.O. Agreement.
I see this dispute in these terms. The claimants were
instructed to carry out an instruction which effectively
breached an agreement concerning their conditions on the
Dublin-Cork run. The Company, for valid commercial reasons,
had attempted to abrogate this Agreement. The Company backed
off this move, and there was failure to communicate this
effectively to the claimants. This failure was also the
responsibility of the local Trade Union Representatives.
Having regard to this latter point, and the failure of the
claimants to work under protest, pending resolution through
procedures, I cannot fully compensate them for their loss.
In the circumstances I recommend that each claimant receives
four hours pay at the rate they would have received had they
worked the day in question.
The Company should make this payment without precedent and
without prejudice to its long standing policy in such
matters."
On 1st May, 1989 the Company appealed the Rights Commissioners
recommendation to the Labour Court. A Court hearing took place in
Dublin on 26th May, 1989.
UNION'S ARGUMENTS:
3. 1. The meal allowance was forcibly withdrawn by the Company
and as no agreement was reached at local level regarding its
restoration, the drivers were under instruction not to operate
the service unless they received it. The drivers left the
premises and did not seek to impede other staff going in or
out of the depot. Pickets were placed on the depot by the
trade union representative.
2. The drivers were quite prepared to operate the service
under the terms of their agreement. Any breach in the service
is the fault of the Company, and the drivers should not have
to suffer a loss of pay as a result of this.
COMPANY'S ARGUMENTS:
4. 1. The Union, in presenting its case to the Rights
Commissioner, claimed that there was precedent for payment for
work not done and referred to the case of the involuntary
transfer of bus conductors from Clontarf Garage. It is the
Company's view that the involuntary transfer of bus conductors
in Clontarf Garage to other Bus Atha Cliath Garages and their
subsequent removal from the payroll cannot be compared to the
situation in Broadstone where two Bus Eireann drivers refused
to operate their service. There can be no doubt that the two
drivers withdrew their services of their own free will and not
because the Company forced them to.
2. The Company had fully informed the two drivers that there
would be no changes and the meal allowance would continue to
be paid. With regard to the Rights Commissioner's statement
that the Company was attempting to "abrogate an agreement" the
situation here is that the payment of the meal allowance was
contrary to the National Agreement between the Company and the
Trade Unions and the Company endeavoured to bring the payment
of meal allowances in line with the agreement. There is
sufficient precedent for such an attempt to make this
reasonable and justified (details supplied to the Court).
3. At all times during the course of the morning the drivers
concerned were free to work their duty and under the same
terms as they had been since 1988 pending third party
intervention. They refused to do this work. Even as late as
11.00 a.m. when the matter had been clarified for all
concerned the two drivers were offered a full day's work on
alternative duties which they also refused. To subsequently
claim that these drivers had not participated in industrial
action is wrong. The offer of an alternative duty was
rejected by these two drivers, thereby severely affecting the
Company's services and losing badly needed revenue. The Court
itself in the past has recommended that no payment should be
made in similar circumstances (details supplied to the Court).
4. It is the Company's contention that the Rights
Commissioner's recommendation, while stating that the payment
is recommended without precedent and without prejudice to the
long standing policy, is a recommendation for payment to staff
for time not worked and is totally unacceptable. It
introduces the concept of selective payment to staff who
withdraw their service and disrupt the Company's operations.
It is clear that both members of staff were aware of the
position and knowingly decided to withdraw their labour.
DECISION:
5. It is obvious that there was a good deal of confusion on the
morning of the incident and that there were faults on both sides
which gave rise to this situation. The Court is of the view that
the Rights Commissioner struck a fair balance in recommending as
he did.
The Court accordingly upholds his recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
________________________
7th June, 1989. Deputy Chairman
P.F./J.C.