FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BUS EIREANN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr. Somers |
1. Appeal against the Rights Commissioner's Decision WT185/99JH.
BACKGROUND:
2. The worker concerned has been employed by the Company since 1982. He is a part-time school bus driver.
He was on leave for two weeks from the 26th of April, 1999, until the 7th of May, 1999. The Union is claiming compensation on behalf of this worker stating that he should have received holiday pay in advance of taking the leave.
The Company rejects the claim stating that leave cannot be taken during the school year. Payment for annual leave is given to the drivers at the end of the school year.
The dispute was referred to a Rights Commissioner for investigation. Her conclusion and decision issued on the 15th of December, 1999, as follows:
"This is not a valid claim.
1. The worker was well aware of the position in the Company regarding the taking of annual leave. In addition, he knew that the company did not approve the taking of leave for the period in question.
2. It is a matter for the employer to determine the periods of annual leave (Section 20(1)). Nonetheless the Act also provides (Section 20(b)) that the employer must consult with the employee or Trade Union not later than one month before the day on which the annual leave is to be taken. In this regard the Company letter of 19th March, 1999 to the Trade Union is relevant. It states:
"As regarded the timing of payments, most are made at the end of the school year. It would be the Company's intention to standardise this timing for such payments as it appears to suit the majority of drivers. It is important from a Company perspective that a uniform approach is adopted throughout the country. However, if the Trade Union wish to have the practice as outlined changed to facilitate a majority of the staff at a particular location the Company will reconsider its position."
I am satisfied that the consultation required under Section 20(b) of the Act has taken place.
3. The period between the end of one school year and the commencement of another is a period of lay-off. Employment is not terminated. The payment of accrued annual leave at this time is, therefore, annual leave. It is not a payment instead of annual leave and is, therefore, not in breach of the legislation.
In general, there is nothing to prevent the employer entering into an agreement whereby annual leave is taken at times other than the end of the school year. For example, the breaks at Christmas, Easter, mid-term could be used for this purpose.
On the basis of the submissions at the hearing, taking into account the conclusion set out above, I do not consider that the employer, Bus Eireann is in breach of the Working Time Act, 1997, and therefore, the worker's claims are rejected."
(The worker was named in the Rights Commissioner's decision).
The Union appealed the Rights Commissioner's decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the 21st of January, 2000. The Court heard the appeal on the 16th of May, 2000, the earliest date suitable to the parties.
DETERMINATION:
The Court having considered the written and oral submissions agrees with the analysis as set out by the Rights Commissioner. The Court affirms the decision of the Rights Commissioner and, therefore, rejects the appeal.
Signed on behalf of the Labour Court
Finbarr Flood
26th May, 2000______________________
G.B./C.C.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.