SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
SECURICOR OMEGA EXPRESS
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(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 WT3376/01/MR
2. The worker works 60 hours per week based on 12 hours per day, Monday to Friday. Twenty of the worker's 60 hours are paid at a premium rate of time plus one half, giving him a total of 70 hours' pay per week. The Union's case is that when the worker is paid holiday pay he is paid a flat 40 hours per week, thereby losing 30 hours' pay per week. The Company argues that the worker is contracted to work 40 hours per week and is paid holiday pay on that basis. The dispute was referred to a Rights Commissioner for investigation and his decision is as follows:
"In accordancewithSection27(3) of the Act, I hereby declare that this claim was well foundedand I nowrequire Securicor Omega Express Ltd to comply with the provisions of the Act, in line with above findings."
The Company appealed the decision to the Labour Court on the 27th of August, 2001, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 5th of December, 2001, in Limerick.
3. 1. The worker was originally contracted to work 60 hours per week and the situation has not changed to date.
2. The worker is obliged under the Organisation of Working Time Act, 1997 (the Act) to take 4 weeks' leave but as a result he will lose 120 hours' pay.
3. The Rights Commissioner found that "the requirement to work 60 hours is a fundamental part of Mr. Collins' employment contract."
4. 1. The worker is contracted to work 40 hours per week and is paid on the basis of an hourly rate of pay. He is paid holiday pay in accordance with the Act in that it constitutes " a fixed rate on a rate that does not vary in relation to the work done by him." He is paid only the hours claimed by him on a time sheet on a weekly basis.
2. All hours over and above the 40 hours paid are paid at an overtime premium rate. Overtime is excluded from holiday pay under the terms of the Act.
The Court, having considered the written and oral submissions, and studying the Employment Contract of the claimant, is satisfied that the Company method of application of Holiday Pay is the correct method. (The Rights Commissioner did not have the benefit of the contract of Employment produced by the employer to the Court).
The Court, therefore, upholds the Company's appeal and rejects the Rights Commissioner's Decision.
Signed on behalf of the Labour Court
7th January, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.