Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007221-001

27/09/2016

An initial Hearing was held in February 2017 and subsequent Hearings in August 2017 and February 2018. The parties continued to engage on both exchanging information and attempting to find a resolution based on the shared information but this proved to be unsuccessful and a Recommendation is now required. The Complainant is a Lorry Driver and the dispute involves a number of issues but mainly relate to a loss of earnings claim for not being assigned to a particular truck.

The Complainant commenced work in 1992 and was made a Lorry Driver in 2005.

He claimed that because of not being assigned to a particular Lorry he had a loss of income and other allowances. He stated that when a vehicle became available it was offered on the basis of seniority.

He stated he was left in the Yard for up to 30 days without being assigned to a Lorry when it was assigned to someone else.

He stated a particular truck was assigned to a person less senior than him because he was closer to where the work was to be carried out and he was told he was not suitable for the job due to his location.   He stated he is being discriminated against as another driver travels 70 miles to a location.

He claimed Junior drivers and part time drivers were included for the weekend of the snow 2.3.2018 even a private digger driver was included and he was not contacted.

He said the Council also states spare trucks have to be there for operational efficiency but that these trucks have been idle in the Depo and was not allowed drive them and that Private operators were doing the work causing a loss of earnings to him.

A long standing agreement states when a driver retires. the vehicle is advertised within three weeks

to all permanent drivers. Management have no right to disregard this agreement until it is agreed by

the drivers through the union.

Loss of earnings winter salting 2017-18 €10,249

50 nights

Loss of on call €1,700

Meal allowances 14 meal allowances €191.94

26 Rest days

Weekend Snow emergency Friday 2,3,2018 Saturday 3.3.2018 Sunday 4.3.2018

The Complainant is seeking payment of a loss of €24,350.18.

The Complainant is currently employed as Lorry Driver/Machinery Operator, assigned to the Council’s Machinery Yard.

Since 2006, there has been significant decline in Council activities, primarily driven by reductions in State grants for road maintenance and improvement. Due to the resulting decline in activity in this area, the Machinery Yard operation has reduced substantially over the last 10 years. This challenging environment has led to a reduction in annual income generated by the unit over this period, i.e. from an income of circa €7 million in 2007 to an income of €3.6 million in 2016, which has contributed to the Machinery Yard operating at significant annual deficits since 2008, peaking at over €376,000 for 2014.

Following a previous review of Machinery Yard operations in 2009, a number of measures were required to address these challenges, which included non-replacement of retiring permanent whole-time staff, reductions in overheads, and the implementation of efficiency measures and changes to traditional practices which ultimately resulted in a reduction in operating costs.

At a hearing on 16 August 2017 it was outlined that the financial position of the Council, and in particular the Machinery Yard, has in recent years led to a marked reduction in operational activity, seasonal employment, etc. and the requirement for more efficient utilisation of our staffing and Plant resources. It was also explained that the practice of routine “permanent” assignment of Trucks has not been followed by the Council for a number of years now.

It is therefore the case that some traditional practices have been discontinued, at least on a temporary basis, to ensure more cost effective work practices. These measures apply to the entirety of the workforce and are not limited to The Complainant’s circumstances alone.

However, notwithstanding these measures ongoing unsustainable deficits meant that a further review of Machinery Yard operations was initiated by Council Management with a view to identifying additional measures which could contribute to ensuring the long term sustainability of the unit. That Management review was completed in late 2017 and the Management proposals associated with same are now the subject of an ongoing WRC Conciliation process.

The Complainant claims a loss of earnings in the amount of €2172.05 in relation to Winter 2015 in terms of meal allowances, service hours and traveling hours.

The Complainant claims a loss of earnings in March 2016 where he suggests that on a particular date he was not assigned duties while 14 other Drivers were absent on leave.

The Complainant claims a loss of earnings in the amount of €317.80 in relation to 08, 15 and 16 November 2016 wherein he suggests that a more junior Driver was assigned to duties.

The Complainant claims a loss of earnings in relation to Winter maintenance for 2016/2017 estimating a value of €6,300.

The Council rejects The Complainant’s claim for losses of earnings for the reasons set out hereunder.

The Complainant claims that on 30 days from December 2015 until the beginning of March 2016 he suffered losses of earnings as he was confined to Depot duties.

As is widely understood, during this period the amount of work carried out by the Machinery Yard is relatively small compared to the peak period of the Annual Roads Programme and is largely weather dependent.  Accordingly, during that part of the year a number of Drivers will at any given time be confined to Depot duties, as was the case on the dates identified by The Complainant.  It is important to note however, that this includes Drivers more senior to the Complainant on each date identified.

