FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CURUST INDUSTRIES LIMITED - AND - FIONA LACEY DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal of Rights Commissioners Decision WT13925/03/TB.
BACKGROUND:
2. The appeal concerns a worker who was employed by the Company from 27th May, 2002 to 25th August, 2002. It relates to a claim by the worker that she was entitled to arrears of holiday pay amounting to €350. The Company rejected the claim stating that the €350 was a net figure, agreed with the employee at the commencement of her employment. It was all inclusive and incorporated any payments she may be entitled to including holidays. The dispute was referred to a Rights Commissioner for investigation. On the 7th July, 2003 the Rights Commissioner issued his decision as follows:
"I uphold the complaint and award the claimant €350 due to her in holiday pay"
On the 8th July, 2003 the Company appealed the decision to the Labour Court. The Court heard the appeal on the 10th September, 2003.
DETERMINATION:
It is the respondent's case that the terms of employment agreed with the claimant provided for the payment of an all inclusive net weekly wage. The respondent contended that holiday costs were built into the rate and that this was a term in the claimant's contract of employment which was explicitly pointed out to her shortly after the employment commenced.
Section 19 of the Organisation of Working Time Act 1997 (the Act) provides employees with a statutory right to paid holidays. Section 22 of the Act provides that where the employment relationship ends and an employee is due outstanding holidays, compensation to the value of the outstanding holidays should be paid.
Section 37 of the Act, in effect, renders void any provision in an agreement, including a contract of employment, which purports to exclude or limit any provision of the Act.
Based on these statutory provisions it is now well settled that an employer cannot fulfil his/her obligations in respect holidays by purporting to incorporate an element in an employees normal wage to cover holiday entitlements (see the decision of this Court inKvaerner Cementation (Ireland) Ltd and Martin Treacy, Determination No. DWT017). Hence, even if the Court accepted the respondent's contention that agreement had been reached with the claimant in the terms claimed, that agreement is void and of no effect and the claimant is entitled in law to the amount recommended by the Rights Commissioner.
Accordingly, the decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
30th September 2003______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.