SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
CADBURY IRELAND LIMITED
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Decision WT193/98.
2. The dispute concerns the method of payment for the August public holiday for night shift workers transferring to day shift. The issue was the subject of a conciliation conference under the auspices of the Labour Relations Commission on the 27th of January, 1998. A proposal issued by the Industrial Relations Officer was rejected by the employees.
The issue of the August, 1997, public holiday was the subject of a Rights Commissioner's investigation under the Industrial Relations Acts, 1969 and 1990. The Rights Commissioner recommended that the Unions accept the Company policy for calculation of the holiday pay.
The Rights Commissioner also investigated the issue under the Organisation of Working Time Act, 1997. His Decision issued on the 14th of September, 1998, as follows:-
"I decide that the Company interpretation is correct, and the
existing 'custom and practice' is in conformity with the Act and
The Unions appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 26th of November, 1998.
Both parties made written and oral submissions to the Court. The Company claims that the workers should receive 8 hours' pay for the August public holiday as is the custom and practice. Section 5(1)(a) of Statutory Instrument No. 475 refers to normal daily hours worked. All employees who work the shutdown period of two weeks commencing with the August public holiday sign a separate contract of employment for the two week period and work day shift only - 8 hours per day.
The Unions contend that workers coming off night shift should receive 10 hours' pay for the public holiday as Section 5(1)(a) of Statutory Instrument No. 475 states that the relevant rate of pay should be based on the normal daily hours last worked by an employee before that public holiday.
The Company states that the August public holiday cannot be dealt with in isolation and that the final agreement must apply to all public holidays, including situations where employees transfer from day shift to night shift following public holidays.
The relevant rules relating to this case are contained in article 5(1) and 5(2) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, made under Section 22 of the Act.
Article 5(1) provides that where a public holiday falls on a day of the week on which the employee normally works, the amount payable in respect of that holiday is the amount payable in respect of the normal daily hours last worked prior to the holiday (excluding pay for overtime).
Article 5(2) provides that if the holiday falls on a day on which the employee does not normally work the appropriate rate is one-fifth of a week's pay.
Applying these rules to this case, if the employees normally work on a Monday the amount to which they are entitled in respect of the public holiday in question is the amount received in respect of the normal daily hours worked by them on the last working day of the previous week. This the Court understands to be ten hours' pay.
If they do not normally work on Monday, the amount would be one-fifth of a week's pay, which is eight hours.
Accordingly, the Court upholds the appeal and sets aside the Right Commissioner's Decision.
The Court so determines.
Signed on behalf of the Labour Court
15th February, 1999______________________
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.