FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CANADA LIFE ASSURANCE (REPRESENTED BY BCM HANBY WALLACE SOLICITORS) - AND - PHILIP BOWDEN & OTHERS DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT1912/00, WT1913/00, WT1914/00, WT1915/00 & WT1916/00
BACKGROUND:
2. The dispute concerns 5 sales managers who are employed by Canada Life Assurance. The subject of the dispute is which part of the Regulation of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (Statutory Instrument number 475 0f 1997) the workers are covered by. The 5 workers believe it is Regulation 3(3), whereas the Company maintain that it is Regulation 3(2). Regulation 3 determines how the normal weekly rate of pay should be calculated for the purpose of calculating the payment that should be made to an employee during their paid holidays. The Company's main argument was that while the sales managers could sell business policies in their own time and, as a result, get commission, it was not what they were employed by the Company to do. They were hired to manage sales teams and were paid a fixed salary to do so. The Company does not see commission as being part of their salary.
The dispute was referred to a Rights Commissioner and his findings and decision were as follows:
" I have given the submissions a great deal of consideration and I have come to the conclusion that the complaint is well founded. I believe the claimants are correct in believing that Regulation 3(3) is the correct one in calculating the holiday entitlements. Normal weekly pay for the purpose of annual leave entitlements is a sum that is equal to the average weekly pay calculations over the period of 13 weeks ending immediately before the annual leave commences."
The Company appealed the decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the 29th of November, 2000. a Labour Court hearing took place on the 10th of April, 2001. The claimants did not attend the hearing. The following is the Court's determination:
DETERMINATION:
There being no appearance by or on behalf of the claimants at the hearing of this appeal, and upon hearing the uncontested arguments advanced by the respondents, the appeal is allowed and the decision of the rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
3rd May, 2001______________________
CON/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.