FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ALEXANDER TSEDRYK - AND - MIHAILS KRIGLOVS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision R-074857-WT-09.
BACKGROUND:
2. The Worker concerned was employed by the Employer for a period of 21 weeks ending on 23rd December, 2008. The Worker was paid at the rate of €12 per hour, which the Employer claims was agreed verbally between the two parties.
The issue before the Court is a claim by the Worker for payment for Public Holidays at the correct rate, which the Worker maintains should be at the Grade D rate.
The claim was referred to a Rights Commissioner for investigation. His decision issued on the 18th August 2009 in which he upheld the complaint in respect of Public Holidays. He awarded the Worker compensation in the amount of €750.00.
The Employer appealed the Rights Commissioner's decision to the Labour Court on the 18th September 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 9th March, 2010.
EMPLOYER'S ARGUMENTS:
3. 1. The Employer maintains that while he agreed a rate of pay with the Worker on commencement of employment the correct rate should have been at the Grade D rate of €14.88 which is higher than the rate that was paid.
2. The Employer contends that as he paid the Worker in excess of the holidays due the Worker did get paid an appropriate amount.
WORKER'S ARGUMENTS:
4. 1. The Worker contends that there is an entitlement for any employee to be paid Public Holidays. There is also an entitlement that the entitlement is paid at the appropriate rate.
2. The Worker contends that as he should have been paid at the hourly rate for a Grade C Operative of €16.37 per hour the payment for Public Holidays should be based on this rate.
DETERMINATION:
This case came before the Court by way of an appeal by the Respondent from a decision of a Rights Commissioner instructing him to pay to the Claimant the sum of €750 for certain infringements of the Organisation of Working Time Act 1997 (the Act). The complaint had been referred to a Rights Commissioner pursuant to Section 27 of the Act.
The Claimant had worked for the Respondent as a general operative in the construction industry for a 21 week period ending on December 23rd 2008. The Claimant was paid 12 euro per hour. However, as the Claimant worked in the Construction Industry, he claimed he was entitled to be paid in accordance with the terms of the Construction Industry Registered Employment Agreement (REA).
The Claimant submitted that he had not been afforded his proper annual leave or public holiday entitlements in accordance with the terms of Section 19 (1) and Section 21 (1) of the Act and that he had not been properly paid for his leave entitlements in accordance with Section 20 (4) of the Act.
As a preliminary issue the Caimant sought an extension of time for bringing his complaint under Section 27 (5) of the Act on the grounds that his Employer had not given him a copy of his contract of employment or of his entitlements under the Registered Agreement. He further submitted that he was not familiar with Irish employment law or procedures. He also noted that, as he was a foreign national, he was not proficient in English and was unfamiliar with the complaints process.
The Rights Commissioner conducted a hearing into the complaint on 2nd June 2009. At that hearing the Respondent said his was a small employment and that he had treated the Claimant well whilst he was working for him. He said the Claimant was paid €12 per hour by agreement between the parties. He said that the Caimant had raised none of these issues in the course of his employment. He submitted that the Claimant had received all his statutory holiday entitlements.
The Rights Commissioner found that the Claimant had shown reasonable cause under Section 27 (5) of the Act and extended the time period to cover the entire 21 weeks of his employment. This decision has not been appealed. He further found that the Claimant came within the scope of the Construction Industry Registered Employment Agreement and was entitled to be paid as a Grade C Construction Operative under the terms of that agreement. He held that the Claimant had, on the balance of probabilities, received all of his annual leave entitlements and dismissed that complaint. He held that the Complainant had received all of his public holiday entitlements at the rate of €12 per hour instead of his entitlement of
€16.37 per hour. He required the Respondent to pay the Claimant compensation in the sum of €750.00 euro.
The Respondent appealed the Rights Commissioner’s Decision.
The Position of the Parties
The Respondent/appellant
The Respondent outlined the grounds for his appeal as follows:
• The Claimant had freely agreed upon a rate of €12 per hour and had been paid that amount in respect of all leave entitlements.
• The Claimant did not come within the scope of the REA but if the Court decided he did, he met the requirements to be paid as a Grade D Construction Operative at a rate of €14.88 per hour and not as a Grade C Construction Operative at a rate of €16.37 per hour, as he did not have the relevant level of experience in the Construction Industry as required by the document entitled “General Operatives Skills and Responsibility Ranking Agreement” that governs grading arrangements under the R.E.A.
