Labour Court Database __________________________________________________________________________________ File Number: CD94396 Case Number: AD951 Section / Act: S13(9) Parties: IARNROD EIREANN - and - NATIONAL BUS AND RAIL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC
137/94.
Recommendation:
The Court has fully considered all of the views expressed by the
parties in their oral and written submissions.
The Court considers the Company should have approached the
claimant before any other employee; however given the
circumstances the Court takes the view that the requirements for
Friday 19th November, 1993 were what could reasonably considered
"emergency arrangements". The Court does not find such grounds
apply to the circumstances of Wednesday 24th November, 1993.
The Court concurs with the Rights Commissioner's findings
regarding the distribution of overtime in Iarnrod Eireann.
Given all of the circumstances it is the decision of the Court
that the claimant be paid for the overtime hours applicable to
24th November.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
Division: Mr McGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD94396 APPEAL DECISION NO. AD195
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. BC 137/94.
BACKGROUND:
2. 1. The worker concerned is employed as a depotperson at
Ceannt Station, Galway. On November the 19th and 24th,
1993, relief was required on an overtime basis in the
depot and the worker concerned would normally have been
rostered for this duty. On the 2 days in question the
overtime was given to a mechanical operator. The Union
claimed that the worker concerned was unfairly treated
and was entitled to 10.50 hours' overtime earnings
(equivalent to 17.50 hours normal time). 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 7th July,
1994. In his findings the Rights Commissioner stated:-
"1. I am satisfied that the Company in not giving the
overtime to the worker on both of these days was
acting in good faith and not acting through any
malevolence towards him.
2. I am also satisfied that there is a long standing
agreement/understanding within Iarnrod Eireann that
depot overtime working in the first instance is
confined to depotmen.
3. On both these occasions this did not happen".
On the 7th July, 1994 the Rights Commissioner issued his
recommendation as follows:-
" In the light of the above I must uphold the claim
by the Trade Union and I recommend accordingly".
On the 25th July, 1994 the Company appealed the Rights
Commissioner's 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.
COMPANY'S ARGUMENTS:
3. 1. On Friday 19th November, an urgent request was received
at 19.45 hours from Guinness for a delivery of product.
In light of the urgency and the fact that deliveries are
not normally made after 19.00 hours, the most suitable
person to contact was the mechanical operator.
2. On the 24th November, cover was again provided by the
mechanical operator to fill in for a depot person
attending hospital. This cover was arranged because it
was the most cost-effective and efficient.
3. The claims of the Union are based on a presumption of
"entitlement" which is not supported by any agreement
local or national. Such an agreement would constitute a
significant restrictive practice and inhibit the
Company's ability to respond to an increasingly
competitive market.
4. The Union's claim cannot be sustained having regard to
the fact that the Company has already paid for the cover
provided. A payment of compensation would penalise the
Company by compelling it to pay twice for the same
duties.
UNION'S ARGUMENTS:
4. 1. The Company breached the long standing agreement whereby
depotpersons worked overtime in the depot area. The
Company called on the mechanical operator to cover the
relief on the depotperson's roster. Management took
this decision without reference to depotpersons or their
representatives. A mechanical operator also enjoys a
higher rate of pay than a depotperson.
2. The worker concerned was deprived of overtime equivalent
to 17.50 hours normal time and was most unfairly treated
by the Company. The Rights Commissioner upheld the
Union's claim that he be compensated in the amount of
17.50 hours pay for his loss. The Union requests the
Court to uphold this recommendation.
DECISION:
The Court has fully considered all of the views expressed by the
parties in their oral and written submissions.
The Court considers the Company should have approached the
claimant before any other employee; however given the
circumstances the Court takes the view that the requirements for
Friday 19th November, 1993 were what could reasonably considered
"emergency arrangements". The Court does not find such grounds
apply to the circumstances of Wednesday 24th November, 1993.
The Court concurs with the Rights Commissioner's findings
regarding the distribution of overtime in Iarnrod Eireann.
Given all of the circumstances it is the decision of the Court
that the claimant be paid for the overtime hours applicable to
24th November.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
9th January, 1995 Tom McGrath
T.O.D./M.M. _______________
Deputy Chairman