SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
SECURICOR OMEGA EXPRESS
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
KEN MC CARTHY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Decision WT3388/01/MR
2. The worker has been employed by the Company for over 8 years. His normal hours of work vary between 48 and 65 hours per week. A normal working week would consist of 40 hours worked on a 4 over 5 day roster, Monday to Friday, and 8 hours on Saturday worked at a premium rate of time plus one half. The dispute concerns how the worker is paid holiday pay. In March, 2001, the Union referred a case to a Rights Commissioner in accordance with the Organisation of Working Time Act, 1997, (the Act) claiming that the worker's holiday pay should be based on 48 hours per week. The Company believes that the correct hours are 40 per week. The Rights Commissioner's decision is as follows:
"In accordance with Section 27(3) of the Act, I hereby declare that this claim was not well founded."
The Union appealed the decision to the Labour Court on the 30th of July, 2001, in accordance with Section 28(1) of the Act. A Labour Court hearing took place on the 5th of December, 2001, in Limerick.
3. 1. Whilst the worker's original contract stated that his hours of work were 40 per week, the contract has been changed in the intervening period through collective bargaining. The worker's current minimum contract hours are 48 per week.
2. At present, the worker suffers a loss of 24 hours' pay when he has to take 2 weeks' holiday leave. The Union believes that this is in breach of the Act.
4. 1. The worker's contract of employment clearly states that he was contracted to work a basic 40 hour week. He may be required to work overtime, and all hours above 40 hours are paid at a premium rate. Overtime is not included as part of holiday pay, as per Section 3(2) of the Act.
2. Concession of the claim would have serious cost implications for the Company. This would lead to the Company becoming uncompetitive and would lead to job losses.
The Court, having considered the written and oral submissions made by the parties, concurs with the Rights Commissioner's findings.
The Court, therefore, upholds the Rights Commissioner's decision in this case.
The Court so determines.
Signed on behalf of the Labour Court
7th January, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.