FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DESNIAL PRODUCTIONS/DREAMTIME LIMITED - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision WT11300/02/TB
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union of the non payment of wages and premium in respect of the Public Holiday which occurred on the 1st January, 2002, (New Year's Day) on behalf of four of its members. The Union claims that all Public Holidays were paid to the individuals concerned up to the 1st January, 2002. The Union states that the workers were employed on the film " Evelyn" under an agreement between the Union and Desnial Productions which set out the terms and conditions of their employment.
Management rejected the Union's claim. It states that the workers concerned had been hired for a specific project and their contract expired on the 21st December, 2001. They were rehired on the 2nd, 3rd and 4th of January on a casual basis to take down the stage sets and they were paid in excess of the daily rate on that basis.
The dispute was referred to a Rights Commissioner for investigation. His decision issued on the 20th January, 2003, as follows:-
- " The Union has asked me to express a view as to the employment status of the individuals concerned. On the basis of the evidence I consider the individuals to be self employed and not covered by the Act.
On the reason why they were not paid for New Year's Day I believe it is because they claimed the daily rate and has nothing to do with their employment status."
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 24th February, 2003. The Court heard the appeal on the 27th August, 2003(the earliest date suitable to the parties).
UNION'S ARGUMENTS:
3. 1.The entitlement of the workers to payment of the Public Holiday under the Act, has never been disputed. It is the Union's contention that in accordance with the Act, the Court should determine that the workers concerned are entitled to this payment.
2.The custom and practice in the film industry is to pay Public Holidays.
3. The workers concerned did not; (a) assume any responsibility for investment; (b) take any financial risk; (c) provide their own equipment or staff; (d) have the opportunity to profit from the management of their work.
4. On the criteria on whether an individual is self-employed the workers concerned do not conform to any of the criteria.
COMPANY'S ARGUMENTS:
4. 1. Management agrees with the finding of the Rights Commissioner and contends that at the material time the four appellants were not "employees" and accordingly were not entitled to rely on Section 21(1) of the Organisation of Working Time Act, 1997 with respect to 1st January, 2002.
2. The workers concerned were employed by the company but this employment ceased on the 21st December, 2002.
3. It was agreed between the parties that the workers would be retained by the Company on the 2nd, 3rd and 4th of January, 2002, on a casual basis, in order to clear stages, dismantle cable equipment etc. It was agreed that the workers would be retained on an independent contractorbasis. They claimed the "daily rate" for the three days which is 25% higher than the standard rate.
4.Even if the appellants were employees on the 2nd, 3rd and 4th January, 2002 (which is denied) they were not and could not be entitled to the provisions of Section 21 of the Organisation Of Working Time Act,1997 with respect
to the 1st January, 2002 as they were not employees on that date.
DETERMINATION:
The claimants would be entitled to the Bank Holiday payment if their employment contract expired on the 4th January, 2002, which the Union claims to be the position.
However, the Court accepts the Management's evidence, that the claimants' contracts expired on the date stated in the termination letter of the 7th of December, i.e. 21st December, and that any work completed after that was done on a casual basis. The Court therefore finds that they are not entitled to payment for the Bank Holiday by virtue of the fact that their employment terminated on the 21st December.
The Court is sustained in this view by the fact that the claimants were paid a higher daily rate for their work on the 2nd, 3rd and 4th of January, which would seem to indicate they were re-employed on a casual basis. The Court therefore finds that they were not employed by the company on the 1st January and accordingly cannot be entitled to any payment for that day.
The Court therefore upholds the Rights Commissioner's decision and rejects the appeal.
Signed on behalf of the Labour Court
Finbarr Flood
5th September, 2003______________________
LWChairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.