FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FIRST GLASS LIMITED (REPRESENTED BY ESA CONSULTANTS) - AND - ANDRIUS BABIANSKAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision R-144799-WT-14/JW.
BACKGROUND:
2. The Worker and the Employer referred the case to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 26th May, 2015. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Andrius Barianskas (the Claimant) and a cross-appeal by First Glass Limited (the Respondent) against the decision of a Rights Commissioner in a claim by the Claimant under the Organisation of Working Time Act 1997 (the Act).
Background
The Claimant was employed by the Respondent as a lorry driver from 4thSeptember 2005. The Claimant continues to be employed by the Respondent although in a different capacity.
Two points arise in this appeal. Firstly, the Claimant contends that he was underpaid in respect of annual leave contrary to s.20 of the Act and that he was similarly underpaid for public holidays in contravention of s.21 of the Act.
The Claimant further contends that the Respondent contravened s.17 of the Act by failing to provide him with at least 24 hours’ notice of his starting and finishing times.
The Rights Commissioner found that the claims in relation to s.20 and s.21 of the Act were not well founded. He found that the claim in relation to s.17 was well founded and awarded the Claimant compensation in the amount of €1,000.
Position of the parties
The Claimant was employed by the Respondent pursuant to a contract in writing dated 4thSeptember 2005. The contract provides that the rate of pay applicable to the Claimant was to be €34,384 per annum. That converts to a weekly wage of €668.75. In addition the Claimant was to be paid a meal allowance of €22.85 per day.
It is agreed that the Claimant was in fact paid at the rate of €554.48 per week at all times material to this claim. He also received a meal allowance, which was not subject to statutory deductions, of €114.27. The Claimant was paid on that basis in respect of annual leave and public holidays. This, the Claimant contends, contravened ss 20 and 21 of the Act when read in combination with The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, S.I. 475 of 1997 (hereafter S.I 475/97). It was submitted on the Claimant’s behalf that the aforementioned Regulations, properly construed, entitled him, in respect of annual leave and public holidays, to the rate of pay specified in his contract of employment. In advancing that submission the Claimant relied upon the decision of this Court in Determination DWT1247,Comerford Developments (Ireland) Limited and Preiksaitis. Reliance was also placed on the decision of this Court in Determination DWT0516,Hidden Hearing limited and Smart[2005] 16 ELR 367 and of the decision of the CJEU in Case C-539/12,Lock v British Gas Trading Limited[2015] 3 IRL 438.
In relation to the claimed contravention of s.17 of the Act, it was pointed out that the Claimant’s contract of employment did not provide for any fixed starting or finishing time. He contends that he never received any adequate advance notification of his starting or finishing time.
The Respondent submitted that the rate paid to the Claimant in respect of annual leave and public holidays was the same as that paid to him at all other times and that it amounted to his normal weekly or daily rate of pay, as the case may be. In relation to s.17 of the Act, the Respondent submitted that the Claimant, in effect, determined his own starting and finishing times.
Conclusions of the Court
Annual Leave and Public Holidays
It is noted that in his written submission to the Court, the Claimant’s solicitor appeared to argue that his case centred on the non- payment of meal allowance in respect of holidays. However, when questioned on that point, the solicitor told the Court that it was the calculation of holiday pay using a rate of €554.48 per week rather than a rate of €668.75 that was in issue.
The rate to which an employee is entitled in respect of both annual leave and public holidays is determined by S.I.475/1997. Regulations 2 and 3 of those Regulations provide: -
- (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.
Normal weekly rate of pay
3.(1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of 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.
(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—
- ( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,
- or
- ( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was 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 relation to pay for public holidays the S.I 475/97 provides: -
- 4.The following, namely—
- ( a ) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
( b ) the rate of an employee's additional day's pay under that section, and
( c ) the appropriate daily rate of the employee's pay for the purposes of section 23 of the Act,
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.
- ( 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—
- ( 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 not 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:
- ( 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—
- ( a ) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
The clear purpose of the relevant provisions of S.I 475/97 is to ensure that during either annual leave or public holidays an employee receives no less (or no more) than he or she would have received if he or she was working during the period in question. That general principle formed theratioof a number of decisions of the CJEU, notably Case C-155/10,Williams v British Airways plc[2010] IRLR 948 and Case C-539/12,Lock v British Gas Trading Limited[2015] 3 IRLR 438. That was also the principle applied by this Court inHidden Hearing limited and Smart[2005] 16 ELR 367.
The Claimant’s contract of employment, which was concluded in September 2005, provided for a different rate than that at which he was actually paid at all times material to this claim. While the Claimant’s actual rate differed from that specified in the contract, he appears to have accepted the adjustment over an extended period. If he did not, or if the adjustment of his rate of pay was unlawful, that is a matter to be determined in other proceedings. In that regard, the instant case can readily be distinguished from the decision of this Court in Determination DWT1247,Comerford Developments (Ireland) Limited and Preiksaitis.That caseconcerned the application of a rate of pay for holiday purposes that was less than the rate prescribed by a Registered Employment Agreement by which the Claimant’s employment was governed. In reliance on s.30(2) of the Industrial Relations Act 1946 (which has since been declared invalid having regard to the Constitution inMcGowan v Labour Court and Ors[2013] IESC 21) the Court held that, as a matter of law, the REA rate must be substituted for the contract rate. No such consideration applies in this case.
At all material times the Claimant’s normal rate of pay in respect of the time that he worked was €554.48 per week and not €668.75 per week. The question of the allowance of €22.85 per day was not put in issue. The Court is satisfied that the Claimant’s holiday pay was properly calculated in accordance with S.I. 475/97. Consequently, the Respondent did not contravene either s.20 or 21 of the Act.
Section 17 of the Act
Section 17(1) of the Act provides: -
- 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
It seems to the Court that in cases where a worker’s starting and finishing times are determined by an objective factor, such as the exigencies of the work that he or she is required to undertake, the only practical application of s.17 of the Act is to place an obligation on the employer to provide the worker with at least 24 hours’ notice of his or her work schedule. No evidence was adduced to indicate the existence of any practical impediment to the Respondent providing such notice in this case.
In these circumstances the Court must hold that s. 17 of the Act was contravened in relation to the Claimant.
Disposal
The Court holds that the Respondent did not contravene either s.20 or s.21 of the Act in relation to the Claimant. The Court further holds that the Respondent did contravene s.17 in relation to the Claimant. The Rights Commissioner awarded the Claimant compensation in the amount of €1,000 in respect of the contravention of s.17. The Court can see no justifiable basis upon which it should interfere with the quantum of that award.
The decision of the Rights Commissioner is affirmed and both the appeal and the cross-appeal are disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
9th June 2015______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.