Worker

Employer

Anonymised Parties

A farm worker

A research facility

Representatives

SIPTU

Internal HR

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002232

16/02/2024

This dispute involves a current Worker who did weekly overtime for many years – he has worked for the Employer for over forty years – and a portion of that overtime (Saturdays) ceased because the Employer realised that the system in force at the time with respect to overtime was not in compliance with the Organisation of Working Time Act (OWTA) 1997, and took steps to only offer overtime (including to the Worker) that fulfilled the requirements of the OWTA legislation.

The Worker is seeking compensation for the loss in earnings, which is in the region of approximately €2,000 per year.

The Employer submits that no compensation or recompense applies for loss of overtime earnings as a result of ensuring compliance with the applicable legislation.

The Worker was represented at the hearing by his union.

He also spoke on his own behalf, outlining that he was currently on a flat thirty-nine (39) hour week, that the Sunday overtime he does is seasonal in nature (and at the time of the hearing, that was out of season). He explained that both his Sunday overtime and his seasonal overtime occur only at certain times of the year, i.e. they were both seasonal due to the nature of the work, which includes things such as feeding animals when they are housed in Winter, spreading fertiliser etc.

He clarified in terms of the 2.5 hours overtime per week for which he is paid, that it in fact is not overtime but rather an allowance/’bonus.’ He said that it appears on his payslip as ‘overtime.’ However, it is not worked as overtime, but, rather, it relates to additional duties (mainly bookwork, but also things like oiling and greasing the machine (for fertiliser spreading) once a week etc.) which are carried out during his standard thirty-nine (39) hour week. He explained the genesis of that – there had previously been allowances (10%), which are now largely gone – any remaining are now ‘personal to holder’. This 2.5 hour ‘bonus’ came in, for the additional duties, instead of those allowances.

The Employer wished to emphasise, at the hearing, that the Worker is a very valued employee, that he is a long-standing employee – he is in his 41st year with the Employer – and he is doing very valuable work for the research team at [Name Redacted] facility. The Employer emphasised that this is a Health and Safety issue as well, that the Worker is working with machinery, that this change in the overtime rostering is one which had to happen in compliance with legislation, that the previous approach should not have gone on as long as it did, and that it was lucky for both sides that nothing happened to highlight that. The Employer emphasised its obligation to comply with the applicable employment law legislation, and it submitted that no compensation was indicated as a result.

The Worker’s union representative confirmed that the reference period for the claim is 2020/2021. He submitted that generally, a loss of rostered overtime would attract 1.5 times compensation. He submitted that that is not what is being sought here. He acknowledged the Organisation of Working Time Act (OWTA) 1997 and the legal requirement for rest breaks. However, he submitted that some sort of goodwill gesture – given the significant reduction in annual earnings (c. €2,000 gross per year), and that the Worker has been working for the Employer for more than forty (40) years - would be greatly appreciated, in the circumstances.

As per the Worker’s submissions:-

This case involves the Worker submitting a claim for loss of earnings as a consequence of the Employer making the decision to cease regular rostered overtime carried out, by the Worker. The claim is seeking financial compensation as set out in the Public Service Stability Agreement of 1.5 times the loss.

The Worker commenced employment in February 1984, as farm staff based in [Name of Facility redacted] in Co. Cork. It is submitted that over that time the Worker carried out his duties and responsibilities with diligence and professionalism.

The Worker contends that he has worked this overtime for a significant period up the March 2020. The overtime consisted of both a Saturday and Sunday working carrying out essential duties on the farm. He raised the issue locally but the matter could not be resolved.

In removing the overtime on the Saturday, the employer cited their obligations within the Organisation of Working Time Act, notably rest periods.

While the obligations as set out within the Organisation of Working Time Act 1997 are acknowledged, the Worker had been working these hours on a continuous basis until the middle of 2020.

The Worker was working both the Saturday and Sunday for the entire period. The earnings received by the Worker had become a regular part of his total earnings and, as such, his loss is in the region of €2,000 per year.

It is submitted that while the obligations identified within the Act are acknowledged, the removal of the overtime has caused unnecessary hardship to the Worker and his family. Taking cognisance that the Worker had been working these hours, it must be noted that in 2016 the Employer withdrew the Saturday work, citing budgetary constraints – there was no mention of the OWTA breaches at the time – and a short time later, the Worker was requested to work the additional hours again, and continued to do so until 2020. The Worker contends that some form of recompense should apply.

The Worker is seeking a finding in his favour, and a recommendation of appropriate recompense for the loss.

As per the Employer’s submissions:-

This case concerns a complaint on behalf of the Worker, under Section 13 of the Industrial Relations Act, 1969 with regard to complaint (CA-00061606) following a request by the Worker for loss of overtime earnings.

