Complainant

Respondent

Parties

Seamus  Mara

Carlow County Council

Representatives

 SIPTU

 LGMA

Act

Complaint 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-00054334-001

03/01/2023

Mr. Mara is a long serving staff member currently working as a Sewerage Water Caretaker. He is required to work two hours on each public holiday and is paid at double time for this work. His claim is that for the public holiday he should be paid a sum that is equal to the sum in respect of the normal daily hours worked. Alternatively, he is seeking a minimum of 4 hours work on each public holiday.  

The SIPTU representative on behalf of the complainant summarised the claim as set out in the submission. He referred to Section 5 of SI 475- Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 to support the claim that the complainant should be paid a normal daily rate per public holiday. He also submitted the requirement to attend for 2 hours was inconsistent with the ‘National On-Call Agreement’ and practices in other local authorities. He referred to the Department of Public Expenditure and Reform minimum overtime criteria for overtime across the Civil Service. He stated that some of the complainant’s colleagues were required to attend on bank holidays for more than 2 hours. He is seeking that the complainant’s minimum hours should be set at a minimum of 4 hours and that this should be applied retrospectively.

The LGMA representative on behalf of the respondent confirmed the complainant had worked the required 2 hours on the previous 5 public holidays that came within the cognisable period (6 months from the receipt of the complaint form on 3rd January 2023). It was confirmed that the complainant was paid 2 hours at double time on each of the public holidays and is paid for the hours worked.

It was submitted that the Council had afforded the complainant his entitlements under Section 21 (1) of the Act by the payment of an additional day’s pay of 8 hours for each of the public holidays as per the payslips provided.  

The facts between the parties are not in contention in that it is accepted that there is an arrangement whereby the complainant is paid for 2 hours worked at double time for each public holiday. Therefore, as there were no matters in dispute there was no requirement to go into direct evidence under oath. 

Although the complainant’s representative referred to hours worked by the complainant’s colleagues on public holidays, practices in other local authorities, along with the Department of Public Expenditure and Reform minimum overtime criteria, my jurisdiction under the Act is restricted to inquiring into whether there has been a breach under the Organisation of Working Time Act.

Under section 21 of the Act, there was evidence given by the respondent that they have fulfilled the complainant’s entitlement by granting him a day’s pay in lieu of the public holiday. This was not contested by the complainant. What is in dispute is the rate of pay for public holidays.

Section 22 of the act states:

(1)    The rate-

(a)    at which an employee is paid in respect of a day off under section 21, and

(b)    of an employee’s additional day’s pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

The said regulations relied upon by the complainant are Section 5 of SI 475- Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

Section 5. (1) states ‘If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then-

(a)……….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 that amount of which does not vary in relation to the work done by the employee but excluding any rate for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday,

Deliberations

Similar circumstances existed in the case of Beaumont Hospital v. Mc Gauley DWT 09109 where the Labour Court made a finding that the employer had fulfilled their obligations under the Act once the complainant had received the equivalent of a normal days pay in lieu of the public holiday.

In Meenan, Employment Law, 2nd Edition, 2023, at paragraph 11-75 it states-

It has never been the practice to afford employees who are on call and who are called in for short periods on a public holiday an entitlement to a full additional day’s pay or a full additional day off irrespective of the number of hours worked.

The above reflects and fulfils the purposive interpretation of the European Directive which was aimed at ensuring that workers could take annual leave and holidays without losing out on their normal pay. Therefore, on health and safety grounds, workers would not be disadvantaged or reluctant to take breaks from work. This was the context under which the legislation and regulations referred to by the respondent’s representative were framed.

The respondent has complied with section 21 of the Act in paying a day’s pay of 8 hours in lieu of the public holiday. The two hours worked on the public holiday is paid at double time.

For the reasons set out above, I find the complaint is not well founded.  

 CA -00054334-001- I find the complaint is not well founded. 

public holiday pay