Adjudication Reference: ADJ-00046769
Parties:
| Complainant | Respondent |
Parties | John Owens | Bus Eireann |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00057593-001 | 07/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00057593-002 | 07/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057593-003 | 07/07/2023 |
Date of Adjudication Hearing: 06/03/2024
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
Initially the complainant, who has been employed by the respondent since 2008, submitted three complaints.
These were CA-00057593-001, under S.7 of the Terms of Employment Information Act 1994, CA-00057593-002, under S.86 of the Employment Equality Act 1998 and CA-00057593-003 under S.27 of the Organisation of Working Time Act 1997 in relation to payment for working Sundays.
The complaint under the Employment Equality Act was withdrawn at the hearing |
Summary of Complainant’s Case:
LCR 21438 of 13/04/17 specifically states that core terms and conditions of employment will be maintained. He submits that changes have been made to his conditions of employment that represent a breach of the Terms of Employment Act.
In February 2019, LCR 21906 was put to a vote by the unions and rejected by 72% of all staff countrywide yet the company went ahead to implement some of the recommendations and have ever since continued to do so.
Drivers went along with some of these, but are now having core terms changed, such as, being forced to work public holidays, previously the contract never stated we must work these. Eighty drivers in Drogheda depot have stated they do not want their contracts changed and have requested the complainant to submit this.
There is also a complaint about working on a Sunday. There is a composite rate of pay applied to work any 5 of 7 days but yet our pay slips don’t show what rate of pay we receive for Sunday and Sunday is not even mentioned on our pay slips.
The complainant submits that he is not paid for Sunday working and that there is no reference to this on the pay slips. |
Summary of Respondent’s Case:
The respondent is concerned that this is clearly not an individual complaint but, rather, one which has collective impact for several of Mr. Owen’s colleagues, on whose behalf Mr. Owens says he has been asked to refer these complaints.
The appropriate arena for dealing with these matters is within the collective bargaining arena, not before an Adjudication Officer. Notwithstanding a decision on this preliminary matter, the company says it is important to understand the industrial relations backdrop prior to delving into each individual complaint.
In April 2017, following a three-week strike, and an extensive collective bargaining process under the auspices of the WRC, the Labour Court issued recommendation 21438, which was a blueprint for the company, creating a sustainable platform to trade effectively out of serious financial difficulty.
LCR 21438 contained significant changes to drivers working arrangements, including pay, and this was balloted on and accepted by the workforce. It clearly provides that drivers would work a 5 over 7 arrangement with rosters devised to maximise efficiency and driver flexibility. LCR 21438 (Page 9) states:
“To maximise driver utilisation, it is necessary to have full flexibility for any five days over seven”.
In relation to the rosters to be designed, LCR 21408 provided for a number of change, details of which were submitted):
LCR 21438 also confirmed a composite rate of pay for drivers (page 10):
‘A composite rate of pay will apply for every hour worked up to a maximum of 48 hours. The composite rate represents compensation for all and any duties associated with the drivers’ role. The company will ensure that staffing numbers match the requirements of the depot on the willingness of drivers to work additional hours. Contracted ours would vary on a depot by depot basis ranging from 39 hours through to a maximum of 48 hours.’
Furthermore, in relation to the significant roster changes to be made, LCR21438 stated (Page 9) that:
“The company will manage the creation and operation of the rosters, duties and rotations at central level. Any disagreement on duties or rotations will be referred to binding arbitration”.
Subsequently, significant roster changes were made across the entire national operation as rosters had to be re-designed to accommodate the minimum 120 driver voluntary severance arrangements proposed in LCR21438 and were done so in accordance with the fairness and equity principles espoused in LCR21438.
In mid/late 2018, the driver unions approached the company seeking the establishment of a Scheduling Committee. A final agreement on the construct of the Committee and the rules relating to roster designs were agreed under the auspices of the WRC in May 2019.
During these discussions, a dispute arose between the company and the unions in relation to the number of weekends to be worked. The company believed that the composite rate applied to a 3-in-5 Sunday working arrangement whereas the unions maintained it should relate to 2-in- 5 Sunday working.
As a result, this was submitted to the Labour Court as part of the 2019 pay talks and the Labour Court recommended that 2-in-5 would be adopted in main depot locations (3-in-5 only applying to out based locations) to maximise driver work/life balance and time off at weekends. The final Scheduling Guidelines were agreed on this basis in May 2019.
A 2-in-5 roster (below) was then developed which continues to be used in Bus Éireann today in designing new roster schedules.
Since 2019, other collective agreements have also been agreed with the driver unions including a Public Holiday Skip Roster agreement (Appendix V) which governs the arrangements applying to all drivers on Public Holidays. This agreement was rolled out in Drogheda depot in 2023 .
(a) Claim under S.7 of the Terms of Employment Information Act (1994).
