FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LEIBHERR CONTAINER CRANES LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioners Decision WT 6248/01/MR.
BACKGROUND:
2. The Company, in accordance with the terms of its company agreement decided to change the annual leave year from April to April and bring it in into line with the revised tax year 1st January - 31st December .
The issue in dispute centres upon entitlement to annual leave for the period from 1st April to 31st December 2001 , the union sought 4 weeks annual leave for this period.
The claim was referred to the a Rights Commission for investigation. His decision issued on the 11th April 2002 , as follows:-
Decision
" In accordance with Section 27(3) of the Act, I hereby declare that this complaint was not well founded"
The Union appealed the Rights Commissioner's decision to the Labour Court on the 8th of May, 2002. A Labour Court hearing took place on the 10th December 2002 in Co. Kerry.
UNION'S ARGUMENTS:
3. 1. The Act clearly sets out an entitlement to
"four working weeks a leave year in which he or she works at least 1,365 hours, (unless it is a leave year in which he or she changes employment).
One third of a working week for each month in the leave year in which he or she works at least 117 hours.
8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks.)"
2. The Act also states provided that if one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of these paragraphs is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. The Union are of the opinion that the Rights Commissioner has erred in not taking this fundamental part of the Act into account.
3. The Union is satisfied that their interpretation of the Act is the correct one and that any departure from this by the Court will have the gravest of consequences.
COMPANY'S ARGUMENTS:
4. 1. Article XV1 of the Memorandum of Agreement with both SIPTU and the TEEU expressly states that "the holiday year will be in line with the tax year. The Company is clearly entitled to change the holiday year and bring it into line with the tax year.
2. Part 111, Section 19(ii) states that "subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in the Act referred to "annual leave) equal to-
(a) 4 working weeks in a leave year in which he or she works at least 1365 hours (unless it is a leave year in which he or she changes employment).
3. There is no provision in the Organisation of Working Time Act which requires an employer to provide a full annual leave entitlement of 4 working weeks in respect of a shorter transitional leave period.
4. The outcome of this case will have major ramifications not just for the Company but all employers nation-wide who have changed their annual leave year to accord with the change in the tax year.
DETERMINATION:
The Court having considered the written and oral submissions, and after careful consideration of the Organisation of Working Time Act 1997, supports the findings of the Right Commissioner in this case.
The Court therefore, upholds the Rights Commissioners decision and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
07th January, 2003______________________
HMCD/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.