Complainant

Respondent

Parties

Michael  Morrin

Carlow County Council

Representatives

Ger Malone SIPTU

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044705-001

21/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044705-002

21/06/2021

The Complainant commenced his employment with the Respondent on 25 July 1995. He alleges that the Respondent undercalculated both his annual leave and public holiday payments as they failed to include regular and rostered overtime and various allowances when calculating his annual leave and public holiday pay.

Specifically, he is seeking retrospective payment of the shortfall in annual leave payments back to when he started working overtime in 2004 in respect of all statutory and contractual annual leave availed of by him and compensation for the alleged breaches of the Act. In addition, he is seeking retrospective payment of the shortfall in public holiday pay back to the date of commencement of employment and compensation for the alleged breaches of the Act in this regard.

The Complainant stated that his normal weekly pay for the purposes of calculating his pay during periods of annual leave and public holiday should be reckoned as €848.92 (i.e. basic pay plus regular and rostered overtime and allowances).

The Complainant relies on the decision of the Court of Justice of the European Union (‘the CJEU’) in Lock v British Gas Trading Limited (2014) ICR 813 in support of his submission that overtime payments and allowances are reckonable for the purposes of calculating annual leave and public holiday pay.

Furthermore, he stated that, having regard to the decision of the Court of Appeal in Northern Ireland in Chief Constable of the Police Service of Northern Ireland & Anor v Agnew(2019) NICA 32 (‘Agnew’) and the judgment of the CJEU in King v Sash Window Workshop Limited (Case C-214/16) (‘Sash Windows’), he is entitled to seek retrospection of any underpayments in respect of annual leave and public holidays beyond what is provided for in the cognisable period in the Act.

The Respondent stated that it complies fully with sections 19, 20, 21 and 22 of the Organisation of Working Time Act 1997 and with the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.

CA-00044705-001:

Statutory Time Limit

The Complainant referred his complaint under the Act to the Workplace Relations Commission on 21 June 2021. As his claim relates to the calculation of payment for annual leave, the cognisable period covered by the claim – having regard to section 41(6) of the Workplace Relations Act 2015 - is the period from 22 December 2020 to 21 June 2021. This is in line with the decision of the Labour Court in Eamonn Coughlan v Carlow County Council (DWT2228).

Within the cognisable period, the Complainant was paid for, annual leave as follows: 15 January 2021 – 32 hours; 12 March 2021 – 16 hours and 23 April - 7hours.  The payments he received in respect of annual leave were calculated in accordance with both his basic rate of pay and his acting allowance.

The WRC’s Jurisdiction Confined to Statutory Annual Leave

The within complaint is before the WRC under the Organisation of Working Time Act 1997. The Act provides, inter alia, for an entitlement to a minimum period of annual paid leave, calculated in accordance with section 19 of the Act. The Complainant’s statutory annual leave entitlement is twenty days. He has a further contractual entitlement to five days’ leave annually. In dealing with a claim brought under the Act and having regard to the decision of the Labour Court in the case of Eamonn Coughlan v Carlow County Council (DWT2228), I have no jurisdiction with regard to a complaint for extra statutory leave.

Calculation of Payment for Statutory Annual Leave

The Organisation of Working Time Act 1997 was enacted to give effect to Directive 93/104/EC of 23 November 1993 of the Council of the European Communities which delegated to the Member States of the European Union the right to determine all aspects of holiday pay, including its calculation. The Directive left it to national legislation to determine the conditions of entitlement to, and granting of, an employee’s paid annual leave, including the determination of the basis upon which payment is calculated for such periods of leave and the level of such payment.

Section 19(1) of the Act provides for the calculation of statutory annual leave as follows:

“(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 20(2) makes provision in general terms for the basis on which payment for statutory annual leave is to be calculated and subsection (4) of that section enables the Minister to promulgate regulations for the purpose of determining the manner in which “normal weekly rate [of pay]” is to be determined:

“(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) ….

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.”

The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 SI No 475 of 1997 (‘the Regulations’) address these matters. Regulation 3(2) expressly and unambiguously excludes overtime from the calculation of annual leave pay. It provides:

“(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.”

