Labour Court Database __________________________________________________________________________________ File Number: CD93305 Case Number: AD9354 Section / Act: S13(9) Parties: IARNROD EIREANN - and - NATIONAL BUS AND RAIL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. B.C. 492/92 concerning payment to a worker in lieu of overtime denied.
Recommendation:
5. The Court finds that, having regard to the relative overall
earnings of depotpersons Casey and Redican over the year
1992/1993, no injustice was done to the claimant in respect of the
allocation of overtime over the week-end of the Thurles Feile in
August, 1992.
The Court finds accordingly that the Company's appeal against the
Rights Commissioner's recommendation should be upheld.
The Court so decides.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD93305 APPEAL DECISION NO. AD5493
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IARNROD EIREANN
and
NATIONAL BUS AND RAIL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. B.C. 492/92 concerning payment to a worker in
lieu of overtime denied.
BACKGROUND:
2. The worker concerned is employed by the Company as a
depotperson at Limerick Junction. During the period 31st July,
1992 to 3rd August, 1992 the Feile Festival took place in Thurles.
The stationmaster at Thurles requested that Limerick Junction
provide a depotperson to assist on Friday and Monday at Thurles.
Relief at Thurles is normally provided by staff employed at
Limerick Junction.
The Union claims that on the weekend in question there was a
considerable amount of overtime available at Thurles and that the
worker concerned was denied his share of the overtime. The
Company rejected the claim. The matter was referred to a Rights
Commissioner for investigation and recommendation. The Rights
Commissioner on 26th March, 1993 recommended as follows:
"In the light of the above I recommend that Irish Rail make an
ex-gratia payment to the worker equivalent to 43 hours basic
rate in lieu of the overtime inadvertently denied to him".
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the
Company to the Labour Court on 26th March, 1993. The Labour Court
heard the appeal in Cork on 24th June, 1993.
UNION'S ARGUMENTS:
3. 1. The worker concerned is familiar with all aspects of the
work requirement at Thurles. He is a senior member of the
staff and made himself available for overtime work on the
weekend in question.
2. Overtime for depotpersons is allocated on an equitable
basis in accordance with agreed procedures, custom and
practice. The worker concerned was denied his share of the
overtime on the weekend in question.
3. The total overtime available between the two depotpersons
who made themselves available for overtime on the weekend in
question was 144 hours. The worker concerned was entitled to
approximately 72 hours. His actual total was 29 hours,
leaving him a shortfall of 43 hours.
4. The second depotperson assigned to Thurles would, in
addition to payment for 115.15 hours overtime, also have been
paid #40.00 expenses tax free.
5. The work performed at Thurles was mainly shunting. This
is an exacting operation and can be dangerous. One needs to
be alert in performing this operation. The conditions of
service of the workers take this into consideration and set
out minimum rest periods between shifts in the interests of
safety.
6. The Company was in breach of regulations in not insisting
that the worker assigned to Thurles rested in accordance with
regulations.
7. The worker assigned to Thurles was allowed to start duty
at 6 a.m. on Monday, 3.50 hours after finishing his Sunday duty.
8. The worker concerned was off duty on the Sunday and was
fully rested and available to work the Monday duty at Thurles.
COMPANY'S ARGUMENTS:
4. 1. The depotperson assigned to Thurles was selected because
the turn of duty he was rostered for at Limerick Junction
facilitated his release.
2. It was not possible to release the worker concerned due to
the fact he was rostered for a late turn of duty during that
particular week. The first concern of the stationmaster at
Limerick Junction was to ensure he had staff available to
cover Limerick Junction.
3. Overtime is allocated on an equitable basis at Limerick
Junction and comparison of the earnings of the two
depotpersons in question confirms that the earnings of the
worker concerned were higher in the tax year ending 5th April,
1993.
4. The overtime worked by the depotperson in Thurles could
not have been known in advance.
5. Concession of this claim could lead to repercussive claims
from the other nine depotpersons at Limerick Junction.
6. It is the Company's policy that no payment is made in
respect of overtime, rest day working/Sunday duty not
performed. This principle has been upheld by third parties on
numerous occasions.
DECISION:
5. The Court finds that, having regard to the relative overall
earnings of depotpersons Casey and Redican over the year
1992/1993, no injustice was done to the claimant in respect of the
allocation of overtime over the week-end of the Thurles Feile in
August, 1992.
The Court finds accordingly that the Company's appeal against the
Rights Commissioner's recommendation should be upheld.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
14th July, 1993. Deputy Chairman.
F.B./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.