Worker

Employer

Anonymised Parties

A bus driver

A bus company

Representatives

National Bus and Rail Union

 Self-represented

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001401

18/05/2023

This case involves a bus driver on the Senior Spare Panel of Drivers in a city depot, whose role involved covering a mix of domestically regulated duties (less than 50km) and EU regulated duties (more than 50km).

The Worker’s complaint is that the computer system used by the Employer defaulted him to the requirements of EU regulations (with a requirement of longer daily and weekly rest breaks) whether in fact he was carrying out domestically regulated duties or EU regulated duties; and that this approach taken by the Employer produced a consequent loss of opportunity to avail of enhanced earnings through overtime for the Worker. He submits that his employer is subjecting him to a more onerous regulatory framework than legally required, thus depriving him of the opportunity of additional earnings through overtime.

The Employer denies the Worker’s claims and submits, inter alia, that this approach was required for correct legal compliance with the applicable legislation and regulations. It further denies any loss of earnings by the Worker.

Written submissions were received by both sides prior to the hearing. At the hearing, the issue of the Employer operating two Spare Panels (one “Senior” and one “Temporary”) out of the same depot, but defaulting the former to EU regulations and the latter to domestic regulations emerged. The Adjudication Officer requested supplemental written submissions, after the hearing, in relation to that point from both sides within a prescribed timeframe. A short extension to the timeframe was sought and granted by the Employer, and a consequent extension was granted to the Worker, in order to allow time for his replying supplemental submission.

The case pertains to a bus driver based in a city depot. The Worker, by virtue of his seniority, has obtained a spare roster. He has no fixed roster but covers duties left unallocated by sickness, annual leave etc.

It is submitted that the Worker has suffered a loss of earnings from 3rd December 2017 to the present day. This claim is based on an arbitrary and unilateral application of the EU Driving Hours Regulations in circumstances where domestic regulations (1997 Organisation of Working Time Act) should have been used.

The Worker has been a member of the Spare Panel in [Location redacted] since the implementation of [LCR number redacted] on 3rd December 2017. This was a survival and restructuring plan issued by the Labour Court and accepted by the members.

Prior to this, the Worker was, for six years, a marked-in driver [reference redacted] which was a fully EU Regulated Board due to the route exceeding the 50km threshold. At all times, the Worker fully complied with all the necessary daily, weekly and fortnightly rest periods as they applied to EU driving laws and regulations, and he knew his own responsibilities in this regard.

Upon moving to the Spare Panel, the Worker discovered that all Spare and Holiday Relief drivers were categorised as EU Regulated drivers. The Worker does not work normally operate EU regulated driving jobs (in excess of 50 km). This was irrespective of the type of work carried out and took no cognisance of “Out of Scope" driving.

The practical effect of this regulation was that the Worker was forced to have 45 hours' weekly rest when the actual reality was that the Worker was a domestic driver. This caused the Worker to lose out on overtime. It is also the Worker’s case that he was forced to take daily breaks of 45 minutes consistent with EU driving while still a domestic driver.

The Worker made contact in the first instance with the Schedule Office and was informed that the Microbus System was responsible, and they had no leeway to make any adjustments to it.

The Worker reported this information to the Branch Committee who discussed it with Local Management during weekly meetings. Local Management were similarly unable to make alterations as the decision to design the Microbus System was taken at a national level.

The Worker wrote to the previous Manager of [Location] Services, TO, and also to the current Services Manager, DL, without satisfactory responses. (A copy of the Worker’s correspondence is included in Appendix 1).

It is submitted that the Employer ignored the Worker’s claim and issue. Only a small percentage of the Employer’s drivers are spare, and only a small number of those do overtime. It is submitted that two previous claims by two different drivers, for loss of rest days were settled on an individual basis.

It is submitted that in settling those individual claims, the Employer was in agreement that drivers should not be at a loss, a software workaround was being explored, and any thus affected driver should contact their local supervisor. (A copy of this email from Senior HR Manager, JS, is included in Appendix 2).

