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Working Time/Rest Periods

Calculating Hours Worked for Banded Hours Contracts-Is Annual Leave to Be Counted?

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This case, between a ground staff member and an airline, turned on the question of how you are expected to calculate the hours worked for the purposes of awarding an employee a banded hours contract.

The employee had been placed on a banded hours contract pursuant to the Employment (Miscellaneous Provisions) Act 2018. Section 16 of this act provides for banded hours contracts to be given to employees based on the number of hours worked per week by an employee over a reference period.

In this case the employer placed the employee on a band which reflected hours worked over a reference period but did not include hours of full annual leave entitlement.

The employer’s position was that the legislation referred to the hours worked by the employee, and the employer was not obliged to consider time on annual leave. However, the employer did, on a discretionary basis, award some hours to the employee to cover the annual leave-that is, 4 hours “work” were awarded for each day of annual leave, and there was 21 such days.

The employer’s position was that there was no obligation to consider time that the employee was absent from work, regardless of the reason. They calculated the hours for the purposes of a banded hours contract by reference to clock in data, basic hours and overtime worked, and divided the total hours worked by 52 to arrive at an average weekly hours worked.

The employer also contended for the definition of working time as set out in the Organisation of Working Time Act 1997, section 2 as follows:

working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work,

and “work” shall be construed accordingly

Adjudicator decision

The adjudicator held that there was no express provision in the Employment (Miscellaneous Provisions) Act 2018 as to how absences from work are to be treated and no provision which deems time spent on annual leave (or other absences) as time worked for the purposes of section 18A of the Organisation of Working Time Act 1997.

Nonetheless the adjudicator held that the legislators, when drafting the legislation, did not intent the employee should suffer any disadvantage by taking annual leave. And section 22(2) of he Organisation of Working Time Act 1997 states

(2) For the purposes of section 21 , time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

He went on to hold

In the instant case, if the mode of calculation canvassed by the respondent were to prevail, as a matter of mathematical fact, in every case where an employee avails of annual leave, her average weekly working hours over a 12-month reference period would be artificially reduced below their actual average, or normal working hours. Such a result would be inconsistent with other provisions of the Act and could not reflect the plain intentions of the Oireachtas.

For all these reasons, it seems clear that an employee average weekly working hour in a reference period should be ascertained by taking the total number of hours worked by that worker over the reference period and dividing that number by the number of weeks actually worked in the same period.

Read the full decision here in ADJ-00024906