The Complainant further suggests that the duties assigned to him on those dates were due to Areas carrying out works using other equipment.  Those issues are the subject of ongoing discussions between the SIPTU Union and the Council, and previous proposals made by the Council to address those issues were in fact rejected by the Union. 

The Complainant’s argument is that a large number of his colleagues were on leave and he was not assigned duties accordingly.  On that particular date (Friday, 18 March - the day after St. Patrick’ Day) workload was extremely light and therefore a number of employees availed of leave as it was an opportune time to do so.  The Complainant himself availed of ½ day’s leave on that date.

It should be noted that Machinery Yard Management made every effort to obtain work for Drivers on the 18th March by contacting the relevant Engineering Areas (as is common practice) but no work was available due to the date itself and also due other staff also availing of leave across the various works areas.

On 08 November 2016, The Complainant was assigned to Yard duties but was in actual fact mobilised for part of the day to Operations.   His pay for that date was appropriate to such work assignments – receiving 50% of the Service Hour payment and a Non-taxable Meal Allowance.

On 15 and 16 November 2016, The Complainant was assigned to Yard duties and paid as appropriate.  Similar to (i) above, workload demands at that time of the year are significantly less than those at peak and other Drivers would have been assigned similarly.

We understand that the Complainant’s claim in relation to losses associated with the Council’s Winter Maintenance Programme are related to the operation of a particular Truck for the 2016/2017 Programme, and the fact that he was not assigned to same.

Notwithstanding the point made above in relation to ongoing routine assignment of Trucks, where budget allows and service demands dictate the Council has in the past advertised certain Trucks and then assigned them on the basis of senior most suitable, as is an accepted method applied across the LA sector.

In the particular instance referred to above, while the Complainant expressed an interest in the Truck as advertised to the Drivers (November 2016), his place of residence is not compatible with the safe and efficient delivery of Winter Maintenance Programme on the particular route to which that Truck is assigned (County Bounds Route).

It should also be noted that the Complainant’s overall earnings in the past two years (2015/2016) have in actual fact been higher than fellow Permanent Wholetime Drivers, a number of whom are more senior.

It is also important to note that Trucks were advertised to Drivers in October 2012, October 2013, December 2013, and March 2014 which the Complainant did not express any interest in assignment to, notwithstanding his seniority.

Through careful management during the recent financial downturn, the Council has been in a position to maintain our existing employees assigned to the Machinery Yard in gainful occupation, and to ensure reasonable periods of engagement for our Permanent Seasonal employees also.

Throughout that period it was necessary to introduce a number of measures, on a temporary basis, to ensure that our Machinery Yard operations could be retained. The more recent improvement in economic conditions nationally, and the realisation of same at local level through increased Roads Grants, Local Improvement Schemes, etc. have meant that the Council is now in a better position to plan for the retention of a viable Machinery Yard operation. It is intended that this will be achieved through plant replacement and other measures, so that it can to continue to play an important role in the maintenance and improvement of the County’s extensive road network.

As referred to earlier in this submission, the recent Management review and proposals associated with same have been forwarded to SIPTU and are now under consideration by the parties as part of a WRC Conciliation process.

It is the Council’s position that The Complainant has not suffered losses of earnings as detailed in the period referred to, and has in fact been maintained in gainful occupation with earnings comparable to other Drivers operating under the same circumstances.

Having considered all the conflicting information by both sides to the dispute and both the business case and change in financial circumstances put forward by the Respondent and the prior practice case put forward by the Complainant it is undeniable that the Respondent had changed its practices in many areas and could not financially justify some of the demands of the Complainant to accede to his requests. However it is also the case that these practices had existed in the past and the Complainant had some good reason to expect to them to continue. However as a Public Body the Respondent has a public duty to spend its finances prudentially and some of the requests made by the Complainant would not pass the financially prudent test (i.e. the travel distance to use one particular truck at the other end of the county from where he lived). It is impossible to definitively evaluate each of the Complainants claim on the basis of fact and existing Company/Union agreements in force as some clearly were not operational from an Industrial relations perspective at the time relating to the claims and some claims were refuted by the Respondent. It is also of significance, to a degree, that the Complainant had above average earnings compared to other more senior drivers. I recommend therefore that all of the Complainants claims be settled as a whole and on a purely red circled and without precedent basis and not withstanding any current negotiations underway between the Respondent and the staff Union at the moment, I recommend a once off good will payment of 7,000 Euros be paid to the Complainant to settle   this long running dispute.

Loss of earnings