SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
JOHN PATRICK MALONE, SEAMUS MARTIN MALONE, PAUL JAMES MALONE T/A PROKOTE PAINTING
(REPRESENTED BY THOMAS J. WALSH SOLICITOR)
- AND -
(REPRESENTED BY POLISH CONSULTANCY ENTERPRISE)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal of a Rights Commissioner's Decision R-079411-Wt-09/JOC
2. The Employee and the Employer both appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 in December 2009. The Court heard the appeal on the 15th July 2010, the earliest date suitable to the parties. The following is the Determination of the Court:
The appeal before the Court is on behalf of both the Employer (“The Respondent”) and the Worker (“The Complainant”) against a Decision of a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 ("the Act"). The Rights Commissioner found in favour of the Complainant’s claim and awarded him the sum of €1,020.40. The Complainant appealed the quantum of the award and the Respondent appealed on the basis that the Rights Commissioner lacked the jurisdiction to hear the complaint.
Mr. Richard Grogan, Solicitor, on behalf of the Complainant, alleged that the Respondent was in breach of the Act, as he was not paid the correct rate of pay for annual leave and public holidays, provided by Section 20 and 21 of the Act. He accepts that the Respondent paid the Complainant and granted him time off for annual leave and public holidays in accordance with the provisions of Sections 19 and 21 of the Act.
The Complainant was employed from 17th June 2006 until 27th February 2009. He was paid a rate of €11.33 per hour. Mr. Grogan submitted that he was entitled under the Construction Industry Registered Employment Agreement to €16.37 per hour, and consequently his pay for the purposes of calculating annual leave and public holiday pay was incorrect.
The calculation of pay for annual leave and public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 3(2) prescribes the formula for the calculation of the rate payable in respect of annual leave in the case of an employee whose pay is calculated by reference to a fixed hourly rate.
Section 27 of the Act provides that an employee or any trade union of which the employee is a member may present a complaint to a Rights Commissioner that the Employer contravened a"relevant provision"of the Act. A "relevant provision" includes the provisions of Sections 21 and 22 and the Regulations. Having regard to the statutory provisions the only question to be determined by the Court is whether or not it would be in contravention of a relevant provision of the Act for the Company to calculate pay in respect of annual leave and public holidays by reference to the Regulations only, rather than by reference to the Construction Industry Registered Employment Agreement Employment Regulation Order (ERO) which, it is claimed, provides for more favourable terms.
However, the case is before the Court pursuant to the Act of 1997 and must be decided by applying the provisions of that Act. The Court can only determine the case referred under the appropriate statutory provision. The Organisation of Working Time Act 1997 is not the appropriate statutory provision for the interpretation or enforcement of an ERO.
For the reasons referred to above the Court is satisfied that the Respondent did not contravene the Organisation of Working Time Act 1997 in relation to the Complainant. The decision of the Rights Commissioner is set aside and substituted with this Determination.
Signed on behalf of the Labour Court
August 9th 2010______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.