INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation No. 447/98MR.
2. The Union's claim is that the worker should have been paid the non-resident crossing keeper's rate of pay while she was employed at Nicholstown level crossing on the Clonmel Railway line.
The manning of level crossings is carried out by either resident or non-resident crossing keepers, or sometimes a combination of both. The worker's father had operated the Nicholstown crossing, providing cover 24 hours per day. He was the resident crossing keeper and, like all resident keepers, was provided with free accommodation at the level crossing. In 1992, it was agreed that the worker concerned would help her father at the level crossing, with the worker doing the night shift and her father the day shift.
In 1996, the worker's father retired. The issue in dispute is whether the worker was a resident or non-resident keeper from 1992 - 1996 (the non-resident keeper has a higher rate of pay than the resident keeper).
When her father retired in 1996, the worker applied to be appointed as resident crossing keeper working the day shift, and for an assistant to be appointed as the non-resident keeper to work nights. This proved to be a problem for the Company as it could not find someone to work nights only. In October, 1996, the worker resigned. The Company's view is that the worker and her father were resident crossing keepers, and that the worker was paid the appropriate rate of pay from 1992 - 1996.
The Union referred the case to a Rights Commissioner and his recommendation is as follows:-
"In the circumstances, I recommend that the Union's claim fails."
The Union appealed the recommendation to the Labour Court on the 9th of November, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th of September, 1999, in Clonmel, the earliest date suitable to the parties.
3. 1. It was agreed that the worker would become an assistant to her father, acting in the capacity of a non-resident keeper.
2. When her father retired, the Company insisted that the worker was not the resident keeper, and would not allocate her the day shift. Logically, if she was not the resident keeper, she must have been the non-resident keeper, and should have been paid the appropriate rate of pay.
3. The fact that the worker was living in the house with her father does not affect her case.
4. 1. The worker and her father were the resident crossing keepers from 1992 - 1996. They lived in the accommodation provided, and provided 24 hour cover between them. There are many crossings throughout the rail system where similar arrangements apply, and the resident keepers arrange between themselves how cover is provided.
2. In 1996, when the worker's father retired, it was not possible to find someone to work nights only. The Company did offer to provide someone who would work alternate days and nights, but the worker was not agreeable to this. The worker was paid the correct rate of pay as a resident crossing keeper.
The Court has given careful consideration to the submissions of both parties, and is of the view that the recommendation of the Rights Commission should be upheld. The Court is satisfied that the arrangements with regard to residency were not broken in this case.
The appeal is, therefore, rejected.
The Court so decides.
Signed on behalf of the Labour Court
20th September, 1999______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.