Complainant

Respondent

Anonymised Parties

A transport employee

A public transport company

Representatives

Paul Rowsome, National Bus & Rail Union

Company management.

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-00017069-001

25/01/2018

The Complainant is employed by the Respondent, a national public transport provider and has been so since May 2000. He is based in Cork.

In October 2013 the Respondent informed the Complainant that, for business reasons, changes were required that would necessitate him transferring his place of work some 11 kilometres to a central location in Cork.

The complaint, received by the Workplace Relations Commission (WRC) on 25/01/2018 relates to a claim for a disturbance payment the Complainant believes he is entitled to.

Internal procedures have been exhausted without reaching an agreement.

The complaint is referred under section 13 of the Industrial Relations Act, 1969.

1.       The Complainant was employed as a Signalman (Senior) in xxx Cabin in 2010 which is situated approximately 11km from xxxx xxxx Station, the location which now serves as the signal hub for the general area.

2.       The Respondent discontinued operations at xxxx Signal Cabin in March 2010 and relocated all signal personnel to xxxx xxxx Station in conjunction with paying the agreed disturbance compensation payment to other signalmen based there.

3.       The Complainant however was requested to remain at xxxx Station in the capacity of general duties i.e. ticket and booking office duties, security type duties, assisting with general customer requirements, etc on the understanding disturbance compensation payment would be paid to him should he relocate elsewhere in the future.

4.       It is also worth pointing out the Complainant took a pay cut in the process of taking up the position at xxxx Station.

5.       In 2016 the Complainant was relocated into the Revenue Protection Unit based at xxxx xxxx Station. It was at this point through local negotiations and discussions it was agreed (locally) that the agreed disturbance compensation payment would be paid to the Complainant 12 months after he took up his new role.  

6.       All efforts through the normal internal procedures to serve the Complainants agreed disturbance compensation payment failed.

7.       We therefore respectfully request that you will recommend the Complainant be paid disturbance compensation payment of €1500 plus €50 per year of service.

1.       In 2011 due to economic downturn there were increasingly difficult challenges facing the Company. Due to these challenges, and a very strong position from a Government Department, that funding would be severely reduced in 2012, all Managers were tasked with looking at their resources and reviewing their business requirements for the years ahead. It is also important to note the financial situation facing the Respondent at that time. Falling revenue and Government subvention resulted in a financial crisis, on a scale not previously experienced in the organisation. During the period 2008 to 2012 total revenue fell by a figure of 34.7 million, additionally Government Subvention in the same period fell by 64.3 million. This gave an overall fall in income of 99 million. The Company commenced discussion with their representative Trade Unions in relation to the financial crisis in January 2010 and in July 2012 an Agreement was reached, however, it became apparent very quickly that the savings associated with this agreement would not suffice. In November 2012 the Labour Relations Commission facilitated a series of engagements with the Respondent and the respective Trade Unions over a protracted period which culminated in the 3rd September 2014 agreement. The Trade Unions may argue that previously agreed redeployment terms that were not subsequently adhered to by the Company, however, this was due to the unprecedented financial crisis facing the Company. The Company decided in 2012 that all unnecessary costs should be discontinued in order to ensure solvency going forward and this included the payment of disturbance in circumstances were staff redeployed.   It should be noted that financially the Company are still struggling although revenue has improved it has yet to be established whether this will be sustained long term and government subvention has stayed static. The Company are still carrying a deficit of 140 million which needs to be addressed.