• The Claimant had been paid properly for all his statutory leave entitlements
He said on this basis the maximum extent of his liability to the claimant was the €2.88 per hour shortfall in his public holiday entitlements.
The Claimant/Respondent
It was submitted to the Court, on behalf of the Claimant, that he accepted the Rights Commissioner’s decision and asked the Court to uphold it. The Court was advised he had been working in the Construction Industry and properly came within the scope of the REA. The Court was advised that he had over a year’s experience working in the construction industry in his home country and had worked on other sites in Ireland. Accordingly he had accumulated in excess of the year’s experience he needed to qualify for payment as a Grade C Construction Operative (€16.37 per hour), as set out in the relevant agreement (General Operatives Skills and Responsibility Ranking Agreement).
It was submitted on his behalf that €16.37 per hour was the rate on which his holiday entitlement should have been calculated and paid.
Reference was made to the decision of the ECJ in Von Colson and Kamann v Land Nordrhein – Westfalen [1984] E.C.R.1891. It was submitted to the Court that the Claimant’s rights had been breached and that accordingly the Court should “not only compensate for economic loss sustained but must provide a real deterrent against future infractions”.
It was submitted on the Claimant’s behalf that the Rights Commissioner’s decision was fair and reasonable in all the circumstances and the Court should affirm it.
Conclusions of the Court.
Having considered the oral and written evidence presented to it, the Court is satisfied that the Claimant worked in the construction industry in excess of one year and accordingly came within the scope of the REA and qualified as a Grade C Construction Operative in accordance with the terms of the relevant agreement (General Operatives Skills and Responsibility Ranking Agreement). The Claimant, therefore, was entitled to be paid the hourly rate of €16.37.
Section 30 of the Industrial Relations Act 1946 governs the rate of pay of workers covered by a Registered Employment Agreement.
Section 30(2) provides:
(2) If a contract between a worker of a class, type or group to which a registered employment agreement applies and his employer provides for the payment of remuneration at a rate (in this subsection referred to as the contract rate) less than the rate (in this subsection referred to as the agreement rate) provided by such agreement and applicable to such worker, the contract shall, in respect of any period during which the agreement is registered, have effect as if the agreement rate were substituted for the contract rate.
From the evidence presented to it the Court is satisfied that the Claimant comes within the scope of the Registered employment agreement and was entitled to an hourly rate of €16.37 per hour.
Statutory Instrument No. 475/1997:ORGANISATION OF WORKING TIME (DETERMINATION OF PAY FOR HOLIDAYS) REGULATIONS, 1997 governs the manner in which payment for public holidays is calculated in accordance with Section 23 of the Organisation of Working Time Act.
Section 3 sets out the manner in which pay is determined for the purposes of Sections 20 and 23 of the Organisation of Working Time Act 1977.
Section 3.(1) of the Statutory Instrument provides
“ The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.”
Section 3(2) provides
“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.”
Section 22 of the Organisation of Working Time Act, 1977 provides inter alia
(1) The rate
(a) at which an employee is paid in respect of a day off under section 21, and
(b) of an employee’s additional day’s pay under that section
shall be such rate as is determined in accordance with regulations made by the Minister for the purpose of that section.
Section 5(2) of Statutory Instrument No. 475/1997:ORGANISATION OF WORKING TIME (DETERMINATION OF PAY FOR HOLIDAYS) REGULATIONS, 1997, provides:-
(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—
(a) in the 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 one-fifth of 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 in respect of the normal weekly hours last worked by the employee before that public holiday,
The Claimant qualified for 5 public holidays in the course of his employment. It was established in evidence that he was paid for these days at the rate of €12 euro per hour. The Court finds that he should have been paid €16.37 per hour and accordingly there is a shortfall of €4.37 per hour in respect of each hour of the public holiday to which he was entitled. The Claimant normally worked 39 hours per week and was entitled to payment on the basis of one fifth of the weekly amount so calculated in accordance with Statutory Instrument 475 of 1977 in respect of each of the public holidays to which he had an entitlement.
The Court is also satisfied that the Respondent acted in breach of the terms of the Organisation of Working Time Act and in accordance with the principles set out by the ECJ in Von Colson and Kamann v Land Nordrhein – Westfalen [1984] E.C.R.1891 awards the Claimant the sum of €500.00 inclusive of monies due in respect of the underpayment for public holiday entitlements. The Rights Commissioner’s Decision is varied accordingly. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
29th March, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.