FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MCM SECURITY LIMITED - AND - TOM POWER (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 Commissioner's Decision r-044809-wt-06/POB
BACKGROUND:
2. The Worker 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 31st July, 2008. The Court heard the appeal on the 3rd December, 2008, the earliest date suitable to the parties.The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by SIPTU, representing Mr Tom Power, against a decision of a Rights Commissioner under the Organisation of Working Time Act 1997 (the Act) in a dispute concerning the calculation of pay for annual leave and public holidays by MCM Security Limited. While both parties relied on provision of the Employment Regulation Order for the Security Industry the matter must be decided by the Court on the provisions of the Act under which it is referred and the statutory regulation made thereunder.
Facts
The Claimant works nine hours per day over five days. Hence his regular working hours are 45 per week. It is agreed that the Claimant is paid six hours overtime per week. The Claimant contends that his normal working hours are nine per day, Monday to Thursday and that he works three standard hours on Friday with six hours overtime on that day. The Respondent contends that the Claimant is paid for eight hours per day at standard time and one hour at the overtime rate of time plus one quarter.
The Claimant contends that he should receive nine hours pay in respect of a public holiday and 45 hours pay in respect of each week of annual leave.
The Regulations
The calculation of pay for annual leave and public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 3(2) prescribes the formula for the calculation of the rate payable in respect of annual leave in the case of an employee whose pay is calculated by reference to a fixed hourly rate. It provides as follows: -
- (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
The rate payable in respect of a public holiday is calculated by the application of a formula which is prescribed by Regulation 5. Regulation 5(1)(a) applies where a public holiday falls on a day on which the employee concerned normally works. This is the applicable Regulation in the case of the Claimant. It provides:-
- 5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then—
- ( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday,
Conclusion
It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays. The Union accepts that the Claimant’s normal pay is made up of 39 hours pay at the standard rate prescribed by the ERO for the sector and six hours overtime pay at the premium rate. It is clear that this overtime element is not reckonable in applying the formula prescribed by Regulation 3(2). It follows that the Claimant’s claim for the inclusion of this overtime in the calculation of the rate at which he is paid for annual leave cannot succeed in the present proceedings.
In relation to the claim for the payment of nine hours pay in respect of public holidays, the case turns on whether the Claimant’s contract of employment, properly construed, provides that his standard working day is one of eight hours with one hour overtime or nine hours, Monday to Thursday with three hours of standard time and six hours overtime on Friday. There was disagreement between the parties as to whether the Claimants ever received a written contract of employment. In any event no written contract was opened to the Court.
It is accepted that the Claimant’s conditions of employment are governed by the Employment Regulation Order for the Security Industry. It is clear that this instrument provides that standard weekly working hours in the sector are 39. This is in line with established practice for day workers in industry generally. Where day workers work a 39 hour week this is normally broken down as five eight hour days with any hours worked in excess of eight being regarded as overtime. It is noted that the ERO provides that overtime premium is only payable where 39 hours are worked in a week. This is not an uncommon provision in industry generally but is not generally construed as meaning that only hours after 39 have been worked constitute overtime. It simply means that the premium which overtime attracts is conditional upon the full 39 hours having been worked.
The Court is satisfied that the correct construction of the Claimant’s working pattern is that he has a working day comprising eight hours of standard time and one hour of overtime Monday to Friday and two hours overtime on Friday. Thus on the application of Regulation 5(1)(a) of the Regulations the pay in respect of this overtime is not reckonable in calculating the Claimant’s pay for a public holiday.
Employment Regulation Order.
The Court notes that Section 11 – Conditions of Employment of the Employment Regulation Order for the Security Industry, at paragraph (i) as follows: -
- “Regular rostered overtime is to be included for the purpose of holiday pay. Regular overtime will be averaged over the previous 13 weeks worked prior to the taking of annual leave subject to a maximum of 48 hours per week”.
The Rights Commissioner in his decision took account of this provision and held that the Claimant is entitled to the inclusion of overtime in his pay for annual leave but not in public holidays.
The effect of an ERO is to incorporate into the individual contract of employment of workers to whom it relates the basic terms which the Order prescribes. This is the clear import of s.44 of the Industrial Relations Act 1946. Thus, it would appear, the Claimant has a contractual entitlement to the inclusion of regular rostered overtime in his holiday pay. On the facts of this case there could be little doubt that the overtime at issue is both regular and rostered.
However the case is before the Court pursuant to the Act of 1997 and must be decided by applying the provision of that Act. In that regard it is well settled that a Rights Commissioner and this Court can only uphold a contractual condition of employment in a case referred under the appropriate statutory provision. The Organisation of Working Time Act 1997 is not the appropriate statutory provision for the interpretation or enforcement of an individual contractual term or an ERO.
Conclusion
For the reasons referred to above the Court is satisfied that the Respondent did not contravene the Organisation of Working Time Act 1997 in relation to the Claimant. The decision of the Rights Commissioner is set aside and substituted with this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
18th December, 2008______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.