ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003663

Complaint for Resolution:

Date of Adjudication Hearing: 28/09/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant works as an electrician and is contractually obliged to be on stand by every second week ,this may involve an on site attendance on a call out basis in addition to some support remote working from home . The claim is to cover the period where stand by occurs during a Bank Holiday . The complainant submitted that he did not get anything back for this .

The Union submitted that the complainant satisfied the description of working time as set out in the Act.

“Working Time “means any time that the employee is

(a)at his place of work or at his employers disposal and

(b) carrying on or performing the activities or duties of his work

The Union submitted details of 17 instances from 2012 – 2016 where the complainant recorded either a remote, on site or home profile of the stand by days which co incided with public holidays.

The Union pointed out that on March 17, 2016, the complainant was given a paid day off for responding to call in and attending on site.

The Union, on behalf of the complainant sought an additional paid day off or an additional days pay as per the Act when he is rostered on Stand By during Public Holidays. The Union confirmed that the complainant was in receipt of an allowance to cover stand-by.

Respondent’s Submission and Presentation:

Preliminary Issue:

The Respondent raised a preliminary issue on jurisdiction at the outset of the hearing. The Representative for the respondent contended that the claim before the Adjudicator was not one encompassed by Section 21 of the Act. It was instead a claim for enhanced payments in addition to statutory public holidays for being called in to work on a public holiday under the guise of the Act.

Furthermore , the claim was over reaching as to be subject to collective bargaining .The respondent has in operation an agreement with established arrangements on “ on call and call in “. Negotiations were currently active under the WRC and proposals had been put to the complainant and the Union on the matter. The respondent contended that there can be no jurisdiction to hear such a case under the Act.

Response to Claim

The respondent rejected the claim. The respondent described the profile of the on call for the complainant’s grade.

When a Maintenance Technician is rostered off during a Public Holiday, he receives a days pay as provided under S 21 of the Act .The” On call” Maintenance technician is on a paid day off for the public holiday, however, on the occasion that he is called out to repair equipment, he is no longer on a paid day off and his public holiday entitlement becomes an extra days pay .He also receives

” The call out pay “

The respondent submitted that the company had made a simple error when the complainant received a payment on 17 March 2016 during a public holiday when he was called out.

The company pays an “on call “and “call out” allowance. They submitted that the respondent is compliant with the Act in relation to recognition of public holidays. They were opposed to this claim being placed before an Adjudicator, given its collective standing .They contended that the complaint was compromised through time limit expiration and lack of a reasonable cause argument.

The respondent asked the Adjudicator to find that the complaint was not well founded.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act 1997 requires me to decide this case.

I have listened carefully to both parties submissions and I have considered the written submissions. The respondent has not strongly contended that the case is nor properly before the Adjudication service, given the complainants undisputed access to Public Holidays in accordance with the Act. In addition, the company has in place a collective agreement which provides for a separate “call out “and standby payment.

The complainant put forward an equally robust argument that he was placing himself at the disposal of his employer during his agreed rest time and he submitted an argument for payment for the ad hoc periods where he was required to provide a Maintenance service either from his home or by relocation from home to the workplace .

Section 21 of the Act provides that

 Entitlement in respect of public holidays.

21

1. —(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

In my consideration of the case, it struck me that the complainant was not compelled to present himself to work during a public holiday. However, over time, the complainant had been party to a collective agreement which made provision for being on call from home to provide either a remote or mobile presence at the respondents workplaces during a public holiday .He detailed 14 instances since 2012 where he complied with this agreement, the last of which was March 17, 2016 where he received the payment, which the respondent said was in error.

I can understand how the respondent might identify this as an opportunistic claim; however I must consider the claim in accordance with the provisions of the legislation.

Schedule Two of the Act sets out the details of the 9 Public Holidays.

Section 21 sets down the employer’s capacity to determine how a Public holiday should be applied to an employee. In the instant case, I cannot take issue with the fact that the 9 Public Holidays have been determined as 9 days off by the employer during the course of the calendar year. This was not disputed. Where the dispute lies between the parties is in relation to when the rest time provided by provision of a public holiday is interrupted by service needs. The respondent has argued that the “On Call payment “system is an adequate cover, this is not accepted by the complainant.

Ms Frances Meehan, in her book, Employment Law in Ireland addressed this issue.

“I]t is settled case law that on-call duty performed by a worker where he is required to be physically present on the employer’s premises must be regarded in its entirety as working time within the meaning of Directive 93/104, regardless of the work actually done by the person concerned during the on-call duty”. In the case of Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generelidad Valenciana, [2001]IRLR 845, the ECJ considered that doctors working in primary healthcare teams fell within the scope of Directive 89/391 and Directive 93/104. National law must meet the provisions of art.17 of Directive 93/104, which provides for certain derogations in respect of working time when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured or pre-determined or can be determined by the workers themselves, and particularly in the case of managing executives or other persons with autonomous decision-making powers, family workers or workers officiating at religious ceremonies in churches and religious communities. Such derogations must be adopted by means, inter alia, of laws or collective agreements.”

A literal reading of the Act, allows me to conclude that the Act intended the complainant to have 9 rest days on the occurrence of the 9 Public holidays. The occasions on which he was contacted by the service to provide either remote or mobile work disturbed that time. The complainant had agreed to make himself available for this disturbance, therefore must have anticipated this scenario.

Neither party opened a collective agreement nor did both recognise that the complainant was contractually bound to provide on call.

I find that there should be provision made by the respondent to rectify the disturbance in accordance with section 21 given that the complainant is clearly not in a position to pursue his own interests during these periods of on call due to being at the disposal of the service. The respondent stated at the hearing that the company may consider a compulsory roster to incorporate public holidays. Given the adhoc nature of the occurrence of these times, I believe that would be excessive .In this , I am mindful of the Labour Courts Determination in Breffni Carpentry Ltd V Solodousikous DWT 0816, where the Court found that time spent at work constituted working time .

However, based on the evidence adduced before me, I find that the complainant is entitled to his 9 Public holidays per annum and should be compensated for any disturbance of this under the Act.

Section 41 6)Workplace Relations Act ,

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates

The Complainant lodged his complaint on 20 June 2016 and had already been accommodated for March 17, 2016.Therefore I cannot include the earlier submissions in the cognisable period under the Act, i.e. December 21, 2015 onwards.

This concludes my decision in the matter.

Dated:   19^th January 2017