FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BUS EIREANN - AND - NATIONAL BUS AND RAIL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Payment of allowance.
BACKGROUND:
2. The dispute concerns a claim, on behalf of one Galway-based driver, for the application of the full "waiting-time and spreadover" allowance which is received by some of his colleagues. The Union claims that the worker, who was recruited in May, 1992, is being discriminated against in that he has the same contract of employment as other drivers recruited around the same time as him and yet he cannot get the full benefit of the allowance. While his contract of employment actually makes no reference to the allowance, a new contract of employment was drawn up later in 1992, which states clearly that the allowance does not apply to those recruited after March 1st, 1992.
Arising from a Labour Court Recommendation (LCR14708) of March, 1995, a modified form of the allowance was put in place for those recruited after 15th of April, 1992, the difference between the 2 allowances being approximately £25 per week. The Union claims that its understanding of LCR 14708 was that drivers would not receive the allowance during their probationary period of 1 year but that it would apply in full on appointment. The Company states that it was seeking the elimination of the allowance in 1992, and that there was a clear cut-off point in LCR14708 for the application of the full and modified allowance on 15th of April 1992 and accordingly, the claimant did not apply for the full allowance. The dispute was the subject of a conciliation conference, under the auspices of the Labour Relations Commission, at which agreement was not reached. The dispute was referred to the Labour Court, on the 30th of July, 1999, in accordance with Section 26 (1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 21st of October, 1999.
UNION'S ARGUMENTS:
3. 1. The claimant, who was appointed on May, 29th 1992, was appointed to the regular establishment, i.e., to a full-time position, on June 15th, 1992. Following on from LCR14708, all his contemporaries received the spreadover and waiting time allowance and a lump sum retrospective to 1992. While it is acknowledged that the claimant was employed post April 16, 1992, on the basis of his contract of employment it is clear that he should be paid the allowance in question, as opposed to subsequent contracts which clearly refer to non-payment of the allowance.
2. LCR14708 stated that the parties should accept the Forum Chairman's proposals for a period of one year during which they should enter into negotiations on productivity that they both agree are essential to ensure the Company's viability in the face of increased competition. The Recommendation stated further that it would be possible that the resulting productivity proposals would include an agreed solution on the review of the spreadover recommendation in one year's time. This part of LCR14708 has been cast adrift by the Company, despite its acceptance by all parties.
3. The Company cannot hide behind an error in the compilation of the worker's contract of employment, the terms of which it has failed to honour. By so doing, the Company has displayed its contempt for the obligations on employers in the context of matters surrounding contracts of employment.
COMPANY'S ARGUMENTS:
4. 1. Waiting time and spreadover allowances have been paid to the claimant since 1st January, 1994, in line with the terms of LCR14708, which was accepted by the Union.
2. Since the agreement reached in March, 1992, covering changes in those allowances, 325 drivers, in a similar fashion to the claimant, are now in receipt of the more restricted spreadover payment.
3. The Union's reliance on the contents of the Contract of Employment Form, in support of this claim, is flawed in that such forms were never intended to give comprehensive details of payments to staff but merely covered the main general conditions of employment.
4. The claimant was not in receipt of the allowances from his commencement date in May, 1992 until after August, 1995, when the revised agreement reached then was implemented. In addition he was notified by circular letter from the Company at that time of his qualification for both allowances.
5. Insofar as his remuneration is concerned, the claimant has been correctly and fully dealt with in accordance with the terms of collective agreements in existence at the time of his recruitment and as amended over the past seven years.
RECOMMENDATION:
Having considered the submissions of the parties the Court is satisfied that the claimant is being paid the rate of allowance applicable to employees whose employment commenced after 15th of April, 1992.
In these circumstances the Court does not recommend concession of the Union's claim.
Signed on behalf of the Labour Court
Kevin Duffy
9th November, 1999.______________________
MK/BCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.