ADJUDICATION OFFICER DECISION
A Bus Driver
A Bus Company
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act 2015, this complaint was assigned to me by the Director General. I conducted a hearing on July 31st 2019, and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant, along with seven colleagues who submitted complaints about the same issue, was represented by Mr Paul Henry of SIPTU. The respondent was represented by the Head of Employee Relations.
The company employs 1,611 drivers, of which 310 are “spare drivers.” This group of 310 employees have opted for the spare list and they make themselves available to cover for colleagues who are absent on holidays, training, sick leave or for other reasons.
The requirement to give an employee 24 hours’ notice of his or her start and finish times is set out in section 17(1) of the Organisation of Working Time Act 1997 (“the Act”):
If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
The complainant is on the list of spare drivers in the Broadstone depot and the starting time for drivers there is 5.00am. Depending on the need for cover, the complainant could be notified at 12.00 midday that he is required to start the next morning at 5.00am. This means that, in breach of section 17(1) of the Act, he does not always get 24 hours’ notice of the start of his shift. On behalf of the complainant, Mr Henry stated that there is no collective agreement with SIPTU and no agreement registered with the Labour Court that permits this breach of the Act.
Summary of Complainant’s Case:
Evidence of Breaches
Section 41(6) of the Workplace Relations Act 2015 provides that I can adjudicate on a complaint that has been submitted not more than six months from the date of the contravention to which the complaint relates. This complaint was submitted to the WRC on August 31st 2018 and the complainant submitted evidence of the occasions over the previous six months when he was not given 24 hours’ notice of the commencement of his shift. These were on May 28th, 29th and 30th 2018.
In his submission at the hearing, Mr Henry referred to the decision of the Labour Court in the case of Lucey Transport Limited v Serenas, DWT 13114, where the court made an award of €2,500 to Mr Serenas following a finding that Lucey Transport did not always inform him 24 hours in advance of the time at which he was to start work.
Mr Henry referred to a second case at the Labour Court, that of A Public Transport Company and a Worker, DWT 179, where the Court upheld a decision of an adjudication officer to award €1,200 to a worker in circumstances very similar to the experience of the complainant in this case.
In addition to compensation, Mr Henry argued that consideration must be given to the principle established in 1984 in the case at the European Court of Justice of Von Colson and Kamann v Land Nordrhein-Westfalen,  ECR 1891. The outcome of the appeal of Von Colson and Kamann concluded that judicial redress should not only compensate for a claimant’s economic loss, but must provide a deterrent against future breaches of the law. In line with this principle, Mr Henry referred to the case at the labour Court of Trinity Lodge Limited v Catarama, DWT 1022013 where the Labour Court made an award of €5,000 for breaches of section 11, 12, 13 and 17 of the Act.
At the hearing of this complaint, I was informed that a Monitoring Committee has been set up between the respondent company and the union to consider work practices. One of the committee’s agenda items is the rostering of spare drivers. Regardless of any progress that might be made by this committee, Mr Henry argued that each of the spare drivers affected by the current breaches of the Act are entitled to submit a claim for compensation.
Need for a Registered Agreement
Referring to a document agreed between the company and the unions in 2000, “Drivers’ Change Programme, the Way Ahead,” Mr Henry said that this document is not registered with the Labour Court for the purposes of the Organisation of Working Time Act. He said that the issue raised in this complaint should be sorted by having a registered agreement, where an absence level of 5% is built in, and then a clause to cover exceptional circumstances, where 24 hours’ notice cannot be given of the start of a shift.
Concluding his submission, Mr Henry said that this infringement of the Act is continuing and systemic, with breaches occurring daily. The Labour Court has responded in a consistent manner to such breaches, by making awards and applying the principle of Von Colson. The union claims that the award in respect of this complaint should reflect or exceed the Court’s decision to award €1,200 to the complainant in the case of A Public Transport Company and a Worker, inDWT 179.