The crux of the Worker’s loss of earnings claim is the obligation on him to comply with driving regulations that do not apply unless he has operated EU Regulated work.

It is submitted that even though the Worker complied with the law for "Out of Scope" work, he was still required to operate as an EU regulated driver. This meant that he had to show a 45-minute break before booking on for overtime and a minimum 45-hour rest period every two weeks.  

The Worker contacted the RSA and asked them what regulations applied to bus drivers and they sent him this reply: "Domestic Rules are a matter for Garda Siochana and the Working Time Act is a matter for the WRC " The only concern for the RSA is the Working Time Directive."

The Organisation of Working Time Act was signed into law on 7th May 1997 and is the main domestic regulation covering working hours, rest periods, holidays, public and annual, Sunday payments and night working.

The Act specifically exempts "mobile transport workers as they have specific regulations which govern their rest periods. These can be further divided by those that are governed by Directive of the European Parliament 2002/15/EC, which is commonly known as the DRIVERS' HOURS REGULATION (EC) NO. 561/2006. These regulations and the exemptions they allow are concerned with drivers who operate more than 50 kilometres distance from their Home Depot.

The other regulations which are of relevance are S.I. No. 36 of 2012 or the Irish Domestic Driving Hours Regulations. These regulations apply to all mobile transport workers that work outside of the remit of the EU Driving Hours Regulations as they operate less than 50 kilometres distance from their Home Depot. This driving is classified as "Out of Scope."

It is submitted that it is obvious that the Employer has been, and still is using, an a la carte approach and using any section from each Act, Directive or Statutory Instrument as they see fit. The Worker highlights why there is no uniform interpretation of any or all the instruments that governs his working day.

The Employer requires all spare drivers to use a tachograph and it is a disciplinary matter not to comply with this. It has even outlined through a letter on the company notice board that drivers are liable for prosecution for not using tachographs but the Employer will not take them into consideration when it comes to whether a driver on the Spare panel has, or has not, worked any EU Regulated driving duties over a week, month or even many months.

The Worker submits that he has consistently asked why he, as Spare and Holiday Relief driver, is being regulated, by the Employer, as an EU driver in a blanket fashion. It is submitted that this issue may not impact 99% of spare drivers but as someone that works overtime, the Worker is negatively impacted.

The Worker has asked for written proof that these practices that require him to be classified as an EU driver despite only operating domestic work are correct, but no response was received.

The Worker further sought answers to the following questions:

·        Who made the decision to blanket categorise him as an EU driver? No response was received.

·        Was the issue, at any stage discussed with his trade union? No response was received.

·        Did the Employer inform the Worker’s trade union of this decision? No response was received.

It is submitted that it is hard to imagine an Employer flouting the agreed industrial relations procedure, by not informing, consulting and negotiating with a Trade Union, concerning something that affects the earning power of their members.

It is the Worker’s and the trade union’s contention that the Employer has cherrypicked the parts of the Directive that refer to breaks, daily rest, weekly and fortnightly rest, yet has not chosen the other parts of the Directive that refers to maximum driving and maximum time working. It is submitted that the Employer chooses to work the Spare drivers as Domestic Regulated all the time in contravention of the very Directive that they use for rest periods. It is further submited that that whoever issued the command that all Spare drivers were to be categorised as EU either did not understand the full Directive or else chose to ignore the parts that would be unhelpful to the smooth running of the business.

Impact

Attached in appendix 3 is a breakdown of the Worker’s roster detailing his roster over a 5-year period and the occasions he was forced to take 45 hours’ rest.

The Worker regularly works overtime at least 10-12 times a month and a rest day whenever he has the opportunity. This blanket categorisation has cost the Worker in the region of €11,000 over the last four years. (A detailed breakdown of the Worker’s loss of earnings is contained in Appendix 4).

It is submitted that this is a not inconsiderable sum for the Worker; and that there is a dichotomy here between two previous claims which were paid, and the email (Appendix 2) from, JS, Senior HR Manager, agreeing with the Worker’s position.

