FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BUS EIREANN - AND - NATIONAL BUS AND RAIL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal by the Company Against Rights Commissioner's Recommendation Ir 722/00/Cw & Ir723/00/Cw
BACKGROUND:
2. The appeal concerns two workers who are employed by the Company as engineering operatives in Galway. The Union claimed that the two workers were entitled to a normal Sunday's pay for 26th December, 1999 on the basis that Sunday was part of their regular rostered working. However it claimed rhat the Company had unfairly denied them the right to work as rostered on Sunday. The Company stated that on this particular Sunday there was no need for either worker to do the overtime hours. It had made a once off specail arrangement for drivers who would normally have been expected to to work on Sunday, The Company claimed that this concession could not be applied to the two workers as their rostered Sunday work was overtime. The dispute was referred to a Rights Commissioner for investigation. On the 16th August, 2000 the Rights Commissioner issued his Recommendation as follows;
" I recommend that the Company offers and the two employees accept an additional day's( 1 day) paid leave in settlement of this dispute."
On the 3rd October, 2000 the Company afppealed the recommendation to the Laboour Court. The Court heard the appeal in Galway on the 31st October, 2000.
COMPANY'S ARGUMENTS:
3. 1. The special agreement was made in respect of drivers who were losing earnings as part of their normal 39 hour working week. This was not the case with the engineering operatives and is, therefore, not a comparable situation. Drivers who did not report in on Sunday, 26th December, 1999 did not receive the extra day's pay.
2. The two workers did not have an expectancy to work on Sunday 26th December, 1999. As such they were in no different position to other staff who would would work on Sunday as a rest day (overtime) turn of duty and who were rostered off work that day.
3. By paying public holiday rates in respect of Monday, 27th December, 1999 the spirit and intention of the Organisation of Working Time Act, 1997 were fully complied with.
4. To treat Sunday, 26th December 1999 as a public holiday means that Monday, 27th December is a normal working day and accordingly staff who were paid at public holiday premiums were overpaid.
5. The two workers did not suffer any loss of earnings, quite the opposite is the case when comparing the week in question to a "typical" week.
UNION'S ARGUMENTS:
4. 1. From the workers' roster( details supplied to the Court) it is quite evident that, although the Company describes their Sunday times of duty on weeks 2, 4, and 6 as overtime, it is a contractual obligation to attend for work. It is not a voluntary arrangement and unsanctioned absence from the roster could meet with disciplinary measures.
2. Concessiion of this claim would not result in repercussive claims.
3. Although the Rights Commissioner's Recommendation does not fully meet the Union's claim the Union has accepted it, and furthermore states that, similar to the agreement for drivers, no precedent will be qouted in future
DECISION:
Given that the agreement arrived at with another group was clearly a once off special arrangement for the Millenium, and the Union commitment that the agreement has no precedent nad will not be quoted in the future, the Court finds the Rights Commissioner's recommendation to be reasonable.
Based on this Union commitment the Court does not see this case as having set any precedent for how the Company deals with Public Holiday arrangements in the future.
The Court, therefore, rejects the Company's appeal and upholds the Rights Commissioner's recommendation.
Signed on behalf of the Labour Court
Finbarr Flood
23rd November, 2000______________________
tod/todChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.