Labour Court Database __________________________________________________________________________________ File Number: CD94301 Case Number: AD9468 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUS AND RAIL UNION |
Appeal by both parties against Rights Commissioner's Recommendation No. BC 21/94.
Recommendation:
The Court, having considered all of the issues raised by the
parties does not find grounds have been adduced to warrant
amending the Rights Commissioner's recommendation.
The Court, accordingly, upholds the recommendation and rejects the
appeals of the Company and the Union.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD94301 APPEAL DECISION NO. AD6894
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
BUS EIREANN
AND
NATIONAL BUS AND RAIL UNION
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
Recommendation No. BC 21/94.
BACKGROUND:
2. 1. The worker concerned is employed as an engineering
operative Group 1 in the Galway garage. For some time
he has performed relief duties for the store controllers
and engineering clerk. This practice was formally
agreed with the Unions in March, 1993. Clause 3.1 of
the agreement states:-
"The present office assistant will also assist in
stores. He will assist the stores controller and
engineering clerk as required and cover annual
leave and illness in both these positions".
Subsequently agreement for the assimilation of
engineering clerks to the clerical grade was the subject
of a Labour Court hearing in February, 1993. The Court
in LCR 14044 recommended that engineering clerks be
assimilated into the Clerical Officer Grade 3 scale and
grade. With effect from the 11th October, 1993 the
worker concerned could no longer perform the relief of
the engineering clerk's duties. The Union submitted a
claim for loss of earnings on behalf of the worker.
Management rejected the claim.
2. The dispute was referred to a Rights Commissioner for
investigation and recommendation. The Rights
Commissioner investigated the dispute on the 3rd May,
1994. In his findings the Rights Commissioner stated:
".......the worker is put at a disadvantage in that
his legitimate expectation to fill in for the
stores controller and engineering clerk for annual
leave and illness in both these positions has been
cut short".
On the 13th May, 1994 the Rights Commissioner issued his
recommendation as follows:-
"In the light of the above I must uphold the
decision by the Company in not implementing Clause
3.1 of the 1993 agreement as originally drafted.
However, I do feel that some compensation is due to
the worker for the frustration of his legitimate
expectations to fill in for illness and holidays.
I therefore recommend that Bus Eireann pay to the
worker the sum of #600 and that this be accepted by
him and his Trade Union in full and final
settlement on this claim. I also note the
statement by the Employer that the worker is free
to apply for any clerical vacancies that are
externally advertised in the event of the Company
recruiting. Such vacancies of course to be for
positions where the worker's educational
qualifications match the stated requirements of the
position".
(The worker was named in the Rights Commissioner's
Recommendation.)
Subsequently both parties appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal in
Galway on the 28th September, 1994.
UNION'S ARGUMENTS:
3. 1. The worker had an expectation that he would cover annual
leave and illness as required following the agreement of
1993. LCR 14044 does not take cognizance of the
worker's rights to relieve both the stores controller
and engineering clerk for annual leave and illness. It
effectively reduces the worker's earnings and potential
earning power and most importantly removes, not alone
from the claimant, but from other engineering
operatives, their only promotional opportunity.
2. There is little prospect of the claimant attaining
promotion to the clerical grade. The clerical vacancies
mentioned by the Company as promotional outlets carry a
basic rate of #8,404.84. The claimant, in view of his
marital status, seniority and current earnings could not
opt for such a promotion.
3. The Company, while negotiating an agreement relating to
the worker's duties, was having parallel negotiations on
the assimilation of engineering clerks into Clerical
Grade 3, thus eliminating the only outlet for the worker
concerned and other engineering operatives for enhanced
earnings and responsibility.
COMPANY'S ARGUMENTS:
4. 1. The cessation of the performance of relief duties was
consequent to the implementation of the agreement with
the unions following the issue of LCR 14044. The
Company can not be deemed culpable in these
circumstances.
2. Since October, 1993 the worker has continued to cover
annual leave and illness in respect of the stores
controller. The average weekly earnings of the worker
concerned have been more than maintained (details
supplied to the Court).
3. It is open to the worker concerned to apply for any
clerical positions advertised if he so wishes. He has
not applied in the most recent competition for clerical
vacancies.
4. The relief duties were, prior to 11th October, 1993
undertaken by engineering operative grades. The
claimant's position was similar to approximately 25
other engineering operatives throughout the Company's
garages.
DECISION:
The Court, having considered all of the issues raised by the
parties does not find grounds have been adduced to warrant
amending the Rights Commissioner's recommendation.
The Court, accordingly, upholds the recommendation and rejects the
appeals of the Company and the Union.
The Court so decides.
~
Signed on behalf of the Labour Court
28th October, 1994 Tom McGrath
T.O.D./M.M. _______________
Deputy Chairman