FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BEAUMONT HOSPITAL (REPRESENTED BY THE HEALTH SERVICES EXECUTIVE) - AND - DAVID MC GAULEY (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner’s Decision r-046997-wt-06/RG.
BACKGROUND:
2. This case concerns an appeal by the Worker of Rights Commissioner's Decisionr-046997-wt-06/RG.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation and a hearing was held on 16th April, 2009. The Rights Commissioner issued the following decision on 27th May, 2007:
- "I declare the complaint under the Organisation of Working Time, 1997, in respect of Section 21 of the Act, is not well-founded."
The Worker appealed this Decision to the Labour Court on 18th June, 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 24th September, 2009. The following is the Determination of the Court:
DETERMINATION:
A complaint was presented to a Rights Commissioner by the Worker on 2nd November 2006 pursuant to Section 27 of the Organisation of Working Time Act, 1997(“the Act”). He complained that the Respondent failed to afford him his full entitlement under Section 21 (1) of the Act by not affording him a day off in lieu when he was called in to work on a public holiday on 6th August 2006.
The Rights Commissioner found that his complaint was not well-founded and dismissed the claim. It is against that Decision that he appealed to the Court.
The Respondent contends that the remuneration received by the Complainant in respect of his attendance at work on the public holiday meets the requirements of the Act.
The Complainant is employed as a craftworker by the Hospital in the Technical Services Department and has a liability to be rostered for on-call duty and receives a stand-by allowance of €188.34 per week for that duty. In the event that he is called into work he is paid a minimum of four hours at double time on a public holiday. In addition he is paid a travel allowance.
The Complainant contends that regardless of the payment made for being called out, as he was on stand-by on the public holiday, he is therefore not benefiting from his public holiday. The Respondent submits that as “on-call” is not regarded as “working time” for the purposes of the Act and he is therefore on “a paid day off on that day” and accordingly in receipt of his entitlement under Section 21 (1) (a) of the Act.
Entitlement in respect of public holidays is outlined in Section 21 of the Act and provides as follows:-
- (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
( a ) a paid day off on that day,
( b ) a paid day off within a month of that day,
( c ) an additional day of annual leave,
( d ) an additional day's pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
The term “working time” is defined by Section 2(1) of the Act and provides: -
- “working time’’ means any time that the employee is—
(a) at his or her place of work or at his or her employer’s disposal,
and
(b) carrying on or performing the activities or duties of his or
her work,
This definition covers time during which an employee is actually carrying out the activities of his or her work. The Court notes that the Complainant was not required to be present on the Hospital premises while on stand-by.
The issue of the definition of "working time" came before the European Court of Justice in Case C-303/98,Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana[2000] E.C.R. I-7963. In that case the Court held that the doctors' presence at the health centre was required and was therefore “working time”. The Court stated that"the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties on that instance".
Accordingly, the Court is satisfied that on 6th August 2006 the Complainant was on stand-by (for which he was paid an allowance) and was not “working” and therefore he received a paid day off on that day in accordance with his statutory entitlement under Section 21 (1) of the Act. Moreover, as he was called into work on the day, the situation changed and in those circumstances he was paid a minimum of four hours at double time plus a travel allowance thereby paying him an additional day’s pay i.e. an additional 8 hours' pay. Therefore, the Court is satisfied that the requirements of the Act have been met.
Therefore, the Court concurs with the findings of the Rights Commissioner and reaffirms her Decision. The Complainant’s appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd October, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.