Summary

It is submitted that the policy with respect to the classification of domestic Spare drivers has been implemented unilaterally by the Employer, without regard for the consequences for drivers. It is submitted that the Employer has executed a flawed policy in a biased and discriminatory  manner.

The Worker has no issue with abiding by EU Regulation if he happened to work on a duty that works in excess of 50 km from the home location. What the Worker takes exception to is being classified, and consequently regulated as an EU driver when only working as a domestic driver.

It is submitted that this issue is further compounded by the fact that the Employer has seemingly agreed with the Worker’s position and paid other individual claims previously, yet the Worker has been denied and suffered a financial loss.

The official response to the Worker’s loss of earnings’ grievance claim was that he should be classified as an EU Driver. (A copy of this letter is in Appendix 5.)

What determines the classification of bus work as “EU” is driving a vehicle in excess of 50 kms. It is submitted that when the Worker was on standby doing no driving or driving in [Location redacted] as a domestic driver, he should not be penalised for the Employer’s "administrative indolence."

In addition to the financial loss, the Worker raised his issues with the Employer a number of years ago. Even taking the shortest possible timeframe when the stage C (central level) grievance was lodged in May 2022 until the actual outcome (March 2023), 10 months is far removed from the two weeks detailed in the Employer’s agreed grievance policy booklet. This is a clear contravention of S.I.146/2000 and the Code of Practice. (A copy of the Employer’s booklet is contained in Appendix 6.)

Rebuttal points raised in response to the Employer’s supplementary submission:

It is disputed that there can be two spare panels. It is submitted that there can only be one, and that the effect of a spare panel is to cover all planned and unplanned absences. These can occur at any stage of the working day and to suggest otherwise is disingenuous.

It is submitted that the temporary Spare Panel is still defaulted to "Domestic Regulations" and is manually changed to "EU Regulated" when required by the Schedule Office in [Location redacted] depot.

It is submitted that the drivers on the “spare panel” and the “temporary spare panel” are treated inconsistently as compared to each other; and it is submitted that is discriminatory and unfair; and that it produces the effect of categorising drivers doing the same duty based on differing criteria when it comes to possible earnings. If it is possible for the Schedule Inspectors to change the Temporary Spare panel designation, then why can they not do the same for the senior Spare Panel.

It is further submitted that the Employer has never discussed with the relevant trade unions why it has defaulted spare drivers to “EU”, nor issued a written determination of how the decision to default the spare panel to “EU” was to be implemented. It is submitted that instead the Employer issued the format on the Microbus System without regard to its implications. It is submitted that the regulations are only partially applied by the Employer - those with respect to daily breaks, daily rest and weekly rest are implemented but all of the rest of the rules are not followed. It is highlighted that Spare drivers in [Location redacted] are expected to operate the services that are planned or unplanned - this simply means that they must operate and finish whatever duty they are rostered for on any given day. This includes work that is in excess of the EU Regulations but is completely legal under Domestic Regulations. It is submitted that this is clearly a case of the Employer cherry-picking certain parts of the regulations, rather than implementing them in full.

It is submitted that in respect of a driver who works at a mix of such services, the driver should only be EU regulated when they have driven over 50 kilometers, that it is specified as "that day" for daily rest and "weekly rest" in the week when EU driving is done. A driver who does EU work is regulated for the day on which it happens for breaks and daily rest on that day only. He defaults to Domestic Regulations for each other individual day of that week for breaks and daily rest and must then comply with weekly rest for that week only.

It is denied that the Worker had already worked overtime to an extent that it would preclude him from availing of further work should it have been available. It is submitted that the maximum hours that can be worked by a driver is determined by which regulations apply. EU regulated drivers are limited to 90 hours per fortnight and the designation of the Spare Panel as "EU Regulated" would apply in that instance. However, under Domestic Regulations a driver may work up to 66 hours per week. Drivers in the Temporary Spare Panel may avail of the extended possible earnings, while the Worker has been and is defaulted to the lesser opportunity. In particular, it is submitted that the Worker is unable to avail himself of the extended opportunity for Rest Day working even though he has not had any EU Driving on his Tachograph in the qualifying period. It is submitted that this constitutes discrimination between spare drivers.

