Labour Court Database __________________________________________________________________________________ File Number: CD90350 Case Number: AD9033 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUSWORKERS UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. BC 61/90 concerning the payment of a second meal allowance.
Recommendation:
8. The Court has considered the submissions made by the parties
and in particular has taken account of the arguments by the Union
on the application of National Company/Union Agreement to the case
in question.
The Court does not accept that the Union's interpretation of the
Agreement is correct and therefore is of the opinion that the
Rights Commissioner's recommendation should stand and so decides.
Division: Mr O'Connell Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD90350 APPEAL DECISION NO. AD3390
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. BC 61/90 concerning the payment of a second
meal allowance.
BACKGROUND:
2. In December, 1989 the Union lodged a claim with the Regional
Manager Cork for the payment of a 2nd meal allowance to a spare
driver based in Tralee who was rostered to operate the
Ballybunion/Tralee service. The Company rejected the claim.
3. In the Tralee District, as in all other Districts in Bus
Eireann, a number of drivers are "out-based" at locations such as
Kenmare, Dingle etc. While the "Parent" depots would be Tralee or
Cork the "home" depots of these drivers are the locations at which
they are "out based". The outbased driver operates bus services
from the outlying districts into the Parent Depot and is paid meal
allowances for any breaks taken outside of their "home" depots
(i.e. the depots at which they are based). When an outbased
driver is on holidays or on sick-leave a relief driver is sent
from the Parent Depot.
The relief driver is paid overnight expenses to cover bed and
breakfast and is paid meal allowance for meal breaks at the
"out-based" depot. However if the relief driver operates into his
"Parent" depot and is broken then he is not paid a meal allowance
for that break. The Union maintains this practice is incorrect
and based its claim on Clause 11 of the National Agreement. The
Company rejected the claim and stated that all meal allowances
were correctly paid in accordance with Clause 10 of the National
Agreement see Appendix A for clauses 10 and 11.
4. The claim was referred to a Rights Commissioner who
investigated the dispute on 7th March, 1990 following which he
issued his recommendation dated 15th March, 1990.
"In the light of the above while conscious of the feeling
which was expressed by the Trade Union with regard to the
matter, I must come down on the side of the virtual status
quo nationally i.e. since most areas of the company do not
pay the second meal allowance in the circumstances
outlined I believe it would be improper for me to
recommend that the Southern Area of Bus Eireann should
adopt what effectively is the minority position
nationally. I therefore must uphold the Company's
position and recommend accordingly."
5. The Union appealed the Rights Commissioner's Recommendation to
the Labour court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal in Cork on 18th July, 1990.
UNION'S ARGUMENTS:
6. 1. Clause 10 is quite clear where it states that relief crews
when relieving permanent crews on regular services for annual
leave etc. are entitled to the provisions of clauses (d), (e)
and (f). The National Agreement is quite clear on what
constitutes a home depot. It is rather peculiar that in the
particular case quoted on the Ballybunion/Tralee service that
the permanent driver receives two meal allowances each day
because he has a break of up to 4 hours in Tralee but the man
who relieves him and finds himself on a break in Ballybunion
from seven o'clock that evening until half past seven the
following morning qualifies for only one. The National
Agreement was never intended for such a thing to happen.
2. Another aspect that supports the Union's claim is what
happens when the man who is relieving away is returning on his
final day. He comes back passenger, and gets his overnight
expenses and his first meal allowance for travelling back to
his home depot on the morning in question. That in itself
gives a clear indication that when he has to stay away that
night again he is entitled to a second meal allowance.
3. It has always been the Union's contention that there has
always been insufficient money to cover expenses generally.
It is unfair on a man having to relieve away from home
receiving only overnight and one meal allowance when he has to
partake most of his meals away from home. It is the Union's
view that full meal allowances were paid up to some point in
time but the practice was changed unbeknown to the Union. It
is difficult enough to expect staff to stay away from home
from their families and friends without at the same time
penalising them to the extent that they are not paid full
expenses.
COMPANY'S ARGUMENTS:
7. 1. The payment of meal allowances is only applicable where a
staff member is broken under the terms of Clause 10 at a
location other than his "home" depot.
