FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SUNDAY WORLD - AND - JOHN KENNY DIVISION : Chairman: Mr Flood Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's decision WT8001/02/GF
BACKGROUND:
2. The claimant lodged a claim before the Rights Commissioner pursuant to the Organisation of Working Time Act 1997 herein referred to as the Act on the 11th February, 2002.
The grounds for his claim were as follows:-
In the course of negotiating an agreement with his employers the Union of which he was the Chief Shop Steward sold bank and public holidays to get the new agreement resulting in a situation where he had to work on these days and did not get time off in lieu.
The Union agreed to the working of four 12 hour shifts (48 hours) in a week/night.
It is impossible to take 15 minute tea/rest breaks during shifts because of lack of manning, and distance to canteen facilities.
Agreements reached at full Labour Court hearings on loss of earnings were not honoured by the Company.
The Rights Commissioner issued his findings and decision on the 19th August, 2002 as follows:
- "In this case the employer claims that the composite rate agreed with the union includes compensation for working on Public Holidays. I accept that the agreement appears to make such a provision, but I have not been referred to any specific element of pay which is in respect of Public Holidays. I do not however accept that this arrangement meets the requirement of the Organisation of Working Time Act.
- The Act is quite clear in stipulating the entitlement of an employee in respect of a Public Holiday. It is:
- A paid day off on the day
- An extra days pay
- A day off within a month
- An extra days annual leave
I am satisfied that the other elements related to the claim are not in breach of the Act.
I am therefore satisfied that the complaint is well founded and I require the respondent to comply with the Act." - The Act is quite clear in stipulating the entitlement of an employee in respect of a Public Holiday. It is:
DETERMINATION:
Considerable discussions have taken place in relation to this case and considerable correspondence has passed between the Court and the parties.
Claimant’s Case:
He argued that, although he was Chief Shop Stewart in the Company, the new agreement was never agreed by him and that he did not negotiate this agreement. He outlined the process used in completing the agreement and his dissatisfaction at how the voting arrangements had been conducted.
He argued that while the employees had received extra pay for giving up Bank Holidays and for working an extra six hours work, their overall salary was in fact reduced significantly. He also argued that this new agreement led to a situation where employees were permanently on night work, holidays were reduced, and hours of work increased.
The claimant stated “the reason we are here in the Court today is because I, the Chief Shop Steward, never negotiated the conditions that are in the new agreement".
The new agreement clearly states on page 31 that any disagreement on points of interpretation on any clause contained within the agreement will be referred by mutual agreement to an arbitrator or a Rights Commissioner and his decision shall be binding.
Management's Case:
Management appealed the Rights Commissioner's finding in relation to Bank Holidays. For the sake of clarity, it also outlined the four claims which Mr Kenny had brought before the Rights Commissioner.
- The Union had agreed a new agreement resulting in a situation where the employees had to work Bank Holidays and Public Holidays and did not receive time off in lieu.
- The Union had agreed to the working of four twelve-hour shifts (48 hours) in a week/night.
- It was impossible to take the 15-minute tea/rest breaks during shifts because of a lack of manning and the distance to canteen facilities.
- Agreements reached at a full Labour Court hearings on loss of earnings had not been honoured by the Company.
The Company stated, and it has accepted, that the Rights Commissioner had found that the Company was not in breach of the Act in relation to claims 2, 3 and 4 of the above, but had concluded that the rates agreed with the Union to compensate for working Public Holidays did not meet the requirements of the Organisation of Working Time Act.
The Company appealed this part of the recommendation of the Rights Commissioner on a number of grounds including the following: -
The Rights Commissioner erred in law as follows:
- "In dealing with whether or not the claimant was being paid in respect of Public Holidays in accordance with the Act when the matter was not properly before him".
- In finding that there was no provision in the Act which allowed the entitlements of an employee pursuant to Section 21 of the Act to be offset where the requirement to work on public holidays is otherwise taken into account in determining the employee pay.
The Company argued that when negotiations for the new agreement were taking place, the Company proposed to the Union that it would include payment for the remaining five Public Holidays which were not covered by the agreement entered into between the Company and the Union in 1990. It claimed that employees' salaries were increased accordingly to cover payment of these five extra holidays and, in addition, it was agreed that employees working Christmas Day would be compensated with an additional payment.
The Company produced a table of salaries showing how salaries had been adjusted, following the negotiations to incorporate the five additional Public Holidays. They stated that they were in compliance with the Act and had, in fact, exceeded their obligations in that they provided in excess of a day's extra pay for each employee who had worked on a Public Holiday.
The Company claimed that the claimant was a Shop Steward at the time of the negotiations taking place and was part of the Union team negotiating the claim. They claim the claimant signed up to the terms of reference of the negotiations and at no point did he ever register his disagreement. The Company made the point that if the claimant is unhappy with how his Union represented him then this is a matter between him and his Union at this stage and nothing to do with the Company.
