SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
OCEAN MANPOWER LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MARINE, PORT AND GENERAL WORKERS' UNION
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Appeal Against Rights Commissioner Decision WT1/98
2. The appeal, on behalf of casual dockers in Dublin Port, is against WT1/98 which concerns a dispute in respect of two issues, payment for public holidays, and zero-hours working practice. Regarding public holiday pay, the Union sought that a worker be paid a full day's pay for a public holiday when he had qualified by working 40 hours in the previous 5 weeks, in line with the Company/Union "OML Agreement", and the Working Time Act coupled with Statutory Instrument No. 475(97), Regulation 7. The claim was rejected by the Company on the grounds that Regulation 5(2)(b) of S.I. 475(97) should be applied as the formula for the calculation of what amount of pay is due. On the issue of zero-hours contracts, the Union sought, on behalf of the worker concerned, entitlement to benefit from the zero-hour provision in Section 18 of the Act and, accordingly, that the worker be paid a minimum of 15 hours' pay for each week since the 30th of September, 1997. The Company rejected the claim on the grounds that the worker's casual status precluded any entitlement under the Act.
Both issues were the subject of investigation by a Rights Commissioner.
In relation to public holiday pay, the Rights Commissioner found the status of the OML Agreement not to be of concern in this referral under the Act and, accordingly, the Company's interpretation to be correct. The Rights Commissioner decided that the Union complaint was not well-founded.
In relation to zero-hours contracts, the Rights Commissioner decided that the worker is entitled to the benefit of Section 18(2) in the amount of a "floor" of 10 hours (or 9¾ as may be) and, accordingly, required that the Company should comply with the relevant provision, from the 30th of September, 1997.
The Union appealed against WT1/98 on the 6th of April, 1998, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 29th of June, 1998.
In this appeal the Union contends that the Rights Commissioner erred (a) in not taking into account the terms of the agreement between it and the Company when finding that the complaint concerning the calculation of pay for public holidays was not well founded, and (b) in awarding the complainant a floor payment of 10 hours (or 9¾ as the case may be) rather than 15 hours.
The Company contends that Section 18 of the Act is not applicable in the circumstances of this case and that no award should have been made by the Rights Commissioner under that Section.
Pay for public holidays
The only basis on which the Union seeks to impugn the Rights Commissioner's finding on this issue is that an agreement made between it and the Company, in 1992, effectively provides that pay for public holidays should be calculated in a manner more favourable to the complainant than that provided by the Act. For its part the Company emphatically denies that the agreement is capable of the meaning ascribed to it by the Union and points out that the relevant part of it provides
"Holiday pay and pay for bank holidays will be as per the Holiday Act."
For the reasons which follow, the Court is satisfied that the terms of the agreement are irrelevant to the issue before it and expresses no view as to how the clauses in question should be interpreted.
Section 21 of the Organisation of Working Time Act, 1997 (the Act) provides an entitlement, inter-alia, to a paid day off or an additional day's pay in respect of a public holiday. Section 22 makes supplemental provisions in relation to public holidays and provides that aday's payis to be calculated in accordance with Statutory Regulations made for that purpose. Such Regulations have now been made as S.I. 475 of 1997 entitledOrganisation of Working Time (Determination of Pay for Holidays) Regulations, 1997(the Regulations).
The combined effect of Sections 21 and 22 of the Act is that an employee is entitled to a day off with pay or an additional day's pay, in respect of a public holiday, at a rate calculated by reference to the Regulations.
Section 27 of the Act provides that an employee or any trade union of which the employee is a member may present a complaint to a Rights Commissioner that the Employer contravened a"relevant provision"of the Act. A "relevant provision" includes the provisions of Sections 21 and 22 and the Regulations. Having regard to the statutory provisions the only question to be determined by the Court is whether it would be in contravention of a relevant provision of the Act for the Company to calculate a day's pay in respect of a public holiday by reference to the Regulations only, rather than by reference to the collective agreement between the parties which, it is claimed, provides for more favourable terms.
The Union relies on Article 7 of the Regulations in claiming that the Rights Commissioner should have taken the terms of this agreement into account in reaching his decision. This Article provides as follows:-
"7. Nothing in these Regulations shall prevent an employer and
employee from entering into arrangements that are more
favourable to the employee with regard to the pay in respect of
a public holiday."
This Article merely re-states the established principle of employment law that where an entitlement is created by statute, it is to be regarded as a minimum entitlement which can be improved upon by agreement. This does not mean, however, that any enhanced terms so provided are recoverable by the enforcement procedures established by the Act. An agreement may provide a valid and subsisting entitlement, in industrial relations terms, over and above that created by the Act. But the Act does not allow the Rights Commissioner, or the Court on appeal, to substitute the terms of an agreement for those of the Regulations in deciding if a relevant provision of the Act has been contravened.
It is accepted that the Company has properly applied the Regulations in calculating pay due to the complainant in respect of public holidays. The Court, therefore, affirms the Rights Commissioner's decision that the complaint concerning pay for public holidays is not well-founded.
Zero-Hours Working Practice
The agreement between the Union and the Company clearly requires employees to remain available for work during defined periods. They are also required to report to the Company's premises at a specified time for the purpose of being allocated work. Furthermore, failure on an employee's part to report as required may be the subject of disciplinary proceedings under the agreement.
While these obligations may not be rigidly enforced by the Company, they remain part of the agreement and are a requirement in the employees' contracts of employment. In these circumstances the Court is satisfied that Section 18 of the Act applies.
The Union contends that the floor payment to which its members are entitled should be calculated by reference to the number of hours over which they are required to make themselves available to the employer. In that regard the Union says that the agreement requires employees to be available from 07.00 hours until 24.00 hours, Monday to Friday (a total of 85 hours). On that basis it claims that the floor payment should be set at 15 hours' pay, the maximum allowable under the Act.
The Court is satisfied that the Union's contention as to the manner in which Section 18 of the Act should be applied is misconceived. It seems clear to the Court that the floor payment provided for by Section 18(2) should be calculated by reference to the number of hours which the employee may be required to work in a week and not to the number of hours over which they are required to be available to undertake that work.
It is noted that the agreement provides that normal working hours are to be from 08.00 hours to 17.00 hours, for a five-day week. On this basis, the Rights Commissioner's calculation of a floor payment of 10 hours, or 9¾ hours in the case of a 39-hour week, is correct. The Rights Commissioner is also correct in stipulating that where an employee does not present him/herself for work on any day (or days) of the week, the entitlement should reduce by 20% (or multiples of 20% as the case maybe). Also, where an employee works on any day or days of the week, no entitlement arises once the basic entitlement has been exceeded.
It is the determination of the Court that the decision of the Rights Commissioner in the matters under appeal be affirmed and the appeal dismissed.
Signed on behalf of the Labour Court
11th August, 1998______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.