Complainant

Respondent

Parties

Daniel  Hayden

Bausch Health Ireland Limited t/a Bausch and Lomb

Representatives

Anne Flynn SIPTU

Robin McKenna Ibec

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-00049825-001

12/04/2022

The complaint is that the calculation for payment for Public Holidays under Section 21 of the Organisation of Working Time Act (Determination of Pay) Regulations 1997 S.I. 475/1997 is incorrect.

The Complainant commenced employment on 9th March 2015 since 11th January 2018, he has been working on the four shift cycle of 42 hours.  This means he works a 12 hour shift that starts with 2 day shifts (7am-7pm) followed by 2 night shifts (7pm – 7am) with a 24 hour gap between the day and night shift.   Due to the variations in the shift patterns issues regarding the payment for Public Holidays and use of Annual Leave when Public Holidays occur have arisen.   Illustrative examples of the issue are:

A last night of a night shift falls on a day before the public holiday starts with 5 hours (7pm-12am) being worked on the day before the holiday but 7 hours (12am-7am) falling inside the public holiday.   He is currently paid 5 hours normal pay, 7 hours double time plus 7 hours public holiday pay. This amounts to 19 hours.  The Complainant seeks 5 hours extra pay as per the legislation. 

A first night of a shift started where the first 5 hours (7pm-12am) of the shift fall inside the public holiday and the last 7 hours (12am-7am) of the shift falling in the day after the public holiday.  He is currently paid 5 hours basic pay plus 5 at double time.  This amounts to 15 hours.  The Complainant seeks 7 additional hours pay.

On a day a public holiday falls when he is not rostered to work, he receives 8.4 hours as 1/5th of his working week which does not include his regular weekly overtime of 2 hours paid at a rate of 1 hour + 1 and the other hour paid at ¾ = 43.75 hours.  This should lead to a calculation of 8.7 hours and not 8.4 hours using 1/5th of the week for calculation.  The Labour Court awarded the payment in recognition of the fact that the shift works a 42 hour week with two hours of it attracting overtime.    However as the normal daily hours of work are 12 and in keeping with the principle that a person neither gains or loses when being compensated for holidays or public holidays it is contended that he should be paid 12 hours. 

The Statutory Instrument  S.I 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 sets out the following:

“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 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”

(b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average daily rate (excluding any pay for overtime) of the employees calculated over –

(i) the period of 13 weeks ending immediately before that public holiday.

It is contended that the respondent is not paying the complainant his normal rate of pay when he is not rostered to work on a public holiday or when the plant is closed on days he is rostered to work.

It is also contended that there is a shortfall in the payment entitlement when rostered to work when a part of the public holiday falls in the rostered hours and the remainder fall on the day before or after the public holiday.

Examples of other companies working four shift cycles and Labour Court awards were given. Henry Denny CD/20/312 and Signode were cited as examples where employees are paid 12 hours when not rostered to work on a public holiday.

It is submitted that it is indisputable that the complainant does not receive normal pay for the public holidays he is not rostered to work.  He is entitled to have the public holidays calculated and paid at normal pay.  

The Complainant is disputing the calculation of his public holiday pay, which the company strongly disputes. The Complainant is employed on a 4-shift cycle in one of the Major Production Areas on site (Area 8) on the “K” Shift.

An issue was originally raised by SIPTU in 2019 regarding the payment of public holidays to those working on 4-cycle shifts in 3 Major Production Areas on the Waterford site.

The issue was subsequently referred for conciliation under the auspices of the Workplace Relations Commission. An initial meeting was held on 9 June 2021 where Connect Trade Union requested to join SIPTU in making representations on the issue. This was agreed but disagreements between the two unions resulted 2 in an adjournment of the conference. It was subsequently reconvened on 11 August 2021, where SIPTU and Connect alleged non-compliance with S.I.475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, however such allegations could not be substantiated. After a second adjournment, a third meeting took place on 7 October 2021 at which similar allegations were made, however this meeting was quickly adjourned.

The current claim concerns the calculation of public holiday entitlements for staff whose shift commences the day preceding a public holiday and ends on the public holiday itself, and vice versa. Additionally, The Complainant is disputing the exclusion of overtime from the calculation of public holiday entitlements when he does not work on a public holiday.

In line with S.I. 475/1997, the current methodology for calculating public holidays for employees who commence a shift on a day preceding a public holiday with the shift ending on the public holiday itself (and vice versa) is as follows:

▪ Employees receive basic pay for any hours worked outside of the public holiday.

▪ For hours worked within the public holiday, employees are paid double time plus the additional payment for those hours worked on the basic rate.

The Company does not include overtime in the calculation of public holiday entitlements for employees who do not work on the public holiday. This is in line with S.I.475/1997 which explicitly excludes overtime from the calculation of such entitlements.