The Worker submits that he brought his concern regarding the disparity of opportunity to the relevant parties as far back as 2017, when he rejoined the Spare Panel after being on an EU Regulated Service for 6 years. He submits that he contacted the Schedule Office and when an unsatisfactory response was received, he contacted his trade union officials at local level. They in turn raised the matter at the Local Management level. When this proved unsuccessful, the matter was raised at the National Trade Union Level. He even had a motion on the agenda of the NBRU Biannual Conference in 2019 to have the Microbus System changed to reflect the operation of EU & Domestic Regulations. This is a long-standing grievance that has frustratingly carried on much too long.

It is submitted that the Worker’s understanding of Tachographs and the limits of his driving hours derived from having to comply with the very strict application of them.

It is submitted that the Worker’s roster is not in dispute, rather it is opportunity to enhance his earnings through the correct application of the Driving Regulations that should apply to him. Other Spare Drivers were treated in a different manner which it is submitted is discriminatory in nature and application. The Worker submits that the opportunity for enhanced earnings should be applied in an even and fairhanded way to all the employees. He submits that he was not treated in a fair and equitable manner.

It is submitted that without justification, the Employer automatically categorised the Worker as EU, despite the Worker only working domestic jobs, or in some instances, not driving at all, this EU classification-imposed restrictions on the Worker thus denying him the opportunity to work more overtime. The respondents stated that they could not manually regulate him as domestic, yet this is precisely what they done with drivers on the temporary spare panel.

The Worker disputes the Employer’s allegation that he has not provided any specific details pertaining to a loss or indeed a time when he was declined access to overtime. The documents supplied in the original submission for rest day work in the years 2018 - 2023 show the loss of earnings. It is submitted that if the Worker were afforded the opportunity to work as a domestically regulated driver, he would have only had to show 24 hours rest in the shaded area. This is in line with the rest of the other "Spare Panel's" opportunity for enhanced earnings. He has previously stated in correspondence to DL that he would expect the Schedule Office in [Location redacted] depot to roster him in accordance with the type of regulations that applied to him. The Worker is not saying he was denied access to overtime, rather he was forced to take a 45-minute break, while colleagues were only required to show a 30 minute break, which equates to distinct loss of earnings when he was clearly working domestically regulated.

The Worker submits that the Employer’s suggestion that he could not have worked any further hours above what he already enjoyed, owing to the provisions of the Organisation of Working Time Act (OWTA) is an erroneous statement: Mobile Transport workers are exempt from the OWTA as they have specific regulations that apply to them. These have been documented by both parties and should not be included as justification for the discrimination suffered by the Worker. All domestically regulated drivers have the opportunity to work up to 66 hours in a 7-day period averaged to 48 hours over a possible 26 week reference period. It is submitted that the Employer is not complying with the very regulations and requirements that they are quoting in their submission.

The Worker disputes the Employer’s assertion that regarding driving time (under mixed rules or companies operating various rules), that the strictest set of regulations must be followed to ensure compliance and road safety; and that this is why the Microbus system defaults to EC regulations, if overtime or additional working outside of the rules is applied for the system will check back over the previous 28 days and also check forward to ensure compliance. Drivers are employed as EU regulated drivers and the type of work allocated on a day-to-day basis is then adjusted but planned work would be built through the Microbus planning facility to ensure full legal and road safety compliance. It is submitted that this is not accurate and highlights that the Employer is stating on the one hand that all spare drivers should be EU Regulated, but then say that the type of work allocated on a day-to-day basis is adjusted.

It is submitted that this again proves that the Worker is severely impacted by an uninformed policy. It is submitted that the Employer has discriminated against the Worker unfairly by treating him less favourably than his identical counterparts on the temporary spare roster who are regulated as domestic when doing domestic work and not penalised by the more onerous EU regulations.  The Worker submits that the Employer has admitted that two spare panels in [Location redacted] depot were treated differently for many years and that cannot be either legal or moral. He further submits that the delay in dealing with these matters is a gross breach of S.I.146/2000 and the Code of Practice on Grievances.

