Complainant

Respondent

Anonymised Parties

Flight Attendant

Airline

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00012228-001

30/06/2017

The complainant is a part-time employee working a 4-day week or about eighty per cent of a comparable full time employee. She is fully interchangeable with her full time colleagues.

Cabin crew are governed by two pieces of legislation; one, an EU Regulation sets out a flight time limitation (FTL) scheme which means that they may work no more than nine hundred ‘block hours’ (which is a measure of the time spent aboard an aircraft from the moment it starts moving until it comes to a standstill; ‘flying time’).

The restrictions on ‘block hours’ are essentially a safety measure to address possible fatigue.

The complainant says that the manner in which the respondent applies the scheme to her is less favourable than the application to full time employees.

The claimant does the same work as – and is interchangeable with - their full-time colleagues. They are thus part-time workers within the meaning of the Protection of Employees (Part-Time Work) Act, 2001 and entitled to the protections provided by sections 9 and 10 of the Act. The requirement to identify a named comparator has been met. Cabin crew working hours are governed by legislation, both at national and EU level. In particular, an EU Regulation sets out a Flight Time Limitation (FTL) scheme which, inter alia, provides that cabin crew may work no more than 900 ‘block hours’ in a calendar year. A ‘block hour’ is a measure of the time spent operating a duty on board an aircraft, from the moment it starts moving until it comes to rest at flight end.

The 900 ‘block hour’ calendar limit is a condition of employment of cabin crew (imposed by law) and the claimants are entitled to the benefit of the protections in sections 9 and 10 of the Act.   Section 9 sets out that part-time workers may be treated no less favourably than full-time equivalent workers and Section 10 implements the ‘pro-rata’ principle. There is a separate collective agreement pertaining to rosters between the respondent and the claimant’s representative. At paragraph 6.5(a) thereof the 900 block hour limit for the calendar year is specified. The ‘operations manual’ calendar year is May 1st to April 30th.   Full time cabin crew benefit from two schedules in respect of annual block hours:

a.                   They cannot exceed 900 block hours in the period 1st January to 31st December.

b.                   They cannot exceed 900 block hours in the period 1st May to 30th April.

However, part-time cabin crew benefit from pro-rated limits for the period May 1st to April 30th, but do not benefit from pro-rated limits for the period January 1st to December 31st. This constitutes less favourable treatment than their full time comparator who benefits from the block hour limit for both periods.   This less favourable treatment resulted in the claimants working more block hours than should have been the case in 2016.

Compliance with the law is not optional. It is mandatory and cannot be excused on the basis of difficulty, cost or the need to comply with other provisions of the employment relationship. The failure to implement the pro-rata principle resulted in the claimant being obliged to work during the Christmas period rather than be allocated time off. For comparison and precedent purposes, the case of Laura Russell v Tusla (r-141714-pt-14/GC) is relevant.  

Further to a supplementary (post-hearing) submission from the respondent (see below), the claimant committed to making a supplementary submission. This did not materialise.

The subject matter of the claim has already been adjudicated on by the WRC (on May 19th 2017). In the case, the claimant’s representative brought identical claims (to this claim) on behalf of two cabin crew members. The Adjudicator issued his decisions in respect of both claimants on 22 August 2017, finding that there was no less favourable treatment of the claimants. He dismissed both complaints. The respondent also notes that parties to this dispute are already bound by a Labour Court recommendation in respect of ‘no cost increasing claims’.

With reference to this specific case, a working time summary shows that the claimant had more free days than they had work days in the relevant reference periods, making it difficult to sustain the claim of less favourable treatment, whilst the working time is significantly below the collectively agreed targets for part-time employees.

All rosters are both planned and operated in accordance with a standing collective agreement. In addition, the in-house ‘bid’ system and the ability to swap duties mean that individual cabin crew members can influence when they work, what hours they work and where they fly to, all of which contribute to their ‘duty’ and ‘block’ hours.

