FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : ABBOTT IRELAND LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners decision PT9647,9674,9726,9741,9866,9657,02/TB.
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of it's members, who are employed by the Company as part-time workers, and are treated less favourably than full time comparators.
The Union claims that under the Protection of Employees (Part-Time Work) Act, 2001, part-time workers are entitled to breaks on a pro-rata with full-time employees, and on that basis they should have a fifteen minute break during their four hour shift, and part-time workers working between 4 p.m and midnight are entitled to shift premium payments on a pro-rata basis with comparable full-time employees.
- The Company rejects the claim on the basis that part-time workers do not qualify for the same entitlements as full-time employees under the Organisation of Working Time Act,1997.
The dispute was referred to the Rights Commissioner for investigation. The Rights Commissioner's decision issued on the 20th March 2003. In his decision he concluded that the complaint regarding employees who work a four hour day being given rest breaks pro-rata with their full time comparators, would be giving them a benefit greater than that enjoyed by their full time colleagues, and he decided that the claim was not well founded.
In his decision he concluded that employees who work a four hour shift between the hours of 4 p.m and midnight are not automatically entitled to the same shift premium payments as their full time comparators.
He decided that workers who work 4 p.m to 8 p.m are not entitled to premium payment, as full time comparators working from midday to 8 p.m do not receive this premium, however those who work from 8p.m to midnight are entitled to an unsocial hours premium.
The Union appealed the decision to the Labour Court on the 16th April, 2003, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. The Company appealed the decision to the Labour Court on the 28th April 2003. A Labour Court hearing took place on the 23rd of October 2003, the earliest date suitable to the parties.
DETERMINATION:
The Union claims that the Company is in breach of the Protection of Employees (Part-Time Work) Act, 2001 (the Act) as follows:
Claim A
205 of its members employed as part-time employees are treated less favourably than comparable full-time employees in terms of their entitlement to breaks in that full-time employees working an eight hour shift receive a break of fifteen minutes approximately two and a half hours into the shift and a further break of 15 minutes approximately six hours into their shift whereas the part-time employees working a four hour shift alongside the full-time employees do not receive such a break;
Claim B
93 part-time employees who worked four-hour shifts between 4pm and 8pm and 8pm and midnight were not paid a shift premium of 16.7%, which was paid to full-time employees working from 4pm to midnight for working unsociable hours.
By agreement, claim A was submitted on behalf of six named claimants and two named full-time comparators and claim B was submitted on behalf of 3 named claimants and one named full time comparator.
The Facts
The facts as admitted or found by the Court are as follows:-
In relation to claim A the full time employees working an eight hour shift receive a break of fifteen minutes after two and half hours and a further break of fifteen minutes approximately two and a half hours later on a staggered basis. The part-time employees working a four-hour shift receive no break.
In relation to claim B the full-time employees receive a premium of 16.7% for working on the shift between 4pm and midnight. Part-time employees working both the 4pm to 8pm shift and the 8pm to midnight shift received no such premium.
The Applicable Law
Section 9 (1) of the Act states:
" subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner then a comparable full-time employee"
Section 7 defines the criteria, which must be fulfilled in order for the two employees to be comparable. Amongst these are:
7(2) an employee is a comparable employee in relation to the employee first mentioned in the definition of part-time employee ……………. if;
(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.
The conditions referred to in subsection (3) are as follows:
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work or;
(b) the work performed by one of the employees concerned is of the same or similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
It is common case between the parties, that for the purposes of the Act, the claimants are part-time employees and the comparators are comparable full-time employees and that both the claimants and the comparators perform the same work.
Section 10 (1) states:
"The extent to which any condition of employment referred to in subsection (2) is provided to a part-time employee for the purpose of complying with Section 9(1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable full-time employee concerned.
Finally, the Act provides certain defences to employers as follows:
Section 9 (2) permits less favourable treatment of a part-time employee where such treatment can be justified on objective grounds. Section 12(1) defines objective grounds as:
"A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other then the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate object of the Employer and such treatment is inappropriate and necessary for that purpose"
Findings
Taken together, the facts and the applicable law pose a series of questions, which this Court must answer before arriving at a determination. These are:
1. Are the claimants part-time employees and are the comparators comparable full-time employees?
Having listened to the evidence as to the hours of work and duties performed by the claimants and the comparators and having regard to the provisions of section 7 of the Act, the Court is satisfied that the claimants are part-time employees and the comparators are comparable full-time employees.
2. Are the part-time employees treated in a less favourable manner than the comparable full-time employees?
In this case, the full time comparator working between the hours of 4pm and 8pm receives a thirty-minute break and a shift premium of 16.7% per cent. The part-time employees working the same hours but on a four shift receive neither of these benefits.
Two defences have been put forward by the respondents
The respondents argued, in relation to claim A:
1. That giving an employee who works for four hours, a fifteen minute break, when the comparable full time employee, during the same period, also only receives a fifteen minute break, would in fact constitute a greater pro rata benefit to the part-time employee.
2. That the Organisation of Working Time, Act, 1997 gives employees legal entitlements in relation to rest breaks and these are being fully complied with. To give a rest break to an employee whose working day is only four hours in duration would in fact be to grant to part-time employees a greater legal entitlement then that enjoyed by their full time comparator. The rest breaks in the company are organised according to the company's legal obligations, which in turn are determined by the duration of an employee's working day. Therefore there is an objective rationale for the difference between full time and part-time employees in terms of breaks.