The Employer submits that this matter was the subject of individual discussions between the Worker and local management in [Location redacted] in early 2021. (A copy of this correspondence is contained in Appendix i).

In the months that followed, the matter was subsequently raised by the unions as a collective issue. It was discussed at a Company / Trade Union meeting in May 2021. (Agenda for this meeting is contained in Appendix ii). During the May 2021 meeting, a process was outlined to the trade unions to address this issue. In October 2022, the Worker again raised this matter as an individual grievance. 

Background to the Worker

The Employer submits that the Worker is a professional bus driver with the Employer. The Worker commenced employment as a Bus Conductor in February 1979, and was subsequently appointed as a Professional Bus Driver in October 1988.  Owing to his length of service, the Worker is one of the most senior drivers in [Location redacted]. In 2017, the Worker applied for the ‘Spare Driver’ panel and was successfully appointed to same.

The Employer, driver cohort & overtime working.

Driver cohort

The Employer has an operational requirement for over 1,700 full-time & almost 100 part-time/weekend drivers in Road Passenger Operations. Of the full-time driver cohort, approximately 80% are designated ‘Marked-in’ drivers, with the remaining 20% designated as ‘Spare’ drivers. ‘Marked-in’ drivers are assigned to rosters with defined duties and work activity. ‘Spare’ drivers provide cover for ‘Marked-in” driver holidays, sick leave, etc. They are assigned to duties where work content can vary with notice provided in compliance with s.17 of the Organisation of Working Time Act.

Spare drivers work across an early, middle and late duty pattern. All spare drivers are employed (mainly) on a 39 hour contract, and operate a mixture of Domestic (under 50km) and EU (over 50km) duties.

Owing to the nature of the business, along with other factors including resourcing needs, and planned and unplanned leave, overtime is regularly made available to drivers. The process relating to overtime is outlined later in this submission.

In the last full calendar year (2022), almost €1.3m was paid to drivers in overtime. In [Location redacted] alone, the cost was almost €0.5m. Overtime is only offered after all ‘available work’ is allocated to marked in and spare drivers. Work still remaining to be covered is then allocated to any driver who has expressed an interest in overtime.  Where overtime remains available, supervisors regularly contact drivers directly to offer same. As a final alternative, if no rest-day drivers are available to work overtime, and to ensure service reliability for customers, the Employer may employ private contractors for any work remaining. This is the costliest option, and accordingly is only done when all other options are exhausted.

Drivers who wish to make themselves available for overtime/rest-days can do so by application. In the first instance, work is assigned based on the drivers own home depot, followed by away locations. Drivers have seniority within their own depot ahead of other drivers not attached to that location. Any allocation of overtime work is only done so, considerate of the provisions of the Organisation of Working Time Act provisions and EU driving time regulations requirements.

In [Location redacted], the following is the agreed procedure for the allocation of overtime / rest day working.

1.    Rest Day Work is allocated on a Seniority basis after the Spare, Temporary Spare, and Holiday Relief drivers are rostered their work for the day in question.

2.    A driver is only allocated Rest Day, provided it does not interfere with his Rest Periods between duties.

3.    Turns of Duty are recorded against each driver having worked Rest Day.

4.    If the number of drivers available exceeds the Rest Day requirement, work is allocated on a Seniority basis, and a turn of duty is recorded against each driver that is allocated work.

5.    Should 2 or more drivers make themselves available for Rest Day work, work will be allocated firstly to the driver with the least number of Turns of Duty recorded against him irrespective of Seniority.

Prior to allocating any overtime for rest-day working, a Supervisor will firstly check back three weeks to ensure the driver is compliant with EU driving regulations and as such is legal to work. This look back is automatically generated by the rostering system. 

Driving hour regulations (EU & Domestic) and Organisation of Working Time Act.

