FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KEVIN BLAKE T/A SPAR - AND - JAROSLAW HOMA (REPRESENTED BY JOSEPH JONES SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision R-130134-WT-13/EH.
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision dated 6th December, 2013 to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 17th January, 2014. The Court heard the appeal on the 1st April, 2014.
DETERMINATION:
This is an appeal under the Organisation of Working Time Act 1997, (the Act) by Kevin Blake t/a Spar (the Respondent) against Rights Commissioner Decision No 63 R-130134-WT-13/EH delivered on 6thDecember 2013 in which he decided that a complaint by Mr Jaroslaw Homa (the Complainant) that the Appellant infringed section 20(2) (a) of the Act was well founded and awarded him compensation in the sum of €200.
The Respondent appealed against that decision to this Court. The case came on for hearing on 1stApril 2014.
The facts of the case are not in dispute. The Complainant worked for the Respondent as a Shop Assistant from 15 June 2007 to 19thMay 2013. He was normally rostered to work between 1.00 p.m. to 10.00 p.m. five days per week. He was paid a weekly holiday premium of 8% for all hours worked each week. He submitted a complaint to the Rights Commissioner alleging infringement of section 20(2) of the Act.
The Respondent acknowledges that it paid the Complainant an allowance, paid weekly, of 8% of the hourly rate of pay for all hours worked. It submits that this complies with section 20(3) of the Act.
The Law
A worker’s entitlement to a minimum level of annual leave is governed byDirective 93/104/EC of 23 November 1993 of the Council of the European Communities. In article 7 it provides
- Annual leave
1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
- An Act to provide for the implementation of Directive 93/104/EC of 23 November 1993 of the Council of the European Communities concerning certain aspects of the organisation of working time,
19.
(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—- (a) 4workingweeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(b) one-third of aworkingweek for each month in the leave year in which he or she works at least 117 hours, or
(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4workingweeks):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.- (a) 4workingweeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act , as a day of annual leave.(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1) , the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.
(5) An employee shall, for the purposes of subsection (1) , be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.
(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.
- Article 7 of the directive precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave.
20 (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—- (a) to the employer taking into account—
- (i) the need for the employee to reconcile work and any family responsibilities,
(ii) the opportunities for rest and recreation available to the employee,
(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.
- (i) the need for the employee to reconcile work and any family responsibilities,
- (a) be paid to the employee in advance of his or her taking the leave,
(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section .
- (a) to the employer taking into account—
It is well settled law that the Court is required to interpret Irish law in conformity with the law of the European Union where such an interpretation would not run contra legem or go against the grain of the Act. In this case the Act was passed into law for the purpose of giving effect to the Directive. Accordingly the Court takes the view that the intention of the Oireachtas was that the Act should would be consistent with the provisions of the Directive.
Section 20(2)(a) of the Act requires that an employee shall be paid “in advance of his or her taking” annual leave.
In this case the Court interprets that provision to be consistent with the decision of the CJEU in Robinson Steele above.
The Court notes the Respondent’s submission in respect of section 20(3) of the Act. However the Court finds that this does not avail the Respondent as it permits superior arrangements but does not permit inferior arrangements to those set out in the Directive.
Accordingly the Court finds that the appeal fails.
Determination
The Court finds that the complaint is well founded. The Court orders the Respondent to pay the Complainant the sum of €250 in respect of the infringement of the Act.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
16th May 2014______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.