DWT207

FULL RECOMMENDATION

WTC/20/41
ADJ-00024907, CA-00031699-001

DETERMINATIONNO.DWT207

SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

AER LINGUS/AER LINGUS IRELAND LIMITED
(REPRESENTED BY MAIREAD MCKENNA B.L., INSTRUCTED BY ARTHUR COX SOLICITORS)

- AND -

CLIONA O'LEARY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:	Mr Foley
Employer Member:	Ms Doyle
Worker Member:	Mr Bell

SUBJECT:

1.Appeal of Adjudication Officer Decision No. ADJ-00024907 CA-00031699-001

BACKGROUND:

2.An Adjudication Officer hearing took place on 14 January 2020 and a Decision was issued on 21 May 2020. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 30 June 2020 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 9 October 2020. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by the Respondent at first instance, Aer Lingus, against a decision of an Adjudication Officer in a complaint by Cliona O’Leary (the Complainant) made under the Organisation of Working Time Act 1997 (the Act) in relation to her entitlement to be placed on a banded hours contract in accordance with Section 18A of the Act. The Adjudication Officer decided that the complaint was well founded.

In this determination the parties will be referred to as they were at first instance. Thus Aer Lingus, the Appellant, will be referred to as the Respondent and Ms O’Leary will be referred to as the Complainant.

Background

The Complainant has been employed by the Respondent as a guest services agent since 27^thApril 2015. The Complainant made an application to be placed on a banded hours contract on March 21^st2019. There is no dispute between the parties as regards the Complainant’s entitlement to be placed on a band of weekly working hours in accordance with the provisions of the Act at Section 18A.

The Act at Section 18A sets out the bands of weekly working hours upon which an employee may be placed as follows:

Band From To

A 3 Hours 6 Hours
B 6 Hours 11 Hours
C 11 Hours 16 Hours
D 16 Hours 21 Hours
E 21 Hours 26 Hours
F 26 Hours 31 Hours
G 31 Hours 36 Hours
H 36 Hours and over

The Respondent, in response to the request to place her on a band of weekly hours as provided for in the Act, placed the Complainant on Band F. The Complainant contends that the Respondent miscalculated her entitlement to a band of weekly working hours by failing to calculate time spent on annual leave during the reference period as working time within the meaning of the Act and consequently complains that the Respondent has failed to place her in a band of weekly working hours as required by the Act.

The Respondent contends that time spent on annual leave cannot be treated as hours worked for the purposes of determining the average number of hours worked per week by the Complainant during the reference period.

Summary position of the Complainant

The Complainant submitted that she was employed under a contract of employment which provides for 20 working hours per week. She actually works up to 37.5 hours per week. She had made a request in accordance with Section 18A of the Act to be placed on band of weekly working hours to be determined by the employer on the basis of the average number of hours worked by her per week during the reference period provided for in the Act.

The Respondent had placed her on a band of weekly working hours which is lower than the average hours she actually works per week. The Respondent had clarified that, in its view, the Act does not require the employer, in determining the average hours worked per week by the employee, to include the time the Complainant spent on annual leave in the reference period. The exclusion of time spent on annual leave by the employer from the calculation of the average has the result of placing the Complainant on a band of weekly working hours which is lower than the average number of hours worked by her per week during the reference period.

The Complainant submitted that the method of calculation employed by the Respondent of her entitlement to be placed on a band of weekly working hours is in breach of the Act at Section 19. That section makes clear that time spent on annual leave is to be regarded as working time.

The Complainant submitted that, were the calculation of the Respondent to be correct, the taking of annual leave by the Complainant would have the effect of reducing the average number of hours worked by her per week for the purposes of calculating her entitlement to a band of weekly working hours and consequently of reducing the protections afforded to her under the Act.

Summary position of the Respondent

The Respondent submitted that the matter before the Court amounts to a dispute as regards the interpretation of Section 18A of the Act. Section 18A creates a new right to a statement of employment or employment contract which reflects the average number of hours worked per week by an employee over a reference period where the employee’s contract of employment or statement of terms do not reflect the hours worked per week by the employee. The provision is a creature of Irish statute rather than a provision to implement rights created or modified by developments at European level.

The Respondent submitted that Section 18A of the Act is a stand-alone provision which is not connected with or concerned with the matters addressed otherwise in the Act and it is wrong to suggest that Section 18A is linked to Sections 19 or 20 of the Act.