Summary of Respondent’s Case:
The Scope of the Problem
On behalf of the company, the Head of Employee Relations (“Head of ER”) said that the 310 employees who are designated nationally as spare drivers have volunteered to work the variable roster associated with being on the spare drivers’ list. For their own reasons, they prefer the variety associated with different routes and start and finish times. At any time, they may apply for a standard roster and, when a vacancy occurs, this is facilitated based on seniority.
Spare drivers provide cover for holidays, Certification of Professional Competency (CPC) training and unplanned absences. At present, absenteeism is running at slightly over 9%, whereas the capacity of the spare drivers list provides cover for holidays, CPC training and absenteeism of 5%. The Head of ER said that it is not feasible to increase the number of spare drivers to cover for a higher level of absenteeism.
Addressing the Problem
In response to a Labour Court Recommendation of September 1999 on drivers’ pay, (LCR 16263), in 2000, the “Drivers’ Change Programme, The Way Forward,” was agreed with the unions at the company. Section 4.4 of this document sets out the working arrangements for spare drivers and includes the following statement:
The commencement of spare turns of duty will reflect the demands of each location. Designated finishing and break times will be allocated to each turn but will not apply when the driver is assigned to specific relief work. Drivers on such spare turns of duty will not be constantly on the maximum period for breaks. These working arrangements may be subject to review.
Spare staff or covering staff ae duty bound to operate as per the exigencies of the service, subject to driving hour regulations.
This section contains no reference to the requirement for 24 hours’ notice of the start of shifts.
In April 2017, Labour Court Recommendation 21438 addressed the work of spare drivers and recommended changes to how “out-based” spare relief is covered and paid:
A single panel of spare drivers will exist. All spare drivers will be ‘spare to be rostered’ in a fair and equitable way and operate all duties as assigned. A minimum 39 hour week will apply to spare drivers.
Spare drivers 5 over 7 rotations will apply with a mix of early, middle and late weeks, ie, spare drivers will share equal amount of duty start times.
The implementation of this recommendation resulted in a need for clarification about certain issues and in December 2017, a Monitoring Committee was established, chaired by a conciliation officer at the WRC. This committee has dealt with all the issues raised by the unions concerning rostering, driver duties, the need for efficiencies, operating boards and schedules. On July 6th 2018, the chairman issued a document that dealt with matters related to the implementation of the Labour Court recommendation referred to above (LCR 21438). Under the heading “Spare Driver Working,” among a number of proposals, the chairman stated:
“24 hour minimum notice for Spare Driver times to apply as per legislation.
Further Company document to follow.”
On August 2nd 2018, the company sent the unions a document setting out proposals on the rostering arrangements for spare drivers. In this document, addressing the issue of roster start times, the Head of Operations said,
“I am currently reviewing the rostering structure and systems around the country to ensure the minimum notice period for duty start / finish times for spare drivers is compliant in all depots… It is envisaged that this process will be completed in early September.”
In October 2018, the proposals set out in the document of August 2nd were rejected by the unions.
As this complaint about notice of shift starting times has been opened for discussion at the Monitoring Committee, and, as the issue affects workers who are members of the National Bus and Rail Union as well as SIPTU, the company’s position is that it should be dealt with by the committee and not by adjudication.
At the hearing, we learned that a trial is currently underway in the company’s Athlone depot, where a new information portal is being tested that will provide drivers, including spare drivers, with eight weeks’ notice of their rosters. At the hearing on July 31st, I was informed that this portal is working well in that region and the company intends to roll it out nationwide when the trial is over. While this will ensure that the spare drivers will have adequate notice of their rosters, there is no technological solution for the circumstances where a driver calls in sick at very short notice. The company’s position is that the exceptional circumstances in which a driver is rostered with less than 24 hours’ notice is set out at section 17(4) of the Act. This provides that an employer is not required to provide 24 hours’ notice if circumstances arise “which could not reasonably have been foreseen.” The company’s case is that the requirement to provide cover for absent drivers at short notice is a circumstance that cannot be foreseen.
