FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BUS EIREANN - AND - ICTU CRAFT GROUP SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Interpretation of an agreement in relation to compensation for loss of earnings.
BACKGROUND:
2. The dispute concerns the interpretation of Section 5 of the Craftworkers Productivity /Flexibility Agreement. The Agreement was implemented in March, 2002. It provided for the removal of employees from shift and the reduction of overtime working. In respect of loss of shift the agreement provided for compensation at the rate of 2.5 times the annual loss subject to a maximum of €12,700.A dispute has now arisen whereby the Unions claim that under Section 5 there are two separate and distinct compensation payments each carrying a possible maximum payment of €12,700. The Company rejected the Unions' claim stating that no person would receive more than one maximum payment of €12,700 to cover all losses be it shift, rostererd overtime or other overtime. The dispute was referred to the Craft Tribunal which operates under the auspices of the Labour Relations Commission. The Tribunal heard the case on the 16th February, 2004 and decided as follows:
".... ......... The Tribunal is not in a position to say for definite which interpretation is correct and feels that any decision it might make would almost certainly be appealed, and is therefore, of the view that this is a case which should be put before the Labour Court for decision".
The dispute was referred to the Labour Court on the 23rd May, 2005. A Court hearing was held on the 30th August, 2005.
UNIONS' ARGUMENTS:
3. 1. Clause 5 of the Agreement is clearly written in two separate paragraphs each indicating the basis on which compensation would be calculated and each paragraph referring to separate ceilings of €12,700. There are many agreements reached in the CIE group of companies where calculation of compensation for loss of shift and rostered overtime are calculated separately from the loss of ordinary overtime and the ceilings are used separately. At no time during the negotiations did the Company indicate that it intended to lump all compensation under the same ceiling.
2. LCR 16958 dealt with the interpretation clauses in the draft document at the time. While Clauses 4 and 6 were dealt with, there was no reference to Clause 5. The reason it was not raised was because the Unions always understood that Cause 5 was clear and that separate calculations would be made under each criteria. If the Company had given any different indication of an interpretation the Unions would have requested the Court to recommend on Clause 5 as part of LCR 16958.
3. Clause 5 addressed the potential of providing for the large losses that would affect workers coming off shift or off special arrangements that had worked for many years providing early morning cover. These workers also availed of extra earnings through regular overtime and it was recognised that to confine their losses to a maximum of €12,700 would be grossly unfair. The separation of the criteria into separate elements, though it would still fall short of some of the losses, was seen as a fair attempt to anticipate the losses and was accepted on that basis.
COMPANY'S ARGUMENTS:
1. Since the negotiations on the 2002 Agreement were finalised the Unions have tried to argue that there are two separate situations in relation to loss of earnings (a) loss of shift and rostered overtime which were directly calculable and could be paid up front to a maximum and (b) loss of overtime earnings to be calculated twelve months after implementation of the Agreement and also subject to the maximum.
2. The compensation maximum of €12,700 relates to compensation for all aspects of losses, to the immediate compensation payments for loss of shift and rostered overtime and also, after twelve months, loss of overtime earnings. This has always been the case and was never stated otherwise by the Company. The only difference between compensation paid up front and compensation paid after twelve months assessment was a question of timing but the €12,700 maximum covered both.
3. The principle of applying the maximum payment of €12,700 to all compensation payments was reinforced by the Tribunal in Decisions CTD 10 of 14th February, 2003 and CTD 11 of 18th March, 2003.
RECOMMENDATION:
As neither the parties themselves nor the Chairpersons of the Tribunal can be definitive about what the agreement reached by the parties in 2002 meant, the Court does not feel that it is in a position to be definitive on the matter either. The Court recommends that, in the case of the small number of claimants involved, the ceiling for losses under both headings be increased to an aggregate sum of €18,000 in total.
Signed on behalf of the Labour Court
Raymond McGee
26th September, 2005______________________
todDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.