LCR 21438 confirmed the fairness and equity principles which govern our operations with all drivers (save for those on Monday to Friday split duties) required to work a fair share of early, middle and late turns of duty, which includes public holidays. LCR 21906 resolved the issue between the company and the unions on the 2-in-5 Sunday working issue and rosters continue to be designed to that standard today.
In 2021 a Public Holiday Skip Roster Agreement was reached with the driver unions and applies fairly to all drivers nationally to ensure everyone completes a fair share of public holiday duties. It would be entirely unfair to restrict the numbers required to work public holidays as this would disproportionately burden other drivers to complete more of them during each year.
The systems in place in the company are designed to ensure fairness, equity and consistency and cannot be undone to suit Mr. Owens or any drivers seeking to use “seniority rights” to obtain more preferential working arrangements.
These collective agreements also form part of the Terms and Conditions of employment for all driving staff, including Mr. Owens, and he was fully aware of these documents. In accordance with Sections 3.2 and 3.3 of the Terms of Employment Information Act, Mr. Owens was in receipt of a written contract of employment, was in receipt of copies of LCR21438 and LCR21906, both of which he balloted on and has been made aware of the Public Holiday Skip Roster agreement, which no doubt has generated, in part, these current complaints.
It should also be noted that, as per Mr. Owen’s contract of employment (Appendix I) – S.12 requires Mr. Owens to “join and remain a member of one of the trades unions representing operative grades” and S.15 confirms that “……. all conditions of employment may be changed from time to time through negotiations with the Trade Unions”.
On this basis, the Company contends there is no breach of the Terms of Employment Act 1994 and Mr. Owens is fully aware of the collective agreements changes which apply to his contractual position.
(b) Complaint under the Employment Equality Act (Withdrawn at hearing)
(c) Claim under S27 of the Organisation of Working Time Act 1998.
In relation to the composite rate of pay, this is based on a confirmed calculation which includes elements of Sunday working (which the company maintained provided 3-in-5 working but which the Labour Court subsequently, in LCR21906, confirmed should be for 2-in-5 Sunday working) along with elements for Public Holiday working and overtime working.
There is no ambiguity in relation to this and Mr. Owens balloted and accepted these terms in 2017. The Labour Court defined and accepted that the composite rate included a calculation for Sunday premium, overtime, shift payments etc and resulted, in 2017, in an increase in drivers’ pay from €624.10 to €874.64.
Accordingly, it is the company position that there is no breach of the OWT Act provisions and LCR 21438 defines the composite rate as applicable to all hours worked up to 48 hours per week on any 5 of the 7 days in each week, which includes 2 Sundays in a 5-week cycle. |
Findings and Conclusions:
As will be clear for the submissions there is a significant industrial relations element to the complainant’s decision to submit complaints, and indeed he purported to submit these either on behalf of, or at the behest of others.
He appeared to be under a serious misapprehension as to the nature of a referral under statute to the WRC. The respondent had some concerns about these complaints representing a type of test case but that is not possible as cases coming before a WRC Adjudication hearing involve a determination of rights in respect only of the person making the complaint.
In this case, the complainant had some form of generalised grievance about the outcome of collective bargaining, and the effect of ensuing decisions of the Labour Court within the respondent company.
However, despite being given every opportunity to do so (including a brief adjournment) he failed to make out a prima facie case under the Terms of Employment (Information) Act. He appeared to believe that this statute offered a sort of ‘catch all’ option to complain in a situation where changes unacceptable (to a complainant) happen in their general terms and conditions of employment.
In fact, a document entitled ‘Contract of Employment’ signed by the complainant and dated May 12th, 2008, was submitted in evidence. (In passing, I offer the observation that it would be better if such so-called ‘contracts’ were also properly designated as being the statutory statement required under the Act).
In any event it fully meets the requirements of the Act.
The respondent accepts that its actions relating to the requirement to notify changes to the statutory statement is less clear, although I take account of the fact that the changes in this case were the subject of a collective bargaining process and a ballot. They were not unilaterally imposed by the employer.
Nonetheless, an obligation falls on the employer to notify changes to the relevant terms.
The complaint under the Employment Equality Act was withdrawn.
Regarding the payment of Sunday premium, I accept the respondent’s submission that the drivers’ rate of pay includes an element for various premia and resulted in a very significant increase in their pay, although the respondent notes that the payslip could be clearer in identifying the position.
Neither complaint is well founded. (The complainant had other grievances about having to apply for time off when rostered to work on a public holiday which were not properly made under this reference.) |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above complaint CA-00057593-001 under S.7 of the Terms of Employment Information Act 1994, and complaint CA-00057593-003 under S.27 of the Organisation of Working Time Act 1997 are not well-founded
Complaint CA-00057593-002 Under S.86 of the Employment Equality Act 1998 was withdrawn at the hearing. |
Dated: 11/03/2024
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Misconceived complaints |