In his concluding statement, the Head of ER said that the company has had visits from inspectors from the former National Employment Rights Agency, who found that no corrective action is required to bring them into line with the requirements of the Organisation of Working Time Act. The management said that they would welcome another inspection to provide clarity on the level of compliance with the Act.
Findings and Conclusions:
Provision of Information in Relation to Working Time
Section 17(1) of the Organisation of Working Time Act addresses the rights of employees whose start and finish times are not fixed. This section provides that these employees are entitled to at least 24 hours’ notice of the time that they are required to start and finish work each day.
Section 17(2) deals with additional hours and 17(3) is concerned with reduced hours and neither are relevant to this complaint. Section 17(4) deals with “circumstances which could not reasonably have been foreseen:”
A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.
From this, it is apparent that there is a legal provision that permits an employer to require an employee to start and finish work at a time different to the notified time, in circumstances that could not have been reasonably foreseen.
Breaches of the Act in Relation to this Complainant
At the hearing on July 31st evidence was submitted of the times during the six months before this complaint was submitted to the WRC, when the complainant was not given 24 hours’ notice of his start time. The complainant’s record indicates that this occurred on three occasions, on May 28th, 29th and 30th 2018. During this 26-week period, I estimate that the complainant worked 115 shifts and that he was on holidays or not available for work for three weeks. The occasions that he did not get 24 hours’ notice of his start time is equivalent to one in every 38 shifts, or about once every 7.5 weeks.
Consideration of the Labour Court Precedents
Mr Henry referred to the case of Lucey Transport Limited v Serenas, DWT 13114, where Mr Serenas was awarded €2,500 as compensation for a breach of section 17 of the Act. Mr Serenas was a truck driver and his normal starting time was 6.00am. His complaint was that he was occasionally required to start at 4.00am or 5.00am and that, depending on where he had to make a delivery, he rarely, if ever, had notice of his finishing time. Mr Serenas’ circumstances were different from those of the complainant in this case, because the complainant’s routes are clearly notified and, once he is assigned to a route and a start time, he knows what his finish time will be.
It is my view that the focus of the Court in this case was on the fact that, while Mr Serenas was not always notified on time of his early starts, he was rarely aware of the time that he finished. Finding that the employer could not rely on section 17(4) of the Act, the Court found that, because he was required to make deliveries to different locations, this could not be considered as “circumstances which could not reasonably have been foreseen.”
In DWT 179, A Public Transport Company and a Worker, awarding the complainant €1,500 in compensation, the Labour Court found that, on more than 20 occasions during the statutory reference period, the employer did not provide 24 hours’ notice to the employee of his start time.
The case of Trinity Lodge Limited and Mirela Catarama, DWT 1474 has some similarities with the Lucey Transport case because Ms Catarama’s finish times were dependent on the arrival times of guests at the guest house where she worked as a receptionist. During the six-month reference period, she was not aware of when she could finish work on 22 occasions, more than once a week. The Court found in favour of Ms Catarama due to the frequency with which she was required to stay after her normal finish time. The award of €5,000 was for breaches of sections 11, 12, 13 and 17 of the Act.
From the evidence submitted by the complainant, it is apparent that, in respect of one shift every 7.5 weeks, he doesn’t get 24 hours’ notice of his start time. The Head of ER said that it is not possible to have a driver rostered to cover every time that a driver might call in sick at the last minute. He argued that the infrequency with which this driver is not given 24 hours’ notice of his start time is due to this unforeseen circumstance and that section 17(4) of the Act permits these exceptions.
The company has determined that 310 spare drivers is sufficient to provide cover for annual leave, training and other absences. Before considering the need for absence cover, it may be useful to explore the extent of the cover provided by the 310 spare drivers.