On Feb. 18th, 2016 European Aviation Safety Agency (EASA) flight time limitations and rest requirements came into force, specifying limits applicable to all flight and cabin crew. Up until 2016 the respondent’s reference period for the calculation of all duty and block hours was from May 1st to April 30th - in line with previous regulatory rules known as ‘EU-Ops’, that also calculated duty and block hour limits on the basis of a May-April year. It should also be noted that the respondent’s annual leave year continues to be May to April in line with the Organisation of Working Time Act 1997. The EASA does not require that the 900 block hours per calendar year be pro-rated for part-time staff – this is a request of IMPACT and is not a regulation.

Extracts from the claimant’s roster for December 2016 and 2017 demonstrate that they enjoyed significant free time in and around the Christmas period, though notably in an operational role (such as cabin crew), staff can be rostered over the Christmas period.   In addition, all cabin crew have an automatic guarantee of seven days’ annual leave (from 22/12 to 28/12 inclusive) in one of every four Christmas periods.

To ground a claim under the 2001 Act, a claimant must establish less favourable treatment in respect of a condition of employment. Section 3 of the 2001 Act defines ‘conditions of employment’ as: ‘conditions in respect of remuneration and matters related thereto (and in relation to any pension scheme or arrangement includes conditions of membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement.’

In the aforementioned previous case on this issue, the Adjudicator noted that: ‘conditions of employment include all terms and conditions of the employment contract whether statutory or otherwise, for example remuneration, pension, VHI, entitlement to sick pay’. This led to the conclusion that ‘no submission was made by the complainant that this in any way concerned remuneration or related matters …. and there is actually no treatment that is less favourable arising from the different reference periods.’ It is submitted that ‘block hours’ cannot be reasonably regarded as a condition of employment based on the above statutory definition.

Even if the Adjudicator believes that there may have been less favourable treatment of the claimant with reference to block hours, it is (also) submitted that this can be objectively justified, as striking a necessary balance between EASA compliance and adherence to collectively agreed targets (i.e. on flight time/block hours).   The requirement to comply with EASA is necessary and cumulative limits are set for all crew in a legitimate manner (n.b. the EASA does not require that the 900 block hours per calendar year be pro rated for part-time staff – this is a request of IMPACT).

In order for the airline to be able to offer In Week Special Leave (IWSL) in the numbers offered and with the flexibility of options afforded, it must be operationally productive and commercially viable. Were the company required to transition to a proration of the EASA 900 block hour limit on a calendar year basis for IWSL, then this would require a review of all of the flexibility inherent in the current rosters. It is also submitted that there has been no technical or other breach of the 2001 Act.

In a supplementary submission, the respondent argued that the comparator chosen by the claimant is not a valid comparator because of his role with the trade union. That is, his union duties have a significant impact on the amount of work/flying he does. As a consequence, his duty time and block hours are not representative of a normal full-time cabin crew member who is rostered for full flying duties. In addition, the complainant’s roster shows that they had very few flying duties allocated in December 2016 and 2017 and were rostered a considerable number days off during this time.

With regard to case law, the respondent contests the claimant’s interpretation of the (aforementioned) Russell v Tusla finding, noting the Adjudicator’s comments in respect of same (i.e. in August, 2017). It is also contended that the Labour Court determination in the Department of Education and Science v Gallagher (PTD047) case is relevant here, as it concluded that the pro-rata principle is not of ‘universal application’ and limits ‘conditions of employment’ as benefits dependent on hours worked.

The key issue(s) arising for adjudication in this claim have already come before an Adjudication Officer of the Workplace Relations Commission (i.e. ADJ-00006314 and ADJ-00006331). Notably, this claim (CA-00012217) was received on June 30th, 2017. The aforementioned Adjudication Officer’s decisions were issued on July 21st and August 22nd, 2017.

Given the similarity of issues that are the subject of the complaint, the main ‘Findings and Conclusions’ from the aforementioned cases are pertinent. For example, ADJ-00006331 found that:

First, in order to succeed under the 2011 Act the acts complained of must also represent ‘less favourable treatment’. Second, the respondent has raised the fact that no comparator has been identified.Third, the respondent has also challenged whether the operation of the ‘block hours’ forms part of the conditions of employment of the complainant.

