Labour Court Database __________________________________________________________________________________ File Number: CD9413 Case Number: AD9417 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUS AND RAIL UNION (N.B.R.U. |
Appeal by the Company against Rights Commissioner's Recommendation Number BC 247/93.
Recommendation:
It is the Court's view that the drivers in question were paid
overnight subsistence on Thursday, the 17th of June, to enable
them to be in a position to commence work away from their home
depot, on Friday morning. When they chose not to work on the
Friday, the obligation to work away from home remained until it
was met. But wages or expenses for the intervening period were not
payable by the Company. Accordingly, payment of expenses/wages to
the drivers only became due after they returned to work on the
Saturday and overnight expenses in respect of Friday night were
not payable. The Court, therefore, upholds the Company's appeal.
The Court so decides.
Division: Mr Heffernan Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD9413 APPEAL DECISION NO. AD1794
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
BUS EIREANN
AND
NATIONAL BUS AND RAIL UNION (N.B.R.U.)
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation Number BC 247/93.
BACKGROUND:
2. On Thursday the 17th of June, 1993, five Broadstone-based
drivers operated services to their various outbased depots.
They were paid overnight expenses for Thursday night. On
Friday, the 18th of June, 1993, a national one-day strike by
members of Service Industrial Professional and Technical
Union (S.I.P.T.U.) took place. The N.B.R.U. advised its
members that, if they encountered a picket at their outbase,
they should decide individually whether or not to pass the
picket. The five drivers did not report for duty on Friday
the 18th. On Saturday the 19th, all five drivers reported
for duty and were paid expenses for that day.
The N.B.R.U. claimed overnight expenses for the five drivers,
for Friday the 18th. The Union's claim was on the grounds
that when the five left for the outbases, they did not know
whether or not pickets would be placed on the depots the
following day. The Company rejected the claim on the grounds
that expenses should not be paid as the individuals concerned
had not reported for duty.
The dispute was investigated by a Rights Commissioner on the
29th of October, 1993. He recommended that the Company pay
the five workers the expenses claimed. The Company appealed
against the Rights Commissioner's Recommendation on the 11th
of January, 1994. The Labour Court heard the appeal on the
22nd of February, 1994.
UNION ARGUMENTS:
3. 1. The workers concerned should be paid the expenses for
Friday as they did not know whether or not a picket would be
in place at the outbases. The dispute was of only one day's
duration and the workers, therefore, had to overnight on
Friday in order to be available for Saturday's duties.
2. It is the first occasion, to the knowledge of the Union,
that a denial of overnight expenses has occurred.
COMPANY'S ARGUMENTS:
5. 1. The Rights Commissioner did not take cognizance of the
fact that other drivers throughout the Company in similar
circumstances were not paid expenses, when they failed to
report for duty. Similar situations have arisen in the past
and drivers were not paid any expenses. It is Company policy
not to pay any remuneration for time not worked or to pay
expenses where the rostered work has not been performed.
2. The Rights Commissioner's Recommendation, while stating
that equity and prudence would warrant that the Company
pay the overnight expenses claimed, is in effect a
Recommendation for payment to staff for time not worked and
is not soundly based. It introduces the concept of payment
to staff who withdraw their service and disrupt the Company's
operations. The drivers concerned were aware of the position
and knowingly decided not to report for duty on Friday 18th
June, 1993.
3. It is the Company's policy not to remunerate staff for
time lost or to pay expenses to staff while on strike. This
policy, which is similar to that in industry generally, has
been supported by the Labour Court in previous
Recommendations. The drivers who refused to pass the pickets
did so of their own free will and were well aware that they
were supporting the S.I.P.T.U. strike. Consequently, they do
not have a valid claim for payment for loss of expenses
resulting from this action.
DECISION:
It is the Court's view that the drivers in question were paid
overnight subsistence on Thursday, the 17th of June, to enable
them to be in a position to commence work away from their home
depot, on Friday morning. When they chose not to work on the
Friday, the obligation to work away from home remained until it
was met. But wages or expenses for the intervening period were not
payable by the Company. Accordingly, payment of expenses/wages to
the drivers only became due after they returned to work on the
Saturday and overnight expenses in respect of Friday night were
not payable. The Court, therefore, upholds the Company's appeal.
The Court so decides.
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Signed on behalf of the Labour Court
3rd March, 1994 Kevin Heffernan
M.K./A.L. _______________
Chairman