DWT237

1.Appeal Of Adjudication Officer Decision No. ADJ-00033747 CA-00044548-001

BACKGROUND:

2.An Adjudication Officer hearing took place on 31 May 2022 and a Decision was issued on 20 September 2022. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 October 2022 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 16 December 2022. The following is the Determination of the Court:-




DETERMINATION:

This matter comes before the Court as an appeal by Mr Lyle Smith (the Appellant) against a decision of an Adjudication Officer in his complaint against his employer, Waterford City Council (the Respondent) made under the Organisation of Working Time Act, 1997 (the Act).

Background

The Appellant has been employed by the Respondent as a full-time firefighter since 18^thFebruary 2008 according to the submission of his representative and since 11^thJanuary 2010 according to the submission of the Respondent. The Appellant’s representative confirmed at the hearing that the commencement date of the employment was as submitted by the employer.

He asserts that the Respondent has undercalculated his public holiday payments for the duration of his employment with it insofar as the Respondent has failed to pay him his normal weekly pay and various allowances when calculating his public holiday pay. He seeks retrospective payment of the shortfall back to the date of commencement of employment and compensation for the breaches of Act.

The Appellantworks a 4-shift system which operates on a cycle of 2-day shifts (09.00 to 18.00) followed by 2-night shifts (18.00 to 09.00). Each cycle is separated by four days off. His average working week is 42 hours worked over an 8-week cycle. The Appellant is paid fortnightly and receives €981.72 per week in respect of 39 basic hours worked. The 40th hour worked each week is paid at a higher rate of time plus one quarter. The 41st and 42nd hour worked each week are paid at a higher rate of time plus one half.

The Appellant also receives additional payments for Saturday, Sunday, and night hours when they are worked as well as a night duty meal allowance when he is required to work through the relevant time period. The Complainant is paid fortnightly.

Summary submission of the Appellant

SIPTU, on behalf of the Complainant, submits that he is entitled to be paid his “normal weekly pay” inclusive of the average value of premium payments and allowances received by him as payment for public holidays when he is rostered off. Instead, he is paid a “basic” rate of pay only. He estimates that because he was rostered off for 4.5 of the Public Holidays each year, he suffered an annual shortfall in pay of €644.81. He estimated in his submission that his losses since commencing his employment to be €9,672.15. His representative confirmed at the hearing that in fact the estimated losses amounted to €8,382.53.

The Appellant placed the case ofDWT1550 First Glass Limited and Andrius Babianskasbefore the Court. In that decision this Court stated as follows: -

• “The clear purpose of the relevant provisions of S.I 475/97 is to ensure that during either annual leave or public holidays an employee receives no less (or no more) than he or she would have received if he or she was working during the period in question. That general principle formed the ratio of a number of decisions of the CJEU, notably Case C-155/10, Williams v British Airways plc [2010] IRLR 948 and Case C-539/12, Lock v British Gas Trading Limited [2015] 3 IRLR 438. That was also the principle applied by this Court in Hidden Hearing limited and Smart [2005] 16 ELR 367”.

The Appellant also referred toDWT9917 Moriarty’s SuperValu and A Workerwhere the Court noted:

• “This case turns on whether Regulation 5(1)(a) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 is applicable in the case of the claimant. This Regulation provides as follows:
  • "5.(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 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 that does not vary in relation to the work done by the employee but excluding pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday".
    
    

Summary submission of the Respondent

The Respondent has fully complied the Organisation of Working Time Act 1997 and with the provisions of theOrganisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475 of 1997).

The cognisable period in relation to the complaint is the period from 11 December 2020 to 10 June 2021 and cannot extend to the commencement of the employment of the Appellant.

The Appellant works 39 basic hours per week and is paid overtime for hours worked above this. The 4-shift system collective agreement, which is the basis for the determination of the Appellant’s rate of pay, states in relation to pay arrangements for Public Holidays that:-

• “Hours actually worked on the Public Holiday, attract additional payment at basic rate x 2. Staff Rostered off, are paid 8 hours at basic rate, in lieu of Public Holiday”.

• “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 public holidays. The Union accepts that the Claimant’s normal pay is made up of 39 hours pay at the standard rate … and six hours overtime pay ... 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 … cannot succeed in the present proceedings.”

Saturday payment, Sunday payment and Night premium and Meal Allowance are not regular weekly allowances as they vary each week depending on the pattern of hours worked by the Appellant. Specifically, the Saturday allowance is only payable when worked; the Sunday allowance is only payable when worked; the meal allowance is only payable when working nights; the night premium is only paid when nights are actually worked.

