Labour Court Database __________________________________________________________________________________ File Number: CD89903 Case Number: AD9018 Section / Act: S13(9) Parties: DUBLIN BUS - and - A WORKER;CANNING LANDY AND COMPANY |
Appeal by a worker against Rights Commissioner's recommendation No. C.W. 273/89 concerning the restoration of Public Holiday working.
Recommendation:
I recommend that the Company offers and the worker accepts
the sum of #450 in settlement of this dispute, on the
understanding that it is taken to be non precedential, the 13
year span of the duties is an important factor, and the
Company had erroneously continued the payment for a time
following the introduction of the 5 day week."
(The worker was named in the Rights Commissioner's
recommendation).
The conductor rejected the recommendation and on 8th December,
1989, appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
18th January, 1990.
WORKER'S ARGUMENTS:
3. 1. During the period 1981 to 1987, the conductor concerned
established certain rights to Public Holiday duties. Public
Holiday work was an intrinsic and inseparable part of that
duty. When the 5 day week; was introduced all workers were
informed that their net working conditions would not worsen as
a result of the 5 day week, however, in this case the
conductor is considerably worse off as he has no opportunity
to work Public Holidays and as a result has lost approximately
28 days since 1987.
2. Restoration of the pre-1987 position would only affect 2
other workers in the Cunningham Road depot, as the local
agreement which was accepted by the Company and unions as an
exception to the general rule would only apply to the routes
to which it applied prior to 1987. No other "bogey" staff
would be in a position to claim this special treatment. It
will also cost the Company less money than the current
position.
3. When the final proposals for the 5 day week were being
discussed between the Company and unions it is unlikely that
the circumstances of this case were considered. The conductor
submits that he is entitled to have his position restored and
that it was not the intention of the negotiators to deprive
him of his duties with a resultant loss of earnings.
COMPANY'S ARGUMENTS:
4. 1. The conductor concerned was, prior to the 5 day week,
allowed to work his own duty on Public Holidays as a result of
a local union/management agreement. The 1987 5 day week
agreement, which was balloted on and accepted by the staff,
prohibited any local agreement and "bogey" staff were only to
be marked in for duty on Public Holidays after the last
appointed spare person in the pool. This agreement was fully
implemented in all garages.
2. The Company discussed this particular case with the
unions; however, the unions were not agreeable to making a
concession to allow the conductor concerned continue his
previous duties. The Company had no option but to apply the
agreed procedure.
3. Restoration of the conductor to the duties he held by
virtue of the now withdrawn local agreement would result in
claims from other "bogey" staff affected under the 5 day week
agreement and could jeopardise existing and future agreements.
4. The Company considers that there is no justification for
the #450 awarded by the Rights Commissioner as the Company was
only applying the agreed procedure.
DECISION:
5. Having regard to the terms of the Company/Union agreement in
respect of the allocation of the duties in question, the Court is
satisfied that, in adhering to the terms of this agreement, the
Company has no case to answer and the agreement must be sustained.
In the circumstances, however, the Court considers that the Rights
Commissioner's recommendation should stand.
The Court so decides.
Division: Mr O'Connell Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD89903 APPEAL DECISION NO. AD1890
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN BUS
and
A WORKER
(REPRESENTED BY CANNING LANDY AND COMPANY)
SUBJECT:
1. Appeal by a worker against Rights Commissioner's
recommendation No. C.W. 273/89 concerning the restoration of
Public Holiday working.
BACKGROUND:
2. The worker concerned is employed as a bus conductor. He is
described as "bogey staff" which means he works a certain shift
every day and that shift does not change. He has operated this
duty since 1981. As a result of the introduction of the 5 day
week in 1987, the conductor was deprived of Public Holiday
working. He was subsequently informed that he had only been
working the Public Holidays since 1981 under a local agreement and
in the absence of objections from the unions. The unions support
for the local agreement was withdrawn in 1987. In 1989, the
conductor sought to have the local agreement re-implemented. The
Company offered to restore the duties provided that no
compensation was paid, that it would be on a non-precedential
basis and that the unions agreed. However, no agreement was
forthcoming from the unions. The conductor referred the matter to
a Rights Commissioner for investigation and recommendation. On
29th November, 1989, the Rights Commissioner issued the following
findings and recommendation.
"FINDINGS
The basic facts, in this dispute are straightforward. No one
denies that the worker for a period of 13 years (1974 - 1987)
worked public holidays. He has now lost this work and is
seeking its restoration. There has been no re-organisation
in so far that there is no saving to the Company, nor have
the duties been amended for recessionary reasons, but rather
different persons are now allocated to these duties from the
late pool. I do not believe that the worker has established
a right for the continuation of the duties rather there is a
clear obligation on the Company to conform to the original
agreement now. I do feel there is some merit of modest
compensation in relation to the loss of earnings element.
RECOMMENDATION
I recommend that the Company offers and the worker accepts
the sum of #450 in settlement of this dispute, on the
understanding that it is taken to be non precedential, the 13
year span of the duties is an important factor, and the
Company had erroneously continued the payment for a time
following the introduction of the 5 day week."
(The worker was named in the Rights Commissioner's
recommendation).
The conductor rejected the recommendation and on 8th December,
1989, appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
18th January, 1990.
WORKER'S ARGUMENTS:
3. 1. During the period 1981 to 1987, the conductor concerned
established certain rights to Public Holiday duties. Public
Holiday work was an intrinsic and inseparable part of that
duty. When the 5 day week; was introduced all workers were
informed that their net working conditions would not worsen as
a result of the 5 day week, however, in this case the
conductor is considerably worse off as he has no opportunity
to work Public Holidays and as a result has lost approximately
28 days since 1987.
2. Restoration of the pre-1987 position would only affect 2
other workers in the Cunningham Road depot, as the local
agreement which was accepted by the Company and unions as an
exception to the general rule would only apply to the routes
to which it applied prior to 1987. No other "bogey" staff
would be in a position to claim this special treatment. It
will also cost the Company less money than the current
position.
3. When the final proposals for the 5 day week were being
discussed between the Company and unions it is unlikely that
the circumstances of this case were considered. The conductor
submits that he is entitled to have his position restored and
that it was not the intention of the negotiators to deprive
him of his duties with a resultant loss of earnings.
COMPANY'S ARGUMENTS:
4. 1. The conductor concerned was, prior to the 5 day week,
allowed to work his own duty on Public Holidays as a result of
a local union/management agreement. The 1987 5 day week
agreement, which was balloted on and accepted by the staff,
prohibited any local agreement and "bogey" staff were only to
be marked in for duty on Public Holidays after the last
appointed spare person in the pool. This agreement was fully
implemented in all garages.
2. The Company discussed this particular case with the
unions; however, the unions were not agreeable to making a
concession to allow the conductor concerned continue his
previous duties. The Company had no option but to apply the
agreed procedure.
3. Restoration of the conductor to the duties he held by
virtue of the now withdrawn local agreement would result in
claims from other "bogey" staff affected under the 5 day week
agreement and could jeopardise existing and future agreements.
4. The Company considers that there is no justification for
the #450 awarded by the Rights Commissioner as the Company was
only applying the agreed procedure.
DECISION:
5. Having regard to the terms of the Company/Union agreement in
respect of the allocation of the duties in question, the Court is
satisfied that, in adhering to the terms of this agreement, the
Company has no case to answer and the agreement must be sustained.
In the circumstances, however, the Court considers that the Rights
Commissioner's recommendation should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
11th May, 1990. Deputy Chairman
B.O'N./J.C.