SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
CLARE COUNTY COUNCIL
(REPRESENTED BY LGMSB)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against Rights Commissioners Decision Wt34486/05/MR.
2. The Council has operated a swimming pool and, more recently, a leisure centre in Ennis for over 30 years. The centre employs approximately 25 people. Staff are contracted to work 39 hours per week over seven days. The centre operates from 7.00 a.m. to 10.00 p.m. Monday to Friday and shorter hours apply on Saturday and Sunday.
In 2005 the Union made a complaint that the Council was in breach of the provisions of Section 14 of the Organisation of Working Time Act, 1997, (the Act) by failing to compensate workers for working Sunday. The Council's case was that it had taken Sunday work into account when determining the employees' pay rates. However, the Council agreed to review the situation and on the 28th of June, 2005, it made an offer of additional payment for Sunday work (details supplied to the Court). The offer was rejected by the Union. Following a Rights Commissioner's hearing the Council made a second offer as follows:-
- €25 per full Sunday worked going forward
- €12.50 per half Sunday worked going forward
- a once off lump sum of €1,200 for those in employment since 1998
- pro rata for those in employment since 1998
The Union again rejected the offer and the case was heard by a Rights Commissioner on the 19th of December, 2005.
The Rights Commissioner's decision was as follows:-
" In accordance with Section 27(3) of the Act, I hereby declare that this complaint was well founded and I now require Clare County Council to comply with Section 14 of the Act by paying Elaine Ensko and her colleagues at the rate of double time for all hours worked on Sundays, this rate to be applied with effect from 1st January 2004".
The Council appealed the decision to the Labour Court on the 27th of February, 2006, in accordance with Section 28(1) of the Act. A Labour Court hearing took place on the 24th of November, 2006, in Limerick.
3. 1. The Council believes that it has fully complied with Section 14 of the Act. The Act requires employers to take into account Sunday working. Whatever method of recognition an employer adopts it must bereasonable having regard to all circumstances.The second offer to the Union was extremely reasonable. The offer is entirely within the provisions of Section 14 of the Act.
2.Section 14(5) of the Act relates to comparable employment in determining rates of pay. The Council believes that the Rights Commissioner erred in accepting the Union's contention that the hotel and retail sector represented comparable employees. The Council's offer was consistent with Sunday allowances paid to leisure centre employees in other Local Authorities (details supplied to the Court).
4. 1. Local arrangements in the form of allowances / overtime are applicable to analogous grades in Local Authorities in relation to Sunday working. However, no such arrangements have been put in place for employees in the Ennis Leisure Centre.
2. The worker concerned works a roster pattern of every second Sunday off. Yet she receives the same remuneration for a week inclusive of Sunday work as her week excluding Sunday work.
3. In making its two offers the Council has, in effect, accepted that it is in breach of the Act.
A complaint was presented to a Rights Commissioner by the Union on behalf of Ms. Ensko on 25th May 2005 pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). The Union complained that the respondent failed to pay Ms. Ensko a Sunday Premium for working every second Sunday and this was in contravention of Section 14 of the Act.
A Rights Commissioner hearing was held on 19th December 2005. The Rights Commissioner found that the complaint was well founded, required Clare County Council to pay Ms. Ensko a Sunday Premium at the rate of double time for all hours worked on Sundays and decided that this rate should be made retrospective to 1st January 2004.
It is against that decision that the respondent appealed to the Court stating that Ms. Ensko’s rate of pay took account of her requirement to work on Sundays every second week and was therefore in compliance with the provisions of the Act. However, in order to address the Union’s claim, on 29th November 2005 the County Council made an offer to pay an allowance of €25.00 per full Sunday worked.
Ms. Ensko is employed as a swimming instructor with the County Council and is paid €582.27 per week, which is equivalent to the maximum of the Water Sewerage Caretakers rate of pay.
Section 14(1) of the Organisation of Working Time Act, 1997, states that:
"An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken into account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely -
(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs".
The Court considered carefully the written submissions made by the parties. The County Council submitted to the Court that an allowance for working on Sundays has been factored into the worker's remuneration and that her rate of pay is pitched at a higher rate than the skills/duties would reflect, in order to take account of the liability to work on every alternate Sunday.
The Court has examined the evidence produced and is not satisfied thather rate of pay takes account of her requirement to work on Sundays, therefore the Court finds that the County Council are in breach of Section 14 of the Act.
The Council contends that the rate fixed by the Rights Commissioner is not appropriate and does not meet the criterion set down in the Section 14 (3) of the Act. In support of this contention they refer the Court to the industry norm for the leisure industry, both within the private sector and the local authority sector, which they contend is not double time but is closer to the Council’s offer of €25.00 per full Sunday worked. The Council quote Waterford Regional Sports Centre, which pays a premium for working on Sundays of €25.00 and Tralee Leisure Centre, which similarly pays a premium of €25.00. The Council informed the Court that other local authorities, e.g. Clonmel Swimming Pool and Athlone Regional Sports Centre, take into account the requirement to work on Sundays when determining the appropriate rate of pay. The Council also quote three hotels in the private sector, which do not pay a Sunday premium but set a rate to take account of the Sunday working requirement.
For its part the Union claims that the employer and the claimants are comparable to the Employment Regulation Order for the Hotels Industry, which contains a provision for premium pay of double time on for work performed on Sunday, which forms part of the 78 hour rostered fortnight. It has also submitted details of agreements with other employers engaged in the leisure industry, which provide for similar premium payments.
Conclusions of the Court
A comparable employee, for the purpose of the Act is one who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment in which the claimant is employed.
In this case the claimant is a swimming pool instructor whose general rate of pay is linked to the Local Authority grade of Water Sewerage Caretakers. The role and duties of a swimming pool instructor are manifestly different to Water Sewerage Caretakers and the Council in setting the complainant’s job on the general pay rate cannot have relied upon any possible rational level of comparability in terms of role or duties. They can only have come to their decision purely and simply on the basis that it was convenient to adopt such a rate and no evidence was advanced to suggest otherwise.
Equally, the Court is not satisfied that those covered by Employment Regulation Order for the Hotels Industry are comparable employees within the meaning of Section 14(5) of the Act. The Hotel Industry ERO contains four grades such as restaurant staff, room keeping staff and bar staff, and kitchen staff which are all defined and indigenous to the Hotel sector. The role and duties of a swimming instructor are not so defined and this role is not a necessary one for the purpose of operating in the Hotel sector.
In the circumstances, therefore, the Court is of the view that an appropriate premium in all the circumstances of this case would be time plus 50% for all hours working on Sundays.
Therefore, the Court amends the Rights Commissioner's Decision and decides that with retrospective effect from 1st January 2004, Ms. Ensko should have been paid at the rate of time plus 50% for all hours worked on Sundays.
The Court so determines.
Signed on behalf of the Labour Court
15th February, 2007______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.