SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001
- AND -
GROUP OF WORKERS
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Decision R-013092-PT-03/JH - R-013238-PT-03/JH.
2. The dispute came before the Court by way of an appeal by the Union against the decision of a Rights Commissioner given under the Protection of Employees (Part-Time Work) Act, 2001 (the Act). On the 27th November, 2002, SIPTU presented a claim to the Rights Commissioner on behalf of 189 named Part-Time School Bus Drivers (PTSBD) employed by Bus �ireann alleging that they were being denied equal pay with full-time bus drivers contrary to Section 9 of the Protection of Employees (Part-Time Work) Act, 2001 (the Act).
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision issued on the 18th May, 2006 and concluded"Based on the foregoing I find that the claimants have not met the requirements of Section 7(3) of the Act and that the complaint is therefore not well founded".
The Union appealed the Rights Commissioner's Decision to the Labour Court on the 26th of May, 2006, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 29th August, 2006.The Court proposed to address the job contents of the claimants and the comparators by means of a work inspection. The work inspection was carried out on the 22nd and 23rd of March, 2007. The following is the Court's Determination:
The dispute came before the Court by way of an appeal by the Union against the decision of a Rights Commissioner given under the Protection of Employees (Part-Time Work) Act, 2001 (the Act). On the 27th November, 2002, SIPTU presented a claim to the Rights Commissioner on behalf of 189 named Part-Time School Bus Drivers (PTSBD) employed by Bus �ireann alleging that they were being denied equal pay with full-time bus drivers contrary to Section 9 of the Protection of Employees (Part-Time Work) Act, 2001 (the Act).
The Rights Commissioner in her decision found against the Union’s claim on the basis that the work of the school bus driver is not equal in value to that of the regular full time driver. She found that the conditions under which the work is performed constituted a difference of a regular nature and were of significance in relation to the work as a whole.
The Union’s case
The Union disputed the findings and held that the Rights Commissioner was wrong in holding that the collection of fares outweighed the far more onerous and challenging responsibility of looking after the well-being and safe passage of vulnerable children. It held that the collection of fares by regular full-time drivers was on a pre-programmed system and was therefore akin to the task carried out by young people at the tills in supermarket and filling stations. It held that the Rights Commissioner ignored the substantial income generated for the Company by the School Bus Service and the duties involved in ensuring that children held the correct ticket for the school route. Furthermore, it submitted that the Rights Commissioner did not sufficiently take account of the level of responsibility, skill and mental effort required in carrying out the duties involved in driving a bus with children ranging from 4 years to 19 years of age.
The Union submitted that the full time bus driver of a two-person operation has no responsibility for fares and little or none for the supervision of passengers, as that role is carried out by the bus conductor.
It also held that the Rights Commissioner has ignored as a valid comparison the Tour Bus Operators and the Park & Ride drivers, where no fares are collected.
The Union was critical of the fact that the Rights Commissioner did not carry out a work inspection of the claimants’ and comparators’ duties. The Rights Commissioner in her decision explained:
- “The practice of Rights Commissioners, as advised by the Department of Enterprise Trade and Employment, following the introduction of the legislation, is that complainants should be addressed by way of hearings and not work inspections as would be the case by either Equality Officer or the Labour Court.”
The Union in its appeal sought the Labour Court to carry out a work inspection and have their claim examined by direct comparison with the named comparators.
The Respondent’s Case
The respondent did not accept that the nature of the work performed by part-time school bus drivers is similar in all respects to that undertaken by full-time regular drivers. It stated that this factor was accepted by the Unions in February 2001, when revised pay terms were agreed for part-time school bus drivers. It held that when the part-time school bus drivers operate as regular drivers, on a part-time/seasonal basis, they are paid at the appropriate rate of pay, as per the Driver’s Change Programme.
The respondent stated that the major difference between the duties of the two grades is the fact that regular bus drivers are fully responsible for cash transactions on the bus, which include fare collection, balance of cash, and lodgement to relevant cash office. Moreover, it held that at the time of the conversion of services from Two-Person Operation (TPO) to One Person Operation (OPO) a bonus payment of 33.33% was paid for the additional responsibility of dealing with the cash transactions. This was later converted into a fully inclusive pay scale as part of a new agreement for regular drivers in theDrivers’ Change Programme June 2000. And in 2001, when the Union submitted a pay parity claim, the parties agreed on new revised pay rates encompassing substantial pay increases over and above the National Wage Agreement.
The respondent did not accept that the core skills and responsibilities of both grades are the same. It stated that the actual driving of the vehicle is only part of the regular drivers overall workload. The part-time school bus driver operates to and from schools Monday to Friday (morning and afternoon service) whereas the regular drivers are required to operate long distance/inter urban/stage carriage and city services throughout the country over seven days.
