DWT2314

1.Appeal of Adjudication Officer Decision No(S) ADJ-00038218 CA-00049825-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 14 March 2023 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 13 June 2023. The following is the Determination of the Court:

DETERMINATION:

This is an appeal byDaniel Hayden of adecision of an Adjudication Officer (ADJ-00038218 dated 7 March 2023) made under the Organisation of Working Time Act 1997 (‘the Act’). The Court heard the appeal in Waterford on 13 June 2023.

The Claim

Mr Hayden (“the Complainant”) disputes the manner in which Bausch Health Ireland Limited t/a Bausch and Lomb (‘the Respondent’) has calculated his public holiday entitlement.

As the complaint was lodged to the Workplace Relations Commission on 12 April 2022, the relevant period covered by the complaint, having regard to section 41(6) of the Workplace Relations Act 2015, is the period from 13 October 2021 to 12 April 2022.

The alleged breaches during this period relate to the four public holidays that fell on 26 December 2021, 01 January 2022, 17 March 202,2 and 18 March 2022. The Complainant contends that the Respondent undercalculated his public holiday entitlement on these four occasions, in contravention of s.21 of the Act.

Background

The Complainant is employed on a rotating 4-shift cycle and works 12-hour shifts (7am to 7pm and 7pm to 7am). His average weekly working hours are 42 hours per week, which includes 2 hours paid at an overtime rate.

The parties confirmed to the Court (after some initial confusion) that the Complainant was rostered to work nights on the public holiday that fell on 01 January 2022. He worked from 7pm to 7am on the night of 31 December/01 January and 7pm to 7am on the night of 01 January/ 02 January.

The parties confirmed that the Complainant was rostered off duty and so did not physically work on the other three public holidays that are the subject of the within complaint - 26 December 2021, 17 March 2022 and 18 March 2023. On those three occasions he received an additional payment in respect of his public holiday entitlement.

The Complainant’s Submission

SIPTU submits that the Complainant’s normal “daily”hours (or shift) are 12 hours and that he should receive 12 hours payment for his public holiday entitlement in keeping with the principle that a person should neither gain nor lose when compensated for public holidays.

When the Complainant works on thenight shift on a day before a public holiday, he is paid 5 hours normal pay for the hours worked up to midnight and double time plus 7 hours (treble time) for hours worked between midnight and 7am. SIPTU asserts that the Complainant is entitled to be paid an extra 5 hours pay for that shift.

When the Complainant works on thenight shift that falls on a public holiday, he is paid 5 hours at double time plus 7 hours (treble time) for hours worked between 7pm and midnight and 7 hours normal pay for the hours worked from midnight to 7am. SIPTU asserts that the Complainant is entitled to be paid an extra 7 hours pay for that shift.

When the Complainantdoes not work on a public holidayhe is entitled to be paid his “normal pay”. In this regard,SIPTU referred the Court to s.5(1)(a) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 which 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 ofthe normal daily hours last worked by him or her before that public holiday" (emphasis added).

SIPTU submits that the Complainant is not paid his normal rate of pay when he is not rostered to work on a public holiday or when the plant is closed on days that he is rostered to work.

When the Complainant is rostered off on the day a public holiday falls, he receives an additional 8.4 hours pay (reflecting 1/5^thof his working week). This payment excludes his regular weekly overtime of two hours, which results in a weekly payment of 43.75 hours pay. SIPTU assert that the Respondent has incorrectly calculated the public holiday entitlement and that using the 1/5 of a working week calculation should lead to an 8.7-hour payment and not 8.4 hours.

SIPTU referred the Court to the case of CD/20/312 Henry Denny & Sons Ltd in support if its position where this Court recommended that crews scheduled to work a four-shift cycle receive 12 hours basic pay plus 12 hours public holiday and an additional 8 hours pay. In DWT993 Cadbury Ireland LTD v SIPTU the Labour Court held that the rate of pay that employees coming off night shift were entitled to receive was 10 hours pay and not 8 hours pay, as that was the amount received in respect of their normal daily hours worked on the last working day before the public holiday.

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).

For any hours worked within the 24 hours of a public holiday the Complainant is paid at treble time on the basic rate, including shift allowance, which is far exceeds his statutory entitlement.

