ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037752
Parties:
| Complainant | Respondent |
Parties | Shane Leahy | Kilkenny County Council |
Representatives | Ms Ger Malone of SIPTU and Ms Andrea Cleer also of SIPTU | Keith Irvine LGMA |
Complaints:
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-00049132-001 | 11/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049132-002 | 11/03/2022 |
Date of Adjudication Hearing: 10/01/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
No issue regarding confidentiality arose.
Background:
The issue concerns the correct calculation of Annual Leave pay and Public Holiday Pay by Kilkenny Co Council. The Complainant has historic and ongoing regular rostered overtime payments that he maintains should be reckoned for inclusion in his Holiday Pay.
The Employment began in November 1984 and continued at the date of the Hearing.
The rate of pay was stated by the Complainant to be €2,381 Gross per fortnight for an average 46-hour week. |
1: Summary of Complainant’s Case:
The Complainant gave a brief Oral testimony and was represented by SIPTU Officials (Ms Malone initially and latterly by Ms Cleer) supported by an extensive and detailed Written Submission. 1:1 There were two complaints – CA -00049132-001 (Basic Holiday) and CA -00049132-002 (Public Holiday Pay) – evidence for both was identical and will be treated jointly below. In setting out the basic facts the Complainant stated that his weekly wages were as follows
In relation to Holidays /Standard and Public he is paid on the basis of €690.14 per week or €141.57 per day resulting in an estimated loss of €70.83 per day. The Complainant’s Representatives Ms Malone and Ms Cleer cited very extensive European case law in support of their case and referenced recent Labour Court decisions on this area, specifically DWT2312 Ryan v Carlow Co Council and DWT 2328 McEneaney v Kilkenny Co. Council The case was now unanswerable by any Respondent arguments and the Rates for the Complainant had to be adjusted in his favour. SIPTU argued that full retrospection to date of first employment was the “Only fair and justifiable” approach and again cited extensive European case Law in their favour.
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2: Summary of Respondent’s Case:
The Respondent Council was most ably represented by Mr Irving of the LGMA and referred to S.I. No 475 /1997 -Organisation of Working Time (Determination of Pay for Holidays) Regulations ,1997 which determined that Overtime should not be included in Holiday Pay. Accordingly, the Respondent was acting in line with statutory regulations in both cases. The Respondent discussed at length the European case law advanced by the Complainant. The Respondent view was that the SIPTU interpretations being advanced were based on a misreading of the cited cases. In summary there was no proper legal basis for the case being put forward by the Complainant. |
3: Findings and Conclusions:
Introductory remarks CA -00049132-001 (Basic Holiday) and CA -00049132-002 (Public Holiday Pay) The issue of Overtime in the calculation of Annual leave and Public Holiday Pay for “Outdoor” staff in Local Authorities has been to the forefront for many years. It was noted in ADJ-00038192 that this was an issue of National Significance requiring urgent attention. Lately the Labour Court has made a significant ruling in DWT2312 Ryan v Carlow Co Council that regular rostered overtime can be included in the calculation of Holiday Pay. It has been noted by Commentators that the ECJ position has evolved and cases such as Hein (C-35/17) and Kock v Personaldienstleistungen (C-514/20) have significantly broadened the flexibility for the inclusion of Regular Rostered Overtime in Annual leave calculations. 3:1 Ordinary Holiday Pay Accordingly, the situation, following Labour Court DWT2312 referred to above, would now seem to be as follows for the Complainant. Ordinary Annual Leave
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3:2 Public Holidays
The Labour Court in DWT 243 Dowling v Carlow Co Council referenced DWT2329 McEneaney V Kilkenny Co Council and DWT0895 MCM Security v Tom Power to clarify that.
It is clear from the wording of Regulation 3(2) and Regulation 5 of SI 475 of 1997 that pay in respect of overtime is not reckonable in the calculation of pay for public holidays. The Regulation makes equally clear that allowances (but not expenses) are reckonable.
Accordingly, and following the Labour Court precedent set out Overtime cannot be reckonable in Public Holiday Pay, but allowances may be.
In this case the facts appear to indicate that the Eating on Site is an expense and as such is not reckonable.
There in no On Call Payment
The Truck Washing payment is a Historical payment and is effectively part of the weekly renumeration.
Accordingly, it qualifies for inclusion in a Public Holiday calculation.
3:3 Retrospection of Payments
The Labour Court has considered this issue carefully in a number of recent precedent cases.
In DWT 243 Dowling v Carlow Co Council (with reference to DWT2329 McEneaney V Kilkenny Co Council and DWT0895 MCM Security v Tom Power) the Labour Court stated
The Court is satisfied, having regard to section 41 of the Workplace Relations Act 2015 (and the fact that the matter of public holiday benefits is entirely a matter of domestic law), that the cognisable period for the within claim is 16th March 2021 to 15th September 2021.
Accordingly, and following, as required, the Labour Court precedent the Applicable Period for these Complaints is the six months (Ref Section 41 of Workplace Relations Act, 2015) prior to the lodging of the complaints i.e. from the 11th September 2021 to the 11th March 2022.
4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997 require that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
4:1 CA- 00049132-001 Ordinary Annual leave.
Under Section 27 of the Organisation of Working Time Act, 1997 the Complaint is Well Founded.
Bearing in mind the Reckonable period cited above at paragraph 3:3 the Reckonable Period is the six months prior to the lodging of the claim.
As set out above the proper additional elements to basic pay in calculating Holiday Pay are the Regular Overtime and the Machine-Washing payments.
The Parties to discuss and agree locally, having access to Payroll records, the correct retrospective adjustments necessary.
As regards the situation that a Breach of the Act took place a Compensation Sum of €500 is payable to the Complainant. This is Compensation for breach of a Statutory Right and is not Renumeration for Taxable Purposes.
4:2 CA- 00049132-002 Public Holiday Pay
Under Section 27 of the Organisation of Working Time Act, 1997 the Complaint is Well Founded.
Bearing in mind the Reckonable period cited above at paragraph 3:3 the Reckonable Period is the six months prior to the lodging of the claim.
As set out above at Paragraph 3:2 the additional allowance payment in respect of Public Holidays is the Machine-Washing payment – stated to be €96.93 per week.
The Parties to discuss and agree locally, having access to Payroll records, the correct retrospective adjustments necessary.
As regards the situation that a Breach of the Act took place a Compensation Sum of €500 is payable to the Complainant. This is Compensation for Beach of a Statutory Right and is not Renumeration for Taxable Purposes.
Dated: 23/04/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Regular Overtime, Ordinary Holiday Pay and Public Holiday pay. |