The Company argued that it would appear from the claimant’s complaint that he is unhappy about the fact that he must work Bank Holiday and Public Holidays without getting time off in lieu. The Company argued that in relation to Public Holidays the claimant’s entitlements are set out in Section 21 of the Act as follows:
- Subject to the provision of this section an employee shall, in respect of a Public Holiday be entitled to whichever one of the following his/her employer determines namely
(b) a paid day off within one month of that day
(c) an additional day of annual leave or
(d) an additional day’s pay.The Company argues that, as the employer, it is entitled under Section 21 of the Act to choose which of the four entitlements should be conferred upon its employees. In the circumstances, the employer has chosen an additional day's pay, plus a premium to its employees in respect of Public Holidays worked by them.
The Company stated that it may very well be that the claimant would prefer to take time off in lieu where he has worked a Public Holiday but this is not an option where the Company has exercised its discretion in favour of paying additional days for Public Holidays worked. The Company argued that it was a common case between the parties, and it was before the Rights Commissioner that the claimant was remunerated for working on Public Holidays.
The Company argued that Section 7 of the Act expressly provides that nothing in these regulations should prevent the parties from entering into arrangements which are more favourable to the employee with regard to pay and in respect of public holidays.
The arrangements negotiated represent terms more favourable than the minimum requirements set out in the Act, not only in salary terms but also by virtue of being included in salary where the amount becomes reckonable for pension purposes.
While the Rights Commissioner might have preferred to see a reference to a specific element of pay in respect of Public Holidays, it is submitted that he was not entitled to take the view that the arrangement failed to comply the requirements of the Act.
The Company submits it is entitled under the Act to direct an employee to work Public Holidays and to take an additional day's pay and also, in this case, an ex gratis days pay in lieu of time off. The Company does not accept that any employee is entitled as a matter of right to time off in lieu of Public Holidays worked. It submits that at all times it has complied with its obligations pursuant to Section 21 of the Act. In particular, the Company submits that as its arrangements are more favourable than that required by the Act it is fully in compliance with the Act.
The Company further submits that the Rights Commissioner acted outside of his jurisdiction in making his findings. The Company further submits that the Labour Court does not have jurisdiction to examine whether the composite rate contained in the staff handbook meets the requirements of the Act.
Court's Findings:
The Court, having considered the arguments made by the Company, is satisfied that the Rights Commissioner had jurisdiction under the legislation and that the Court has jurisdiction to deal with the issues raised in this case.
It is clear that the claimant has major issues around the manner of voting on the new agreement and on the actual negotiations surrounding the agreement. However, these are not matters which can be raised before the Court in a claim under this Act. However, the Court understands from the claimant that these issue have been raised with ICTU and are being addressed within that forum.
In relation to the issues before the Court, the Court finds as follows:
Bank Holidays
The Court would always be concerned to ensure that employees do not use a composite salary as a means of avoiding obligations under the Organisation of Working Time Act.
In this case, the claimant, in his own submission, accepts he was paid extra salary for the 5 Bank Holidays that were incorporated in the new agreement.
It would appear that since the 1990's, payment for working on a number of Bank Holidays have been included in the salary by agreement with the Union and that the Company, in concluding its latest agreement with the Union, agreed with additional payments to employees in respect of having to work a further five public holidays.
The Court sought and was given figures showing exactly what sum was added to the employees' salaries to compensate for the 5 Bank Holidays.
The Court is satisfied that payment for working on Public Holidays is as required by the Act and, accordingly, the Company is not in breach of its obligations under the Act.
It would appear that the claimant’s arguments relate to not being able to take time off for Bank Holidays worked. The Court, having studied the provision of Section 21 of the Act, finds that it is for the employer to chose which of the four options it proposes to exercise and, in choosing the option of an extra day's pay, the Company is acting in accordance with its rights under the legislation.
15-Minute Break:
The argument made by the claimant in relation to this situation relates more to the facilities provided rather than the quarter of an hour break. The claimant accepts that he did receive the breaks as required by the legislation but was unhappy with the facilities available when taking breaks.
The Court upholds the Rights Commissioner's decision on this issue.
Twelve-Hour Shifts:
The Court is satisfied that the twelve-hour shifts as applied by the Company are within the legislation. The Court, therefore, rejects the claimant's appeal on this issue.
Grievance in respect of Labour Court Hearing:
The claimant did not provide any evidence to substantiate his claim. The Court finds no reason to change the Rights Commissioner's decision on this matter.
Summary:
The Court upholds the Company's appeal and rejects the employee's appeal.
Signed on behalf of the Labour Court
Finbarr Flood
19th December, 2003______________________
JB/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.