DWT231

1.Appeal of Adjudication Officer Decision No(s) ADJ-00033598 CA-00044413-001.

BACKGROUND:

2.Both the Worker and the Employer appealed the recommendation of an Adjudication Officer to the Labour Court under the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 24 November 2022. The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is a double appeal by Waterford City Council and Mr Robert Bible from a decision of an Adjudication Officer (ADJ-00033598 dated 15 March 2022) under the Organisation of Working Time Act 1997 (‘the Act’). A Notice of Appeal was received by the Court from both parties on 11 April 2022. The Court heard the appeal on 24 November 2022.

The Claim

Mr Bible (“the Complainant”) asserts that Waterford City and County Council (‘the Respondent’) has undercalculated his public holiday payments for the duration of his employment with it in so far 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 Factual Matrix

The Complainant commenced employment as a full-time firefighter with the Respondent in March 2018. Heworks 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 40^thhour each week is paid at a higher rate of time x 1.25. The 41^stand 42^ndhour each week are paid at a higher rate of time x 1.5. He also receives additional payments for Saturday, Sunday, and night hours, as well as a night duty meal allowance. The Complainant is paid fortnightly.

The Complainant’s Submission

SIPTU, on behalf of the Complainant, submits that he is entitled to be paid his “normal weekly pay” as payment for public holidays when he is rostered off. Instead he is paid a “basic” rate only. He estimates that he was rostered off for 4.5 of the Public Holidays each year and as a result has suffered a shortfall in pay of €137.53 each time that he is off on a public holiday. This equates to €618.88 shortfall annually.

In support of its position SIPTU cites the case of DWT1550 First Glass Limited and Andrius Babianskas where the Labour 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”.

• 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".

When the Complainant works on a public holiday he is entitled to a payment that is equal to the sum including the premium paid for hours worked exceeding 39 hours, as well as a Sunday Allowance, Night Allowance, Saturday Allowance, and Meal Allowance, received in respect of the normal daily hours worked by him on the last working day of the previous week.

The Complainant’s rights have been breached 4.5 times every year for the past five years. The Act provides for compensation of up to two years remuneration for each breach.SIPTU requests that the Court determine that the complaints are well founded and make an award of appropriate compensation in addition to the losses incurred.

The Respondent’s Submission

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

The Complainant works 39 basic hours per week and is paid overtime for hours worked above this. The 4 shift system agreement states that 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”.

This matter has previously been considered in DWT0895 where the Labour Court advised:

• “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.”

Based on the statutory provisions the claim for the inclusion of overtime in public holiday pay is statute barred.

Saturday Allowance, Sunday premium, and night premium and Meal Allowance are not regular weekly allowances as they vary each week. Saturday allowance is only payable when worked. Sunday allowance is only payable when worked. Meal allowance is only payable when working nights. Night premium is only paid when actual nights are worked.

The Complainant does not work regularly work on Saturdays or Sundays. The Complainant can work either one or two nights each week with the allowance being based on actual nights 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 relies on DWT2232 Waterford City and County Council and Michael Malone  and DWT2229 Carlow County Council and Eamon Coughlanwhich it says are duplicate cases.

Statutory Time Limit

The Complainant referred his complaint under the Act to the Workplace Relations Commission on 31 May 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 1 December 2020 to 31 May 2021. Accordingly, the Court’s jurisdiction is confined to assessing breaches of the Act that occurred within the cognisable period for the complaint.

SIPTU confirmed that the alleged breach of the Act that forms the basis for the within complaint relates to the May Day public holiday on 2 May 2021 when the Complainant was rostered off. The Complainant contends that he was underpaid in respect of those public holidays in contravention of s.21 of the Act.

The calculation of pay for public holidays is governed by the Organisation 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,”

Overtime

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 this payment can be classed as “overtime”. For its part, the Respondent asserts thatthe 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 PowerDWT0895 where 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.”

Allowances

SIPTUasserts 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, asthe regulations do not specify that allowances must be paid weekly in order to be classified as a regular allowance.

The Council asserts that theallowances paid to the Complainant vary in relation to the work doneand 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 publicholiday.

The Courtwas 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 forSaturday allowance, Sunday allowance, Night Premium and Meal allowanceovertime to be included in the calculation of the Complainant’s public holiday pay for the purposes of the Act is not well founded.

For the reasons outlined above the Court finds that the complaint 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 decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
3 January 2023	Deputy Chairman