2.       The Complainant was a red-circled signalperson which was under the jurisdiction of Station Manager, Cork. In the context of what is outlined above discussions commenced with the Complainant and as per the Respondents procedures a level 1 meeting was convened on 24th October 2013. At this engagement the Complainant was advised that due to cost considerations, a desire to introduce efficiencies and equity in the deployment of staff and in light of the disparity in cost versus the financial benefit of retaining the Complainant in his current role, a business decision had been made to de-man xxxxxxx Station. The district Manager went through the options available to the Complainant which included a role on the platform in xxxx Station or a role as a Host.   The Union proposed other options including a role in the Revenue Protection Unit and a District Traffic Executive. It was outlined that the Complainants preferred option was to remain in xxxxxxx Station, however, it was advised that from a revenue perspective this was not a viable option. The decision to de-man was a result of business needs, in light of, inter alia, the revenue generated in the Booking Office versus the cost of employing a member of staff in this location. The District Manager advised that this was a business decision and that the Complainant should consider all the options. The Complainant’s Trade Union representative advised that he would require two weeks to collate his information. It was agreed that the parties would re-convene on 30th November 2013 to settle the matter.

The Company made several attempts to re-convene the meeting however, this proved very difficult due to the unavailability of the Complainant’s Trade Union representative and the Complainant’s intransigence in relation to any of the re-deployment offers available. A meeting was eventually agreed on 14th April 2015.   The Union outlined its continued objection to the Complainant’s proposed relocation from xxxxxxx Station.   The Company re-iterated their position and advised that it has always reserved the right to reallocate staff, within agreed procedures, as best suits business needs. It was further advised that in national negotiations surrounding Cost Containment, the Unions had requested that the matter of inefficient allocation of staff and resources throughout the network be addressed. It was against the background that the Company objectively examined the deployment of available in Cork. The District Manager advised that this situation could not continue into perpetuity and the Company required a decision within 4 weeks, after which the Complainant would be required to report for duty at xxxxx Station, on Monday, 14th May 2015. The Union advised that as per procedure this issue should now be escalated to a level 2 meeting with the Passenger Services Manager South & West.

A meeting in relation to this matter was convened on 20th May 2015.   The Passenger Services Manager re-iterated the Company position. The Complainant advised that he felt singled out in this situation and it was suggested that there were areas nationally that could be prioritised.   It was advised that this situation had been on-going since 2013 with no resolution and could not continue indefinitely. It was also advised that as Passenger Services Manager, he reserved the right to engage with staff within his remit as needs dictate. This extended to dealing with individual cases on their individual merits, and was not limited to “national matters” as the Trade Union contended. It was advised that the Company is entitled to take the lead in engaging with operational or organisational issues. In this instance, it was advised, that the figures do not add up as xxxx Station simply does not generate enough revenue. As part of cost containment, the Company undertook with the Unions to evaluate efficiencies in the allocation of staff in order to make savings.   The PSM cited examples throughout the country where there had been reductions, redeployments and downsizing has happened. All of these rationalisations stood up to external scrutiny. There were a number of acceptable redeployment options put forward by the Trade Unions and the Company agreed to examine the possibilities.   In the interim, it was agreed that the Complainant could remain in xxxxx Station. The Company offered a number of roles to the Complainant however none were acceptable. Eventually, the Company advised that they would be seeking the intervention of a 3rd party to resolve this matter as none of the options offered were suitable even though the Trade Union had put them forward in the first instance.

The Trade Unions requested one more meeting to try and resolve this matter and this was agreed. The Company and Trade Union met on 9th February 2016, 3 years after the initial discussions had commenced with the Complainant. At this meeting, it was agreed that the Complainant would redeploy to the Revenue Protection Unit.

3.       It should be noted that throughout these discussions the issue of a disturbance payment, although raised, was never guaranteed. It was advised that the Company position was that disturbance payment were not being paid as they were cost increasing and could not be countenanced in the current climate. This would be in line with the Public Sector where the Croke Park Agreement and the Haddington Road Agreement, both refer to relocation distances of 45 kilometres without mentioning financial compensation. The findings of the Labour Court in these types of cases vary depending on the specific circumstances of the employees concerned and what measures have already been proposed by the employer. The Labour Court does not always recommend monetary awards and considers the distances and the steps taken by employers to communicate and engage with affected employees to any mitigate temporary inconvenience.

