ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038192
Parties:
| Complainant | Respondent |
Parties | Brian McEneaney | Kilkenny County Council |
Representatives | Ms Ger Malone of SIPTU | Mr Keith Irvine of the LGMA |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049584-001 | 08/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049584-002 | 08/04/2022 |
Date of Adjudication Hearing: 13/09/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 & Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th 021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
No issues arose in relation to confidentiality.
Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.
1: Background:
The Complainant is employed since 2001 as a General Operative /Road Sweeper Driver by Kilkenny Co. Council. He remains an employee.
The basic rate of Pay is driver A at €670.04 per week for a basic 39-hour week. His actual earnings are considerably in advance of this. The Complainant also argued that the complaints should be seen retrospectively back to the commencement of his employment and cited European Law to this effect.
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2: Special Opening Commentary from Adjudication Officer
This case is one of a series of virtually identical cases being pursued by SIPTU on behalf of Local Authority Workers.
It concerns the proper rate of pay for a worker while he/she is taking Annual Leave and or Public Holidays.
In this case, as in all the others, the Complainant is historically in receipt of a range of overtime hours for a variety of ancillary tasks attached to his position as a Road Sweeper Driver.
The complaint is that when he takes Annual leave /Public Holidays his pay is calculated on his basic pay. This leaves him at a marked financial disadvantage.
The calculation of Pay for Leave is as set out in SI 475 of 1997 - which specifically precludes Overtime from the calculation.
S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997
3 Normal weekly rate of pay
- (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.
(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
(Underline by Adjudication Officer)
The Adjudication Officer is quite familiar with Local Authority Industrial Relations / Operational Management practices. The use of regular Overtime has, for many years, been a much used and very flexible tool to resolve multiple local issues.
The use of “fixed” Overtime is often the solution to numerous local operational problems, as it would not be as visible in an Industrial Relations context, risks of repercussive claims etc, as agreeing a fixed Allowance or a Regrading.
However, the major drawback is that Overtime cannot be used in determining Holiday Pay. Many Labour Court findings have reinforced this position.
SIPTU, quite strongly feel that the Employers are in breach of considerable European Law and cite multiple cases. The LGMA, for the Local Government Employers offer a different interpretation of the European Law cited. The only definitive answer to this situation is a reference to the EUCJ for an enforceable finding.
However, the current Irish Legal position is as set out in SI 475 of 1997 and Local Authority Employers cannot go against this.
At the Oral Hearing the Adjudication Officer addressed both Parties and queried why this matter had not been raised as a major industrial relations issue via multiple Joint Local Authority / ICTU Groups and the LGMA /Departments of the Environment and Public Expenditure & Reform. Neither side was able to give a clear answer.
In the firm view of the Adjudication Officer this issue of Regular Overtime and Holiday Pay, a historical legacy matter, is a National Level Industrial Relations issue that requires addressing at the appropriate Joint Forum. It will not be an easy task but urgently requires attention.
3: Summary of Complainant’s Case:
The Complainant made a very detailed written submission covering extensive European Law to argue that the “Normal rate of Pay” had to include regular expected, unchanging, earnings enjoyed by a worker. The use by the Employer of “Basic Pay” was flagrantly in breach of European Law. Cases relied upon were British Airways plc v Williams (2012) ICR 847 Lock v British Gas Trading Ltd (2014) ICR 813 Bear Scotland Ltd v Fulton & Others Sash Window Workshop Ltd v King (2018) IRLR 142 Chief Constable of the PSNI & Anor v Agnew (2019) NICA SIPTU also argued that the effective time period was back to the commencement of the employment as opposed to the six-month rule under the Workplace Relations Act,2015. The chief spokesperson was Ms. Malone of SIPTU. Ms Malone gave very detailed and most knowledgeable Testimony on complex European Law issues. It was acknowledged to the Adjudication Officer that a reference to the EUCJ was probably required unless the issues could be resolved at the Labour Court and or Irish Government level. |
4: Summary of Respondent’s Case:
In summary, the LGMA contested the interpretations of European Law being proposed by SIPTU. It also contested the time Limits arguments of SIPTU referencing the six-month rule of the Work Place Relations Act,2015 as being the applicable rule. The relevant Section 3 from S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 is quoted above. The LGMA representative, Mr Irvine, quoted extensively and most learnedly from European Case law. He commented at length on the cases cited above by the Complainant. The Time limits issue (retrospective aspect of the Complaint) was discussed extensively but he argued that SIPTU had an incorrect interpretation. The main and most principal argument was that the Complaint or complaints very similar on ordinary Annual Leave pay, Public Holiday pay and the effective Time Periods for the Complaints, had been repeatedly before the Labour Court which had found against them. Cases cited were DWT2228, DWT2229, DWT2230, DWT 2232, and Adj 33760. S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 is the current Irish “Law of the Land” and a Local Authority cannot deviate from it. In the current complaint there was nothing to distinguish it particularly from any of the above cited cases and the rules of ratio decidendi and especially res judicata have to apply.
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5: Findings and Conclusions:
5:1 The Relevant Law and Legal precedents. S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 is the current Legal position in Ireland. SIPTU argued strongly and in a most learned submission that this SI was in contravention of European rulings on Working Time. These interpretations were challenged by the LGMA, in an equally learned submission, that there was nothing amiss in Irish Law. The Labour Court has ruled extensively on this issue in almost identical cases and has not found in favour of the Complainants. A representative extract from Labour Court DWT2230 is quoted below. DWT 2230 Deliberation. The circumstances of this case are almost identical to those in the cases of Carlow County Council v Mr. Eamon Coughlan, WTC/2123 and WTC/22/15, the only differences of note being in respect of the length of retrospection being claimed and the amounts involved. The arguments made by the parties regarding the issues of law are identical in every important respect. It follows, therefore, that unless some new arguments or relevant facts arise in the instant case, the Court will follow the Determinations in those cases. In those cases, the Court noted that ordinarily the cognisable period provided for in our law is the 6 months prior to a complaint being made under the Act and that the Court’s judgement is limited temporally to this period. The Court went on to have regard to S.I. 475/1997 and noted that the calculation of holiday pay excluding overtime payments was in accordance with that Instrument. Accordingly, the appeals in those cases were deemed to have failed. The Court follows these Determinations in the instant case for the reasons outlined in the cases referred to above. Accordingly, as a “First Instance” Adjudication Officer I must respectfully defer to the Labour Court and find against the Complainant in this case on both Public Holiday & Annual leave pay. I refer again to the opening Special Comments. This case is at its heart either an Industrial Relations case suitable for a National Level agreement or a case that has to be referred to the EUCJ. However, even if the latter, it will still have to come back to National Talks. |
6: Decision:
CA: 00049584-001 and CA: 00049584-002
Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
For the reasons cited above in Section 5 and the rule of res judicata from numerous Labour Court rulings on very similar cases the complaints are deemed to be Not Well Founded.
The Complaints are deemed to fail.
Dated: 02/03/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Organisation of Working Time, Determination of Pay for Public Holidays and Annual Leave. |