DWT2313

1. Appeal of Adjudication Officer Decision No(s) ADJ-00032300 CA-00042934-002.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 24 October 2022 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 12 April 2023. The following is the Determination of the Court:

DETERMINATION:

Background

This is an appeal by Mr Ryan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00032330) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer found that the complaint was not well founded. The Notices of Appeal were received by the Court on 24^th October 2022. The Court heard the appeal on 12th April 2023. At the end of the hearing the Court afforded both parties time to make written submissions on CJEU cases that the Court had brought to their attention.

The Complainant alleges that 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 include 5 hours per week of regular rostered overtime and an eating on site allowance which he receives five times a week. The Complainant is seeking retrospective payment of the shortfall back to when he commenced work in April 2012. The Complainant referred his complaint to the Workplace Relations Commission on 8 March 2021 and therefore the cognisable period as set out in the Act is 9^th September 2020 to 8^th March 2021.

Summary of Complainant’s Submission

The Complainant commenced employment as a general operative in 2001. His role includes driving a truck. Regular rostered overtime and payment of an eating on site allowance form part of his terms and conditions of employment.

The Complainant submits that his “normal weekly pay” for the purposes of calculating his pay for public holidays should be include his regular rostered overtime. His hourly rate of pay during the cognisable period was €16.76. He receives half an hour overtime every morning which is paid at double time calculated as €16.76 x 2 = €33.52(double time rate) x2.5 hours =€83.80 and half an hour very evening calculated at €16.76 x 1.5 = €25.15 (time plus one-half rate) x 2.5 = €62.87 giving a weekly total of €146.67 on top of his weekly basic rate of €653.64 (€16.76 x39). The Complainant also receives an eating on site allowance of €1.90 per day.

The Complainant currently only receives payment based on his basic salary when he does not work a bank holiday, leaving a shortfall of €31.23 per Public Holiday which he is seeking to have backdated to the date he commenced employment. The Union noted in their submission that Public Holiday entitlement is not guaranteed as a social right under the Working Time Directive or in the Charter of Fundamental Rights and accepted that means that the calculation of public holiday entitlements falls to be dealt with under National provisions.

The Union opened to the Court case DWT0516 Smart v Hidden Hearing Limited which they submitted support their contention that the legislator intended that pay for Public Holidays would be based on normal pay and not just basis pay.

The Union submitted that there was a conscious breach of the Complainant’s rights and that he is entitled to be compensated for the breach as well as being compensated for pecuniary losses. The Union submitted that the Complainant’s rights have been breached and that the Respondent has failed to fulfil their obligations. The Union is claiming the full losses back to the date he commenced work.

Summary of Respondent’s Submission

It is a matter of fact that no CJEU case law exists in the matter of Public Holidays nor has the CJEU considered Public Holidays to be part of the Working Time Directive. The Respondent having reviewed all payments made to the complainant are satisfied that all payments were made in accordance with the provision of 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. 485 of 1997).

The Labour Court has previously held in DWT0895 MCM Security Limited and Tom Power that it is clear from the wording of Regulation 3(2) and Regulation 5(1) that pay in respect of overtime is not reckonable in the calculation of pay for public holidays. This case has not been overturned and the Respondent and the Court are entitled to rely on same. The meal allowance is to compensate for an expense incurred and does not fall within the remit of the Act or the regulation.

Relevant Law

Calculation of Payment for Public Holidays

Section 21(1) of the Act provides as follows in relation to public holiday benefits:

• “(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:

  Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 SI No 475 of 1997 (‘the Regulations’) address these matters. Regulation 5(1)(a) expressly and unambiguously excludes overtime from the calculation of “an additional day’s pay”. It provides:

• “(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”.

Discussion

This Court has previously addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay having regard to Regulation 5 of SI 475 of 1997. See, for example, the Court’s Determination in MCM Security Limited v Tom Power DWT0895 where the Court 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 public holidays.”

The Court drew the party’s attention to some recent decisions of the CJEU which appeared to supported the existing case law of this Court on that issue. The parties were invited to make an additional submission in respect of Case C-588/18 CCOO v Grupo de Empresas DIA SA, and C 609/17 Terveys v Hyvinvointialan liitto ry,. The underlying principle arising from these cases is that article 5 and 7 of Directive 2003/88 applies to weekly rest periods and the right to paid annual leave. Any additional annual leave over the statutory 20 days and any other leave falls to be dealt with under the law of the national state. Therefore, the issue of whether overtime should be included in the calculation of pay for Public Holidays falls to be addresses under National Law.

The Complainant is also in receipt of an ‘eating on site allowance’ which the Union submits ought to be reckonable for the purposes of calculating payment for public holidays. The Revenue guidelines state that an “eating on site allowance may be paid tax free to site based employees” and sets out the conditions that must be met to be eligible for this tax-free allowance. It is clear to the Court that this is not an allowance in the nature of pay and therefore is not comprehended by Regulation 3(2) and does not fall to be considered in the calculation of pay for Public Holidays.

Conclusion

The Court having heard the submissions and reviewed the caselaw determined that there was no breach of the Act during the cognisable period.

The Respondent has properly calculated the Complainant’s pay in respect of the public holidays that fell during the cognisable period comprehended by the claim having done so in accordance with the National law , which is set out in SI 475 of 1997. The claim that the calculation of the Complainant’s public holiday pay for the purposes of the Act should include regular and rostered overtime and an amount in respect of the eating on site allowance he is in receipt of, has not been made out.

The decision of the Adjudication Office is upheld. The appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
29 June 2023	Deputy Chairman