FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NOEL O ' BRIEN - AND - ALEKSANDRS KULAJEVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner’s Decision r-070802-wt-08/MMG
BACKGROUND:
2. The Worker was employed as a Painter and claims that he was not paid the correct rate of pay for his annual pay and public holidays for the years 2007 and 2008. A Rights Commissioner investigated the issue but due to the failure of the Worker to attend at the hearing, the claim failed for want of prosecution.
The Employee 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 10th November, 2009. The Court heard the appeal on the 23rd June, 2010, in the absence of the Employer.
WORKER'S ARGUMENTS:
3. 1. The Worker did get his annual leave and public holiday entitlements however he did not get the correct hourly rate of pay as stipulated by the Construction Industry's Registered Employment Agreement.
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act). As the Claimant did not attend before the Rights Commissioner the case failed for lack of prosecution. The Claimant appealed the Decision of the Rights Commissioner.
The Employer did not attend the hearing of the appeal at the Labour Court and no explanation was given for his absence.
Mr. Richard Grogan Solicitor on behalf of the Claimant alleged that the Employer was in breach of Sections 20 and 22, as he was not paid the correct rate of pay for annual leave and public holidays. He accepts that the Respondent paid the Claimant and granted him time off for annual leave and public holidays in accordance with the provisions of Sections 19 and 21.
The Claimant was employed from 1st October 2005 until 28th July 2008. He was paid a rate of €500.00 per week. Mr. Grogan submitted that he was entitled under the Construction Industry Registered Employment Agreement to €14.88 per hour; consequently his pay for the purposes of calculating annual leave and public holiday pay was incorrect.
Mr. Grogan informed the Court that the Claimant was not pursuing a claim alleging a breach of Section 17 of the Act.
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.
Section 27 of the Act provides that an employee or any trade union of which the employee is a member may present a complaint to a Rights Commissioner that the Employer contravened a"relevant provision"of the Act. A "relevant provision" includes the provisions of Sections 21 and 22 and the Regulations. Having regard to the statutory provisions the only question to be determined by the Court is whether it would be in contravention of a relevant provision of the Act for the Company to calculate pay in respect of annual leave and public holidays by reference to the Regulations only, rather than by reference to the Construction Industry Registered Employment Agreement Employment Regulation Order (ERO) which, it is claimed, provides for more favourable terms.
The case is before the Court pursuant to the Act of 1997 and must be decided by applying the provision of that Act. The Court can only determine the 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 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
Caroline Jenkinson
16th July, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.