The driving hour regulations for professional bus drivers are contained in the EU Regulation 561/2006 for operations over 50 km, while 1961 Road Traffic Act requirements must be adhered to for Domestic operations under 50 km. 

EU driving regulation (Regulation 561/2006)

The EU regulations are utilised as part of driver tachograph compliance. The maximum period that can be driven under EU regulations without a break is 4.5 hours. A minimum break of 45 minutes must then be taken and this can either be an uninterrupted 45-minute break or an initial 15-minute break followed by a later 30-minute break during the 4.5 hour driving limit. The maximum driving time in a day is 9 hours, and this can be extended to 10 hours no more than twice during the week. The maximum time that can be driven each week is 56 hours. However, in any two consecutive weeks not more than 90 hours can be driven.

A driver must take a daily rest period of 11 hours in the first 24 hours after the end of their last daily or weekly rest period. This can either be an uninterrupted period of 11 hours or split rest in two periods. A driver’s daily rest can be reduced to 9 hours three times per week where the business needs it. A driver can only take a maximum of three reduced daily rest periods between any two-weekly rest periods.

Domestic driving regulations

Domestic driving duties are regulated under the Road Traffic Act 1961, the daily rest period requirement is 10 hours in every 24-hour period. A minimum weekly rest period of 24 hours must be taken in every 7-day period. In practice this generally means a rest day after 6 days on duty. A break of no less than 30 minutes must be taken after 05:30hrs of driving or 06:00hrs of work. (A summary of the key differences between the EU and Domestic regulations are contained in Appendix iv).

Organisation of Working Time Act

All employees are rostered in a manner that fully complies with the Organisation of Working Time Act (OWTA), which inter alia include maximum working hours and rest periods.

Considering the differing requirements outlined above, which are complex to manage, all rosters for spare drivers are defaulted to EU. Any driver who believes they are precluded from working a rest day due to an inaccurate assignment of work content can make such a claim to the Service Supervisor who will then examine records and can override the system if it is appropriate to do so.

The Employer’s Rostering System

The Employer’s rostering system operates through a software system called ‘IVU Plan’. The ‘daily dispatch’ module is used for driver time and attendance and has the EU regulation 561/2006, the Organisation of Working Time Act and the 1961 Road Traffic Act rules set within it. For information, IVU Technologies have offices in 18 cities globally including in Europe, North and South America and Asia. They have over 30 years’ experience working in both the rail and bus sector, with some of the largest transport companies utilising their systems, such as BVG in Berlin and Trenitalia in Italy.

The Worker & overtime working.

The Worker is employed on a full time 39 hours per week contract. For the past six years, the Worker has been assigned as a ‘Spare driver’ meaning he has a 5/7 working arrangement. The Worker regularly enjoys overtime/rest day working, and this is evidenced by the following:-

-        Between July ’21 and December ’21,  the Worker worked an additional 15 days/296 hours in overtime.

-        Between January ‘22 and June ’22, the Worker worked an additional 7 days/270 hours in overtime.

-        Between July ’22 and December ’22, the Worker worked an additional 9 days/254 hours in overtime.

-        Between January ‘23 and June ’23, the Worker worked an additional 3 days/237 hours in overtime.

A grid displaying the Worker’s overtime and rest day working is contained in appendix v.

Background to Grievance

There was thread of communication between the Worker and the then Services Manager, TO, in 2020/2021. While it is the Employer’s position that the collective matter was resolved in 2022, in October 2022, the Worker escalated his personal claim to central management. (A copy of the letter is attached in Appendix v). The claim was subsequently investigated by way grievance.

The basis of the grievance pertained to availability of rest day work. It was the Worker’s belief that he had been denied access to rest day work, due to how his work was allocated on days when he had not driven. This can occur on a few rare occasions on a roster. The Worker was claiming payment of wages for those days which he claimed he had been prevented from working. The Employer disputes this.

For clarity, all spare drivers are automatically assigned as EU. As drivers are assigned work, the roster system is updated to reflect the work assigned. The crux of the Worker’s grievance pertains to those days where he was rostered to work, yet did not drive. By extension, the Worker believes that by the system allocating him to an EU duty for those days, he was subsequently denied access to rest day working.