The Regulations state that allowances are payable where the amount “does not vary in relation to the work done by the employee”and do not include allowances paid in respect of an expense incurred.

The Working Time directive makes no provision for public holidays and deals solely with annual leave. Equally there are no decisions of the CJEU that relate to public holidays, as the case law relates to annual leave. The Respondent also relied onDWT2232 Waterford City and County Council and Michael MaloneandDWT2229 Carlow County Council and Eamon Coughlanwhich it says are duplicate cases to the within appeal.

Discussion and conclusions

It is clear to the Court that a range of appeals are before the Court involving this employer and other local authority employers which are founded on the identical factual circumstances as those upon which the within appeal is founded. This Court has addressed the law in relation to these factual circumstances on repeated occasions including in its’ decisions inWTC 22/91 Waterford City and County Council and Michael Malone, WTC 22/15 Carlow County Council and Eamon Coughlan, WTC 22/316 Waterford City Council and Matthew Runciman and WTC22/90 Waterford City Council and Robert Bible.

InWTC 22/316the Court addressed the matter as follows:

• “The calculation of pay for public holidays is governed by theOrganisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations).

  Regulation 5(2) prescribes the formula for the calculation of the rate payable in respect of a public holiday in the case of an employee who does not work on a day which is a public holiday. It provides as follows: -

  • “If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—
    • (a) in the case the employee's pay is calculated wholly be 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 one-fifth of 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 in respect of the normal weekly hours last worked by the employee before that public holiday,”

• SIPTU asserts that the Complainant’s normal hours of work are 42 hours per week and that he receives a premium payment for hours worked in excess of 39 hours worked per week. It disputes that the premium payment that he receives for hours worked in excess of 39 hours is classed as “overtime”.

  For its part, the Respondent asserts that the Complainant works 39 basic hours per week and is paid an overtime rate for hours worked above this.

  It is clear to the Court that Regulation expressly excludes any pay for overtime from the calculation of “an additional day’s pay” in determining payment for a public holiday. This Court has previously addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay in the case ofMCM Security Limited v Tom Power DWT0895where it 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.”
  It is accepted by both parties to the within claim that hours worked in excess of 39 hours per week are over and above basic hours of work and, as a result, that these hours are paid at a rate over and above the basic rate of pay. The Court finds that hours worked over and above basic working hours are not encompassed by the Regulations. As a result, the Court finds that the claim that such hours be included in the calculation of the Complainant’s public holiday pay for the purposes of the Act is not well founded.
  
  

• SIPTU asserts that a Saturday allowance, Meal Allowance, Sunday Allowance and Night premium are all regular payments that should be included in the calculation of the Complainant’s public holiday payments, as the regulations do not specify that allowances must be paid weekly in order to be classified as a regular allowance.

  The Council asserts that the allowances paid to the Complainant vary in relation to the work done and that the Regulations do not include allowances paid in respect of an expenses incurred or allowances that are reliant on the type or amount of work performed at, for example, weekend or nights.

  Regulation 5(2) prescribes that in the case of an employee who does not work on that public holiday, the relevant rate shall include any regular bonus or allowance which does not vary in relation to the work done and that this rate be calculated by reference to the normal weekly hours last worked by the employee before that public holiday.

  The Court was told that the Saturday allowance, Sunday allowance, and Night Premium, are only paid on occasions when they are worked. A Meal allowance is only paid when working nights. As a result it is clear that the worker in this case receives different allowances depending on what shift he works each week.

  In the Court’s judgment, the allowances that are paid to the worker vary according to what shift he works on a weekly basis and are not comprehended by the Regulations.

  The Court finds that the claim for Saturday allowance, Sunday allowance, Night Premium and Meal allowance overtime to be included in the calculation of the Complainant’s public holiday pay for the purposes of the Act is not well founded.

• The claim that the calculation of the Complainant’s public holiday pay for the purposes of the Act should include overtime and an amount in respect of the allowances that he is in receipt of has not been made out.

The Court so determines.”

The Court adopts the reasoning of this Court inWTC 22/316 Waterford City Council and Matthew Runcimanand for the reasons set out therein concludes that the within appeal, which is based on the identical factual matrix and statutory provisions, must fail.

Decision

The complaint of the Appellant has not been made out and consequently fails.

The decision of the Adjudication Officer is affirmed.

The Court so decides

	Signed on behalf of the Labour Court
	Kevin Foley
OC	______________________
25 January 2023	Chairman