In response to the Union’s reference to Two Person Operations and to Park & Ride services, the respondent stated that out of 1301 regular driver there were only 3 who operate TPO. These drivers are paid on point one of the drivers scale, in accordance with the June 2000 national agreement. The Park & Ride service drivers operate double decker buses and there are only four drivers involved in the service.
In any event the respondent argued, if it was held that the Company discriminated against the part-time school bus drivers then there was objective justification for treating them differently than full-time regular drivers. It based this argument on the grounds that the school bus service which is provided on behalf of the Department of Education & Science, is open to tender by private bus operators and price is a critical element in the procurement process. Therefore, as Bus �ireann services are already more expensive to operate than those of its competitors, conceding a major pay award would widen this gap even more. Furthermore, as the scheme contributes about 40% of Bus �ireann turnover, retention of the service is essential to the continuing viability of the Company. It maintained that market forces demand that it treat part-time school bus drivers differently from full-time regular drivers and is not just a question of the extra cost burden for the Company; there is a real threat from multinational companies wishing to enter the market. The respondent citedFlynn v Primark  ELR 8 218 insupport of its contention.
The Applicable Law
Section 9 (1) of the Act states:
" subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner than a comparable full-time employee"
Section 7 defines the criteria which must be fulfilled in order for the two employees to be comparable. Amongst these are:
7(2) an employee is a comparable employee in relation to the employee first mentioned in the definition of “part-time employee” ……………. if;
(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.
The conditions referred to in subsection (3) are as follows:
(a) “both of the employees concerned perform the same work under the same or similar conditions, or each is interchangeable with each other in relation to the work,(b) the work performed by one of the employees concerned is the same or of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant,
Finally, the Act provides certain defences to employers as follows:
Section 9 (2) permits less favourable treatment of a part-time employee where such treatment can be justified on objective grounds. Section 12(1) defines objective grounds as:
- "A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other then the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate object of the Employer and such treatment is inappropriate and necessary for that purpose"
The first question for consideration by the Court is whether, on the facts of this case, the complainants are being treated less favourably than their full-time comparators, in terms of their conditions of employment in contravention of section 9 (1) of the Act.It is only if a finding of discrimination is made that the question of objective justification arises.
The issue of like work is in dispute between the parties (while the termlike workis not used in the Act, the conditions set out at section 7(3) amount to same thing. For ease of reference the term like work is used to describe those conditions).
The Rights Commissioner found that the work of the part-time school bus driver was not equal in value to that of the regular full-time driver. The Union disputed this finding. In order to assist the Court in its deliberations, a workplace inspection was carried out on 22nd and 23rd March 2007. Both parties agreed on the chosen complainants, comparators and itineraries to be inspected by the Court over the two days. Agreement had been reached between the parties on job descriptions for both grades in 2005; these were submitted to assist the Court in its deliberations.
Findings of the Court
Having considered the oral and written submissions, and with the benefit of the work inspection, the Court is satisfied that section 7(3) (a) and (b) are not applicable. While there may be occasions when the part time school bus drivers drive the regular buses on mainline routes, the Court is satisfied that these occasions are rare and do not fulfill the criteria of interchangeability under the Act. The agreed job description states:
- “where required and if available, operate Rural Service within own locality or operate auxiliaries to regular services at weekend or during holiday periods. In such cases regular driver’s basis hourly rate with the normal Sunday premium applies”.
It was accepted by the parties that the availability of the part-time driver is entirely voluntary. Whereas the regular driver is required to ;
-“Work at any location as designated by the Company”.
-“Rotate and alternate through roster blocks, which encompass early, late and middle duties.”
-“Undertake rosters which may be changed to reflect variations in customer demands and competitive considerations”
Furthermore, the Court does not accept that the differences in the work performed by both grades are of small importance. Therefore, the Court considered it necessary to analyse the work performed by each grade to assess it in terms of the skill involved, physical or mental requirements, responsibility and working conditions, as provided by section 7 (3) (c).
The core duties of the both grades involve driving buses. Both grades require the same level of qualifications to drive the buses. However, the buses operated by the part-time driver are normally older buses, which had previously been used on mainline services etc. Whereas the model and standard of buses operated by the full-time drivers are of a higher specification. The school bus driver tends to drive on non- national, secondary, tertiary and country roads and the regular bus driver tends to drive on busier roads, within the confines of city requirements and on country roads. The regular bus driver is involved in shunting and parking the buses often in very confined parking bays in busy depots.
Overall, the Court finds that the skill involved for full-time regular bus drivers is marginally greater than for part-time school bus drivers.