Grievance hearing

As per the Company Grievance procedure (Appendix vi), this matter was heard by AW (Senior Regional Operations Manager [Location redacted]) in March 2023.

During the hearing, AW outlined the process that the Worker (or any spare driver) should follow in a situation when there was a query regarding the work allocation on Microbus, AW confirmed that ‘in a situation when an EU driver wishes to work overtime, the schedules team have to check the legality and compliance of any such work and (they) have the ability to do this manually’.

During the hearing, AW asked the Worker if he was aware of this process and the Worker confirmed that he was. AW then asked the Worker if he followed this procedure, and ‘[the Worker] confirmed that he did not’.

During the course of the grievance hearing, the Worker was also explicitly asked whether he could substantiate his financial claims based upon times, dates and instances where he was denied overtime. The Worker ‘could not produce any such dates, and has no sound basis for claiming any level of financial compensation’.

In the final report, it was found that: ‘With regard to your allocation of overtime, you are able to work any overtime available provided that it is legally compliant for you to do so. If you feel that you are being unjustly prevented from working overtime duties, please speak with your local People Operations Manager who will be happy to assist you’. In conclusion, AW found that ‘Having considered all the facts as part of this grievance investigation, I do not believe there to be substantive evidence for payment of loss of wages on this occasion’. (A copy of this decision is contained in Appendix vii).

Supplementary submission post-hearing, requested by AO.

1. [Location redacted] temporary City spare roster

Consistent with the original submission, the Employer confirmed that ‘Spare’ rosters on the Company rostering system are built to EU driving regulations - Regulation EC 561/2006 as amended, and Tachograph Regulations 165/2014. Considering the mixed work content of a ‘spare driver’ i.e. the requirements to operate routes that are under 50 km (Domestic assigned duties) and over routes over 50km (EU assigned duties), setting the rostering system to the above Regulation is the only way to ensure full compliance within the legal framework (EC & Irish S.I.).

During the WRC hearing on 7th September, the Worker presented a roster from July 2023. It is agreed that this roster was known locally as the ‘[Name redacted] temporary City spare roster’. This roster has been in place for almost 20 years and was designed to complement the ‘core spare roster’ in [Location redacted]. Essentially, the genesis of the ‘[Location redacted] temporary city spare roster’ was to provide cover to any marked in duties that needed to be covered on City services in [Location redacted] (all of which are Domestic) while the ‘core spare roster’ was to provide cover for all other services (combining both EU and Domestic work). Owing to the mixed work involved, all others spare rosters across the business are built to EU driving regulation.

There is further acknowledgment that the work content for drivers assigned to the ‘[Location redacted] temporary city spare roster’ has changed in recent years, and occasionally EU duties are assigned. The Employer is rolling out amended Spare rosters in every depot from 1st October 2023, following a binding report from external Assessors (Names redacted) which will have one core spare roster in every depot covering all work requirements for each depot (Domestic and EU). 

2. Legal compliance & guidelines adopted by the Rostering system

It is submitted that road safety and the safety of the Employer’s staff, customers, other road users and the public is of paramount importance, as is compliance with the rules and legislation from both a legal and moral point of view. The Employer submits that it follows best industry practice in terms of compliance and safety, and takes great pride in that.

It submits that the following Regulations are used to ensure compliance, and underpin the rules applied into the microbus rostering system. This system is used in Transport companies worldwide and these rules would be applied within the EU.

a. Drivers Hours Regulation EC 561/2006 as amended, and Tachograph Regulations (165/2014) applies to all types of services provided by Bus Éireann with the exception of regular services on routes that are not more than 50 kilometres long which are subject to Section 114 of the Irish Road Traffic Act 1961.

b. Cross Border Regular Services where the route covered by the service in question does not exceed 50 kilometres operate under Domestic Rules and the details are set out in Regulation (EC) 561/2006: see Article 2 and 3.

c. In respect of a driver who works a mix of such services, EC daily and weekly rest regulations apply for that day and for weekly rest in the week in which the day falls.  Driving time spent on non-EC services does not count as “driving” for the purpose of the EC rules but does constitute periods of other work and must be recorded accordingly. It cannot be regarded as a break or rest period. (A more detailed breakdown of this is contained in Appendix i).

