FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : BOXMORE PLASTICS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ROISIN CURRY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision PT11238/02/JH & PT11289/02/JH.
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of its member employed by the Company as a part-time worker that she is treated less favourably than a named full time comparator. The Union states that the claimant should be paid overtime for any hours worked outside the normal roster. It claims that the Company is in breach of the Protection of Employees (Part-Time Work) Act, 2001, (The Act).
The Company rejects the claim, stating that overtime is paid only after the equivalent full time hours are worked.
The dispute was referred to a Rights Commissioner for investigation. In her decision, which issued on the 3rd of July, 2003, she declared that the complaint made by the claimant was not well founded and that the Company is not acting in contravention of the Protection of Employees (Part-Time) Act, 2001.
The Union appealed the Decision to the Labour Court on the 11th of August, 2003, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 1st of October, 2003, the earliest date suitable to the parties.
DETERMINATION:
Union's Case:
The Union's case is that its members who are contracted to work weekend shifts, but who are on occasions requested to work during the normal Monday to Friday week, should be entitled to overtime payment for any hours worked outside their normal contract hours. The Management position is that weekend workers are not entitled to receive any overtime payments until they had completed 40 hours in any one week.
The Union claims that while the standard working week for production operatives is 40 hours per week, they did not in fact have to complete 40 hours prior to receiving overtime payments. It argued that weekend shift workers were treated in a less favourable manner by virtue of the fact that the Company insisted that they must complete 40 hours service before they could receive any overtime payments. It claimed that the Company insisted that only the part-time workers have to work a minimum of 40 hours per week prior to receiving overtime.
The Union referred to the case of Stadt Langerich v Angelika Helmig C399/92. It accepted that in that case the European Court of Justice had decided that it was not discriminatory to include in a collective agreement a provision whereby part-time workers did not receive overtime until their working hours exceed those of the standard full time worker. However, the Union stated that this was not the situation in the present case, in that there was no requirement on full time workers to work a certain number of hours prior to receiving overtime payments.
The Union also referred to the recent JLC Contract Cleaning Employment Regulation Order which contained a provision, stating that "overtime rates should be paid after 39 hours or after contract hours if these are less".
The Union also stated that Monday to Friday workers do not have their shift allowance reduced if they work on weekends.
Finally, the Union stated that if unfavourable treatment was found, the Company had not provided valid objective reasons under the Act for the claimants to be treated less favourably than their full-time colleagues.
Management's Case:
The Company accepted that weekend workers are occasionally asked to work on a voluntary basis during weekdays when weekday workers are not available. The current position is that weekend workers do not qualify for overtime payment unless they have worked 40 hours in any week.
The Company stated that when a worker does work Monday to Friday they receive a 21% premium but argue that overtime is also paid on this shift premium. It was argued that payment of shift allowances is as agreed at local level for the appropriate shift worked, 21% for weekdays Monday to Friday 26% for weekend work.
The Company states that in the Helmig case a claim was made to the effect that part-time workers were discriminated against, as under the terms of a collective agreement they would not receive overtime until they had worked the same number of hours as a comparable full time worker.
The European Court of Justice held that such a provision was not discriminatory.
The Company argued that allowing the claimants' claim would be in contravention of this Judgement in that it would bring inequality into the method of deciding how overtime was to be paid. The Company stated that at the present time the claimant and the comparator both received exactly the same pay for the 25th hour of their working week and, therefore, the question of unequal treatment did not arise.
In relation to the Union's claim that full-time workers did not have to complete forty hours prior to receiving overtime payments the Company stated "it is extremely unusual that a five day week worker would receive overtime payments, without having completed attendance of 40 hours in their normal shift, this could happen, but in practice it is extremely rare and is the exception". It stated that at the Rights Commissioner's hearing, the claimants had been asked to indicate whether this had happened since the introduction of the Act in December, 2001, and they replied it had not.
Court's Findings:
The Union was unable to provide documentary evidence to show that the chosen comparator or any full-time employee had received overtime payments while working less than the standard 40 hours.
Both parties have extensively referred to the Helmig case in support of their contentions.
As this Court understands the judgment, it is quite clear. A provision whether in a collective agreement or in terms and conditions of employment whereby part-time workers do not receive overtime until they have completed the standard number of hours under which a comparable full-time worker would be entitled to claim overtime is not unfavourable treatment and is not discriminatory.
Obviously the parties may import into such agreements a provision whereby part-time workers are paid overtime after they have worked their contracted hours, but the failure to have such a provision does not constitute unfavourable treatment.
What the Court must do in each case is look at the specific provisions in that specific employment relating to the payment of overtime and ensure that those specific provisions do not constitute unfavourable treatment of the part-time employees.
The Court must then further decide if there is any objective justification for such unfavourable treatment.
In the present case, the Court accepts that there is a theoretical possibility that overtime might be paid to a full-time worker who has worked less than his or her contracted forty hours. The Court, however, accepts that it is the practice of the Company not to pay such overtime and that no such overtime has been paid since the passing of the Act.
Further, the Union has not been able to provide any documentary evidence of any such overtime having been paid.
Determination:
In the circumstances, the Court finds that the decision of the Company not to pay overtime to the claimants until they have worked the same number of hours as the comparable full-time worker does not constitute unfavourable treatment in breach of Section 9(1) of the Act. The Court, therefore, upholds the decision of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Finbarr Flood
19th December, 2003______________________
GB/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.