The Respondent drew the Court’s attention to the decision of the CJEU in Federacion de Trabajadores Independientes de Comercio (Fetico) et al v Grupo de Empresas DIA SA et al wherein that Court noted that special leave and the body of rules applicable to it stand apart from the body of rules established by Directive 2003 / 88. The Respondent submitted that the provisions of Section 18A of the Act stand apart from the rules established by Directive 2003 / 88.

Section 18A of the Act does not define the meaning of the phrase ‘hours worked’. The Act itself does provide a definition of the phrase ‘working time’ for the purpose of the Act and the Respondent submitted that the term ‘hours worked’ (representing work completed) must be interpreted in accordance with the definition of ‘working time’as set out in Section 2 of the Act.

The Respondent submitted that time spent where an employee is not at his or her place of work or his or her employer’s disposal and is not carrying on or performing the activities or duties of his or her work should be not included in the calculation of the average number of hours worked by that employee per week during the reference period for the purpose set out in Section 18A of the Act.

The Respondent submitted that the plain purpose of the legislation is to safeguard the rights of persons working more hours than the quantum specified in their contract of employment. The Interpretation Act, 2005 makes clear that, in construing any provision of any Act, the provision should be given a construction that reflects the plain intention of the Oireachtas or parliament concerned as the case may be, where that intention can be ascertained from the Act as a whole.

Relevant Law

The Act at Section 2, in relevant part, gives clarity as regards interpretation as follows:

“annual leave” shall be construed in accordance with section 19”

Section 19 of the Act makes provision in relevant part as follows:

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

Section 2 further states

“working time” means any time that the employee is—

- - (a)at his or her place of work or at his or her employer’s disposal, and
  (b) carrying on or performing the activities or duties of his or her work,
and “work” shall be construed accordingly.

The Act at Section 18A in relevant part provides as follows:

Banded hours

18A. (1) Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.
(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.
(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).
(4) The band of weekly working hours on which the employee is entitled to be placed shall be determined by the employer on the basis of the average number of hours worked by that employee per week during the reference period.

(5) An employer may refuse to place an employee on the band requested —

- (a) where there is no evidence to support the claim in relation to the hours worked in the reference period,
  (b) where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period,
(c) in circumstances to which section 5 applies, or
- (d) where the average of the hours worked by the employee during the reference period were affected by a temporary situation that no longer exists.
(6) This section shall not apply to banded hour arrangements which have been entered into by agreement following collective bargaining.
(7) An employee placed on a band of weekly working hours shall work hours the average of which shall fall within that band for a period of not less than 12 months following that placement.
(8) Where an employee believes that his or her employer has failed to place the employee in a band of weekly working hours in accordance with subsection (3), having been requested to do so under subsection (2) or unreasonably refused a request to be placed on a band of weekly working hours, the employee may make a complaint in accordance with Part 4 of the Workplace Relations Act 2015 .

Discussion and conclusions

The parties are agreed that the Complainant was entitled, where she believed that hercontract of employment did not reflect the number of hours worked per week by her over a reference period, to be placed in a band of weekly working hours specified in the table set out in Section 18A of the Act.

The parties however do not agree on the appropriate methodology for the operation of the calculation set out in Section 18A where it is set out that the employer shall determine the band of weekly working hours upon which the Claimant will be placed, on the basis of the average number of hours worked by her during the reference period. A reference period is defined

“a period of 12 months after the commencement of employment with the employer and immediately before the employee makes a request under subsection (2)”.

The Respondent contends for an interpretation of the legislation which would oblige the employer to calculate the average number of hours worked by the Complainant by taking account of all hours where the Complainant actually worked averaged across a 52-week refence period. In particular, the Respondent contends that periods of time spent on annual leave should not be calculated as periods of time where the Complainant worked and as such the 52-week calculation should be made discounting time spent on annual leave. Thus, if an employee spent four weeks of a 52-week period on annual leave, the calculation of the average number of hours worked by that employee per week should be achieved by applying a divisor of 52 to the quantum of hours worked during the entire period of 52 weeks notwithstanding the employee worked in 48 weeks only.

The Complainant contends that a calculation which excludes time spent on annual leave would produce an average of hours worked by her per week which is less than her normal weekly working hours. The Complainant relies upon what she contends is the intention of the legislation and the provisions of sections 19(5), and 22(2) of the Act to support her contention that time spent on annual leave should be regarded, for the purposes of Section 18A of the Act, as hours worked within the meaning of that section of the Act.

