FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : GROUP 4 SECURICOR (IRELAND) LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Public Holiday Pay entitlements during Sick Leave Absence
BACKGROUND:
2. This case concerns a dispute between Group 4 Securicor and SIPTU concerning Public Holiday entitlement when on sick leave. The Union position is that a worker who is absent on sick leave is not being afforded the proper entitlements under the Public Holiday provisions of the Organisation of Working Time Act, 1997, when a Public Holiday falls during a period of sick absence.
It is seeking that the day in question be counted as sick leave and the Public Holiday entitlement be afforded to the worker on return to work.
The Company contends that it has operated its current system for many years and is not in breach of the Organisation of Working Time Act, 1997. A worker who is absent on sick leave on a Public Holiday will receive their Public Holiday entitlement for the day which will not be offset against their entitlements under the Sick Pay Scheme.
The dispute was not resolved at local level and was the subject of a Conciliation Conference under the auspice of the Labour Relations Commission. As agreement was not reached the matter was referred to the Labour Court on 18th March, 2008 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 3rd September, 2008 in Limerick.
UNION'S ARGUMENTS:
3 1 The Company's application of Public Holiday entitlement while on Sick Leave should be amended and the day in question should be regarded as Sick Leave with Public Holiday entitlement applied when the worker returns to work.
2Where Sick Leave or Injury on Duty occurs and Sick Pay is paid for 26 weeks in a rolling 12-month period, the workers are not paid the correct entitlements for the remaining 26 weeks. This current situation does not provide the correct entitlements under the Organisation of Working Time Act, 1997.
COMPANY'S ARGUMENTS:
4 1 The Company applies Public Holiday entitlement if a Public Holiday falls on a day that the worker is absent on Sick Leave. The workers entitlements under the Sick Pay Scheme are not negatively affected by this.
2 The Company is not in breach of the provisions of the Organisation of Working Time Act, 1997. It has applied this system for many years and there have been no previous problems.
RECOMMENDATION:
In its claim the Union is challenging the mode by which the Company affords employees their statutory entitlement to benefits in respect of public holidays while on sick leave. The Company operates a sick-pay scheme under which employees receive full pay in respect of a prescribed maximum number of days per year. The duration of this benefit is service-related. If a Public Holiday occurs on a day on which an employee is absent through illness he or she is paid a full days pay for that day in discharge of his or her entitlements in respect of that Public Holiday. That day is not offset against the employee’s annual entitlement under the sick-pay scheme.
The Union contends that the Company’s practice does not comply with the requirements of the Organisation of Working Time Act 1997 in relation to the granting of benefits in respect of Public Holidays. In advancing that argument the Union has sought to rely on a determination of this Court given in an appeal from the Decision of a Rights Commissioner under the Organisation of Working Time Act 1997 in the case of Thermo King and Kenny (Determination 0611). However, the present case was referred to the Court as an industrial relations issue under s. 26(1) of the Industrial Relations Act 1990 and it is under the provisions of that Act that the matter must now be dealt with.
The Court’s jurisdiction to interpret and apply the provisions of the Organisation of Working Time Act 1997 is confined to a case which comes before it by way of appeal from a Decision of a Rights Commissioner given under that Act. Thus, where a dispute arises in relation to a matter coming within the ambit of the Act of 1997, the parties are entitled to a hearing at first instance before a Rights Commissioner, a full appeal by way of rehearing before this Court and there is a further avenue of appeal available to an aggrieved party to the High Court on a point of law. The Court could not circumvent that process by purporting to interpret a provision of the Act, or by seeking to define the rights or obligations of parties under the Act, in a case referred to it through a different process under a separate statutory provision.
Given the basis upon which this case was referred to it, the Court’s function is to give its opinion on the merits of the dispute having regard to normal standards of reasonableness and good practice. Consequently, nothing in this Recommendation should be construed as providing an interpretation of any provision of the Act of 1997.
The rationale for the Decision in the Thermo King case was based on the Court’s conclusion that the Claimant’s entitlement in respect of Public Holidays has been subsumed in the Company’s sick pay scheme. The Court took the view that in consequence of the system operated by the employer in that case the Claimant had not received any benefit in respect of the Public Holidays in issue and that this constituted a contravention of s.21 of the Organisation of Working Time Act 1997.
The arrangement operated by the Company in this case is significantly different to that which applied in the case relied upon by the Union. Under the Company’s arrangements an employee’s entitlement in respect to sick-leave is neither subsumed nor offset by the occurrence of a Public Holiday during a period of absence through illness or injury. Moreover, the practice of which the Union now complains has been applied, without objection, for over 10 years. In these circumstances the Court does not see any reasonable basis upon which it could recommend that the practice be changed.Accordingly, the Court does not recommend concession of the Union’s claim. The Court does, however, recommend that the Company provide greater clarity to staff on how the arrangement at issue operates in practice.
Signed on behalf of the Labour Court
Kevin Duffy
22 nd September 2008______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.