FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : IARNROD EIREANN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Re-hearing arising from Labour Court Recommendation LCR16974.
BACKGROUND:
2. This is a re-hearing arising from Labour Court Recommendation LCR16974 which issued on the 12th November, 2001. In LCR16974 the Court recommended as follows:-
"In Recommendation LCR16211 (21st June, 1999) the Court pointed to the need for a comprehensive review of all aspects of the post of Crossing Keeper. In particular, the Court identified a need to examine the feasibility of limiting the times during which this group of workers are obliged to remain available to the Company.
In the Court's view, there is now a greater necessity to conduct such a review. The number of hours during which crossing keepers are currently contracted to remain available for work is clearly not sustainable into the future, particularly in view of the impending extension of statutory limits on working time to the transport sector.
In the Court's view, it will be necessary to bring the contract hours of this group into line with those which have resulted from the recent reorganisation of work arrangements of other groups. In consequence of any such change, it will also be necessary to fundamentally restructure the current remuneration arrangements for the group. The Court recommends that the parties commence the process of restructuring this grade having regard to those considerations. This process should be completed by the end of September, 2002.
With regard to the cessation of the interim payment, cogent arguments have been advanced by both sides. The Court notes that the agreement concluded between the parties in 1999, following the rejection of LCR16211, provided for a payment equivalent to an extra day's pay where a rest day was not provided. In the Court's view, it is perfectly reasonable for the Company to discontinue this payment where an employee is afforded a rest day and this is not contested by the Union. However, the agreement did not make it clear that the reduction in the number of weekly working days, following the provision of rest days, would result in the loss of an additional days pay.
Having regard to all the circumstances of this case, the Court recommends that those employed as crossing keepers at the time of the 1999 agreement, on a fixed weekly wage, should retain this second 12 hour payment on a strictly personal - to- holder basis until the completion of the restructuring of the grade recommended above".
The Court subsequently recommended, having considered the position of the parties, that they resume discussions on restructuring as specified in Labour Court Recommendation LCR16974 with the assistance of an independent facilitator. These discussions have now concluded and a report submitted by the facilitator to the Court for consideration.
The dispute has been referred back to the Court for a definitive recommendation. The Court investigated the dispute on the 10th October, 2003.
UNION'S ARGUMENTS:
3. 1. The minimum working week should be 39 hours in accordance with normal practice throughout industry.
2. The minimum working day should be 5 hours in line with the deals agreed to with all other grades.
3. The Union is seeking that crossing-keepers be allowed into the Company's pension scheme without the requirement for a medical on a "once off " basis.
4. The Union wants management to provide proper facilities for crossing-keepers such as washing, cooking and toilet facilities.
5. The Union is seeking an increase in the hourly rate of pay to €13.40 per hour for resident and non-resident crossing-keepers.
6. A formula for loss of earnings, which applied to all other grades in the Company, should also apply to crossing-keepers.
7. There should be a two hour contingency built into the rosters of crossing keepers similar to that which operates for train drivers, guards and ticket checkers.
COMPANY'S ARGUMENTS:
4. 1. The costs associated with level crossing-keepers have risen from €3.415m in 1997 to €10.9m in 2002. The number of gatekeepers employed has risen from 281 in 1997 to 398 in 2003.
2. In 1997 resident crossing-keepers were employed for 24 hours per day seven days per week, non-resident crossing-keepers were employed for 12 hours per day over seven days per week. Since 1999, hours are limited to twelve hours per day.
3. It is accepted that existing crossing-keepers may incur a significant reduction in earnings. However, it is the company's position that the formula under which staff are compensated for loss of earnings, which was agreed to under the auspices of the Labour Relations Commission, adequately provides a cash cushion for those affected in this way.
4. This formula has consistently been applied to the extensive range of staff now covered by "New Deals" concluded in the Change Process discussions, which have taken place since1997. Any deviation from this agreed formula could have implications for other grades.
5. With regard to the claim for a 39 hour week for crossing keepers, it is imperative that these staff are rostered in close alignment with service and operational movements only.
6. The company is seeking a derogation from the application of the maximum average 48 hour working week. This derogation is being sought for a period of three years, during which a programme of automation and elimination of level crossings will ensue.
RECOMMENDATION:
The issues now before the Court arise from the proposed restructuring of the crossing keeper grade which was the subject of an earlier hearing which resulted in Recommendation LCR16974. The parties encountered difficulties in implementing that recommendation and returned to the Court for further assistance in December 2002. At that time the Court pointed out that the proposed extension of the European Directive on Working Time to the transport sector gave added urgency to the need to restructure this grade so as to enable resident and non-resident crossing keepers work within the maximum hours permitted by the Directive.
The Court proposed that the parties engage in an intensive process of negotiations with the assistance of an independent facilitator with a view to agreeing the basis upon which the type of restructuring envisaged in LCR16974 could be implemented. The Court was requested to nominate a facilitator and nominated Ms Janet Hughes to that role.
The Court notes that very considerable progress was made in the discussions facilitated by Ms Hughes and this resulted in a final document being issued by the Company on 20th June, 2003. In the Court's view the content of that document, including proposed rosters, should be accepted with the modifications contained in this recommendation.
With regard to the specific issues now before it the Court recommends as follows:
Pay
The Court recommends that a composite rate of €11 per hour for all hours worked should apply to this grade. This should be inclusive of all phases of national agreement applicable up to the date of this recommendation.
Loss of Earnings.
The Court is satisfied that the current formula for computing compensation for loss of earnings is adequate to encompass loss resulting from the withdrawal of the temporary additional payments recommended in LCR16974. Accordingly the Court does not recommend any alteration in the current agreed arrangements in this case.
Minimum Working Week.
In the circumstances of the grade in question the Court believes that weekly working hours should be determined by the needs of the service to be provided. For this reason the Court does not recommend a minimum working week.
Minimum Working Day.
The Court recommends that the minimum working day should be set at 5 hours in line with the practice in respect of other grades.
Contingency Hours.
The Court does not recommend concession of the Union's claim for contingency hours.
Pension Provision.
The Court sees considerable merit in the Union's claim for the provision of pension cover for those associated with this claim. However, this is a matter which needs to be addressed in the context of the rules relating to the Company scheme and the statutory framework within which it operates. It is recommended that the parties have further discussions on this matter.
Facilities for Crossing Keepers.
The Court would urge the Company to ensure that necessary physical facilities be made available to crossing keepers and maintained to a reasonable standard.
Implementation.
There will be a need for the parties to discuss the implementation date of the proposed new rosters as their full implementation will require other measures being put in place to ensure that the Company can provide full cover. The Court recommends that such discussions commence immediately following acceptance of this recommendation.
The other measures recommended should take effect from the date of acceptance of this recommendation.
Signed on behalf of the Labour Court
6th November, 2003______________________
LW/MB.Kevin Duffy
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.