The Act at section 19 sets out the statutory entitlement to annual leave and at subsection 5 provides as follows:

5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave

The Act makes supplemental provision in relation to Public Holidays and states at Section 22 as follows:

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

The Act at Section18A sets out protections to be afforded to workers which are unrelated to protections derived from the Working Time Directive 2003/88 of the European Union and which are transposed into Irish legislation by various provisions of the Act. The Court must therefore look to the Act itself to establish the meaning of the disputed provision of that Section rather than to Directive 2003/88 of the European Union but without undermining the protections guaranteed therein.

Section 18A sets out that an employee is entitled to request an employer to place her in a band of weekly working hours which reflects the average hours she works per week. This entitlement is given to an employee where she considers that her contract of employment or statement of terms of employment does not reflect the number of hours she works per week. Where such a request is made, an employer is required to determine the appropriate band to place an employee by calculating the average hours worked by the employee in the course of a 12 month ‘reference’ period. The plain purpose of the provision is to ensure the number of hours specified in the contract of employment reflects an employee’s actual working week.

If the calculation mechanism contended for by the Respondent is to be accepted, then, as a matter of mathematical certainty, this objective will automatically be defeated. This is so because the mathematical means to average hours worked across a 12-month period contended for by the employer is to total all hours worked in the period using a divisor 52. Thus, in a year where the employee has spent one week or more on annual leave as distinct from being at work, a divisor of 52 will lower the average. This methodology would guarantee a resulting average which does not reflect the average number of ‘hours worked’per week by the Complainant in any week where she engages in ‘working time’as that term is to be interpreted according to Section 20 of the Act.

Section 18A of the Act does not provide a definition of the term‘hours worked’. Section 2 of the Act does set out that the term‘work’should be construed in accordance with the interpretation of the term ‘working time’set out in that section.

The Court is satisfied that the treatment of annual leave required by Section 19 relates to the treatment of such leave for the purposes of Subsection 1 of that section only.The Court also notes that section 2 of the Act requires that ‘In the Act’, the term ‘annual leave’ shall be construed in accordance with Section 19. The term ‘annual leave’ is not used in Section 18A of the Act.

The Court is therefore satisfied that no provision of the Act provides a means to interpret Section 18A(4) such that the meaning of the requirement resting on the employer to determine ‘the average number of hours worked by that employee per week during the reference period’can be said to be clearly and unambiguously set out. In particular, the Act does not make clear how time spent on annual leave is to be treated in the calculation of the average.The Court cannot simply import the treatment required of annual leave in Section 19 of the Act into Section 18A and neither can it apply the meaning of the term ‘annual leave’set out in Section 2 to the provisions of Section 18A which does not use that term at all. Similarly, references in the Act to the treatment of annual leave do not resolve the matter.

In circumstances where, in the view of the Court, the meaning of Section 18A(4) of the Act appears to be ambiguous and where a literal interpretation of the term ‘the average number of hours worked by that employee per week during the reference period’ as used in that subsection would, in the view of the Court as has been set out above, fail to reflect the intention of the Oireachtas, it is necessary to interpret the legislation in the manner provided for at section 5 of the Interpretation Act, 2005 (the Act of 2005) which provides as follows:

5.(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
- (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
  - (i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
    (ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
    the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

The Court therefore concludes that the only reasonable means to ensure that the plain intention of the Oireachtas can be achieved is by interpreting Section 18A(4) so as to mean that the divisor to be used to calculate the average number of hours worked by an employee per week during the reference period should be determined by excluding the number of weeks spent on annual leave in the period. Thus, in a reference period of 52 weeks where an employee has spent, for example, four weeks on annual leave, the divisor for the purposes of section 18A(4) of the Act should be 52 minus 4 which is 48. In this manner, the average number of hours worked by that employee per week during the reference period can be determined by calculating the average hours worked per week in those weeks where the employee is engaged in work as defined in Section 2 of the Act and allowing for the fact that time spent on annual leave during the reference period is not treated as working time for the purposes of the Act at Section 18A.

Determination

The Court determines that the within complaint is well founded and requires the Respondent to comply with Section 18A and place the Complainant on the appropriate band of hours.

The decision of the Adjudication Officer is varied.

The Court so determines.

	Signed on behalf of the Labour Court

	Kevin Foley
OC	______________________
30 November 2020	Chairman

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.