In respect of the conditions of employment that 2001 Act defines ‘conditions of employment as: ‘conditions in respect of remuneration and matters related thereto (and in relation to any pension scheme or arrangement includes conditions of membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement’. The explanatory booklet on the 2001 published by the Department of Jobs, Enterprise and Innovation (DJEI) puts it thus: ‘Conditions of employment includes all terms and conditions of the employment contract whether statutory or otherwise, for example remuneration, pension, VHI, entitlement to sick pay’. While the term ‘conditions of employment’ has very wide application in the everyday language of HR practitioners I must obviously have regard to the language of the statute and its reference to ‘remuneration and matters related thereto’.

No submission was made by the complainant that this in any way concerned remuneration or related matters. Looking at the somewhat more expansive definition in the DJEI explanatory booklet is this a matter that is ‘a’ condition of the contract of employment? The respondent submitted that the subject matter of the dispute does not relate to remuneration or represent the core working time. It does not either touch on rosters, which while also outside the above definition on a very strict literal view, might be regarded as a potential form of less favourable treatment on certain facts. The net point at issue is the reference period; should it be the commonly accepted definition of a calendar year (January to December) or the one operated for annual leave purposes (May to April). While the complainant submitted that this could have adverse consequences, for example for rostering at Christmas I cannot see this as other than a very indirect consequence of the different reference periods and is more likely to flow from rostering options (including choices made by an employee in respect of preferred routes). There is no doubt that the complainant is treated in a different manner to a full time employee. However, difference in treatment does not automatically translate into ‘less favourable’ treatment and some onus falls on a complainant to discharge the burden of proof in that regard, which I find she has not done.

In respect of the core and critical issues; rosters, pay, the calculation of the block hours within the reference periods used there is actually no treatment that is less favourable arising from the different reference periods. Apart from the fact that the new European Regulation required a change to a reference period of a calendar year, a calendar year has not, in itself, any significance in determining the intrinsic nature of a person’s conditions of employment or equality of treatment, convenient for the complainant as it might be to synchronise them (although according to the respondent it would be anything but convenient). I cannot see how two employees having different start and end dates for any particular purpose can be said to incur less favourable treatment, unless it is plainly established on the facts. It has not been; the only case advanced related to ‘a particularly onerous roster’ in the Christmas period which is not persuasive. The absence of any detail in respect of comparators is fatal to the complainant’s case. The respondent says that discrepancies between the two referral periods can be attributed to a lot of factors and not simply that between a part time and a full time worker.

I do not think that a situation becomes ‘less favourable’ simply on the basis that a complainant has a preference, and one that was not well explained, to be on precisely the same basis as a full time colleague even though this will result in no material improvement in her working conditions, or conversely place her at any disadvantage if it remains as it is. The complainant submitted that the respondent ‘failed to implement’ the pro-rata principle. But this is not correct; it simply applied it in a different reference period. In his summing up, the complainant’s representative said that it was possible to ‘pro-rate’ in either reference period. He failed to establish that opting for the one currently used places the complainant in a less favourable situation. It is but ‘one swallow’ and it does not make a summer for the purposes of grounding the complaint.

The complainant submitted a Rights Commissioner decision in the case of Russell v Tusla (r-14171-pt-14/GC) which I have considered. It has no relevance to the current case. Ms Russell was significantly disadvantaged by not having a requirement to ‘sleep over’ pro rated. This was an objective case of continuing less favourable treatment in respect of a relatively demanding type of shift. There was no time period within which this was the case and it was ongoing less favourable treatment. In the current case the appearance of less favourable treatment only arises by selecting a reference period to suit the argument being made. But in general, looking at the treatment of part, and full time workers in their respective reference periods there is no less favourable treatment in respect of any conditions of employment, however defined.

With few exceptions (e.g. comparator named), the complaint under consideration in this case is identical in most key and consequential respects to those adjudicated upon subsequent to the submission of this claim.

For the reasons set out above I do not uphold the claim and it is dismissed.

Part-time work; Different treatment not less favourable