Labour Court Database __________________________________________________________________________________ File Number: CD91231 Case Number: AD9148 Section / Act: S13(9) Parties: IARNROD EIREANN - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC 296/90 concerning a claim for the payment of compensation to a worker for the loss of his marking out allowance.
Recommendation:
6. The Court having considered the submissions of the parties
finds no grounds for altering the Rights Commissioner's
recommendation.
Accordingly the Court rejects the appeal of the Company.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD91231 APPEAL DECISION NO. AD4891
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: IARNROD EIREANN
AND
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC 296/90 concerning a claim for the payment of
compensation to a worker for the loss of his marking out
allowance.
BACKGROUND:
2. In 1987 Coras Iompair Eireann (C.I.E.) was restructured into
3 separate businesses. Up until then the bus company, now Bus
Atha Cliath (B.A.C.), had used the Body Maintenance Shop (B.M.S.)
at Inchicore for its maintenance requirements. As B.A.C.
gradually sourced its maintenance requirements elsewhere there was
a loss of business to the B.M.S.. The reduction in maintenance
was gradual at first and ceased in 1990 with the exception of some
structural modification work.
3. The worker concerned is employed as a trimmer and in 1987 he
was assigned to "marking out" duties on a part-time basis and was
subsequently engaged full-time. He was paid a marking out
allowance which is currently approximately #4 per week. The
Company claims that as work for B.A.C. has virtually ceased it is
necessary to remove the marking out allowance from the worker
concerned. The Union claims that the loss of business was caused
by the re-structuring of C.I.E. and that a lump sum of #416 should
be paid to the worker as compensation for his loss in earnings.
The dispute was referred to a Rights Commissioner who investigated
the matter on 15th February, 1991 and issued the following
recommendation on 20th March, 1991:-
"RECOMMENDATION
In the light of the above I recommend that Iarnrod Eireann
pay an ex-gratia sum of #200 to the worker and that this be
accepted by him in full and final settlement of this claim."
The worker was named in the Rights Commissioner's recommendation.
The Company appealed against the recommendation under Section
13(9) of the Industrial Relations Act, 1969. The Labour Court
heard the appeal on 6th June, 1991.
COMPANY'S ARGUMENTS:
4. 1. The Company is appealing the recommendation on the basis
that the loss of earnings came about as a direct result of
economies it had to make due to a loss of business brought
about by the withdrawal of work from Inchicore by B.A.C..
Cost reductions must be achieved and the payment of the
allowance could not continue when the workload did not
warrant it.
2. The marking out allowance is an hourly allowance. It is
not included in basic pay and is only paid to staff while the
duty is being carried out. When the need for marking out
ceases the allowance also ceases and no compensation should
be paid.
3. In his recommendation the Rights Commissioner stated
that this particular case is rather unique and that "this
uniqueness finds its source in the fact of the separation to
three separate units of a previously integrated unit". The
Company does not accept that this case is unique. Even
before the re-structuring of C.I.E. the various road
operating functions were already sending work, formerly
carried out in the central workshops, to outside contractors.
4. The Rights Commissioner accepted that there was a loss
of business in this case. Over the past number of years the
Court upheld claims by the Company that, where loss of
earnings arose as a result of loss of business, no
compensation should be paid (details supplied of 5 cases
appealed to the Court).
5. Concessation of this claim would give rise to an
expectation to other employees in Inchicore who may have
suffered or who may suffer a loss as a result of a reduction
in business. B.A.C. has recently advised that it is seeking
an alternative source to carry out the modification work
being done at the B.M.S. Any payment of compensation in this
case would have serious and widespread repercussive effects.
6. The Company is seeking to redress a potential excess
over subvention of 7.4 million pounds this year. In these
circumstances the Company is obliged to reduce its costs so
as to save further job losses. By the cessation of the
payment of the marking out allowance to the worker no
continued benefit or gain accrues to the Company except that
it is a small reduction in the losses being sustained by the
Company.
UNION'S ARGUMENTS:
5. 1. Following the re-structuring of C.I.E. B.A.C. was
gradually able to source its maintenance work outside the
B.M.S. Consequently the B.M.S. lost business and management
decided that the worker was no longer required on marking out
duty. Management's decision to cease payment of the marking
out allowance was therefore related to the re-structuring of
C.I.E. There is still maintenance work to be done for B.A.C.
but as a result of the re-structuring it is being sourced
elsewhere.
2. The marking out allowance is approximately #4 per week
and the compensation sought was based on the principle of a
two year buy-out which is widely used in the C.I.E. group of
companies. Although the Union was disappointed with the
Rights Commissioner's Recommendation it was accepted in good
faith. The Court has upheld an award by a Rights
Commissioner of compensation for loss of income in a similar
case (details supplied to the Court).
DECISION:
6. The Court having considered the submissions of the parties
finds no grounds for altering the Rights Commissioner's
recommendation.
Accordingly the Court rejects the appeal of the Company.
The Court so decides.
~
Signed on behalf of the Labour Court
21st June, 1991 Tom McGrath
A.S. / M.O'C. _______________
Deputy Chairman