FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES: BUS EIREANN - AND - WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION TRANSPORT SALARIED STAFFS' ASSOCIATION) DIVISION:
SUBJECT: 1.Loss of Earnings as per LCR21438. 2. The Union states it is not appropriate or reasonable for the Employer to treat their relevant Clerical members less favourably and not pay loss of earnings which are the only grade that have outstanding issues around the issue. 3. The Union request the Court rule that all the outstanding loss of earnings payments for the clerical grade be made at the appropriate rate.
4. 1. The Employer states the Unions claim for loss of earnings arises from LCR21438 which impacted other grades significantly including transition to consolidated rates of pay with elimination of regular, rostered overtime which resulted in subsequent loss of earnings claims in these grades. 2. The Employer states some members of Clerical staff were paid loss of earnings post 2017, the level of overtime worked by this group of staff has increased year on year since 2019, resulting in over €600,000 in payments since then. 3.The Employer acknowledges that a loss of earnings was afforded to approximately 15 Clerical staff post 2017 amounting to €50.00 on the basis of an expectation that Clerical overtime would cease, which was not the case.
“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. Payment will be made upon the completion of the assessment subject only to the ability of the company to pay at that time. In the event of an inability to pay at that time, it is understood that payment will be made at the point where the company has the ability to pay.” The Employer is seeking to exclude 100 clerical staff from the payment of loss of earnings arising in the relevant period. The Unions position is that the clerical members are entitled to be paid. The Union submitted that in 2016 the employer tried to introduce drastic cuts to the terms and conditions of employees without agreement arising from financial difficulties the Employer was facing. This led to significant industrial action taking place in early 2017. The dispute was eventually resolved when all parties accepted Labour Court Rec LCR21438. That recommendation contained a method for the calculation of Loss of earnings for the first 12 months arising from the implementation of the changes contained in it. On completion of the 12-month period and in line with LCR21438 clerical members submitted loss of earnings claims to the Employer for the period 2017/2018. The Employer frustrated the process and the Unions had to use the grievance procedure, contrary to what happened to other grades, who were paid their loss of earnings without individual members having to apply. Following significant delays some members received payment in March 2019. After only 15 members received payments, the Employer suddenly decided they were not going to make any further loss of earnings payment to clerical staff. No progress on this issue could be made at local level or under the auspices of the WRC. It is the Unions submission that the clerical staff are clearly covered by the agreement and are entitled to their loss of earnings payment for the relevant period of time. The Employer accepts that in 2018, loss of earnings was paid to 15-clerical members of staff who they believe engaged in a degree of regular overtime each year. These were paid loss of earnings in line with the provisions of LCR 21438. However, in 2019 clerical overtime again became widely available. In 2020 more clerical staff made claims for loss of overtime which the Employer declined both on the basis of the continued availability of overtime within the clerical group, and also because most of the claims were made in relation to overtime which was ad hoc and irregular. This matter was discussed at a number of conciliation hearings during 2022, and the Employer’s position remains the same. Overtime has not been eliminated within the clerical group, and therefore there is no basis for a loss of earnings claim. The Employer is not disputing the fact that there was a drop in overtime levels in the immediate aftermath of LCR 21438. However, from 2019 onwards overtime levels have started to increase for some clerical staff, and on that basis the Employer does not believe it is obliged to pay loss of earnings for the fall off in the immediate aftermath of LCR 21438. The Employer expressed concern that if the Court was to take a narrow interpretation of the loss of earnings, then it could have a contagion effect on other parts of the agreement. The Employer submitted to the Court that they had identified a further 21 Workers within the clerical cohort, who they believe suffered significant loss of earnings in the aftermath of LCR 21438. They believe that the Court should it be minded to find in favour of the Unions claim, then it should limit any finding to that cohort of Workers. Discussion The Court had a hearing on the 2nd December 2022, and after hearing the parties, adjourned to allow for the exchange of information around the calculation of the loss, and to give the parties a final opportunity to try and resolve this issue locally. The hearing was resumed on the 1stSeptember 2023. It was accepted by both parties that agreement had been received on the method of calculation of loss. The Court is being asked to interpret a paragraph within a collective agreement. The wording of the paragraph is quite clear and only requires, for a party to benefit from it, that they sustain a loss of earnings and that it will be assessed in 12 months. It is not in dispute between the parties that the Workers in question meet this criterion. It is clear, that the paragraph addresses a loss of earnings and is not a buyout of overtime. The fact that by dragging their heels management can now see that overtime is increasing since 2019, is not relevant as it falls outside the period for assessing the loss. Management also raised the fact that the overtime in question is seasonal and irregular. However, the Court notes that the agreement does not state that overtime of that nature was excluded, in order to qualify for loss of earnings during the relevant period. The Court cannot read into a collective agreement something that is not there. The Employer expressed concern about a contagion effect in terms of other claims being lodged arising from any Labour Court Recommendation. The Unions confirmed that there is currently one other claim in process and the Employer is aware of that. The Court in this case is dealing with the application of an element of a six-year-old agreement to a cohort of Workers arising from a decision by the Employer in 2019/2020 not to apply that element to some of them. It is difficult to see how at this juncture, any cohort of workers could realistically formulate a new claim, or if they had a basis for doing so why they had not done so before now. Having carefully read and listened to the submissions of the parties, the Court recommends that the loss of earnings be applied to the 100 clerical staff covered by this claim who have not already been paid, and who fall within the criteria set out in the agreement. The Court so recommends.
NOTE Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary. |