The Labour Court has addressed the issue of the non-inclusion of overtime in the calculation of annual leave having regard to Regulation 3(2) of SI 475 of 1997 in MCM Security Limited v Tom Power DWT0895 where it was stated that:

“It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays.

The Union accepts that the Claimant’s normal pay is made up of 39 hours pay at the standard rate prescribed by the ERO for the sector and six hours overtime pay at the premium rate. It is clear that this overtime element is not reckonable in applying the formula prescribed by Regulation 3(2). It follows that the Claimant’s claim for the inclusion of this overtime in the calculation of the rate at which he is paid for annual leave cannot succeed in the present proceedings.”

Allowances Received by the Complainant

The Complainant is in receipt of two allowances which he submits ought to be reckonable for the purposes of calculating payment for annual leave: a non-taxable eating on-site allowance of €9.50 per week and an acting allowance of €201.04 per fortnight. In deciding whether the eating on site   allowance is comprehended by Regulation 3(2), I have regard once again to the decision of the Labour Court in the case of Eamonn Coughlan v Carlow County Council (DWT2228) where it was found that “The eating on-site allowance is not treated as pay for taxation purposes” and is therefore not reckonable for the purposes of calculating payment for annual leave. As highlighted above, the Complainant received an annual leave payment for the acting allowance in the cognisable period.

Conclusion

In light of all of the foregoing, I find the claim that the calculation of the Complainant’s annual leave for the purposes of the Act should include regular and rostered overtime and an amount in respect of the eating on site allowance he is in receipt of is not made out. I also find, as highlighted above, that the Complainant received an annual leave payment for the acting allowance in the cognisable period and that I do not have jurisdiction to make any finding on whether he is entitled to any further annual leave payments in respect of this allowance outside of the cognisable period.

CA-00044705-002:

Statutory Time Limit

As also stated above in relation to CA-00044705-001, the Complainant referred this complaint under the Act to the Workplace Relations Commission on 21 June 2021. As his claim relates to the calculation of payment for public holidays, the cognisable period covered by the claim – having regard to section 41(6) of the Workplace Relations Act 2015 - is the period from 22 December 2020 to 21 June 2021. This is in line with the decision of the Labour Court in Eamonn Coughlan v Carlow County Council (DWT2228).

Calculation of Payment for Public Holidays

Section 21(1) of the Act provides as follows in relation to public holiday benefits:

“(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.”

Section 22(1) enables the Minister to promulgate regulations for the purpose of determining the manner in which “an additional day’s pay” is to be determined for the purposes of section 21. The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 SI No 475 of 1997 (‘the Regulations’) address these matters. Regulation 5(1)(a) expressly and unambiguously excludes overtime from the calculation of “an additional day’s pay”. It provides:

“(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”.

The Labour Court has addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay having regard to Regulation 5 of SI 475 of 1997 in MCM Security Limited v Tom Power DWT0895 where it was stated:

“It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays.”

Allowances Received by the Complainant

The Complainant is in receipt of two allowances which he submits ought to be reckonable for the purposes of calculating payment for public holidays: a non-taxable eating on-site allowance of €9.50 per week and an acting allowance of €201.04 per fortnight. In the case of the eating on-site allowance, it is not treated as pay for taxation purposes as outlined in my findings in respect of CA-00044705-001 above and therefore cannot be used for the purposes of calculating public holiday pay. I also note from a review of the payslips provided to me that the acting allowance received by the Complainant varies from week to week depending on the hours worked and that Regulation 5(1)(a) states that:

“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”. (my emphasis)

Accordingly, the Complainant is therefore not entitled to any public holiday payment in respect of the acting allowance.

In light of all of the foregoing, I find that my jurisdiction is limited to the cognisable period outlined above and that the Respondent has properly calculated the Complainant’s pay in respect of the public holidays that fell during this period in accordance with SI 475 of 1997.

CA-00044705-001:

I find that this complaint is not well founded for the reasons set out above.

CA-00044705-002:

I find that this complaint is not well founded for the reasons set out above.