INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
THERMO AIR- CARLOW
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
AMALGAMATED ENGINEERING AND ELECTRICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. Appeal of Rights Commissioner's Recommendation IR391/99GF.
2. The Company is engaged in the production of HVAC equipment at its plant in Carlow. It currently employs approximately 60 employees. The working week is a 40 hour week for which employees are paid 39 hours with the unpaid hour accruing to afford employees an extra six days leave. The normal working hours are 8 AM to 5 PM Monday to Thursday with a half-hour lunch break, and 8 AM to 2 PM on Friday.
The dispute concerns the Union's claim in relation to the method of payment when a public holiday falls on a Friday. In 1998, Christmas day fell on a Friday and New Years Day fell on the following Friday for which the workers received 6 hours pay.
The Union argues that, in a similar claim, the Labour Court in Determination DWT993 found in favour of the Union. The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and Recommendation are as follows:-
I have considered the submissions very carefully and I have consulted the Labour Court Recommendation, and I have decided to find in favour of the Union on both issues. I recommend that this should take effect from October 1999.
The Rights Commissioner's Recommendation was appealed by the Company to the Labour Court on the 5th of November, 1999 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Wexford on the 5th of December, 2000.
3. 1. The Rights Commissioner having considered DWT993 found in the Union's favour. His recommendation would result in the workers receiving 8.5 hours pay for each of the two bank holidays in question.
2. Under the Organisation of Working Time Act, the workers are entitled to 8.5 hours pay for each of the two bank holidays and should have been paid at least a minimum of 1/5 of their basic rate.
4. 1. If Section 5(1) of Statutory Instrument No. 475 is strictly applied, employees at Thermo Air would suffer a net loss of pay, for all Public Holidays which fall on any day other than Friday. The Company is satisfied that the employees would resist such a move.
2. The custom and practice of paying for a 39 hour week, regardless of when the bank holiday falls, has been accepted by employees for over 10 years.
3. The practice of working a short working day on a Friday is common in industry. Any recommendation which the Court makes is likely to have knock on effects throughout industry generally.
4. While the legislation is clear in relation to this issue, it was never designed to increase an employees earnings In the circumstances the Court is requested to uphold the Company's position.
This dispute was referred to a Rights Commissioner under the Industrial Relations Act, 1946-1990. The appeal to the Court can, therefore, only be determined pursuant to Section 13(9) of the Industrial Relations Act, 1969 and cannot be treated as if it were an appeal under the Organisation of Working Time Act, 1997. It is noted that the case was referred to the Court for the purpose of determining how situations similar to that giving rise to the dispute should be dealt with in the future.
The Court believes that the parties should agree that employees receive a normal weeks pay in respect of any week in which a Public Holiday falls, regardless of the day (Monday to Friday) on which the Holiday occurs. Where, in the future, a Public Holiday occurs on a Friday which is a short working day, the parties should agree that the short day be taken instead on the last working day of that week.
This arrangement should be agreed between the parties in respect of future Public Holidays occurring on a Friday. Since the employees concerned suffered no loss of pay in the pay weeks in which Christmas and New Years day fell in 1998/1999, the Court does not accept that any individual payments should be made in respect of those Public Holidays.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
19th January, 2001______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.