FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CAMPBELL CATERING LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT 505/99/MR.
BACKGROUND:
2. The dispute before the court concerns a claim by the Union, on behalf of its members employed by the Company at its Cork Airport location, for payment of a premium rate for Sunday working.
The Union states that all staff including part-time staff scheduled to work on Sunday should be paid at a rate of double time. At present only staff working a 39 hour week receive double time for Sunday work.
The Company states that a premium of 20% should apply to the staff concerned for Sunday working. The dispute was referred to a Rights Commissioner for investigation. His decision issued on the 19th of April, 2000 as follows:
"In accordance with Section 27(3) of the Act, I hereby declare that the Union's complaint is well founded and I require Campbell Catering Limited to comply with Section 14 of the Act by applying double time to all Sunday work performed by the claimants, with effect from 1st March, 1998".
The Company appealed the Decision to the Labour Court, in accordance with Section 28(1) of the Working Time Act, 1997. The Court heard the appeal on the 23rd of August, 2000.
COMPANY'S ARGUMENTS:
3. 1. A collective agreement was made between the Company and the Union stating that a premium of 20% be paid for Sunday work performed.
2. The Union's claim cannot be conceded as it would create financial problems for the Company.
UNION'S ARGUMENTS:
4. 1. The Company maintains that staff who work less than 39 hours per week are not entitled to a premium payment. The Company have reduced the work week of some staff in order to avoid paying a premium for Sunday work.
2. Double time should be paid to the workers concerned for Sunday working with retrospection from the 1st of March, 1998.
DETERMINATION:
As a preliminary point the employer challenged the jurisdiction of the Rights Commissioner to hear and decide this case and by implication, the jurisdiction of the Court to determine the appeal. They rely on two grounds:
1.That the complaint referred by SIPTU to the Rights Commissioner was not
on behalf of "an employee" as required by Section 27(2) of the Organisation of
Working Time Act 1997.
2.That the complaint was presented to the Rights Commissioner outside the
time limit prescribed by Section 27(4) of the Act and that an extension of
time was not granted pursuant to Section 27(5).
With regard to 1 above, it is the employer's case that the wording of Section 27(1) restricts a Trade Union to making a complaint on behalf of a single employee affected by the subject matter of the complaint. They contend that as the present complaint was made by SIPTU on behalf of a multiplicity of employees it was not admissible under the Section.
With regard to 2 it is argued that the date of the alleged contravention of the Act giving rise to the complaint was the date on which the employees commenced employment or the date of commencement of Section 14. The employer contends that since this was more than six months from the date on which the complaint was presented to the Rights Commissioner the complaint was out of time under Section 27(4).
Neither of these points was raised before the Rights Commissioner. The Company submitted to the jurisdiction of the Rights Commissioner without objection and by implication they accepted that the complaints were properly before him. On this basis alone the Court does not accept that the Company can now claim, by way of appeal to the Court, that the Rights Commissioner lacked jurisdiction to hear these complaints. The Court is, in effect, being asked to quash the Decision of the Rights Commissioner, which it is not empowered to do under the Act.
In any event the Court does not agree that Section 27 of the Act should be interpreted restrictively. While Section 27(2) does refer to “an employee”, this, in the Court's view, does not prevent a Trade Union from presenting more than one complaint, each identical in form and content, where the alleged infringement affects a multiplicity of employees.
With regard to Section 27(4), in the case of an alleged ongoing contravention of a relevant provision of the Act, the Court considers that the limitation period would run from the last such contravention. As the alleged contravention in the present case is continuing the complaint is not out of time.
Substance of the Union's Complaint
The entitlement of the claimants to compensation in respect of Sunday working, under Section 14(1) of the Act, is not in dispute. Both sides also agree that a premium payment, as provided for at Section 14(1)(a) is the most appropriate form of compensation.
The employer has submitted that the rate fixed by the Court must be one which is reasonable having regard to all the circumstances. They contend that the rate fixed by the Rights Commissioner does not meet that criterion. In support of this contention they have directed the Court's attention to a collective agreement made between an associated company and SIPTU which provides for a premium rate of 20% in respect of Sunday working.
For its part the Union claims that the employer and the claimants are covered by the Employment Regulation Order for the Catering Industry, which contains a provision for premium pay of double time on Sundays. They have also submitted details of agreements with other employers engaged in contract catering, which provide for similar premium payments. The Union also relies on the agreement with the respondent employer which acknowledges double time as the appropriate premium rate for full-time employees.
Conclusions of the Court
While the Court makes no express finding as to whether or not the employer is covered by the Employment Regulation Order, it appears from the information provided by the parties that the activity in which they are engaged meets the definition of a “Catering Establishment”, set out at Part 1, Clause 1, of the Schedule to that Order. Whatever the position with regard to the applicability of the ERO to the claimants, the Court is satisfied that those covered by that Order are comparable employees for the purpose of Section 14(3) and within the meaning of Section 14(5) of the Act.
In the case of the associated company referred to by the employer, the position is less clear. A comparable employee, for the purpose of the Act is one who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the claimant is employed to do. While employees of the associated company may carry out identical or similar work to that of some or all of the claimants, the circumstances of both employments are different.
The associated company's outlets are located in the former Boroughs of Dublin and Dun Laoghaire and are clearly outside the scope of the ERO. They provide a narrower range of catering services and unlike the respondent employer, they do not provide those services on contract to a third party. Most significantly, the associated company pays a common premium rate to full and part-time staff whereas the respondent employer wishes to differentiate between full and part-time employees. For these reasons the Court does not consider that the associated company can be regarded as comparable for the purpose of this claim.
In the present case an agreement already exists between the parties, which provides for an "unsocial hours" premium to be paid at double time. However, that provision of the agreement only applies where an employee has worked 39 hours in the week in which the Sunday falls. Thus, as far as full-time employees are concerned, this agreement acknowledges that the appropriate premium rate for Sunday work is double time. In the case of the claimants, they are excluded from the benefit of that provision by virtue only of their being required to work less than full-time hours.
The unsocial element involved in working on Sundays applies equally to full-time and part-time employees. It is now generally accepted that part-time workers should not be treated less favourably than comparable full-time employees in the same employment by reason only that they work less than full-time hours. This has been consistently reflected by the Court in a number of recommendations made under the Industrial Relations Acts.
This general principle has also been accepted by the social partners at the level of the European Community, who have concluded a Framework Agreement the purpose of which is to provide for the principle of equality of treatment in conditions of employment between full and part-time employees. It is noted that the Programme for Prosperity and Fairness contains a commitment to the introduction of legislation to transpose the EU Directive incorporating that Framework Agreement into law.
In all the circumstances, the Court does not accept that Section 14 of the Act could be interpreted so as to provide that it should fix a rate of premium payment for part-time employees which is less than that agreed in respect of full-time employees engaged in identical work in the same employment. For this and the other reasons set out above, the Court considers that the rate of premium pay fixed by the Rights Commissioner is appropriate.
Determination
The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
24th October, 2000______________________
G.B./S.H.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.