FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COMERFORD DEVELOPMENTS (IRELAND) LIMITED - AND - MR ROBERTOS PREIKSAITIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-109753-wt-11/RG.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 24th August 2011, and a Decision was issued on the 14th September 2011.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 4th October 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 20th January 2011.
DETERMINATION:
This is an appeal, pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act) by the Robertos Preiksaitis (”the complainant”) represented by Conor E Byrne B.L. instructed by Richard Grogan and Associates, Solicitors, against a Decision R-109753-WT-11/RG of the Rights Commissioner dated 23rdSeptember 2011. The Rights Commissioner decided as follows
- “The Complaints under the Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997 and the Payment of Wages Act, 1991 fail for lack of prosecution.”
The case came on for hearing on January 18th2012. Comerford Developments (Ireland) Ltd (the respondent) attended at neither the hearing of the matter before the Rights Commissioner or Labour Court.
Background
The respondent, a construction company, employed the complainant from 16thAugust 2004 until 20thJune 2011 when, following a lay-off of roughly eight weeks, he applied to be made redundant in accordance with the provisions of the Redundancy Payments Acts. The complainant submits that in the leave year ending on 31 March 2011 he was underpaid in respect of his annual leave entitlement. He further submits that he did not receive payment in respect of the Public Holidays that fell due in May and June 2011.
POSITION OF THE PARTIES
Complainant’s Position
The Complainant submits that the Labour Court in Decision No. INT1111 decided that his employment with the respondent came within the scope of the Registered Employment Agreement for the Construction Industry. He submits that pursuant to Section 30 (2) of the Industrial Relations Act 1946 this has the effect of substituting the rate of pay provided for in the REA for the rate set out in the contract of employment. In this case the complainant was paid €11.45 per hour. He submits that he was employed as a carpenter and was entitled, at that time, to a rate of pay of €17.12 per hour in accordance with the provisions of the Registered Agreement.
He submits that the calculation of his holiday pay entitlement is governed by the provisions of Statutory Instrument 473 of 1997. He submits that Regulation 2 of SI 473 of 1997 provides that“a sum paid to an employee in respect of time worked by him or her shall where appropriate be construed as including a reference to a sum that is liable to be paid to the employee in respect of time worked by him or her and reference to the employee’s pay shall be construed accordingly.”He submits that, in this case, the sum that is liable to be paid is that set out in the REA and accordingly the sum to be paid in respect of holiday pay due to the employee should be construed accordingly.
Respondent’s Position
The respondent did not attend or otherwise make any submissions to the Court.
FINDINGS OF THE COURT
Complainant’s Grade under the REA
The Court finds that the complainant is a person to whom the Registered Employment Agreement applies. This matter was decided by this Court in Decision No. INT1111. There the Court held as follows:
- On the uncontested evidence of the Applicant the Court holds that the Applicants were persons to whom the Agreement related from the dates aforesaid.
The relevant date in this case was 16thAugust 2004. The Court did not decide that the complainant was a Carpenter for the purposes of the Registered Agreement.
The Complainant submitted that he was employed as a carpenter by the respondent and asked at the Hearing before the Court to find accordingly. Other than a mere assertion to this effect no evidence was submitted to the Court in support of this contention. The Court allowed the complainant six weeks to submit evidence to this effect for the Court’s consideration. However no such evidence was submitted in that time. Accordingly the Court has no basis for making such a finding. The Court accordingly finds that the complainant was entitled to be paid as a “Construction Operative” at the rate of €16.37 per hour.
Sum Liable to be Paid
The provisions of Section 30 (2) of the Industrial Relations Act 1946 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.
Regulation No 2 of Statutory Instrument No 475 of 1997 provides:
Interpretation
- 2. (1) In these Regulations "the Act" means theOrganisation of Working Time Act, 1997(No. 20 of 1997).
(2) References in these Regulations to a sum paid to an employee in respect of time worked by him or her shall, where appropriate (and, in particular, in a case of the employer's insolvency), be construed as including references to a sum that is liable to be paid to the employee in respect of time worked by him or her and references to an employee's pay shall be construed accordingly.
This Regulation, taken together with Section 30(2) of the 1946 Act has the effect of making the REA rate of €16.37 per hour the rate that is liable to be paid in respect of annual and public holiday entitlements by substituting the REA rate for the purported rate set out in the contract of employment.
Accordingly, Regulation 3 must be read in the context of Regulation 2 and Section 30(2) of the 1946 Act.
- 3. (1) 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.
(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.
In this case the normal weekly rate of the complainant’s pay means the rate that is liable to be paid by the respondent rather than the actual rate that was paid.
Accordingly the complainant is entitled to be paid at the rate of €16.37 per hour on the basis of a 39 hour week in respect of his weekly pay for annual holiday purposes.
Equally by virtue of the provisions of Regulation 5 of SI 475 of 1977 the complainant is entitled to be paid at the rate of €16.37 per hour in respect of the public holidays during the relevant leave year also.
Regulation 5(1) 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,
(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 be 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,
Again reference to the “sum paid” must be read in the context of Regulation 2 of the Statutory Instrument and to Section 30(2) of the Industrial Relations Act 1946.
Accordingly, the Court finds that the complainant was entitled to be paid his Annual and Public Holiday pay at the rate of €16.37 per hour.
The Complainant submits that he received his full annual leave entitlement in the relevant year but was underpaid in respect of each of those days. The Court takes the view that this complaint is well founded.
The Complainant submits that he did not receive payment for the public holidays that fell due whilst he was laid off in May and June 2011.
The provisions of S.I. 475 1997 provides
| Relevant rate for employees (other than certain categories of job sharer) | 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—
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—
|
Again reference to the “sum paid” must be read in the context of Regulation 2 of the Statutory Instrument and to Section 30(2) of the Industrial Relations Act 1946.
Accordingly, the Court finds that the complainant was entitled to be paid his Annual and Public Holiday pay at the rate of €16.37 per hour.
The Complainant submits that he received his full annual leave entitlement in the relevant year but was underpaid in respect of each of those days. The Court takes the view that this complaint is well founded.
The Complainant submits that he did not receive payment for the public holidays that fell due whilst he was laid off in May and June 2011.
The provisions of S.I. 475 1997 provides:
| Relevant rate for employees (other than certain categories of job sharer) | 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, (b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over— (i) the period of 13 weeks ending immediately before that public holiday, or (ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday. 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 be 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 9including 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, (b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over— (i) the period of 13 weeks ending immediately before that public holiday, or if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday: Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her. |
The complainant was laid off on 20thApril 2011. Accordingly he was not working for all of the 13 weeks immediately prior to the date of either public holiday. In accordance with the provisions of Regulation 5 above the complainant is entitled to be paid the relevant rate in respect of the 13 weeks he worked ending on the last working day for which he was paid i.e. 20thApril 2011. As he was paid an hourly rate that did not vary he is entitled to be paid on the basis of that rate.
Determination
The Court finds the appeal is well founded. The complainant is entitled to be paid for twenty one days leave set out in the Registered Agreement for the Construction Industry at the rate of €16.37 per hour. Having already received payment in respect of those days at the rate of €11.45 per hour he is entitled to the balance due to him ie €826.56. In addition he is entitled to be paid for eight hours in respect of the 2011 May and June Public Holidays. This amounts to a further €261.92.
The Court awards the complainant the sum of €1088.48 being the total amount of monies due to him in respect of the underpayment or non-payment for his annual leave and public holidays in respect of the annual leave year 2010/2011 and the May and June Public Holidays in 2011.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
11th April, 2012______________________
COFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Colm O'Flaherty, Court Secretary.