Labour Court Database __________________________________________________________________________________ File Number: CD89665 Case Number: AD8983 Section / Act: S13(9) Parties: IARNROD EIREANN - and - FEDERATED WORKERS' UNION OF IRELAND |
Appeal by the Company against Rights Commissioner's Recommendation S.T. 197/89 concerning a claim for compensation for loss of earnings due to lay-off on behalf of three ships' officers attached to the Company's Galway/Aran Islands passenger/freight service.
Recommendation:
7. Having regard to the unusual circumstances which gave rise to
the lay-off of the officers concerned and in light of normal
conditions of employment of this grade of staff in the Company,
the Court 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__________________________________________________________________
CD89665 APPEAL DECISION NO. AD8389
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: IARNROD EIREANN
and
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation S.T. 197/89 concerning a claim for compensation for
loss of earnings due to lay-off on behalf of three ships' officers
attached to the Company's Galway/Aran Islands passenger/freight
service.
BACKGROUND:
2. In October, 1988 the Department of the Marine declined to
renew the "Passenger Ship Safety Certificate" for the M.V. "Naomh
Eanna," the Company's vessel employed on the Galway/Aran Service
since 1956. This certificate is renewable annually and is issued
consequent on a physical examination of seagoing transport
vessels. At a meeting on the 19th October the unions involved
were advised that temporary lay-offs would be introduced while the
Company sought to secure a replacement vessel either through
purchase or charter. In accordance with existing agreements, one
week's notice was to be given to crew workers and one month's
notice to the three officers. Notice of lay-off was confirmed to
the three claimants in writing the next day. Despite protests
from the Union, following expiry of both the one month's period of
notice and outstanding annual leave entitlement granted to them,
the temporary lay-offs became effective for each Officer as
follows:-
Captain - from 10th January, 1989
Mate - from 22nd November, 1988
Engineer - from 9th December, 1988.
In January, the Company secured the M.V. Bandick on a bare boat
charter basis to provide a freight service to the Aran Islands.
Both Officers and crew resumed duty on the 31st January, 1989.
3. On 27th February the Union wrote to the Company requesting a
meeting to discuss a claim for compensation for loss of earnings
due to lay-off on behalf of the three officers. A meeting took
place on the 13th April at which the Union quantified its claim as
payment of the difference between the amount of weekly Social
Welfare Unemployment Benefit equivalent afforded each Officer
during the lay-off period and their average weekly earnings. On
8th May the Company in a written response declined this claim.
The Union subsequently referred the matter to a Rights
Commissioner for investigation and recommendation.
4. The Rights Commissioner, having investigated the dispute on
the 17th July, 1989, issued the following recommendation on the
4th August:
"The Union as early as the 7/7/88 had signalled that it had no
intention of allowing the State Service to the Aran Islands
be discontinued. Again on the 6/7/89 it specifically
referred to the ageing Ferry and competition from Galway
Ferry Company. The Company in a reply dated 11/7/88 stated
inter alia in para (1) that the M.V. NAOMH EANNA would
continue with present Winter and Summer time tables. The
Union in a further letter dated 19/7/88, requested details of
steps taken by the Company with the Government to effect
plans set out in the letter to the Union dated 11/7/88. No
reply was received.
Clearly, the claimants as Senior Officers were more versed in
the condition of the "NAOMH EANNA" than anyone else. They
properly advised their Union that the vessel would not
receive certification. The Union took all reasonable steps
from April, 1988 to January, 1989 to bring about a solution.
The local management are subject to overall policy decisions
at a much higher level and must operate within the parameters
laid down including a possible lack of clarity from central
policy making level. In this case I do not consider they
were responsible. Never-the-less I consider that
compensation is warranted in the circumstances. Whilst the
claimants did suffer an actual loss in earnings from their
normal employment, they did have the advantage of time off to
engage in leisure or other activities. In these
circumstances I recommend that they receive 50% of the sums
claimed in the Union submission."
The Company rejected the recommendation and on the 13th September
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.
COMPANY'S ARGUMENTS:
5. 1. The M.V. "Naomh Eanna" was a Company owned vessel used to
provide a passenger/freight service from Galway to the Aran
Islands. Her sea-worthiness certificates were subject to
annual renewal following her dry docking/overhaul at the end
of September each year. Consequent on the sinking of the
Townsend Thorensen passenger ferry at Zeebrugge in March, 1987
the Department of the Marine introduced, in 1988, a more
stringent sea worthiness test, as part of its annual
examination of passenger carrying vessels. The M.V. "Naomh
Eanna" failed an "inclination test" in September, 1988 and the
Department decided not to renew her "Passenger Ships Safety
Certificate." This was the first time that this vessel had
been subjected to this particular test and the Company had no
prior indication that the M.V. "Naomh Eanna" would fail the
annual examination.
