ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006314
A Flight Attendant
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001
Date of Adjudication Hearing: 19/05/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Location of Hearing: Room 4.02 Lansdowne House
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The complainant is a part-time employee working a three day week equivalent to sixty per cent of a comparable full time employee. She is fully interchangeable with her full time colleagues.
Cabin crew are governed by two pieces of legislation; one, an EY Regulation sets out a flight time limitation (FTL) scheme which means that they may work no more than nine hundred ‘block hours’ (which is a measure of the time spent aboard an aircraft from the moment it starts moving until it comes to a standstill; ‘flying time’.)
The restrictions on ‘block hours’ are essentially a safety measure to address possible fatigue.
The complainant says that the manner in which the respondent applies the scheme to her is less favourable than the application to full time employees.
Summary of Complainant’s Case:
The complainant says that if the ‘block hours’ are calculated in the calendar year this results in a detriment to her. Her pro-rated block hours in 2016 should be five hundred and forty but in fact were five hundred and ninety.
The complainant says this is not an accident but a result of a deliberate policy on the part of the respondent and results in an unacceptably onerous roster over the Christmas period.
The complainant meets the definition of a part time worker in the Protection of Employees (Part-Time Work) Act 2001 (hereafter the 2001 Act) and is entitled to the provisions of section 9 guaranteeing no less favourable treatment.
Summary of Respondent’s Case:
The respondent distinguishes between ‘duty hours’ and ‘block hours’. Duty hours are the total time rostered for duty and these are the relevant criterion for measuring actual hours worked. No complaint has been made in relation to duty hours as these are fully pro rated.
Block hours will vary depending on the route being flown, and this in turn will impact on the annual outcome as crew move from one route to another.
In 2013 as a result of European Regulations maximum flight time limitations were proposed as well as the harmonisation of flight (block hours) and duty (rostered time). These came into effect on February 18th 2016 and required the respondent to align the reference period for the nine hundred block hours with the calendar year and it did so.
An exception was employees such as the complainant who worked part time and the reference period for them remained the annual leave year; May to April.
The respondent says that aligning the part time employees’ reference period to the calendar year would be complex.
All cabin crew are subject to maximum duty hours and these are calculated for both individual roster periods and per month.
There is a conflict between the company’s ‘Roster Policies Document’ which defines a calendar year as May to April and the new 2016 regulations which define it as the commonly accepted calendar year i.e. January to December.
The complainant’s roster shows that she has not been treated less favourably and the rosters of the part time employees (including the complainant) are not manipulated as claimed to put them at any disadvantage.
The complainant has not provided evidence of a specific comparator; relying on a generalised comparison with full time employees in the respondent company.
Further, the alleged variation in the application of the block hours arrangement does not come within the definition of conditions of employment referred to in the 2001 Act. They do not relate to remuneration or represent working time which is the time spent rostered. There is no entitlement to a minimum level of block hours and the complainant is not paid on the basis of the block hours. Block hours are a productivity measurement.
The respondent says that the treatment complained of is not ‘less favourable’ and that the complainant has not made out a case by reference to a specific comparator. The maximum limits pro-rated are not exceeded for either the block hours or the rosters within the reference period chosen. In particular the European regulation imposing a maximum amount of flight time applies to all staff including the complainant.
In specific periods operational hours may be increased by an employee swapping duties but this is subsequently re-calibrated to keep it within the legal limits.
The respondent also says that it has objective justification for any less favourable treatment in having to comply with the new EU regulations.
Findings and Conclusions:
A number of issues arise for consideration in this case.
In order to succeed under the 2011 Act the acts complained of must also represent ‘less favourable treatment’.
The respondent has raised the fact that no comparator has been identified.
Third, the respondent has also challenged whether the operation of the ‘block hours’ forms part of the conditions of employment of the complainant.
