SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
(REPRESENTED BY SEAN BRENNAN ACCOUNTANTS)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr Nash
1. Appeal of Rights Commissioners Decision WT20871/04/TB.
2. The worker started working with the employer in June 2003 and in February 2004 he went toFÁSfor off the job training. He finished inFÁSin July 2004. Over his period of employment he received payment for 14 days holidays but was not credited with holidays for the period he was withFÁS.
The worker took his claim to the Rights Commissioners, and a hearing on the matter took place on the 31st January, 2005. The Rights Commissioner issued his Decision on the 18th March, 2005, as follows:
"As the claimant was in the employment of the respondent during his period withFÁShe is entitled to holiday pay for the period".
The employer appealed the Rights Commissioner's Decision on the 31st March, 2005 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 stating that he does not agree he should pay holiday pay to the worker while onFÁSleave, as he understands holidays are accrued on time worked. A Labour Court hearing took place on the 25th August, 2005. The following is the Court's Determination:
A complaint was presented to a Rights Commissioner by the worker in 2004 pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). He complained that the respondent failed to grant him the full amount of annual leave to which he was entitled under Section 19(1) of the Act. He claimed that the respondent failed to credit him with annual leave for the period he was undergoing training with FAS as part of his apprenticeship. The respondent held that he was only entitled to annual leave entitlement based on hours actually worked in his employment.
A Rights Commissioner hearing was held on 31st January 2005. The Rights Commissioner found that the claimant was in the employment of the respondent during his period with FAS and was entitled to holiday pay for that period. It is against that decision that the respondent appealed to the Court stating that the worker had received and was paid all his holiday entitlements in accordance with the provisions of the Act.
The complainant commenced employment with the respondent as an apprentice carpenter, under a statutory apprenticeship, in June 2003.
From February to July 2004, he attended FAS for off-the-job-training as part of his apprenticeship. He did not receive annual leave entitlements in respect of that period and now seeks six days holiday pay in lieu.
The complainant was engaged in a statutory apprenticeship under rules made by FAS pursuant to powers conferred on it by it by Section 27 (1) of the Industrial Training Act 1967 andSection 4(2) of theLabour Services Act 1987whichchanged the system from one based on time-served system to one based on standards achieved.
Section 2 of the Organisation of Working Time Act, 1997 distinguished between a “ contract of service” and a “contract of apprenticeship” both are deemed contracts of employment for the purposes of the Act: -
- “contract of employment” means –
(a) a contract of service or apprenticeship, …….
Section 2 also defines: -
- "working time" means any time that the employee is
(b) carrying on or performing the activities or duties of his or her work,
and "work" shall be construed accordingly.
The essential question the Court must decide is whether time spent on "off-the-job training" by apprentices is regarded as “working time” for the purposes of the Act.
The definition of "working time"
The issue of the definition of "working time" came before the European Court of Justice in Case C--303/98,Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana E.C.R. I-7963. The Court held that the doctors presence at the health centre was required and was therefore “working time”. The Court stated that "the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties on that instance".
The issue of what constitutes "working time" has been further considered by the European Court of Justice in Case C--151/02,Landeshauptstadt Kiel v Jaeger I.R.L.R. 804. The Court of Justice held that the decisive factor in considering that time spent "on call" by doctors in the hospital is "working time" is that they are required to be present at the place determined by the employer and to be available to the employer to provide their services immediately in case of need.
“Contracts of apprenticeship”
While both “contracts of service” and “contracts of apprenticeship” are deemed as “contracts of employment” for the purposes of the Act, they are different from one another. The former being a contract where it is an essential element that “the employee agrees to provide his own work and skill in performance of some service”, (seeReady Mixed Concrete v Minister of Pensions and national Insurance  2 QB 497)whereas the latter is one whereby the employerundertakes to train the apprentice in the skills, knowledge and techniques of his or her chosen trade.
The core contractual duty on the employer under the statutory apprenticeship rules is to provide the apprentice with training over the period specified or until the necessary qualification is attained. The rules provide that where off-the-job training courses are provided, the employer must permit the apprentice to attend without any deductions from wages, or any addition to hours lost, or reckoning such time as lost (except where the apprentice fails to attend all or part of the course for a reason other than sickness or other unavoidable cause). The rules do not permit the employer to allow the apprentice to carry out work while he is on off-the-job training.
The Court notes that employers are obliged as an essential part of a statutory apprenticeship to provide the apprentice with the training and skills necessary to qualify in a trade or profession and the apprentice is similarly obliged to undertake the training and remain with the employer over the period. Part of this commitment involves release to FAS for off-the-job training. Off-the-job training is an integral part of the statutory apprenticeship and must be completed by the apprentice. The Court is satisfied that an employer of an apprentice freely undertakes to allow their apprentices partake in the off-the-job training provided by FAS and are fully complicit in ensuring that the apprentice attends.
During this period the apprentice is at a place determined by the employer, carrying out the instructions of the employer and fulfilling the employer’s obligations under the rules of the scheme.
Consequently, time spent on off-the-job training can be deemed to be time spent at the disposal of the employer and carrying on or performing the activities or duties of his or her work.
Therefore, the Court is satisfied that time spent on off-the-job training provided by FAS is time “worked” for the purposes of the 1997 Act.
Finally, based on the Court’s findings as outlined above, it concludes that the Appellant in this case has not received his full annual leave entitlement under the terms of Section 19 of the Organisation of Working Time Act, 1997.
Having regard to all the circumstances of this case, the Court hereby determines that the said employer pay to the said apprentice €450.00 in respect of the failure to provide him with his entitlement to annual leave for the period he was attending the off-the-job FAS training and as compensation for the inconvenience and expense incurred in attending before the Court and in preparing for the appeal.
The decision of the Rights Commissioner is amended accordingly.The respondent’s appeal is disallowed.
The Court so determines.
Signed on behalf of the Labour Court
28th October, 2005______________________
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.