The company would argue that it is in full compliance with S.I 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 in its calculation of public holiday entitlements for The Complainant. Section 5(1)(a) of said Regulations state that:

“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 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”

At times when The Complainant works a 12 -hour shift commencing at 7pm on a Sunday preceding a Bank Holiday Monday, he is paid a basic rate from 7pm-12am (5 hours) and double time plus a public holiday entitlement of 7 hours from 12am-7am (21 hours). Consequently, The Complainant receives 26 hours pay for said shift for working 12 hours. This is comparatively greater than what would be paid under the statutory entitlement, i.e. pay for 12 hours work plus an additional day’s pay (20.4 hours).

Similarly, where The Complainant begins a 7pm-7am shift on a public holiday, he is paid 5 hours at double time plus an additional 5 hours of public holiday entitlement for the initial 5 hours of the shift. In total, The Complainant receives 22 hours pay for a 12-hour shift of this kind. The Company regards this as being in line with the regulations set out in S.I. 475/1997. The Complainant argues that he is entitled to an additional 7 hours 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. Additionally, if The Complainant works the aforementioned two shifts in succession (i.e. a 7pm-7am shift commencing on the night prior to the public holiday, followed by a 7pm-7am shift commencing on said public holiday) he currently receives a total of 48 hours pay for 24 hours of work.

The company would also point to the fact that when The Complainant works a 12-hour shift which is fully encompassed within a public holiday (i.e. 7am-7pm on a public holiday), he receives 12 hours of double time in addition to a 12-hour public holiday payment, thereby receiving 36 hours pay for a 12-hour shift. Once again, this is far in excess of the statutory entitlement.

In 2022, The Complainant worked a 12-hour shift fully within a public holiday on one occasion and worked a shift commencing on a public holiday and ending on the subsequent day on two occasions. Additionally, he worked one shift commencing prior to the public holiday and ending on the public holiday.   He also worked consecutive 12-hour shifts (a 7pm-7am shift with another shift commencing at 7pm on the same public holiday) on one occasion.

The Company would argue that, given the amount of public holiday pay received by The Complainant exceeds the statutory entitlement, the requirement under SI.475/1997 for the relevant rate of public holiday entitlement to be ‘equal to the sum…paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday’ is met, regardless of the manner in which that amount is constructed.

The Company would point to the Labour Court decision in HSE Mid-West Area and Gerard Byrnes (DWT068). In finding that Dr. Byrnes was not entitled to an additional day’s pay as under S.I.475/1997 for working for five minutes as an on-call physician on a public holiday, the Court pointed to the fact that Dr. Byrnes was in receipt of a flat rate annual payment of €3,651 for his liability to remain on call and that this “cannot be completely disregarded in considering the compensation paid in attending at work during the period to which that payment relates”. In the present case, in acknowledging that the methodology of calculating the public holiday payments of The Complainant diverges somewhat from that which is specified under SI.475/1997, the fact that this methodology results in a higher payment than the statutory entitlement cannot be disregarded. The Company regards this as a fair payment and one which is compliant with the spirit of the Act.

The Company would also point to the recent Labour Court decision in Henry Denny & Sons Ltd and 100 General Operatives Kerry Foods (LCR22361) In this case, SIPTU similarly argued for an additional 8 hours public holiday entitlement to be given to employees on a 4-shift cycle who were already being paid the statutory entitlement of 12 hours basic pay plus an additional 12 hours public holiday pay. In finding in favour of SIPTU, the Court outlined that its reason for doing so was the existence of a restructuring agreement which had provided for a review of public holiday payments in the future:

“The Court notes that that the terms agreed as part of the restructuring agreement in April 2017 were agreed in the context of a critical need to ensure the continuance of the Company in Charleville at that time and that agreement included the introduction of a 4-shift system, with the prospect of the issue of how public holidays for those workers would be addressed in the future. Having considered the submissions of both sides the Court is of the view that the payment of public holidays for those two crews rostered to work on a public holiday should be amended to include an additional 8 hours pay, as claimed by the Union and the Court recommends accordingly.”

The Company would submit that no such extenuating circumstances exist in this case, and that there should be no obligation on the Company to pay a public holiday entitlement even further beyond the statutory entitlement than it already does. The Company would also argue that this recommendation made under the auspices of the Industrial Relations Act. Given that this claim has been made under the Organisation of Working Time Act, it is the Company’s view that any determination must be made solely within the statutory obligations contained therein.

With regards to the inclusion of overtime payments in the calculation in the calculation of pay for those not rostered to work on a public holiday, the Company would point to Section 5 (2) of S.I.475/1997, 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— (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 Company views itself to be in full compliance with the plain language of the regulations, which explicitly state that any overtime payments are to be excluded from the calculation of payments for public holidays. The company would also point to the Labour Court decision in Tesco Ireland and Mandate (AD0033) in which the 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”.

Conclusion

Bausch and Lomb would respectfully argue that it has been fully compliant with the Organisation of Working Time Act 1997 in paying The Complainant the appropriate public holiday pay, namely the regulations set out in S.I. 475/1997. As has been outlined, no wrongful financial loss was incurred by The Complainant in respect of his entitlements under said 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.

(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: