Labour Court Database __________________________________________________________________________________ File Number: CD89692 Case Number: AD8980 Section / Act: S13(9) Parties: IRISH RAIL - and - NATIONAL BUSWORKERS' UNION |
Appeal by the Union against Rights Commissioner's recommendation B.C. 222/89.
Recommendation:
6. The Court, having considered the submissions made, and having
particular regard to the fact that no loss of normal rostered
hours occurred and to the length of notice given of the
cancellation of the proposed extra duty, is of the opinion that
the Rights Commissioner's Recommendation should stand.
The Court so decides.
Division: Mr O'Connell Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
CD89692 APPEAL DECISION NO. AD8089
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: IRISH RAIL
and
NATIONAL BUSWORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation B.C. 222/89.
BACKGROUND:
2. A "Spring Show" special train was planned ex Galway on
Saturday 6th May, 1989. Revised rosters were advised to staff
involved on the 5th May. However, that afternoon the special
train was cancelled and accordingly staff were notified to revert
to their normal Saturday roster. The dispute centres around the
locomotive driver who was due to take the special train from
Galway. His wife was contacted by phone at 3 p.m. on the 5th May
and was requested to advise him that his finishing time for the
following day would be extended from 12.20 p.m. to 2.40 p.m.
However, at 5.30 p.m. on the same afternoon (Friday 5th) she
received a further phone call, advising that the special train had
been cancelled and that her husband's normal Saturday roster would
now apply. The worker subsequently claimed payment for the 6th
May in accordance with the revised roster. Management refused and
paid him only for actual time worked on that day. As local level
discussions failed to resolve the issue, the Union, on behalf of
the worker, referred the matter to a Rights Commissioner for
investigation and recommendation.
3. The Rights Commissioner, having investigated the dispute on
the 9th August, 1989 issued the following Findings
and Recommendation:
"Having investigated the matter and having given full and
careful consideration to the points made by both parties I
have come to the following conclusions:
1. I am satisfied that the worker's commitment to Irish
Rail is exemplary.
2. In attempting to come to a conclusion with regard to the
validity or otherwise of the claim I believe several
factors are influential. These are
(a) custom and practice,
(b) degree of inconvenience suffered by the employee,
(c) financial loss suffered by employee,
(d) the lapse of time between the initial notification
of the overtime and its cancellation,
(e) the interval between the cancellation of the
overtime and the commencement of the roster during
which it was intended that the overtime should be
worked.
In the light of the above I have come to the conclusion that
I must uphold the Company's rejection of this claim and I
recommend accordingly."
The recommendation was unacceptable to the Union which appealed it
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. A Court hearing was held in Galway on the
2nd November, 1989.
UNION'S ARGUMENTS:
4. 1. The worker entered into a contract with the Company to do
the extra work and the Company cancelled that contract without
paying any penalty. A contract is binding on both sides.
Having decided that he would undertake this extra work he was
bound to do it.
2. The Union is surprised that on the one hand the Rights
Commissioner was satisfied that the worker's commitment to the
Company was exemplary and yet he did not recommend in his
favour.
3. Subsequent to this incident a similar situation arose on
two occasions in July and again the Company denied payment.
There is now a question of principle involved with regard to
people who agree to operate extra duties and through no fault
of their own, suffer a loss when the work is cancelled. If a
driver is going to commit himself to this kind of work then he
will have to be compensated for it in the event of it being
cancelled. If no compensation is paid it will be bringing the
position into the realms of casual or part-time labour. This
situation will not be tolerated.
4. It is strange that the Company should resist this claim
because at the end of the day it gains most from this
arrangement. The drivers are quite happy to make themselves
available for extra duties but they must be compensated in the
event of cancellations.
COMPANY'S ARGUMENTS:
5. 1. There are six locomotive drivers based in Galway Station,
five regular link drivers and one special link driver. The
regular link drivers rotate on set rosters and the special
link driver provides coverage for the operation of special
trains and annual leave relief etc of the regular drivers. On
occasions when the special link driver is engaged on regular
link working and a special train is operating the drivers
undertake additional working in order to cover same. The
revised roster advised to the worker concerned on 5th May was
consequent on such an occurrence.
2. Due to the nature of the Company's operations,
particularly with regard to the running of special trains,
roster changes at short notice are unavoidable. Indeed such
instances arise frequently throughout the rail system and
payment to employees is based on time worked. In this case,
along with other staff involved, he was made aware of the
cancellation of the revised roster arrangement 2.50 hours
following advice of same and some 12 hours prior to reporting
for duty on Saturday 6th May.
3. In the Agreement on Conditions of Employment for
locomotive drivers, staff rostered for Sunday duty and not
required are afforded a half day's pay at standard rate if
given less than four hours notice of cancellation. If more
than four hours notice is given no payment is made.
Cancellation of week-day overtime working is not specifically
covered by this clause. However, applying this criteria in
this case would not warrant any additional payment to that for
actual time worked on Saturday 6th May. The cancellation
notice given him was 12 hours.
4. The Company is satisfied that in all the circumstances
covering the cancellation of the revised working arrangements
advised to staff for Saturday 6th May a case does not fall to
be met in respect of additional payment to that for actual
time worked by the worker.
DECISION:
6. The Court, having considered the submissions made, and having
particular regard to the fact that no loss of normal rostered
hours occurred and to the length of notice given of the
cancellation of the proposed extra duty, is of the opinion that
the Rights Commissioner's Recommendation should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_________________________
16th November, 1989. Deputy Chairman
D.H./J.C.