SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
ARMEN MIKOIAN TRADING AS G& N CONSTRUCTION
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Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision R-045422-Wt-06/JT.
2. This case concerns an appeal by the employer of Rights Commissioners Decision R-045422-Wt-06/JT. The issue in dispute related to annual leave entitlements under Section 19(1) of the Act. The worker claims not to have been given her correct annual leave entitlements with regard to paid time off.
The Company position is that the worker was paid an allowance of 8% of her salary in relation to the annual leave entitlement and it, therefore did comply with the provisions of the Organisation of Working Time Act, 1997.
The dispute was referred to a Rights Commissioner for investigation. His recommendation was issued on 11th June 2007 and found in favour of the worker on the basis that an allowance of 8% of salary paid continuously throughout the year was not acceptable under the Act. The worker was awarded €1,221in respect of her unpaid holiday entitlement.
On the 15th June, 2007 the Employer appealed the Rights Commissioners Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 16th October, 2007.
3 1 The worker was not given the correct annual leave entitlements under the Organisation of Working Time Act, 1997. The employer breached Section 19 of the Act by applying an allowance of 8% of salary each week in lieu of annual leave entitlements.
4 1 The application of an 8% allowance is not in breach of the Act. The worker did receive holidays and was paid for these holidays by way of the allowance.
A complaint was presented to a Rights Commissioner by the claimant in pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). She complained that the respondent failed to grant an entitlement to annual leave to which she was entitled under Section 19(1) of the Act.
A Rights Commissioner hearing was held on 20th March 2007. The Rights Commissioner found that the complaint was well founded, he held that a payment of an allowance in lieu of statutory annual leave entitlements was not acceptable under the Act and awarded the claimant €1,221.00 compensation in respect of the breach of the Act. It is against that decision that the respondent appealed to the Court.
The respondent submitted that Ms. Motovilova had received an allowance of 8% in her total net pay throughout the year in lieu of her statutory holiday entitlements and that she had received approximately 12 weeks annual leave in the period from 27th August 2005 to 1st May 2006. The respondent informed that Court that these periods of leave were unpaid.
Having considered all matters arising in the appeal, the Court can see no basis upon which it could be contended that the Rights Commissioner erred in his decision.
The right to paid annual leave is provided for by Article 7 of Directive 93/104/EC “concerning certain aspects of the organisation of working time”. Section 19 of the Organisation of Working Time Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.
Article 7 of Directive 93/104/EC on the Organisation of Working Time (the Directive) provides that the prescribed minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. The Act was enacted to transpose that Directive and in accordance with settled law it must be interpreted and applied so as to achieve the result envisaged by the Directive (C – 14/83Von Colson and Kamann v Land Nordrhein-Westfalen ECR 1891). Article 7 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative. This was made clear by the ECJ in C – 173/99R v Secretary of State for Trade and Industry ex parte Broadcasting, Entertaining and Cinematography and Theatre Union IRLR 559. (See comments of Advocate General Tizzano which were quoted with approvalRoyal Liver Assurance Limited v Mackin & OthersHigh Court Unreported Lavin J, 15th November 2002).
In the Court’s view what is required by Article 7 of the Directive and by the Act, is not only that workers receive the requisite leave, but that they be unconditionally and automatically paid their normal weekly rate, specifically in respect of that leave.
Therefore, the Court cannot accept that the respondent’s position of paying an allowance of 8% in lieu of her statutory holiday entitlement and granting unpaid time off was in accordance with the Act.
Accordingly, the respondent’s appeal is disallowed and the decision of the Rights Commissioner, which awarded Ms. Motovilova the sum of €1,221.00, is upheld. The respondent is directed to pay the claimant compensation in that amount.
The Court so determines.
Signed on behalf of the Labour Court
23rd November, 2007______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.
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Appeal against Rights Commissioner's Decision R-045422-Wt-06/JT
An application has been made by the employee that Determination No. DWT0754 does not
correctly state the name of the employer, the correct name being Mold Nal LTD.
In exercise of its powers under Section 39(2) of the Organisation of Working Time Act, 1997,
the Court determines that the name of the employer in Determination No. DWT0754 shall be
changed from Armen Mikoian trading as G & N Construction to Mold Nal Ltd
Signed on behalf of the Labour Court
25th February 2008Kevin Duffy