Labour Court Database __________________________________________________________________________________ File Number: CD90337 Case Number: AD9037 Section / Act: S13(9) Parties: BORD NA MONA - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Bord against Rights Commissioner's Recommendation No. CW 55/90 concerning a claim, on behalf of two workers for loss of regular winter earnings.
Recommendation:
I recommend the Bord offers the sums of #1,000 to worker
A and #500 to worker B, and the Union accepts these
payments in settlement of this dispute and without
precedent."
The workers were referred to by name in the Rights Commissioner's
recommendation.
5. The Company appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act 1969. The
Court heard the appeal on 26th July, 1990.
COMPANY'S ARGUMENTS:
6. 1. The workers concerned did not actually suffer any loss of
earnings as a result of the changeover (details supplied to
the Court) and therefore there should not be any compensation.
2. The restructuring and reorganisation involved at Littleton
was but a micro part of a macro restructuring of the Board's
operations which was necessary to ensure the Company's
survival and the preservation of employment.
3. The rejection of Management's offer to share the ditching
work among the ditching drivers deprived the claimants of the
opportunity of enhanced earnings.
UNION'S ARGUMENTS:
7. 1. The two drivers concerned who were displaced operated the
ditching machines over the past 12 years and as a result have
suffered a loss of regular earnings during the winter period
amounting to #2,000. The Company maintain that the workers
have suffered no loss of earnings. However, when like is
compared with like i.e. the claimants with the remaining
ditcher drivers it can be seen that the claimants have in fact
incurred losses.
7. 2. The claimants have suffered the loss of earnings to allow
a more efficient system to be introduced with an increase in
productivity. This is reflected in the Board's current
financial position whereby it has turned around a loss making
operation to a profit of #2.5 million for year ending March,
1990. While the amount awarded by the Rights Commissioner is
far short of the original claim (twice the annual loss) the
Court is asked however, to reject the Board's appeal.
DECISION:
8. The Court has considered the submissions made by the parties
in this case and has come to the conclusion that the loss of
earnings claim, based as it is on one outstanding element in the
earnings of ditcher drivers is not sustainable in this instance in
the light of subsequent earnings of the workers involved and that
therefore the Rights Commissioner erred in recommending
compensation. The Court therefore upholds the Bord's appeal in
this case.
The Court so decides.
Division: Mr O'Connell Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD90337 APPEAL DECISION NO. AD3790
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BORD NA MONA
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Bord against Rights Commissioner's
Recommendation No. CW 55/90 concerning a claim, on behalf of two
workers for loss of regular winter earnings.
BACKGROUND:
2. Because of a recession in the industry between 1985 and 1989
the Company embarked on a major restructuring of its operations
which involved redundancies, new methods of payment (piece rate),
divisionalisation and decentralisation, Enterprise Units,
Autonomous Units and Autonomous Enterprise Units on milled peat
bog operations have been replacing traditional work methods
(details supplied to the Court).
3. There are six milled peat production areas at the Company's
Littleton works. It was as part of the Company wide changes that
two autonomous units were established in 1989 on two of
the production areas. There are 4 ditcher machines in Littleton
Works which are used mainly during the winter on drainage
operations. As part of the reorganisation two of the ditchers
were allocated one to each of the new autonomous areas. This left
two machines for drainage operations on the remaining four non
autonomous areas.
4. When the workers involved in this claim objected to the
reallocation of a ditcher the Company proposed that the ditching
work should be shared among the six drivers (including the
claimants). This offer was rejected by the drivers. The Union
then referred a claim on behalf of the workers for compensation
for loss of earnings during the winter months (when the ditching
operation is carried out) to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner
investigated the claim on 26th April, 1990. On the 10th May, 1990
the Rights Commissioner issued the following recommendation:
"FINDINGS
I accept that significant distortions in earnings can
arise due to seasonal weather factors. This is a factor
of the job involved and is accepted by both parties. The
principle in question here is whether the loss of the
regular ditching work merits compensation on the basis
that the earnings would have been even higher than their
recorded earnings. None of the workers has had an actual
loss of earnings. But there is no doubt that their
earnings would have been higher had they been on
ditching, and their level of earnings in future years can
be expected to be less than the remaining ditchers. I am
concerned that one worker has unusually high absenteeism
rates during the year (for whatever reason) and this
reduced the merit of the claim.
RECOMMENDATION
I recommend the Bord offers the sums of #1,000 to worker
A and #500 to worker B, and the Union accepts these
payments in settlement of this dispute and without
precedent."
The workers were referred to by name in the Rights Commissioner's
recommendation.
5. The Company appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act 1969. The
Court heard the appeal on 26th July, 1990.
COMPANY'S ARGUMENTS:
6. 1. The workers concerned did not actually suffer any loss of
earnings as a result of the changeover (details supplied to
the Court) and therefore there should not be any compensation.
2. The restructuring and reorganisation involved at Littleton
was but a micro part of a macro restructuring of the Board's
operations which was necessary to ensure the Company's
survival and the preservation of employment.
3. The rejection of Management's offer to share the ditching
work among the ditching drivers deprived the claimants of the
opportunity of enhanced earnings.
UNION'S ARGUMENTS:
7. 1. The two drivers concerned who were displaced operated the
ditching machines over the past 12 years and as a result have
suffered a loss of regular earnings during the winter period
amounting to #2,000. The Company maintain that the workers
have suffered no loss of earnings. However, when like is
compared with like i.e. the claimants with the remaining
ditcher drivers it can be seen that the claimants have in fact
incurred losses.
7. 2. The claimants have suffered the loss of earnings to allow
a more efficient system to be introduced with an increase in
productivity. This is reflected in the Board's current
financial position whereby it has turned around a loss making
operation to a profit of #2.5 million for year ending March,
1990. While the amount awarded by the Rights Commissioner is
far short of the original claim (twice the annual loss) the
Court is asked however, to reject the Board's appeal.
DECISION:
8. The Court has considered the submissions made by the parties
in this case and has come to the conclusion that the loss of
earnings claim, based as it is on one outstanding element in the
earnings of ditcher drivers is not sustainable in this instance in
the light of subsequent earnings of the workers involved and that
therefore the Rights Commissioner erred in recommending
compensation. The Court therefore upholds the Bord's appeal in
this case.
The Court so decides.
~
Signed on behalf of the Labour Court,
John O'Connell
___________________
7th September, 1990.
M. D. / J. C. Deputy Chairman.