DWT064

FULL RECOMMENDATION

WTC/05/27

DETERMINATIONNO.DWT064

(wt/21315/04/jh)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

DEPARTMENT OF DEFENCE CORK
A

- AND -

EAMON BRIERLEY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal of Rights Commissioner's Decision WT21315/04/JH

BACKGROUND:

2. The Claimant has been employed by the Department of Defence for approximately twenty two years as part of the Naval Boat Transport Service. The service provides twenty four hour, seven-day transport between Cobh and the Naval Base on Haulbowline Island. The Claimant works twelve hour shifts and is in receipt of a shift allowance of 25%. The Union's claim, on behalf of its member, is for payment of a Sunday Premium.

The Department contends that the shift allowance is paid in respect of all hours worked to compensate employees for their liability to work a shift pattern and for working weekend periods, including Sundays.

The Union contends that there is nothing on file to confirm that the allowance is inclusive of Sunday Premium. There is nothing on file to confirm that any negotiations took place. If Sunday Premium existed, it would be that of double time as is the norm for the Public Services.

The Department further contends that a Shift Premium of one sixth of the weekly rate of pay was introduced with effect from the 8th December, 1972. The Department further states that the Union made a claim for this shift premium to be increased to the rate of time plus one third. A revised Shift Premium of time plus one quarter was introduced with effect from the 1st April, 1979.

The matter was referred to a Rights Commissioner for investigation and Decision. Her findings and Decision issued on the 5th April, 2005, as follows:
- - “It was acknowledged by the trade union at the hearing that the rate of pay of the Claimant does include a payment for Sunday working. What is in dispute is the amount of that premium. Section 14(1) of the Organisation of Working Time Act 1997 states "an employee who is required to work on a Sunday (and the fact of his/her having to work on that day has not otherwise been taken account of in the determination of his/her pay) shall be compensated by his/her employer.....”. As in the case of the Claimant it is clearly acknowledged that he does an amount of compensation as a means of enhanced pay included in his rate of pay, I consider that I have no jurisdiction in the matter of determining the appropriate rate of pay. In other words once the rate of pay of the Claimant includes a payment for working on a Sunday it is not a matter for me as a Rights Commissioner to determine whether that rate of pay is appropriate, under the Organisation of Working Time Act 1997. "
  The worker was named in the Rights Commissioner’s Decision.
  
  On the 16th May, 2005, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, on the basis that the Rights Commissioner's Decision was formed on a misunderstanding of the Union's position. The Union's claim is that no premium is being paid but that this was wrongly interpreted by the Rights Commissioner as being that the Union was claiming that the premium was being paid, but should be increased in line with Public Service norm.
  
  A Labour Court hearing took place on the 1st February, 2006.

DETERMINATION:

Section 14(1) of the Organisation of Working Time Act, 1997, states that:

"An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken into account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely -

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs".

The Court considered carefully the written submissions made by the parties. The Department indicated to the Court that an allowance for working on Sundays has been factored into the worker's remuneration by the payment of a shift premium. Management produced evidence to the Court that in December, 1972, a shift premium was first introduced as a result of negotiations and agreement between the Department and the Union. This agreement stated,“payment of the allowance for week-end working should cease on payment of the shift rate”.The shift premium was subsequently increased following a collective agreement in April ,1979, and has applied ever since to those who operate on a 24-hour, 7-day week basis, similar to the hours/days worked by the Claimant.

The Court has examined the evidence produced and is satisfied that as a payment is made to the Claimant which takes account of his requirement to work on Sundays, there is no breach of Section 14 of the Act.

The Court does not consider that Section 14, under which this claim has been brought, allows for a claim for enhancement of the rate.

The Court, therefore, rejects the appeal and upholds the Rights Commissioner's Decision.

The Court so determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
16th February, 2006______________________
JO'CDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.