Labour Court Database __________________________________________________________________________________ File Number: CD92104 Case Number: LCR13632 Section / Act: S26(1) Parties: BUS EIREANN - and - NATIONAL BUS AND RAIL UNION |
Claim by the Union on behalf of one worker concerning the calculation of his holiday pay.
Recommendation:
The Court having considered the oral and written submissions of
the parties takes the view that the intention of the
calculations is to ensure the worker receives wages during
holiday periods reasonably representative of the sums received
weekly during the previous thirteen weeks.
In this case the Court takes the view that sick days should be
excluded from the calculation of holiday pay. (e.g. that the 12
weeks excluding the week in which the sick days occurred be used
for the calculation of holiday pay. (£X /12)
The Court does not find grounds for the exclusion of the public
holidays from the calculations. The Court so recommends.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD92104 RECOMMENDATION NO. LCR13632
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1) INDUSTRIAL RELATIONS ACT, 1990
PARTIES: BUS EIREANN
and
NATIONAL BUS AND RAIL UNION
SUBJECT:
1. Claim by the Union on behalf of one worker concerning the
calculation of his holiday pay.
BACKGROUND:
2. In 1982, the Labour Court in Recommendation No. LCR7135
recommended"... that the provincial bus operators who
permanently operate boards which involve the working of regular
overtime should have the payment of such overtime included in
the calculation of annual leave payments...". The Company set
out the following guidelines for the operation of the Court's
recommendation - "....where provincial busmen permanently
operate boards which involve the working of regular rostered
overtime every week, the basis of payment of annual leave should
be the average amount of regular rostered overtime earned in the
13 weeks immediately preceding the date of the busmens' annual
leave. Shift payment and one-man operation payment resulting
from the working of regular rostered overtime is also included."
3. In April, 1991, the Union claimed that a particular driver
employed in the Sligo Depot had not received the correct annual
leave pay when he took a week's leave in July, 1990. The Union
claimed that as the driver had been on sick leave for 2 days and
off for 3 further days due to public holidays, his average
earnings for the 13 weeks prior to his holidays were less than
his normal weekly earnings and therefore he was being underpaid.
The Company rejected the Union's claim and on 26th June, 1991,
the dispute was referred to the conciliation service of the
Labour Relations Commission. No agreement was reached at a
conciliation conference held on 18th December, 1991, and the
Commission, in accordance with Section 26(1) of the Industrial
Relations Act, 1990, referred the dispute to the Labour Court on
12th February, 1992, for investigation and recommendation.
The Court investigated the dispute on 28th February, 1992.
UNION'S ARGUMENTS:
4. 1. In 1982, the Court recommended that staff who work
compulsory overtime should have the overtime element
included in the calculation of holiday pay. In 1989, a
dispute arose over the inclusion of spreadover payments in
holiday pay calculation. In LCR 12716 the Court
recommended that where potential pay is derived from
regular rostered overtime, it should be included. It now
appears that if for any reason a worker is not at work for
any period during the 13 weeks prior to taking annual leave
he gets less holiday pay.
2. One particular worker took one days' annual leave and
found that he received £10 less for the day than had he
worked his board. The Company said that he had not
completed a full 13 weeks duty before taking leave and the
bonus payment for these days were deducted from the total
of the 13 weeks. The Union does not believe that this is
reasonable as the person involved may have completed 39
weeks' work and because he is ill or had to take special
leave, he gets less holiday pay. The Union believes that
this payment is something that is earned throughout the
year.
3. It was the Union's belief that a full 13 weeks'
bonuses were taken into account when calculating holiday
pay and it was by accident that it was discovered that this
was not happening. Under the Holidays (Employees) Act,
1973 a full 13 weeks should count in calculating holiday
pay.
4. The Company has said that their method of calculation
is in accord with LCR7135, however, the Union does not
believe that the Court intended that such a narrow view be
taken. As it is the workers concerned already suffer a
loss in holiday pay as any work undertaken outside a
worker's board is not included in the calculations.
5. The Union requests the Court to recommend that the
full 13 weeks bonuses be the yardstick for calculating
holiday pay with effect from 1990, given that the issue was
first raised then.
COMPANY'S ARGUMENTS:
5. 1. The Holiday (Employees) Act, 1973 specifically
excludes overtime from the calculation of holiday pay. As
a result of a Labour Court recommendation in 1982, the
Company has included regular rostered overtime in holiday
pay calculations. The inclusion of overtime is based on
the average overtime worked in the 13 weeks preceeding the
date of holidays being taken. This practice has been in
operation since 1982.
2. The Union is claiming that overtime not worked should
be included. The Company's interpretation of LCR7135 is
that to qualify for inclusion in holiday pay, the rostered
overtime must be worked.
3. Any alteration in the method of calculating holiday
pay would give rise to additional costs. In view of this,
the Union's claim is in breach of the terms of the
Programme for Economic and Social Progress.
RECOMMENDATION:
The Court having considered the oral and written submissions of
the parties takes the view that the intention of the
calculations is to ensure the worker receives wages during
holiday periods reasonably representative of the sums received
weekly during the previous thirteen weeks.
In this case the Court takes the view that sick days should be
excluded from the calculation of holiday pay. (e.g. that the 12
weeks excluding the week in which the sick days occurred be used
for the calculation of holiday pay. (£X /12)
The Court does not find grounds for the exclusion of the public
holidays from the calculations. The Court so recommends.
~
Signed on behalf of the Labour Court
Tom McGrath
______________________
4th May, 1992
B.O.N./N.Ni.M. Deputy Chairman
NOTE:
Enquiries concerning this Recommendation should be addressed to
Mr. Brian O'Neill, Court Secretary.