2. The relief driver in the circumstances under consideration
retains the "Parent" depot as his home depot when performing
relief at "out-based" locations - if the "out-based" location
were to be considered as his new "home" depot, he would not
qualify for overnight bed and breakfast expenses.
3. The Company's practice as outlined above has been in
operation in the Cork Region over the years and is the correct
method of paying meal allowances in the specific circumstances
of the Union's claim.
4. It should be borne in mind that the granting of the
Union's claim would have national implications with
considerable financial consequences for the Company.
DECISION:
8. The Court has considered the submissions made by the parties
and in particular has taken account of the arguments by the Union
on the application of National Company/Union Agreement to the case
in question.
The Court does not accept that the Union's interpretation of the
Agreement is correct and therefore is of the opinion that the
Rights Commissioner's recommendation should stand and so decides.
~
Signed on behalf of the Labour Court,
John O'Connell
__24th___August,___1990. ___________________
M. D. / M. F. Deputy Chairman
APPENDIX A
Clause 10 of the National Agreement which deals with meal
allowances reads as follows:
"A driver or conductor will be paid #3.30 per day is booked off
away from his home depot during one or more of the ordinary meal
times.
In the case of spare man required to work unscheduled duties and
who are absent from their home depot for a period in excess of 5.50
hours and who are broken away from home for a minimum period of 30
minutes, they shall be eligible for a Meal Allowance.
The period on the expiry of which they shall qualify for a meal
allowance shall be reckoned from time of booking on duty.
A second meal allowance of #2.15 shall be paid.
(a) When there are two breaks away from home depot.
(b) In a spreadover of 11 hours or more where the breaks
are not less than 30 minutes duration on each
occasion. A period of 4 hours must elapse between
the beginning of the first break and the end of the
second break.
(c) Where there is only one break away from the home
depot. When such break is for a period of 4 hours or
more in a spreadover of 11 hours. Where the break is
for a period of 3.50 hours or more in a spreadover of 12
hours.
Drivers and conductors permanently assigned to regular services,
or those rostered for auxiliary services, and private hire trips
will qualify for payment of the second meal allowance when
scheduled for duties requiring them to lodge away from the home
depot overnight in the following circumstances.
(d) When booked on duty at their home depot before 12
noon for the onward journey, and are not
subsequently broken at their home depot to permit of
their obtaining a meal.
(e) On each subsequent day on which their duties
necessitate their remaining away from their home
depot.
(f) When on their return journey they are not booked off
duty at their home before 20.00 hours provided they
have not been broken prior to that hour at their
home depot to enable them to obtain a meal.
Relief crews when relieving Drivers and Conductors on permanently
assigned regular services for annual leave etc. are entitled to
the provisions of (d),(e) and (f) above.
Staff who are marked in on day tours and who, as a result, are not
paid shift bonus will qualify for payment of additional expenses
of #2.15 per day including Sundays while on tour working. Spare
staff who are not on the tour panel and who operate day tours as
auxiliaries do not qualify for the additional #2.15 per day as
they are paid shift bonus when operating tours.
The additional #2.15 per day applies to all tours staff whether or
not they are in receipt of shift bonus on normal services. Staff
when in receipt of the additional #2.15 per day will NOT qualify
for Saturday afternoon and evening bonus."
Clause 11 of the National Agreement which deals with lodging
allowance reads as follows:-
"(a) A Driver of Conductor will be paid #8.35 per night
when rostered for a service which necessitates
remaining away overnight from his home depot.
(b) A Driver of Conductor whose transfer from his home
depot is other than temporary will be paid #8.35 per
night for a maximum of seven nights.
A Driver of Conductor who receives an allowance of #8.35 per night
for seven nights in accordance with Clause 11(b) does not also
qualify for payment of a meal allowance at the depot to which he
transfers. The only expense he receives in respect of the first
seven days is the allowance of #8.35 per night as detailed in
Clause 11(b) unless he works from the depot to which he has
transferred to another depot and qualifies for meal allowances in
accordance with Clause 10. For the purpose of Clause 10 the depot
to which he has transferred becomes his home depot immediately he
transfers".