The following calculations are my own estimates, and are not based on precise details. I estimate that, due to their service, a good proportion of drivers are entitled to 23 days’ holidays and, taking account of nine public holidays, this amounts to 32 days off that need to be covered by spare drivers. Each driver must spend one day per year at CPC training, increasing the number of days that regular drivers are not available to 33 days. Based on the total of 1,611 drivers, before any unplanned absences are covered, this amounts to 53,163 days to be covered by spare drivers (1,611 x 33).
The spare list of 310 drivers provides cover for 70,680 days. I have reached this conclusion based on the availability of each driver for 228 days a year ((365 - 104 weekend days) – 23 holidays, nine public holidays and one training day). This leaves 17,517 days to cover for absenteeism (70,680 – 53,163), or 5.9% of the working days of the regular drivers. The company said that in some depots, absenteeism is running at up to 9%. It’s clear therefore, that there is a disparity between the cover available for absences and the current rate of absence.
It is apparent from the investigation of this complaint, that breaches of section 17 of the Organisation of Working Time Act are infrequent, at less than once every 7.5 weeks. This occurs when the company doesn’t get enough notice that a driver is going to be out sick. Because absenteeism varies across the year and between depots, it is my view that increasing the number of spare drivers available to manage this problem is not feasible. Also, building in greater capacity to cover for absence risks the possibility of more absenteeism and I agree with the company’s position that the cover available is adequate.
I have considered this complaint and the precedents submitted by the union in support of the complainant’s position and I have reached a conclusion based on the following facts:
1. Over the reference period of 26 weeks, the complainant was called in to work with less than 24 hours’ notice on three occasions;
2. While this results in a breach of section 17(1) of the Organisation of Working Time Act, it occurs because of the absence of a regular driver short notice;
3. It appears that this is not a daily occurrence or a systemic problem, but an irregular event;
4. From an absence management perspective, it is not sensible to plan for an absence rate above 5%;
5. From an economic perspective, it is not feasible to recruit more spare drivers to cover for an absence rate of more than 5% because this could result in drivers being rostered when there is no work;
5. The drivers on the spare list have the option to apply to be on the regular roster and, in this way, they can avoid the inconvenience of not always getting 24 hours’ notice of the start of their shift.
It is apparent from the company’s submission at the hearing of this complaint, that an investment has been made in a technological solution so that all drivers receive eight weeks’ notice of their rosters, including the spare drivers. The company acknowledges its obligations under section 17 of the Act and it is committed to ensuring, as far as possible, that drivers get the notice to which they are entitled.
In August 2018, the Head of Operations sent the unions a set of proposals on the rostering of spare drivers. This included a commitment to ensure the minimum notice for start and finish times. Unfortunately, the proposal was not accepted but it indicates the company’s commitment to ensuring maximum compliance with section 17 of the Act.
I note the suggestion of Mr Henry, that this matter could be resolved by entering into a registered agreement, with a built-in absence level of 5% and a clause to cover exceptional circumstances. While a recommendation on this matter is not part of my remit, it seems to me that this proposal has merit.
It is my view that the three breaches identified by the complainant are covered by section 17(4) of the Act which permits the employer to depart from the requirement to give 24 hours’ notice of the start and finish of a shift. I have reached this conclusion because the circumstances in which a driver on the regular roster rings in sick at short notice cannot always be foreseen. I find that the irregularity with which this occurs is evidence of the company’s efforts to ensure, as far as possible that the complainant almost always gets 24 hours’ notice of the start of his shift.
Having reached this conclusion, as this issue has the potential to affect a significant number of drivers, it is my view that it is more suitable for consideration by the Monitoring Committee established in 2017 to deal with all matters related to drivers and rostering.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have concluded that the breaches of section 17(1) of the Organisation of Working Time Act 1997 that occurred within the relevant statutory timeframe from March 1st to August 31st 2018, are permitted by section 17(4) of the Act and I decide therefore, that this complaint is not upheld.
Dated: 6th August 2019
Workplace Relations Commission Adjudication Officer:
Breach of section 17(1) of the Organisation of Working Time Act 1997, 24 hours’ notice of the start and finish of a shift