SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
ZOE DEVELOPMENTS LIMITED
(REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION)
- AND -
MR. DAMIEN REVILLE
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU))
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal by the Company against Rights Commissioner's Decision WT21/99GF.
2. This is a complaint by SIPTU, made under Section 27 of the Organisation of Working Time Act, 1997 (the Act), that the Employer failed to pay the named employee holiday pay at his normal weekly rate, contrary to the provision of Section 20 (2)(b) of the Act. Specifically, it is the Union's case that travelling time, which is payable to employees in the construction industry, is a regular allowance which does not vary in relation to the work done and is part of their normal weekly rate of pay within the meaning of Article 3 (2) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (S.I. No. 475 of 1997) (the Regulations).
It is the Employer's case that the relevant payment is in respect of expenses incurred by employees in consequence of their employment and is not reckonable for holiday pay.
The complaint was investigated by a Rights Commissioner who concluded that the payment was an allowance and found that the Union's complaint was well-founded. It is against that decision that the employer appealed to the Court.
The Court was informed that, since the Rights Commissioner issued his decision, the National Joint Industrial Council for the Construction Industry has concluded an industrial relations agreement which provided for the inclusion of the disputed payment in holiday pay with effect from 1st September, 1999. In the present claim, the Union say that an entitlement to have this payment included in holiday pay is a legal right and, notwithstanding the agreement reached, should be back-dated to April, 1997, when the Act commenced.
At the commencement of the hearing both parties accepted that the issues before the Court would have to be determined by the application of the statutory provisions alone. In that regard it was also agreed that the case turns on whether travelling time payments are an allowance in the nature of pay or are paid in respect of expenses incurred by employees in consequence of their employment. This, therefore, is the net issue for determination by the Court.
CONCLUSIONS OF THE COURT
Travelling time is payable in the construction industry pursuant to a variation made to the Registered Agreement for the Industry, in 1979. In relevant part this Agreement provides as follows:
"Expenses Incurred Necessarily and Exclusively as a Result of Employment in the Construction Industry.
Expenses Incurred in travelling in the Performance of Duties.
It is agreed that in major urban areas, negotiations shall take place at local level for the improvement of existing arrangements or for the introduction of such arrangements where none presently exist. If agreement cannot be reached the matter will be referred to the N.J.I.C. In the case of the area covered by the Dublin Working Rule Agreement it is agreed that clause 13 of that Agreement be amended, with effect from 1st January, 1981 to provide for the following rates:-"
The Agreement then goes on to provide the rates payable.
It is noted that the effect of this agreement was to amend an earlier agreement, known as the Dublin Working Rule Agreement, which provided for travelling allowances.
That Agreement provided in relevant part as follows:
"The contract of employment of operatives employed under this Agreement shall relate in terms of location to the head office of the firm by which they are engaged. In the event that they are required to work on sites other than at head office, the following travel allowance to cover the cost of travel shall apply:"
The rates of travel allowances were then provided.
The Court notes that the extent of the amendment to the Dublin Working Rule Agreement effected by the 1979 Agreement was to substitute new rates of travelling time for travelling allowance. The basis for those payments was not altered.
It is abundantly clear from the wording of both the Registered Employment Agreement and the earlier Agreement which it amended, that the parties to those Agreements intended the payments concerned to be in respect of expenses incurred by employees by virtue of their employment on building sites. The fact that in some situations employees may receive more than the actual costs incurred by them in travelling and in other situations less, does not alter the essential character of those payments.
The Union has argued that the original terms of the Agreement do not reflect the reality and that travelling time is recognised as an allowance in the nature of pay. The Court cannot accept this submission.
Travelling time is payable pursuant to the Registered Employment Agreement, which clearly classifies it as an expense, wholly and necessarily incurred in the course of employment. It is settled law that in interpreting an agreement which is unambiguous the written terms are conclusive indications of the intention of the parties.
The Court has, therefore, reached the conclusion, as agreed between the parties to the REA, that travelling time in the construction industry is paid in respect of expenses incurred by employees and is not an allowance in the nature of pay.
The Court determines that the complaint herein is not well-founded. The Employer's appeal is allowed and the Decision of the Rights Commissioner is set aside.
The Court wished to point out that this Determination is not intended to affect the full implementation of the industrial relations agreement reached between the parties on this matter.
Signed on behalf of the Labour Court
20th October, 1999______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.