ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001897

Complaint(s)/Dispute(s) for Resolution:  

 Date of Adjudication Hearing: 29/06/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

The complaints under the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997 were withdrawn at the hearing.

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing: 

Complainant’s Submission and Presentation:

 The claimant works as a Machine Operator with the respondent and earns €510.03 for a 39 week - 8.00a.m.-4.30p.m..The claimant processed his grievance trough the in house procedure and argued that he should have received treble time for all hours worked on the public holiday in accordance with the following provision in the Company Agreement 

“Payment for all statutory holidays will be at treble time or double time and a day in lieu at the company’s discretion”

The claimant’s grievance was not upheld and the respondent contended that

“For a week day employee the Public Holiday entitlement is 8 hours and when a week day employee is required to work on a Public Holiday , the payment for all hours up to 8 hours will be at treble time or at double time and a day (8 hours) in lieu . Any hours in excess of the normal 8 hours on a Public Holiday will be paid at the appropriate overtime rate for a normal working day”.

It was submitted by the union that the claimant is a day time worker and the respondent had already acknowledged during the grievance process that it was unusual for a day worker to be requested to work 12 hours during a public holiday. It was submitted that the agreement did not stipulate anywhere that payment for all statutory holidays will be at treble time for the first 8 hours where time plus a half will be paid for any time worked thereafter.It was advanced that the respondent was applying an interpretation to the agreement that was not there in an attempt to unilaterally change the collective agreement.

Respondent’s Submission and Presentation:

The respondent submitted that as the claimant was a week day employee , the public holiday entitlement is 8 hours treble time with the balance being paid at time and a half - on this basis his claim was denied .It was submitted the claimant’s pay was properly and appropriately calculated.In responding to the claimant’s appeal , the MD of the company advanced that the company position was “ your normal daily working hours are 8 hours and as such your statutory Public Holiday entitlement on Monday 3^rd.August 2015 was 8 hours”.

Therefore on that day in the period 08.00- 16.00 you were working during your statutory Public Holiday entitlement and during this period you were paid at double time plus 8 hours statutory Public Holiday entitlement as per the Works Agreement.In the period on that day16.00-20.00 you were no longer working during your statutory Public Holiday entitlement and you were paid the overtime rate of time and a half , as per the Works Agreement.”

Section 17 of the Collective Agreement deals with overtime and specifies

Payment for overtime will be :

a)Monday-Friday:Time and half on composite rate until midnight.After midnight T2 will apply

b)Saturday:Day work and 8 to 4 shift: an individual’s first 4 hours , time and half, thereafter double time 4.00p.m.- midnight , Midnight to 8am double time

c)Sunday: Day Work and Shift Work: Double Time

The pay day is a 24 hour period that commences from 8.00a.m. on any given calander day .

d)Call out : see current arrangement

Recommendation 

I have reviewed the evidence presented at the hearing and noted the respective position of the parties .The collective agreement is silent on the specific matter of arrangements to apply on public holidays –consequently it is understandable that parties would disagree on interpretation .I recommend that the parties engage with a view to agreeing a formula of words that would capture payment arrangements specifically for Public Holiday into the future.

The claimant was paid for 30 hours according to the respondent’s interpretation of the Agreement while the union were seeking payment for 36 hours – ie treble the hours worked..

Given the absence of clarity I consider it reasonable that the parties would agree on the industry norm – I am satisfied that the industry norm would provide for double time for the actual hours worked plus payment for a normal working day.In the claimant’s case this would amount to 32 hours.I recommend that this formula be accepted by the parties.

Dated:   16^th November 2016