3: Hours worked by the Worker

It is submitted that while the Worker has sought a loss of earnings for the years 2017-2023, he could not be prescriptive for any of the dates of this claim, nor did he provide any evidence of same at the hearing.

Without prejudice to the Employer’s position, it is submitted that the Worker had already worked overtime to such an extent that it would preclude him from availing of further work had it been available, in the first instance.

The  Employer highlights the time worked by the Worker between 2021 and 2022, in this regard:– 

·        Over the 52-week period detailed, the Worker exceeded 60 worked hours per week on three separate occasions.

·        On 33 out of the 52 weeks detailed, the Worker worked in excess of 48 hours.

·        On a further 8 weeks, of the 52 week period, the Worker was absent from work i.e. sick or annual leave, these weeks are recorded as flat 39 hours.

·        Over the 52 week period, the Worker worked a weekly average of 49.4 hours

The above demonstrates how the opportunity for the Worker to avail of any other additional work was already limited, in essence he had already maximised his earnings potential. Full details of the Worker’s working pattern for 2021 to 2022 - the period between the Worker first bringing his concern to local management, and a resolution being implemented – was submitted. (Appendix ii)

Conclusion

The Respondent submits that the Worker was always rostered correctly, and in accordance with the roster to which he applied. It submits that the Worker was aware of the constraints of the rostering system, was also aware of the procedure to follow should he wish to review his work content and yet he chose not to follow the said procedure. It further submits that the Worker has not provided any specific details pertaining to a loss or indeed a time when he was declined access to overtime. It submits that the Worker could not have worked any further hours above what he already enjoyed, owing to the provisions of the Organisation of Working Time Act (OWTA).

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I find that there is no basis for the Worker being subject to a more onerous regulatory requirement by his Employer than the relevant applicable legal requirement, which a potential consequent loss of earnings for the Worker. The purpose of a computer system is to facilitate the accurate recording of compliance with the legal requirement – it is a support service, not determinative. The computer system’s default should not and cannot determine the Worker’s legally compliant availability for work, nor his consequent ability to avail of the opportunity of enhanced earnings through overtime. It can merely record it.

I also note that during the relevant time frame, the Employer was operating two spare panels out of the same depot, one being defaulted to domestic regulations and overridden as applicable, and one being defaulted to the more onerous EU regulations and overridden as applicable. When this was queried by the Adjudication Officer at the hearing, the Employer submitted that the panel which defaulted to domestic regulations (and was overridden as applicable) was legally compliant. I find this fact undermines the Employer’s submission that the reason for the approach it took with respect to the Senior Spare Panel (of defaulting the drivers to the more onerous EU regulations, and that being overridden as applicable) was the requirement of legal compliance with the applicable regulations. It seems anomalous in nature. 

I note that from October 1st 2023 onwards, the Employer submits that approach of having two panels subject to divergent approaches, is being dismantled; and that there will be only one Spare Driver Panel per depot going forward.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I find for the Worker.

I find that this complaint is well-founded.

I recommend that the Employer pay the Worker €8,000 in full and final settlement of this complaint, broken down as follows: €3,000 pertaining to the delay in processing his complaint in contravention of their own policies and the requirements of S.I. 146/2000 and €5,000 pertaining to loss of opportunity for overtime earnings, had he been classified correctly in terms of domestic regulation (rather than EU regulation) where correctly applicable to him, i.e. had the computer system been defaulted to domestic regulations and been overridden as applicable, as was done for the Temporary Spare Panel of drivers.

Bus Driver; ‘Spare’ Panel; Opportunity for overtime; Which regulations applicable – EU or domestic; Computer system defaulted to more onerous regulations than legally required; Two different ‘Spare’ Panels – divergent approaches.