SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
FLEXSOURCE SOLUTIONS LTD
(REPRESENTED BY IBEC)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appealing against a Rights Commissioner's Decision R-131547-WT-13/RG.
2. The case before the Court concerns a dispute between the Employer and the Worker in relation to the Employer's alleged breach of Section 14 of the Organisation of Working Time Act, 1997. The Worker contends that he was not appropriately compensated for Sunday working. The matter was referred to a Rights Commissioner for investigation. The Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of working time Act, 1997 on the 5th November, 2013 and the Court heard the appeal on the 30th January, 2014, the earliest date suitable to the parties.
Mr Maurisz Rutkowski brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach of Section 14 by his employer, Flexsource Solutions Limited. The Rights Commissioner upheld the complaint in part and awarded the sum of €1,000.00. The Employer appealed the Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Maurisz Rutkowski is referred to as “the Complainant” and Flexsource Solutions Limited is referred to as “the Respondent”.
Neither the Complainant nor any representative on his behalf appeared before the Court. The Court had received written communication dated 28thJanuary 2014 from the Complainant’s brother, Mr Jakub Rutkowski, informing it that the Complainant was abroad and unable to attend the appeal hearing. Mr Jakub Rutkowski was advised that a case could be presented on behalf of the Complainant to the Court, however, if evidence was required, it would be necessary for the Complainant to present such evidence in person.
The Complainant submitted a claim under the Act to the Rights Commissioner on 14thMarch 2013.
The Respondent is a registered employment agency. The Complainant was employed by the Respondent from 14thMay 2012 until 17thMarch 2013 on a fixed-term contract as a temporary agency worker placed with the agency’s client, Musgrave Retail Partners Ireland (“the Hirer”). He worked on the Hirer’s site in Co. Kildare. In this complaint under the Act the Complainant submitted that he was not appropriately compensated for Sunday working and accordingly alleged that the Respondent was in breach of Section 14 of the Act.
Ms Anne Byrne, Ibec, on behalf of the Respondent, stated that on the commencement of his employment the Complainant received a contract of employment which stated that he was required to work Sunday to Saturday and his rate of pay was €9.75 per hour. Ms Byrne stated that his rate included compensation for working on Sundays. She told the Court that his terms and conditions of employment were directly comparable to those of direct employees of the Hirer.
Mr John Twomey, Service Delivery Manager of the Respondent, gave evidence under oath to the Court. He told the Court that prior to employing the Complainant he had sought information from the Hirer of their terms and conditions of employment. The
Hirer produced a copy of a contract of employment outlining the collectively agreed terms as agreed with SIPTU. Mr Twomey told the Court that this was used to determine the terms and conditions of employment for the Complainant including his rate of pay. The Court was furnished with a copy of the Hirer’s contract, this clearly states that the rate of pay was €9.75 per hour inclusive of Sunday premium pay. The Court was also furnished with the contract of employment supplied to the Complainant and is satisfied that he was paid in line with that paid to the employees doing similar work in the Hirer.
The collective agreement was amended in the Hirer on 22ndMarch 2013 when it was agreed to increase the pay rate to €9.90 per hour to include consolidation of a bonus payment. The Complainant was given a new contract with the new rate which expressly stated that this increased rate was inclusive of Sunday premium.
Section 14 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 to work by the following means,
(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 of two or more of the means referred to in the preceding paragraphs".
(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies ("the first-mentioned employee"), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:
Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the Rights Commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in Subsection (3) that a value of compensation of the kind referred to in that Subsection is specified by a collective agreement mentioned in that Subsection to show that, in fact, such a value is so specified.
(5) In Subsection (3) "comparable employee" means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in Subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in Subsection (3) before a Rights Commissioner or the Labour Court, can be readily applied or followed by the Rights Commissioner or the Labour Court for the purpose of the proceedings).
The Court has carefully considered the submission made by the Respondent and the witness testimony given and in the absence of any contradictory evidence, the Court is satisfied that in accordance with Section 14(3) of the Act the value of a Sunday premium paid to a comparable employee together with their basic pay are in line with those paid to the Complainant. This was collectively agreed in the Hirer and accordingly the Court does not find that the Respondent was in breach of Section 14 of the Act.
The Decision of the Rights Commissioner is overturned and the appeal is allowed.
The Court so determines.
Signed on behalf of the Labour Court
27 February 2014______________________
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.