Labour Court Database __________________________________________________________________________________ File Number: CD9097 Case Number: LCR12831 Section / Act: S67 Parties: BUS EIREANN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union on behalf of a worker for compensation for loss of pay.
Recommendation:
5. Having regard to the circumstances in this case the Court
recommends that the Company's offer of compensation for the loss
arising from the reorganisation of work be accepted by the worker
concerned.
Division: Mr O'Connell Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD9097 RECOMMENDATION NO. LCR12831
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BUS EIREANN
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union on behalf of a worker for compensation for
loss of pay.
BACKGROUND:
2. In January, 1989 there was a restructuring of work practices
in Busaras. As a result of this reorganisation, all workers on
parcels, left luggage, portering and information duties were
regraded Busaras operatives, and a new rate of pay of #139.00 per
week was introduced. The worker concerned here was regraded to
chargehand operative at a weekly rate of pay of #166.37, which was
then increased by a further #2.00 per week. As a result of the
reorganisation, this worker was no longer required to work shift
duties or Sunday's and therefore was placed on day work, Monday to
Friday. The Union subsequently served a claim on the Company for
compensation for loss of earnings. No agreement could be reached
and the matter was referred to the conciliation service of the
Labour Court on the 29th August, 1989. A conciliation conference
was held on 19th October, 1989, which was adjourned pending the
outcome of the worker's application for a job as a bus driver.
However, the worker was unsuccessful in his application for
medical reasons and on 21st December, 1989 the Union requested
further conciliation, which was held on 6th February, 1990. The
Company offered one and a half times the annual loss (#1,950)
which offer was subsequently increased to #2,234.70 in order to
take account of the worker's future losses. This is unacceptable
to the Union which is claiming two and a half times the annual
loss. No agreement could be reached and on 9th February, 1990 the
matter was referred to the Labour Court for investigation and
recommendation. The Court investigated the dispute on 12th March,
1990.
UNION'S ARGUMENTS:
3. 1. Prior to the restructuring there were two chargehands
rotating with shift pay and Sunday work and overtime was
available any time one needed to be relieved by the other.
While several staff reductions have taken place in Busaras
over the years, the higher earnings of the chargehands has
always been maintained due to the rotational situation.
However, due to the January, 1989 restructuring the number of
chargehands has been reduced to one and the worker concerned
no longer has shift pay or Sunday work and the possibility of
overtime now or in the future has been eliminated. In
contrast, the restructuring left all the operatives in Busaras
with increased earnings and as they work on Sundays, even
without any overtime involved, an operative on his week
working Sunday earns more than the chargehand. The worker
concerned requested that the chargehand duty be rotated so
that he could earn the same as the workers he supervised,
however, although this was acceptable to the operatives, the
Company refused this request. In a further effort to improve
his earnings, the worker applied for bus driving, but was
subsequently rejected on medical grounds.
2. When the previous restructuring took place in 1987 the
worker also suffered injustice and inequity as regards
compensation. At that time the Company offered compensation
at twice the annual loss, to a maximum of #4,000, but the
chargehands annual loss was over #6,000. However, the Labour
Court subsequently found this offer of twice the loss to be
inadequate and in L.C.R. No. 11862 increased it by a further
quarter of the total annual loss. The Company has made great
savings with the reorganisation in Busaras and the elimination
of the second chargehand did not cost the Company anything.
The chargehand rate is now so low that the operative staff who
relieve him get paid more by retaining their own rate of pay
and being paid one and a half hours overtime, for working a
longer day.
3. Throughout the year the Company has continually refused to
finalise this claim on the basis that if the worker was
successful in his driving application he would not be
compensated. This is inconsistent with the way drivers in
Broadstone have been compensated at the start of service
alterations, even though they could subsequently gain
additional work to offset the loss. The Company contends that
its offer of one and a half times the loss is related to that
currently being offered to drivers. However, this relativity
never applied in the past and in 1987 when twice the annual
loss was on offer in Busaras, that figure was not on offer to
drivers. In any event this figure related to overtime
earnings and there was always the possibility of overtime
returning in the future. In this case, with rotation
eliminated this worker will never be able to recoup his loss.
While various claims have been settled in the Company with
different offers, the figure of two and a half times the loss
to a maximum of #4,600 has never officially been withdrawn.
In all the circumstances, the worker should be paid two and a
half times the annual loss of shift pay.
COMPANY'S ARGUMENTS:
4. 1. During negotiations, the Union suggested that if the
Company was prepared to offer compensation of #1,950, i.e. one
and a half times the annual loss it would be acceptable to the
worker. However, at that time the Company was not in a
position to make such an offer and following the worker's
unsuccessful application for the position of bus driver the
Union made a claim for compensation of two and a half times
the loss. The Company subsequently made an offer of #1,950,
in line with Rights Commissioner's recommendation No. BC30/89
which recommended that one and a half times the annual loss
should be paid to workers who have enjoyed the earning
potential for a period in excess of five years. Subsequently,
this offer was increased to #2,234.70, which took into
consideration the rate of pay at that time and considering the
worker's possible future earnings at that rate of pay. This
offer was, therefore, greater than the original claim by the
Union.
2. The Company is in a serious financial situation and has an
accumulated deficit of over #9m. In addition to this, the
projected results for 1990 indicate further losses of #5.8m.
The Company is in a very competitive business and in order to
protect employment and continue to provide an improving and
cost - effective service, it cannot afford to pay
exceptionally high levels of compensation. This is
particularly so when the need for reorganisation arose from
loss of business in Busaras and where an effort is being made
to make the Parcels Section more competitive. In recent
times, throughout the country, the method used in the
calculation of compensation has moved away from the two and a
half times and has been replaced following Rights
Commissioners and Labour Court investigations, by one and a
half times the annual loss. Lower levels of compensation have
also been recommended by the Court (L.C.R. No. 11598 of 17th
December, 1987 refers) and the Court has also upheld Rights
Commissioner's recommendations which recommended lower levels
of compensation than two and a half times the loss. The
Union's claim should not be conceded.
RECOMMENDATION:
5. Having regard to the circumstances in this case the Court
recommends that the Company's offer of compensation for the loss
arising from the reorganisation of work be accepted by the worker
concerned.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
7th May, 1990. Deputy Chairman
U.M./J.C.