4.       The Trade Union may also argue that a Labour Court Recommendation had issued for a particular group of staff in the New Works department and it was recommended that a payment should be considered in 2017 if the Company’s financial position improved. The main difference between this recommendation and the current situation is that this was the closure of a department due to the fact that capitally funded projects had ceased. This was a large-scale change and staff affected by this were advised from the outset that a disturbance payment would apply. The Complainant was not given the same assurance at any time during discussions.

5.       The Company and Trade Unions have also recently negotiated a pay deal which will see all employees receive a 2.5% increase per year for 2017, 2018 and 2019. The Company and Trade Union have been requested to negotiate on a number of items to facilitate this payment year on year. This recommendation and its contents were accepted by both parties and Redeployment of Surplus Staff is one of the items that will be discussed. This recommendation also advises “That no future cost increasing claims will be made by the Trade Unions during the lifetime of this agreement”.

SUMMING UP:

1.       The financial position of the Company must be considered as part of this claim.

2.       The Complainant was advised of the Company intention to de-man xxxx Station in 2013 however, the re-deployment did not occur until post May 2016.

3.       The Trade Unions were advised that disturbance payments in the climate that prevailed were not sustainable.

4.       The Complainant was never given an assurance that a disturbance payment would be forthcoming and this would be in line with staff affected by change.

5.       Concession of this claim will lead to other employees requesting the same consideration which is outside of the current Labour Court Recommendation which advises that there will be no cost increasing claims during the lifetime of the current pay deal.

6.       The Company position reflects what was happening in industry at the time of change where precarious financial positions made it impossible for Company’s to concede certain payments that were historical in nature and generally in place to cover large scale change as opposed to normal business requirements. 

Firstly, I would like to thank both parties for supplying concise written submissions to the hearing.

Discussions commenced with the Complainant on 24th October 2013, the objective of these discussions was to explore various options available to the Complainant, one such option was re-deployment to a position in the main station in Cork, the positions offered were a platform position or one as a host. At this point the Complainant let it be known that his preferred option was to remain in his original position, in reality this was not an option at all if any type of business rationale was applied.

The Complainant eventually accepted a position in Cork in May 2016, some 30 months after initial discussions had commenced.

During this 30-month period the Respondent’s management and representative trade unions were heavily engaged in discussions at a national level in an attempt to safeguard the ongoing viability of the Company, a comprehensive agreement was reached in September 2014. It should however be noted that the Company are still carrying a deficit of €140 million that has to be addressed.

Management have included some statements towards the end of their submission, these cannot be overlooked:

·         The trade unions were advised that disturbance payments in the climate that prevailed were not sustainable.

·         The Complainant was never given an assurance that a disturbance payment would be forthcoming and this would be in line with staff affected by change.

·         Concession of this claim will lead to other employees requesting the same consideration which is outside of the current Labour Court Recommendation which advises that there will be no cost increasing claims during the lifetime of the current pay deal.

·         The Company position reflects what was happening in industry at the time of change where precarious financial positions made it impossible for Company’s to concede certain payments that were historical in nature and generally in place to cover large scale change as opposed to normal business requirements.

I also must consider the Labour Court Recommendation (LCR 21605) – this document contains detail of a wage agreement covering the period 1st December 2017 to 30th November 2020. There is a clause that reads as follows:

“That no future cost increasing claims will be made by the Trade Unions during the lifetime of this agreement and that the company will not, outside of the engagements set out in this recommendation, propose any measures that will change employees’ terms and conditions of employment except through the medium of productivity discussions”.

In this instant case we have to ask the question is this an existing or future cost increasing claim?

The Respondent management are fearful that the concession of this claim will lead to other employees requesting the same consideration which is outside of the current Labour Court Recommendation which advises that there will be no cost increasing claims during the lifetime of the current pay deal.

This point cannot be overlooked.

Overall, I am inclined to agree with management that this is indeed a cost increasing claim that cannot be entertained during the lifetime of the current agreement outlined in the Labour Court Recommendation and it is against this background that I consider the individual complaint as not being well found and therefore fails.

For the reasons outlined above the complaint fails.