SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
TYTEX IRELAND LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT4032/01/MR.
2. The dispute concerns 28 workers employed on a 4-shift 12-hour rota. The Union's case is that the workers are only being paid for 4 out of 9 Public Holidays in the year. Prior to 1997, the Union claims that employees on a four shift rota were paid for holidays as follows;
August 1 working week plus 2 weeks' holidays plus 8 hours' public holiday
October 1 working week plus 1 week's holidays plus 8 hours' public holiday
December 1 working week plus 1 week's holidays plus 24 hours' public holiday
The Union claims that since 1997, the Public Holidays - which total 5 days - are no longer being paid for. The Company disputes this, claiming that the workers are receiving their entitlements under Section 21(1) of the Organisation of Working Time Act, 1997 (The Act).
The dispute was the subject of 2 Rights Commissioner hearings. In the second hearing, the Rights Commissioner concluded"I am therefore satisfied that, taken over a full year, all the employees receive their full entitlements under the Act". His decision was as follows:
"In accordance with Section 27(3) of the Act, I hereby declare that this complaint was not well founded".
The Union appealed the decision to the Labour Court on the 15th of May, 2002, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 2nd of October, 2002, in Cork, the earliest date suitable to the parties.
3. 1. The Union believes that the workers are not paid for 5 Public Holidays - one in August, one in October and 3 at Christmas/New Year.
2. A normal pay slip for a worker shows 41 hours paid. There are 9 Public Holidays in a year. Only 4 Public Holidays - St. Patrick's Day, Easter Monday, May and June - show payslips exceeding 41 hours' pay. The only other exceptions are in overtime situations.
4. 1. The Company is satisfied that the workers are receiving their entitlements under Section 21(1) of the Act, and the Rights Commissioner has agreed with this having examined pay slips over the 3 year period 1998-2000.
2. One of the complexities involved is that for 3 periods during the year the 4-shift rota is "frozen". In the Summer shutdown, the 4-shift cycle is frozen for 15 days. This is made up of 14 days' annual leave and the 15th day is in lieu of the Public Holiday which falls during the 14 day annual leave period. Upon returning to work, the employee receives his full week's pay.
This is an appeal of Rights Commissioner's Decision WT 4032/01/MR in which the Union claims that the employer breached the Organisation of Working Time Act, 1997, by not making additional payments in respect of Public Holidays which fell when employees were on annual leave. The Rights Commissioner found that "having considered all the evidence before me, I am satisfied that the rota being used by the Company is fully in compliance with the Act".
There are twenty eight claimants involved in this case who work on
a twelve-hour four-shift rota system. The rota operates on the basis of working four days on and four off. They work an average of 42 hours per week and are paid for 39 hours at basic pay, 2 hours at overtime and one hour off in lieu of working 40 hours.
The annual leave entitlement is 4 weeks plus 48 hours off in lieu of a 40 hour week. The 4 weeks' annual leave are taken during shut down periods when the shift roster is frozen and pay is maintained. The 48 hours are taken as rostered shifts off. The employer maintains that five public holidays are granted on the basis of "paid day off on the day" in accordance with Section 21 (1) (a) of the Organisation of Working Time Act, 1997. The remaining four Public Holidays are granted on the basis of payment of an extra 8 hours' pay for those not rostered to work and double time for those rostered to work and work performed on the day.
There are 365 days in the year i.e. 52 weeks and one day ; out of which 4 weeks are taken as annual leave and 5 days are taken for Public Holidays (the first Monday in August, the last Monday in October, Christmas Day, St. Stephen’s Day and New Year’s Day). The remaining period in the year is time when the shift worker is rostered on or off.
As an example of the claimant’s working pattern, the Court examined Shift A’s roster for 1999 as provided by the Union. The Court found that when the frozen shifts are eliminated there were 47 weeks and three days in the remainder of the year out of which 164 days were rostered to be worked, equalling 1968 hours and out of which 48 hours were rostered off in lieu of 40 hour working.
During the frozen shift periods, 4 weeks (160 hours) are taken as annual leave and 5 days (40 hours) as Public Holidays. It is accepted that the four other Public Holidays (St. Patrick’s Day, Easter Monday, first Monday in May, first Monday in June) are granted on the basis of payment of an extra 8 hours' pay for those not rostered to work and double time for those rostered to work.
Court Findings and Determination
Having examined the evidence, the Court is satisfied that the employer complies with the provisions of Section 21 (1) of the Organisation of Working Time Act, 1997, as the employee is granted an entitlement to one of the following in respect of each public holiday :-
•"a paid day off on that day" in respect of Public Holidays which occur during period when the roster is frozen i.e. the first Monday in August, the last Monday in October, Christmas Day, St. Stephen’s Day and New Year’s Day
•"an extra days pay" in respect of Public Holidays which occur when the roster is not frozen i.e. St. Patrick’s Day, Easter Monday, first Monday in May, first Monday in June. During such public holidays the shift worker is paid either an extra 8 hours' pay for those not rostered to work or double time for those rostered to work.
Accordingly, the Court upholds the Rights Commissioner’s decision and rejects the appeal.
Signed on behalf of the Labour Court
29th October, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.