SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
ATLAS ALUMINIUM LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr McGee
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioners Decision WT34660/05/MR.
2. The worker commenced employment with the Company in April, 1987, and is currently employed as a general operative. The worker receives 20 days' annual leave plus another 6 days' leave as a result of the introduction of the 39 hour week. The Union's case is that the Company imposed 2 separate days' leave without agreement and without the required consultation under Section 20(1)(b) of the Organisation of Working Time Act,1997 (the Act). The 2 days in question were Friday 29th of April, 2005, and Friday, 3rd of June, 2005. The worker referred his case to a Rights Commissioner on the 26th of May, 2005. The Company's case is that it imposed the 2 days' leave for trading and commercial reasons. A Rights Commissioner's hearing took place and part of his findings and his decision were as follows:
"On the other hand, I am not satisfied that the amount of discomfort experienced by Mr. Graham as a result of these contraventions of the Act was sufficient to justify my granting any concession to him now. Accordingly, it seems to me that a Decision to the effect that in future the Company should fully comply with the Act, both as regards the time periods involved and the need for genuine consultation, is an appropriate one in the circumstances".
" In accordance with Section 27(3) of the Act, I hereby declare that this complaint was well founded and I now require Atlas Aluminium Ltd to commit the company in writing to fully complying with Section 20(1)(b) of the Act in future, as above."
The Union appealed the decision to the Labour Court in accordance with Section 28(1) the Act, on the 11th of November, 2005. A Labour Court hearing took place on the 13th of September, 2006, in Limerick. The Union is seeking that the worker's annual leave entitlement be restored. It is not seeking to overturn the substantive issue in the Rights Commissioner's decision. The Company has accepted the decision.
3. 1. The Company infringed on the worker's statutory entitlements and it is only fair that his annual leave entitlements should be restored. The Rights Commissioner's decision should be varied accordingly. The Company has accepted the Rights Commissioner's decision thereby acknowledging that a breach of the Act occured.
4. 1. The Company operates within a very competitive market. It has had to impose a number of annual leave days arising out of production requirements for the 2 days in question. The Company invoked its rights under Part 3, Section 20 of the Act, following consultation with its customersand the Union. It is satisfied that it did not impinge upon the worker's rights.
The Court, noting that the Rights Commissioner's substantive decision is not at issue, is of the view that his decision on compensation is reasonable.
The Court so determines and dismisses the appeal.
Signed on behalf of the Labour Court
25th September, 2006______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.