2. The future of the Galway/Aran Service was the subject of
correspondence with the trade unions in 1988, as it had been
previously. The Company had submitted proposals to the
Department of Tourism & Transport concerning the operation of
a roll-on/roll-off service to the Aran Islands. This would
involve considerable capital investment and a decision on
these proposals is awaited. The trade unions have been kept
informed of the position in this regard and it was the
intention to continue operating the "Naomh Eanna" as per the
normal Winter and Summer schedules pending the outcome of the
Government decision on the service. Furthermore, the
statement in the last sentence of the first paragraph of
Recommendation No. S.T. 197/89, that the Company failed to
reply to the trade unions' letter of 19th July, 1988 is not
correct. The Regional Manager Operations (West) contacted the
F.W.U.I. Branch Secretary on 15th August and reiterated the
Company's position with regard to the future of the service.
3. As soon as the Company was advised that the M.V. "Naomh
Eanna" had failed its mandatory examination on foot of the
result of the "inclination test", its agent, Irish Marine
Services, was requested to urgently seek a replacement vessel.
However no replacement vessel was immediately available. The
Company in an effort to at least maintain its freight service
to the islands, contracted with Aran Ferries Teoranta to
provide an interim service. The vessel employed for this
purpose was the M.V. "Bandick" manned by an Aran Ferries crew.
It was not available on a bare boat charter basis at that
time. However, negotiations for a bare boat charter of this
vessel were undertaken immediately and successfully concluded
in January, 1989. The agreement with Aran Ferries Teo. was
for a 12 month charter on a bare boat basis to commence on 6th
February, 1989. This interim agreement was made in the light
of the Company awaiting a Departmental decision on its
investment proposals. The officers and crew resumed duty
after lay-off on 31st January, 1989.
4. The normal duties performed by the officers, in a Company
context, are of a specialised nature. Alternative work was
not available to them and the Company had, therefore, no
option but to place them on temporary lay-off.
5. The three officers concerned are part of the salaried
grading structure within the Company and in common with all
such grades are Class "D", P.R.S.I. contributors and are not,
therefore, eligible for payment of Department of Social
Welfare Benefits during periods of unemployment. However, in
keeping with an agreement made with the Clerical and
Supervisory Trade Union Group in January, 1982 the Company
afforded the officers weekly payments equivalent to payments
to which they would have been entitled had they been eligible.
6. The Union has contended that this temporary lay-off was in
breach of the Programme for National Recovery. The clause in
the Programme referred to by the Union is not relevant in the
commercial semi-State sector or indeed in a temporary lay-off
situation, which occurred, and which was outside the control
of the Company.
7. In a number of recent cases, the Labour Court has rejected
claims for compensation for loss of earnings due to lay-off
(details supplied to the Court).
8. Concession of this claim would be likely to result in a
similar claim on behalf of the eight crew members and would be
cited as a precedent in the future.
UNION'S ARGUMENTS:
6. 1. The reason for the claimants' lay-off was predictable i.e.
the failure to obtain vessel certification. Both the
claimants and the Union did all that could be reasonably
expected to ensure that shore-based management were kept fully
appraised of the situation and the probable consequences. No
blame can be placed on the Ship's Officers, yet of those in
authority, they remain the only ones who have suffered
financial loss.
2. Lay-offs would have been avoided had the Company heeded
Union warnings and sought in good time a replacement vessel.
Evidence available to the Union suggests that the M.V. Bandick
was available in October for bare boat charter.
3. The claimants' normal workload was not eliminated but was
merely re-located to the Liffey Dockyard and private non-union
contractor.
4. The eventual availability of the M.V. Bandick coincided
with the date for commencement of strike action with pickets
to be placed in Galway and Dublin.
5. The lay-offs were in clear breach of the spirit and intent
of the Programme for National Recovery (details supplied to
the Court).
DECISION:
7. Having regard to the unusual circumstances which gave rise to
the lay-off of the officers concerned and in light of normal
conditions of employment of this grade of staff in the Company,
the Court 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
__________________________
17th November, 1989. Deputy Chairman
D.H./J.C.