In respect of the conditions of employment that 2001 Act defines ‘conditions of employment as;
‘conditions in respect of remuneration and matters related thereto (and in relation to any pension scheme or arrangement includes conditions of membership of the scheme or arrangement and entitlementto rights thereunder and conditions related to the making of contributions to the scheme or arrangement.
The explanatory booklet on the 2001 Act published by the Department of Jobs, Enterprise and Innovation (DJEI) puts it thus;
‘Conditions of employment includes all terms and conditions of the employment contract whether statutory or otherwise, for example remuneration, pension, VHI, entitlement to sick pay’.
While the term ‘conditions of employment’ has very wide application in the everyday language of HR practitioners I must obviously have regard to the language of the statute and its reference to ‘remuneration and matters related thereto’.
No submission was made by the complainant that this in any way concerned remuneration or related matters. Looking at the somewhat more expansive definition in the DJEI explanatory booklet is this a matter that is ‘a’ condition of the contract of employment? The respondent submitted that the subject matter of the dispute does not relate to remuneration or represent the core working time.
It does not either touch on rosters which, while also outside the above definition on a very strict literal view, might be regarded as a potential form of less favourable treatment on certain facts.
The net point at issue is the reference period; should it be the commonly accepted definition of a calendar year (January to December) or the one operated for annual leave purposes (May to April). While the complainant submitted that this could have adverse consequences, for example for rostering at Christmas I can not see this as other than a very indirect consequence of the different reference periods and is more likely to flow from rostering options (including choices made by an employee in respect of preferred routes).
There is no doubt that the complainant is treated in a different manner to a full time employee.
However, difference in treatment does not automatically translate into ‘less favourable’ treatment and some onus falls on a complainant to discharge the burden of proof in that regard, which I find she has not done.
In respect of the core and critical issues; rosters, pay, the calculation of the block hours within the reference periods used there is actually no treatment that is less favourable arising from the different reference periods.
Apart from the fact that the new European Regulation required a change to a reference period of a calendar year, a calendar year has not, in itself, any significance in determining the intrinsic nature of a person’s conditions of employment or equality of treatment, convenient for the complainant as it might be to synchronise them (although according to the respondent it would be anything but convenient).
I cannot see how two employees having different start and end dates for any particular purpose can be said to result in less favourable treatment, unless it is plainly established on the facts as being so.
It has not been; the only case advanced related to ‘a particularly onerous roster’ in the Christmas period which is not persuasive.
The absence of any detail in respect of comparators is fatal to the complainant’s case. The respondent says that discrepancies between the two referral periods can be attributed to a lot of factors and not simply that between a part time and a full time worker.
I do not think that a situation becomes ‘less favourable’ simply on the basis that a complainant has a preference, and one that was not well explained, to be on precisely the same basis as a full time colleague even though this will result in no material improvement in her working conditions, or conversely place her at any disadvantage if it remains as it is.
The complainant submitted that the respondent ‘failed to implement’ the pro-rata principle.
But this is not correct; it simply applied it in a different reference period.
In summing up the complainant’s representative said that it was possible to ‘pro-rate’ in either reference period. He failed to establish that opting for the one currently used places the complainant in a less favourable situation. It is but ‘one swallow’ and it does not make a summer for the purposes of grounding the complaint.
The complainant submitted a Rights Commissioner decision in the case of Russell v Tusla (r-14171-pt-14/GC) which I have considered. It has no relevance to the current case.
Ms Russell was significantly disadvantaged by not having a requirement to ‘sleep over’ pro rated. This was an objective case of continuing less favourable treatment in respect of a relatively demanding type of shift. There was no time period within which this was the case and it was ongoing less favourable treatment.
In the current case the appearance of less favourable treatment only arises by selecting a reference period to suit the argument being made. But in general, looking at the treatment of part, and full time workers in their respective reference periods there is no less favourable treatment in respect of any conditions of employment, however defined.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I do not uphold CA-00008531-001 and it is dismissed.
Dated: 21 July 2017
Workplace Relations Commission Adjudication Officer: Pat Brady