FULL RECOMMENDATION
C-163224/18 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BUS EIREANN - AND - NATIONAL BUS & RAIL UNION SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Changes in opening and closing times of schools and back money.
BACKGROUND:
2. This dispute relates to the changes to the opening and closing times of schools and the impact that has had on the Bus Drivers and to the question of back money that was paid.
The Unions said that, as part time employees, the Bus Drivers undertake external work. The introduction of the half day finishing on a Friday has led to a disruption and loss of earnings for the Drivers.
The Employer said the contract of employment for Part-Time School Bus Drivers says: “You will give full flexibility as required in meeting changes in the opening and closing time of schools”.
- This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 13 February 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on 23 April 2019.
UNIONS ARGUMENTS:
3. 1. The Drivers augment their earnings by other work. The early closing on Fridays has had a serious impact on their earnings.
2. Where a Driver agrees to alter their duty to incorporate changes in times then they should be paid their normal duty board plus overtime for the changes involved.
3 In the event that the Driver cannot, due to external commitments, work the changes, the Driver should be paid their normal duty and management should utilise alternative means to cover unscheduled/unboarded work involved.
4 The Company had agreed that back money due would be paid in the most tax efficient manner. It was then paid, without consultation with the unions, through the payroll.
EMPLOYER'S ARGUMENTS:
- 1. The Employer said productivity proposals were discussed with both Unions. The NBRU accepted them in October 2017 and SIPTU accepted them in May 2018.
2. Section 2.3 of the Pay and Productivity Agreement involved and accepted by all parties provides that full flexibility will be given, as required, in meeting changes in the opening and closing times of schools.
3 The back money due was paid in respect of earnings and it was, therefore, taxable.
RECOMMENDATION:
There are three aspects to this case.
The Unions point to the fact that in the conciliated outcome of discussions that led to a pay and productivity agreement, it was agreed that the Company would look at how back-money due would be paid in the most tax efficient means possible.
The Company subsequently paid this money through the pay-roll, to the surprise and disappointment of the Unions and their members.
It is unfortunate, in the view of the Court, that the Company did not act in accordance with the spirit of the agreed outcome. The Company has pointed out that Revenue rules provide that all earnings must be taxed in the normal way. However, the disappointment of the people concerned might have been alleviated if the Company had abided by usual good industrial relations practice in advising the Unions of this situation in advance of the payment.
As it is, the Court is not in a position to undo the actions of the Company and it has to acknowledge, in any event, that it is a fact that earnings are taxable and that this fact, of itself, could not warrant any award of additional payment by the Court.
The second aspect of this case concerns unanticipated changes in the school time-table. SIPTU, in particular, sought a detailed process to ensure that drivers were made aware of such changes at the earliest opportunity. The Company responded by saying that the essential elements in the suggested process are, in fact, in place already. In the view of the Court, it is a valid concern for drivers that they should know in advance of any changes in their normal work schedule and it is hard to comprehend any circumstance, other than extreme weather or other unforeseeable events, where this cannot be accommodated. The Court would urge the Company to raise with the relevant Department, in the strongest possible terms, any incidence of schools altering their schedules without adequate notice to the Company.
The final, and most significant, issue concerns the more general changes to school opening hours and the claim by the unions that their members should be compensated for such changes.
The Company points to the fact that S. 2.3 of a pay and productivity agreement accepted by all parties provides that full flexibility will be given, as required, in meeting changes in the opening and closing times of schools and that, just as the Company met its obligations under the agreement in the provision of additional remuneration, the drivers are required to honour the terms of this section.
SIPTU emphasised that, in accepting this agreement, they did so on the basis of seeking a process of discussion on this section, which had led to this referral to the Court. They sought additional remuneration for the flexibility required, pointing to the impact of the changes in their working hours on the lives and other earnings of these part-time employees , which, they argued quite forcefully, were very significant in some cases. They sought further that where individual drivers could not accommodate the changes, the Company should make alternative arrangements.
From the point of view of the Court, there is a constant reluctance to interfere in agreements entered into freely by the parties. It is an inevitable consequence of agreements that are, by their nature, compromises that some aspects can be problematic for one or other of the parties. In such situations, it is legitimate to seek, as SIPTU have done in this case, further dialogue on a given section of an agreement. However, in doing so, the parties to an agreement need always to be aware that the exchange of remuneration usually seals the deal, unless the agreement provides expressly otherwise.
This agreement does not provide for the review initiated by the Unions and the Company has met its obligations to its workers in respect of the relevant increases in remuneration, albeit with the regrettable handling of the ‘tax efficient’ element referred to above.
Therefore, the Company is entitled to expect that s.2.3 of the agreement will be adhered to by the people to whom it has paid additional remuneration for this purpose.
The Court notes that the Unions have lodged a subsequent pay claim. As always in industrial relations, such claims open up the possibility for issues regarding terms of employment to be raised for fresh discussion.
Signed on behalf of the Labour Court
Tom Geraghty
CR______________________
30th April, 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.