- - physical and mental requirements
The Court accepts that the physical requirements involved in driving are similar for both grades of drivers. However, the regular bus drivers is required to drive various different routes, to specific timetables with a variety of bus stops on the routes. As the routes and roster may change on a regular basis this requirement is significant. The school bus route remains relatively static, year in year out. At the commencement of each school year, a process of adjustment is necessary for the part-time driver to become familiar with the different pick up and set down points for each pupil. However, in overall terms the Court finds that these requirements are greater on the regular bus driver than on the school bus driver.
The Court found that the tasks involved in dealing with passenger enquiries for information on the services’ various routes and timetables is highly significant in terms of their daily duties. This involves acquiring an extensive knowledge of all relevant routes/timetables. The Court is satisfied that it is a demanding, regular, daily mental requirement of the job.
Both grades of drivers deal with passengers who require extra attention – non English speaking, special needs etc, the Court is satisfied that due to the variety and number of different passengers each day, the mental requirements involved for the regular bus drivers are more onerous than for the school bus driver.
Furthermore, the regular bus driver is required to collect fares, operate the ticketing machine; check passes; reconcile the cash waybill and lodge monies with the cash office on a daily basis. The driver uses a pre-programmed ticket-issuing machine. This task requires a thorough knowledge of the routes/fare structure.
The Court is satisfied that overall the physical and mental requirements placed on regular bus drivers outweigh those of school bus drivers to a significant extent.
- - responsibility
Both grades of drivers have responsibility to ensure the safe passage of their passengers. The school bus driver has responsibility for ensuring that the school children fasten their seat belts (a responsibility which the regular bus driver does not have); for ensuring that the children maintain discipline and for selecting a school bus prefect to assist in these tasks. He/she has responsibility for fuelling the vehicle on a regular basis, checking oil and water levels and ensuring the bus is kept clean. These latter duties are factored into the working hours of the driver. While both grades have responsibility for ensuring the safety of passengers when alighting and disembarking the bus, the Court is of the view that this responsibility is greater on the school bus driver.
The regular bus driver has responsibility for ensuring compliance with tachograph regulations; for ensuring that passengers pay the appropriate fare or have the necessary passes; for handling cash and for customer satisfaction and in dealing with enquires. The driver has responsibility on occasions to inform passengers of the various bus stops via the public address system and when requested on an individual basis he/she must inform passengers when they have reached their particular destination.
The Court is of the view that the full-time bus driver’s requirement to deal with customer service enquiries/needs occurs on such a frequent basis that these duties form a major responsibility on the part of the driver.
The school bus driver also has a responsibility to ensure that school children arrive at their appropriate destination, which the Court observed involves a significant amount of local knowledge and flexibility.
The Court is satisfied that overall the level of responsibility placed on the regular bus drivers is greater than on the school bus driver.
- - working conditions
The part time driver is required to operate a school bus to and from schools – Monday to Friday, during school terms. Outside of school terms he/she may select whether to work additional hours and may apply for such work if available. The working hours are standard hours and as the bus is located at the drivers’ home when not in use, he/she is not required to travel to work.
The full-time bus driver is required to operate Expressway, stage carriage, city, tour, private hire, cross border, cross channel and contract services – five day week spread over seven days and to change rosters every four weeks, occasionally with 5am starts. He/she is required to be flexible and change rosters/routes to suit the Company’s service requirements. The regular bus driver’s bus is located at the bus depot and therefore must make his/her own travel arrangements to/from work.
The school bus drivers operates mostly on rural, some substandard, roads in all weather conditions, with up to 74 young passengers�, some of whom may be difficult to control on occasions. He/she operates the same route each day at the same times on buses, which are generally older models and are not as comfortable as the buses driven by the regular bus drivers. The regular bus drivers usually operates on better roads in all weather conditions, normally for longer journeys than the school bus journeys, or on shorter journeys with frequent stops. He/she must adhere to specific timetables, often in stressful city traffic conditions and deal with a variety of passengers and passenger numbers (up to 56), some of whom may require special attention at times.
Overall, the Court is of the view that the working conditions of the regular bus drivers are more difficult than the school bus drivers’.
� numbers have reduced since the introduction of seat belt regulations for school bus children
Conclusions of the Court
The Court has examined the details of both parties submissions and observed the work of the complainants and the comparators, and for all of the reasons set out herein, it concurs with the Rights Commissioner who concluded that the work of the school bus driver as a whole is not equal in value to that of the regular bus driver and consequently found that the complainants had not met the requirements of Section 7(3) of the Act.
Accordingly as the Court finds that there was no discrimination, therefore the question of requiring objective justification does not arise.
In consequence the Court holds that the respondent did not contravene Section 9 of the Act and the Union’s appeal is not well founded.
The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
The Court so decides.
Signed on behalf of the Labour Court
18th May, 2007______________________
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.