The Worker has been employed by the Respondent as a farm operative since 14th February 1984 and is based at our research centre in [Name Redacted] in Co. Cork.

It is submitted that the majority of the Worker’s work involves farm machinery operation and feeding of livestock. He is contracted to work 39 hours per week, on a five out of six-day schedule. The Worker’s work pattern is Monday to Friday, with Saturdays and Sundays off. The additional overtime hours worked by the Worker are predominantly for carrying out feeding of livestock, which mainly takes place between the months of September to March when animals are housed.

Additionally, the Worker works 2 ½ hours per week in overtime hours during the period of February to August each year, which is to carry out work relating to the spreading of fertiliser and associated record keeping.

Prior to 2020, the Worker was working additional overtime hours on both Saturdays and Sundays each week. This working pattern of additional hours on both Saturdays and Sundays meant that the Worker was not in receipt of adequate rest periods as required under the Organisation of Working Time Act 1997.

In 2020, to correct this and bring the Worker’s work pattern in line with the requirements of the legislation, his work pattern was amended and he no longer worked additional overtime hours on Saturdays. Since 2020, the Worker has continued to work additional hours on Sundays (September to March approx.) along with additional hours for work relating to fertiliser spreading (February to August approx.) and other hours as required on an ad hoc basis.

The Appendices submitted outline the following:-

§  Appendix 1 outlines the overtime hours worked and earnings for the Worker from 2017 to 20th June 2024.

§  Appendix 2 is the Employer’s Policy on Overtime and Time in Lieu. The rates of pay applicable to Farm Operative staff, including the Worker, are as follows:

-      Time and a half is paid for all weekday hours outside of normal working hours up until 12 midnight

-      Time and a half is also paid for the first four hours on Saturday

-      Double time is paid for any work between 12 midnight and 8am

-      Double time is paid for weekends and public holidays (excluding the first four hours on Saturday)

-      Double time is paid for any work on Good Friday

-      A minimum of two hours overtime paid at the relevant overtime rates applies to ‘Call Outs’.

The Employer has not been provided with the reference period for this claim for loss of overtime earnings.  However, it would appear from the figures in Appendix 1 (submitted by the Worker) that the claim is most likely to relate to the drop in overtime earnings between 2019 and 2020. As outlined above, this reduction in overtime hours due to a change in work pattern was to ensure the Employer’s compliance with the Organisation of Working Time Act 1997, in respect to rest periods for the Worker.

It is submitted that compensation does not apply for loss of overtime earnings as a result of ensuring compliance with this legislation.

The Employer’s position

The Worker continues to work additional hours and be paid overtime rates of pay for these overtime earnings. It is acknowledged that overtime hours worked did reduce in 2020, and it is submitted that this was to rectify the situation from previous years where the Worker was not in receipt of adequate rest periods as is required under the Organisation of Working Time Act 1997. As seen in Appendix 1, the Worker’s overtime earnings have been consistent since 2020.  

As the Worker’s work pattern was amended to ensure compliance with the Organisation of Working Time Act 1997, no compensation arises.

Conclusion

The Employer does not believe that a prima facie case has been made out by the Worker, for loss of earnings as a result of a reduction in overtime due to a change in work pattern. The reduction in overtime hours worked by the Worker in 2020 was to ensure compliance with the obligation for rest periods as set out in the Organisation of Working Time Act 1997, and therefore no compensation arises.  

The Employer respectfully requests that this claim be rejected.  

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I find that the change occurred so that the Employer is compliant with the legislative requirements, under the Organisation of Working Time Act (OWTA) 1997, placed on it with respect to the Worker.

I therefore conclude that no recompense or compensation is indicated.

I sympathise with the Worker’s experience of the loss of a long-standing overtime rostering arrangement and the consequent loss of earnings in the region of €2,000 per year, in circumstances where he would have been very happy to continue to do the overtime on Saturdays that he had previously been doing, for many years.

However, I am cognisant that as a matter of public policy, a situation cannot occur whereby an employer finds itself liable for compensation irrespective of what it does, i.e. that it would have a liability for breach of the Organisation of Working Time Act 1997 with respect to the failure to provide adequate rest breaks as required under the legislation; and, conversely that if the Employer remedied the situation, in compliance with its legislative obligations and duties to its employees, that it would also be liable for compensation for the consequent loss of overtime earnings occurring on foot of remedying an identified breach.

The change occurred so that the Employer could move its approach to overtime rostering to be in line with the requirements of its legislative obligations to the Worker. I also note the additional Health and Safety context highlighted by the Employer, in respect of the nature of the work conducted, although rest breaks are a health and safety measure for all employers.

I therefore find that, in the circumstances of this matter, no recompense or compensation is indicated, despite my sympathy for the Complainant’s experience of the situation.

I do not recommend for the Worker.

Reduction in overtime due to compliance with OWTA 1997 by Employer;