LCR22308

1.Loss of Earnings arising from LCR21438

BACKGROUND:

2.2. This dispute concerns a loss of earnings. 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 March 2020, in accordance with Section 26(1) of the Industrial Relations Act, 1990.

A Labour Court hearing took place on 17 November 2020.

NBRU ARGUMENTS:

3. 1. The NBRU stated that this case emanated from Labour Court Recommendation LCR21438 in April 2017.

2. On 7December 2018 Bus Eireann wrote to Trade Unions to say that the loss of earnings for drivers would be paid. The NBRU started to receive letters from every depot from those who received either no loss of earnings or an incorrect loss of earnings.

3. The NBRU suggested that the geographical spread of issues suggested that the problem in payment was not an administrative error and was not associated with one depot.


SIPTU ARGUMENTS:

1. In 2016 SIPTU commenced a claim for increases in pay for all categories of worker in Bus Eireann.

2. In late 2016, Bus Eireann attempted to introduce cuts to the then terms and conditions of employees without agreement, leading to significant Industrial Action. This dispute was resolved when all parties accepted LCR21438.

3. A method for the Loss of Earnings was contained in LCR21438 and it was understood that staff would be recognised and compensated as a part of the changes provided for within this Labour Court Recommendation.


EMPLOYER'S ARGUMENTS:

4. 1. In April 2017, after three-week strike, the Company and Trade Union Group (TUG) attended the Labour Court to explore agreement on several items. This culminated in LCR21438, dated 13^thApril 2017. The Employer stated that this Labour Court Recommendation was exhaustive, and contained term changes for all grades of staff, including the Driver grade.

2. The Employer stated that LCR21438 significantly altered the composition of drivers pay. As a part of LCR21438 it was agreed that a loss of earnings payment would be assessed in 12 months subject only to the ability of the company to pay at that time.

3. The Employer maintains that in line with this recommendation, a payment of €1,640,316 was made in December 2018 to 600 drivers who had experienced a loss of earnings.

RECOMMENDATION:

The issue in dispute between the parties arises from the implementation of Labour Court Recommendation LCR 21438. In that Recommendation, which was accepted by all parties, a consolidated rate of pay was introduced for this category of workers (drivers). The Unions understood that the consolidated rate replaced the old basic rate. This new rate was introduced on the 3rd of December 2017. The agreement provided as follows “loss of earnings, if and when they occur, will be assessed in 12 months. Loss of earnings will be based on average earnings over the previous three years and compensation of 12 months the loss will be paid”

The issue in dispute between the parties is the methodology used to calculate average pay for the relevant periods

The Employer did not dispute that there had not ben any engagement with the Union in advance of applying the daily average and that there had not been any engagement in respect of the impact of the various options that the Employer had considered on the eligible workers.

It is clear to the Court that there is an information deficit in respect of what constitutes “average earnings” in this employment and what methodology has been used in the past to calculate same. The Employer submitted that it had used the daily average in the past, the Court recommends that the Employer identifies for the Union the occasions in respect of this category of workers that it had used daily average to calculate loss of earnings.

The same information deficit exists in respect of the calculation done by the Employer. The Court recommends that in respect of this loss of earnings calculation the Employer should engage with the Unions and provide them with data showing the effect of what was referred to during the hearing as “straight average” and the effect of applying the daily average. If for practical reasons it is not feasible to run the two sets of calculations for all the Workers, then it should be applied to an agreed cross sample of workers. The purpose of the exercise is to provide the Unions with information which allows them to consider their approach to this issue. Any issues arising from this process should be processed through the normal industrial relations procedures.

The Court so recommends.

	Signed on behalf of the Labour Court
	Louise O'Donnell
H.M.	______________________
04 December 2020	Deputy Chairman