When the Complainant works a 12-hour shift commencing at 7pm on a day preceding a Public Holiday, he is paid a basic rate from 7pm-12am (5 hours) and treble time of 7 hours from 12am-7am (equivalent of 21 hours). Consequently, he receives 26 hours pay for working this 12-hour shift. When the Complainant works a 7pm-7am shift commencing on a public holiday, he is paid 5 hours at treble time for the initial 5 hours of the shift. In total, he receives 22 hours pay for a 12-hour shift of this kind. The Complainant argues that he is entitled to an additional 7-hour premium pay at enhanced rates for a shift of this kind, which would bring his overall entitlement for the shift to 36 hours pay, a figure far in excess of the statutory entitlement. The Respondent asserts that the complaint before the Court is, in effect, an attempt to elongate a 24-hour public holiday to 36 hours.

Where the Complainant does not work on a public holiday overtime is not included in the calculation of public holiday entitlement. This is in line with the regulations set out in S.I. 475/1997 at Section 5(2) which states:

• “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— 8 (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”

The Respondent relies on Tesco Ireland and Mandate (AD0033) in which this Court stated that “the Organisation of Working Time Act, 1997 and in particular statutory instrument 475/97 for the first time clearly defines pay for the purpose of calculating holiday pay. This piece of legislation is unambiguous in excluding pay for any overtime”and that“it would be inappropriate for a standard to be imposed on the Company which was not agreed by a collective agreement and/or established in the appropriate statute”.

The Complainant is paid the appropriate public holiday pay as provided by S.I. 475/1997. The Respondent submits that no wrongful loss has occurred in respect of his entitlements under these regulations, either in the calculation of his public holiday entitlements or in the appropriate exclusion of overtime from the calculation of public holiday entitlements when he did not work on those days.

The Relevant Law

An entitlement in respect of public holidays is provided at s.21 of theOrganisation of Working Time Act Regulations 1997, as follows:

• (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:
  …
  (6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is

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).

Deliberation

The Court’s jurisdiction in the within complaint is confined solely to assessing contraventions of the Complainant’s statutory entitlements under 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). The regulations provide that the rate payable to an employee in respect of a public holiday depends on whether or not an employee works on a day which is a public holiday.

The first complaint for consideration by the Court relates to the New Year’s Day public holiday on 01 January 2022, when the Complainant was rostered to work and physically worked the two consecutive night shifts that straddled the public holiday (7pm to 7am).

Regulation 5(1) prescribes the formula for the calculation of the rate payable in respect of a public holiday in the case of an employee who is normally required to work during any part of the day which is a public holiday. It provides as follows: -

• (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”.

SIPTU asserts that the Complainant’s normal daily hours are 12 hours and that he is entitled to an additional payment in respect of all hours worked on those two consecutive shifts.

The Court cannot accept this assertion. Regulation 5(1) clearly prescribes the relevant rate payable when an employee is normally required to work during any part of the day which is a public holiday. It is clear that the Regulations apply to hours worked duringany part of a daywhich is a public holiday. The Regulations do not confer any entitlement to additional pay for hours worked outside of a public holiday. It is accepted that the Complainant is paid at the rate of treble time when he works during any part of the day that is a public holiday. That payment exceeded his statutory entitlement under the Regulations.

The Court finds that the complaint in relation to a contraventions of the Complainant’s statutory entitlements in relation to the public holidays that fell on 01 January 2022 is not well founded.

Three of the alleged contraventions of the Act that form the basis of this complaint relate to days when the Complainant was rostered off and did not physically work – i.e. 26 December 2021 and two public holidays that fell on 17 and 18 March 2022 in and around St Patrick’s Day. The Complainant was paid an additional 8.4 hours pay in respect of each of those three public holidays.

SIPTU asserts that the Complainant’s public holiday payment was incorrectly calculated on those three days as his weekly overtime earnings are excluded from the calculations. It submits thatusing the 1/5 of a working week calculationshould lead to a calculation of 8.7 hours (i.e. 1/5^thof 43.75 hours)and not 8.4 hours (i.e. 1/5^thof 42 hours).

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,”

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.”

For the reasons outlined above the Court finds that the complaints in relation to contraventions of the Complainant’s statutory entitlements in relation to the public holidays that fell on 26 December 2021, 01 January 2022, 17 March 2022, and 18 March 2022 are not well founded.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
3 July 2023	______________________
CO'R	Deputy Chairman