Labour Court Database __________________________________________________________________________________ File Number: CD89879 Case Number: LCR12716 Section / Act: S67 Parties: BUS EIREANN - and - NATIONAL BUSWORKERS UNION |
Claim by the Union for the inclusion of spreadover on overtime in the calculation of annual leave payment.
Recommendation:
5. Having regard to the fact that the payment in question derives
directly from regular rostered overtime which is itself taken into
account the Court recommends that the spreadover payment should be
included for the purpose of the computation of annual leave with
effect from the date of issue of this Recommendation.
Division: Mr O'Connell Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD89879 RECOMMENDATION NO. LCR12716
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BUS EIREANN
and
NATIONAL BUSWORKERS UNION
SUBJECT:
1. Claim by the Union for the inclusion of spreadover on overtime
in the calculation of annual leave payment.
BACKGROUND:
2. The claim concerns workers who are employed in the provincial
road transport section. Their normal working day amounts to 6
hours 40 minutes. However some of the "boards" (routes) to which
they are assigned necessitate their being away from home for
longer than their standard working hours. An absence in excess of
10.50 hours attracts a special payment called "spreadover", the rate
paid is one hour's pay for each excess hour. In the calculation
of holiday pay the Company includes spreadover paid in the context
of the normal working day but spreadover in the context of
overtime worked is not included. For example a driver may have a
board which involves a journey of 4 hours to a provincial town, 4
hour wait there, and a return journey of 4 hours. The journey
takes 12 hours and attracts 1.50 hours spreadover but no overtime.
Another driver may work full-time from 8.00 a.m. to 7.30 p.m.
except for his usual breaks. He is paid overtime from 4.00 p.m.
onwards but no spreadover from 6.30 p.m. The Union, at a meeting
with the Company on the 25th May, 1989, claimed that spreadover on
overtime should also be included in the calculation of holiday
pay. The Company rejected the claim. Local discussions and a
conciliation conference held on the 22nd October, 1989 failed to
resolve the issue and the dispute was referred to the Labour Court
on the 4th December, 1989. A Court hearing was held on the 15th
January, 1990.
UNION'S ARGUMENTS:
3. 1. In a previous recommendation in 1982 (L.C.R., 7135) the
Court recommended that "boards which involve the working of
regular overtime should have the payment of such overtime
included in the calculation of annual leave payments." Prior
to 1982 the only exclusion from calculating annual leave
payment was compulsory overtime on the particular provincial
boards. The Company, after the issue of L.C.R. 7135, (which
it accepted) set about changing the existing conditions
unknown to the Union. The make up of the provincial boards
vary in that the driver starts at his home depot, does his
trip or trips, and arrives back at his depot in the evening or
night. The conditions associated with the board may well mean
that he would exceed a spreadover in the day of 10.50 hours at
which time he would receive the flat rate per hour in excess
of 10.50 hours. It may also mean he would excess the 6 hours 40
minutes which is his normal day and would therefore qualify
for overtime and spreadover. The Union expects the Company to
implement L.C.R. 7135 in the manner intended. The Company
however, eliminated from holiday pay calculations, part of the
spreadover which was involved in overtime. This means that
workers get less money going on holidays than they would had
they worked their boards on a normal basis. In some periods
this loss over the duration of three weeks holidays can amount
to a figure in excess of #50.
2. The Union cannot understand the Company's attitude in
penalising workers when they take their annual leave. It has
long been accepted practice that workers when going on annual
leave are entitled to their normal level of earnings
particularly where the work has to be done and therefore there
is a level of compulsion involved. When the issue was raised
with the Company the Union thought that the error would have
been conceded. However Management has tried to justify its
position by stating that spreadover associated with overtime
was never taken into account prior to 1982. This attitude
makes absolutely no sense. Prior to 1982 the question of
overtime being calculated in the holiday payment did not arise
and in fact all the bonuses including the spreadover payment
were calculated in full. The Union requests that the present
situation be rectified and also that the retrospective element
be considered whereby workers lost part of their wages when
going on holiday over a number of years.
3. The Union finds it ironic that having succeeded in getting
overtime associated with holiday pay calculated, a reduction
should take place elsewhere. When the Union attended the
hearing in 1982 to deal with the claim that calculation
overtime be included in annual leave payments, there was never
any question of any other aspect of the workers normal wages
not being included for the purpose of holiday pay. if there
had been, it would have been included in the claim in exactly
the same fashion. Workers who have both overtime and
spreadover payments on their board, and who operate a lengthy
working day, should, not suffer when they go on annual leave.
COMPANY'S ARGUMENTS:
4. 1. Under the present agreement between the Company and the
Union (Clause 15) "spreadover and waiting time where these
arise outside the normal day and also payments under the no
accident bonus scheme are not included in the computing of
annual leave." The agreement is being implemented correctly.
The Company has also implemented L.C.R. 7135 in the correct
fashion. The recommendation did not state that spreadover
attracted because of regular rostered overtime should be
included in annual leave payments.
2. The cost of conceding the claim would be approximately
#19,500 and is debarred as a cost increasing claim under the
terms of the Programme for National Recovery (P.N.R.). In
addition the Company is in a serious financial situation and
in the last financial year expenditure exceeded revenue
including Government subvention by #4.65 million. The
accumulated deficit stands at #8.9 million. It was made clear
to the Union that the Company could only pay the terms of the
P.N.R. if sufficient savings could be found to fund the cost
and to date this required level of savings has not been
achieved, yet the Company continues to fund the pay increase
at a cost of almost #1 million. The Company's request for a
fare increase, which can only be applied in certain
situations, has been refused by the Government and it would
appear to be their intention to liberalise the road passenger
industry, and allow private operators who work on a very low
cost basis, to operate freely in competition with the Company.
3. In relation to the claim that spreadover should be
included for the calculation of annual leave payments it was
argued by the Union that the Court in L.C.R. 7135 intended
that all regular rostered earnings be included and that this
should have been done at that time. In fact, the particular
exception of spreadover which arises outside the normal day in
relation to the calculation of annual leave payments was
referred to by both the Union in its submission to the Court
and it was also discussed by the Company in its submission.
The Court recommended at that time that only regular rostered
overtime be included for annual leave payments and this was
implemented by the Company.
4. In many similar claims since that time, the Court has
recommended that only regular rostered overtime be included
for annual leave payment. It has always been the tradition
and practice in the road passenger provincial section that
spreadover where it arises outside the normal day be excluded
for the calculation of annual leave payments. Spreadover is
included where it arises as part of the normal day and this
part of the agreement has continued to be implemented by the
Company. Nothing now has been stated by the Union in support
of the claim and it is the Company's view that it should not
be conceded. If payment of this excluded item is recommended,
it would merely be a matter of time before Unions would be
demanding that casual spreadover and casual overtime which are
also excluded, should be included and the repercussive cost of
this for the Company would be catastrophic.
RECOMMENDATION:
5. Having regard to the fact that the payment in question derives
directly from regular rostered overtime which is itself taken into
account the Court recommends that the spreadover payment should be
included for the purpose of the computation of annual leave with
effect from the date of issue of this Recommendation.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
25th January, 1990 Deputy Chairman.
T.O'D./J.C.