In relation to the first argument the Court notes that the Rights Commissioner, in his decision, found that the provision of a fifteen minute break for the part-time worker would constitute a greater benefit than that conferred upon the full-time worker and decided that the claim was unfounded on that grounds. This Court is of the view that the Rights Commissioner's decision was wrongly decided. The proper comparison is the proportion, which the normal hours of work of the part-time employee bears to the normal hours of work of the comparable full-time employee. In this particular case, during his normal hours of work i.e. eight hours, the full-time employee receives a thirty-minute break. Part-time employees, during their normal hours of work, i.e. fours hours, receive no break whatsoever. This Court is of the view that, in order to receive a proportionate benefit, the part-time employee should receive a fifteen-minute break.
The respondents argued in relation to claim B (the shift premium), that the decision to pay the full time workers a shift premium arose from the fact that the hours between 4pm and midnight have historically within the industry, been regarded as unsociable hours. It is the practice to pay a premium to full time workers who work this shift and that therefore the decision to treat the part-time workers less favourably could be objectively justified. In addition they argued that there were full time employees who worked the shift between 12 noon and 8pm who were not paid a premium.
In response, the Union argued that part time employees were entitled to shift premium on a pro rata basis. They stated that the decision to pay the premium for unsociable hours related to the entire period between 4pm and midnight. They stated that the part-time employees working on that shift were entitled to be paid the same as comparable full-time employees and that there was no objective justification for their less favourable treatment.
Section 12(1) of the Act prescribes a three-part test for determining if objective justification exists. This test was first formulated by the E.C.J. inBilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607.This test requires the Court be satisfied that the less favourable treatment of part-time employees is necessary:
(a) for the purpose of achieving a legitimate objective of the respondent,
(b) is appropriate with a view to achieving the objective pursued, and
(c) is necessary to that end.
It is for the respondent to show that the requirement for the claimant part-time employees to work without receiving a break pro rata to that afforded to comparable full time employees meets the prescribed criteria. Patently, such a requirement is not necessitated by any provision of the Act of 1997. Moreover, the respondent has not identified any other objective, the pursuance of which necessitates the unfavourable treatment complained of, which could amount in law to objective justification.
In addition, the Act states that the condition must be based on a consideration other then the status of the employee as a part-time employee.
Conclusions of the Court
Claim A
The purpose of this Act is to prevent part-time employees being less favourably treated than comparable full-time employees. In this case, the full-time employees receive a thirty-minute break during their eight-hour shift whereas the part-time employees receive no break during their four-hour shift. The fact that the break given to full-time employees is in line with their entitlements under the Organisation of Working Time Act cannot be used as objective justification for the less favourable treatment of part-time employees. Indeed the Act is quite clear in that what must be justified is not the more favourable treatment of full-time employees, but the less favourable treatment of part-time employees. The Court therefore finds that the claimants are entitled to a fifteen-minute work break during their four-hour shift.
Claim B
The respondents argue that the hours between 4pm and midnight are both unsocial and family unfriendly. They argue that the workers working an 8-hour shift miss the entire of this period with their families whereas the part-time workers miss only a proportion of this period. They argue that a shift premium payable to the workers who work a full eight-hour shift is therefore objectively justifiable. They further argue that there are other full time workers in the factory who work from 12 noon to 8pm who do not receive a shift premium. The Court notes that the comparators do not work the 12 midday to 8pm shift and indeed that this is not an operational shift in the company at the moment. The respondents are in effect stating that because full-time employees spend more time away from their families than part-time employees, this is sufficient ground to pay them more.
This in fact is entirely the type of the situation against which the Act is directed. The part-time employee is entitled to the same benefits as a full-time employee. If the part-time employee works the same hours as the full-time employee and the full-time employee receives an unsocial shift premium for those hours then the part-time employee is also entitled to that premium unless there are objective grounds for its non-payment. The fact that the full time workers work an entire 8-hour shift and the part timers only work a four-hour shift cannot in the view of the Court be used as objective grounds to justify the non-payment of the shift premium to the part time employees.
Equally, the fact that there are other employees working between 4pm and 8pm who are not paid a shift premium is not relevant when applying the provisions of the Act. The Act states that the claimant may choose a comparable full-time employee. If the conditions of the part-time employee are less favourable than those of the comparable full-time employee, that is the sole criteria which is necessary for this Court to assess under the Act.
The Court therefore finds that the claimants are entitled to the same shift premium for the hours worked as the comparable full-time employees.
Determination
Claim A
The Court determines that the claim that part-time employees are treated less favourably in terms of the provision of breaks is well founded. It is clear that the breaks cannot be given retrospectively. Therefore, in exercise of its powers under section 17 (1) of the Act the Court orders that the respondent shall supply a fifteen-minute break during their four hour shift to the claimants with immediate effect. Having regard to all the circumstances the Court does not regard it as just and equitable to require the respondent to pay compensation to the claimants.
Claim B
The Court determines that respondent's failure to afford the claimants shift premium payments for hours worked between the hours of 4pm to 12 midnight on the same basis as those afforded to comparable full-time employees is in contravention of Section 9(1) of the Act.
In exercise of it’s powers under section 17(1) of the Act the Court determines that the complaint is well founded and requires the respondent to comply with the Act by introducing a shift premium for the claimants with immediate effect. Having regard to the circumstances, the Court requires the respondent to pay each of the claimants €1000 in this case.
The Rights Commissioners decision is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th January 2004______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jo O'Connor, Court Secretary.