FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : BAUSCH & LOMB (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOB SHARERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioners Decision PT19877/04/MMG.
BACKGROUND:
2. The Company manufactures contact lenses in Waterford and employs approximately 1600 workers. The Union are seeking redress for an alleged incorrect payment for public holidays for 160 job sharers during their employment. The matter could not be resolved at local level was referred to a Rights Commissioner for investigation and decision. His decision issued on the 17th January, 2005, as follows:
- “Having carefully considered the detailed submissions and the Act referred to, I am of the opinion that the methodology exercised by the organisation at the moment for the calculation of pay for job sharers for public holiday is correct.
In arriving at this decision I am also taking notice of section 10.3 of the Protection of Employees Part-Time Work Act, 2001 in which it states ‘neither this section nor any other provision of this Act affects the operation of part III of the Organisation of Working Time Act’. And also regulation of 6 of the Statutory Instrument 475 of 1997 in which it details the pay for public holiday for job sharers”
On the 25th February, 2005, the Union appealed the Rights Commissioner’s decision in accordance with Section 17(1) of the Protection of Employees (Part-Time Work ) Act, 2001. A Labour Court hearing took place on the 26th July, 2005.
DETERMINATION:
The dispute came before the Court by way of an appeal by the Union against the decision of a Rights Commissioner given under the Protection of Employees (Part-Time Work) Act, 2001 (the Act) in relation to the entitlement of job sharers in respect of public holidays.
Section 10(3) of the Act provides, in effect, that the entitlement of a part-time employee in respect of holidays shall be not less favourable than is prescribed by Part III of the Organisation of Working Time Act, 1997 (the 1997 Act). Section 22 of that Act combined with Articles 5 and 6 of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. 475/1997) governs the entitlement of job sharers in respect of holidays. They provide that in the circumstances of the claimants in this case a job-sharer who normally works on the day on which the public holiday falls is entitled to a full days pay (8 hours) and that an employee who does not normally work on the day on which the public holiday falls is entitled to one-tenth of two weeks pay (4 hours). In so far as he decided otherwise the Court regards the decision of the Rights Commissioner as incorrect.
Section 27(4) of the 1997 Act limits the retrospection of which can be claimed, in the circumstances of this case, to pay in respect of such public holidays as occurred in the six months preceding the presentation of the complaint to the Rights Commissioner. The complaint herein was presented in July 2004. Hence the retrospection due is limited to those public holidays which occurred after February 2004.
The Union's appeal is allowed and the decision of the Rights Commissioner is amended accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
8th August, 2005______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.