SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
- AND -
SEAMEN'S UNION OF IRELAND
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT2180/00/CW, WT2181/00/CW, WT2182/00/CW.
2. The issue in dispute is a claim by the Union on behalf of three individual employees who are employed as crew members on the Dublin Swift fast ferry, that they are not receiving their statutory annual leave entitlements, as provided for under the Organisation of Working Time Act, 1997, Part 3, Sections 19 to 23.
The claimants commenced employment with the Company in May, 1999, and two of them have since resigned. The claim was the subject of a Rights Commissioner's investigation on the 5th of October, 2000. The Rights Commissioner found in favour of the Company and issued his Decision on the 12th of October, 2000, as follows:
"I decide that the Company is not in breach of the Act".
The Union appealed the Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 (the Act). The Court received the appeal on the 13th of November, 2000, and investigated the issue on the 14th of August, 2001, the earliest date suitable to the parties.
3. 1. The claimants' working week commences on a Wednesday. They work 84 hours per week on, and are then rostered off for one week. They are paid per hour worked and receive no pay for their time off.
2. The Act specifies that employees must work at least 1365 hours per year to be entitled to 8% or four weeks of time worked off as leave, whichever is the greater. The claimants work 2016 hours per year, yet receive only two weeks paid holidays per year.
3. Crews on conventional ferries work one week on/one week off and are paid for their time off. They receive six weeks annual leave per year - three working weeks and three rest period weeks. The crew of a new ship, which does not have enough crew cabins on board, work the same hours as the crew of the Swift, yet still receive six weeks holidays per year.
4. The Company has consistently said that all employees on the Swift would receive the same annual leave, yet the officers of the Swift, after a number of weeks on strike, won the right to the same leave as other officers enjoy on conventional ferries.
4. 1. The Company believes that it conforms to the legislation and provides full entitlements to the claimants. The claimants are contracted to work 2016 hours per year and they receive 168 hours paid leave (14 days by 12 hours). This is equivalent to over 8.33% of the hours worked.
2. The claimants commence work on a Wednesday and work four 12 hour periods that week. The following week they work three 12 hour periods. Their paid leave entitlement is fourteen 12 hour periods, which equates to two weeks by 4 days and two weeks by 3 days, giving a total of four weeks entitlement.
3. The Rights Commissioner stated that "a working week" can only be construed as the average working days or hours over a period encompassing each work cycle. In this case the work cycle is two weeks. The average working week is, therefore, 42 hours (84 divided by 2). Each employee receives 168 paid hours holiday per year, which is equal to four by 42 hours or four working weeks.
The Seamen’s Union of Ireland (the Union), acting on behalf of three named members, made a complaint to a Rights Commissioner pursuant to Section 27 of the Organisation of Working Time Act, 1997. The substance of the complaint is that their employer, Irish Ferries, had contravened Section 19(1) of the Act by failing to provide the complainants with annual leave equal to 4 working weeks.
The hearing before the Rights Commissioner proceeded only in respect of two of the named complainants.
Having heard the parties the Rights Commissioner issued his decision on 12th October, 2000, in which he found that the complaints were not well founded. It is against that decision that the Union appealed to the Court.
The complainants are employed as members of the crew of one of the company’s ferries. They work under an annualised hours contract by which they are required to work 2016 hours per year. They are rostered for work over a continuous seven-day period starting on Wednesday in each week and ending on the Tuesday of the following week.
They are rostered off duty for the next following seven days. The annual leave entitlement under the contract is described as fourteen 12-hour roster periods. This equates to 168 hours per year.
Positions Taken by the Parties
The Union’s case is that the complainants only work every second week and are not paid for the week in which they do not work. They say that their working week consists of 84 hours over seven 12-hour days. On that basis the Union contends that the annual leave provided by the Company equates to only two working weeks per year.
The Company contends that the annual leave allowed represents in excess of 8% of the hours worked by the claimants in the leave year and thus complies with Section 19(1)(c) of the Act. In the alternative it contends that the work pattern involves the complainants working a four day, 12-hour week followed by a three day, 12 hour week. They submit that the claimants' allocation of paid leave equates to four working weeks, comprising two weeks of four working days and a further two weeks of three working days.
Decision of the Rights Commissioner
Having carefully considered the arguments put forward by each side the Rights Commissioner concluded that the expression “working week”, while not defined in the Act, can only be construed as referring to the number of days or hours encompassing each work cycle. In the present case he went on to hold that the complainants work a two-week cycle of 84 hours, or an average of 42 hours per week. On that basis the Rights Commissioner concluded that the annual leave provided to the complainants (168 hours per year) is equal to four working weeks and, accordingly, there was no infringement of the Act.
Determination of the Court
The Court concurs with the conclusions reached by the Rights Commissioner. An amount of annual leave equal to four working weeks, to which an employee is entitled under Section 19(1) of the Act, must correspond to the amount of time which the employee would normally be required to work over a four week period. In the instant case the complainants are required to work fourteen 12-hour days, or 168 hours, over each four week period.
Since this is the amount of annual leave which the complainants receive under their contract of employment, it follows that the complaints herein are not well founded.
Accordingly, the appeal is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
23rd August, 2001______________________
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.