Employer underpaying public holiday and annual leave pay

AnRothar · 11-10-2021 11:33am

But my contracted hours are 24! Tis what it states in my contract:

Trapdoor opens.

The difficulty here is you are drip feeding information.

You mention joining a union in your first post.

Go join, and bring your contract to them.

They at then be in a position to advise you better.

Brid Hegarty · 11-10-2021 11:57am

https://www.boards.ie/discussion/comment/118003724#Comment_118003724

Thanks Jimmy,

If that's the case then how come I was paid 8 hours for my bank holidays that I had off. Shouldn't it therefore be 4.8 hours?! Are you saying this is a loophole that employers take advantage of... by hiring people in deemed as part time workers when they intend to give them 48 hour weeks?

I remember about a month after starting the job, being onto the branch manager about there being only 24 hours in the contract. She not to worry and that I'll always get more than 24 hours. She also said that they have to have it say 24 hours in the contract because the ERO demand it!! Hmmm! Anyway she offered to change the wording of the contract to say 48 hours if I wanted, but I said "no it's fine" as there didn't seem to be any need to at the time. But if I did have her change the wording of the contract to make it read 42 hours, I still don't think that things would be any different regarding my pay.

Uncle Pierre · 11-10-2021 12:26pm

I find it a little strange myself that your contract should say your average number of hours per week will be 24, only for your branch manager to say you'll always get more than 24 hours.

How many 12-hour shifts do you typically work in any given work?

I'm with the others though in not seeing a problem for that June bank holiday. You'd only be entitled to a bank holiday rate for the hours that actually fell on the bank holiday itself, and not for the hours past midnight that were part of the Tuesday instead.

mrslancaster · 11-10-2021 1:07pm

https://www.boards.ie/discussion/comment/118003597#Comment_118003597

Because the security industry is one of the sectors that has a Labour Court regulation order with specific rules for pay rates, overtime, rosters, breaks etc., you should check with your union but afaik any regular fixed allowance or bonus is included when calculating rates for AL. When you are rostered on is taken into account for PH pay.

Brid Hegarty · 11-10-2021 2:17pm

@Uncle Pierre I'm with the others though in not seeing a problem for that June bank holiday. You'd only be entitled to a bank holiday rate for the hours that actually fell on the bank holiday itself, and not for the hours past midnight that were part of the Tuesday instead.

And you'd still hold that view even if I was deemed as a full time worker?

Uncle Pierre · 11-10-2021 2:46pm

https://www.boards.ie/discussion/comment/118004651#Comment_118004651

Yes, of course I would. I don't see what difference being part-time or full-time makes to the fact that any bank holiday ends at 12 midnight on that date.

Suppose you had a full-time colleague with you on that June Bank Holiday shift. Or let's say there was a factory or warehouse or similar next door, with full-time workers doing the same night shift, from 7 p.m. on Monday June 7 (the bank holiday itself) until 7 a.m. on Tuesday June 8.

They work five hours on a bank holiday, so they're entitled to bank holiday rates for those five hours. They then work seven hours on a date that's not a bank holiday. Why would they be entitled to bank holiday rates when it's not a bank holiday?

The fact that the five hours of the bank holiday led directly to the seven hours of the other day is immaterial.

As a matter of fact, the more I think about it, the harder I find it to believe that you seem to somehow genuinely believe you should be entitled to bank holiday rates for work that wasn't performed on a bank holiday.

Look, I'm still curious about the obvious anomaly between what your contract says and what your manager told you. If you'd like to answer that, then maybe I or somebody else might be able to assist you on the other points. But if you're just going to continue to focus on the bank holiday thing, then I think you've had your answer already, from me and from others too.

paul71 · 11-10-2021 3:02pm

Op is making an incorrect assumption that any shift beginning or ending on a Bank holiday must have all the hours in that shift counted as Bank holiday hours. Irrespective of the actual hours worked in the 24 hour period of the Bank holiday.

The reason this is incorrect is that if were perversely interpreted in this manner, it would double the actual bank holiday days in a year at a stroke. Take it to the courts if you will, it would be shot down in a moment.

Brid Hegarty · 11-10-2021 4:50pm

https://www.boards.ie/discussion/comment/118004976#Comment_118004976

I'm just going by the answers the WRC gave to me. I'll say it again; do you not think it's a little funny that someone would end up getting more pay for a complete day off?

There's another 12 hr night shift with my company that has 4 hours of it fall before midnight. I assume those staff only get 4 hours extra, where as someone who's off for the whole day could potentially end up getting 12 hours for doing no work!

Uncle Pierre · 11-10-2021 5:41pm

With all due respect, this discussion has been going on here for three days, there are several people trying to help and advise, and yet we're still having to speculate and/or make only semi-informed guesses because of how you've only been drip-feeding all the relevant information.

Obviously I wasn't party to your phone call(s) with WRC, but based on the above, I'd speculate it's unlikely you gave them all relevant information in a phone call either.

For example, you could truthfully and accurately say "I was rostered to work on a Bank Holiday, and I had to do a 12-hour shift". But crucially, you'd be leaving out the vital information of "I was rostered to work on a Bank Holiday, and I had to do a 12-hour shift, but only five of those hours actually fell on the Bank Holiday."

WRC or anybody else can only advise you based on the information they're given.

Anyway, I'll ask again one more time before maybe ducking out of here if you still don't want to answer: how many 12-hour shifts do you typically work in a normal calendar week?

Dav010 · 11-10-2021 6:19pm

I’m still struggling to see why the op is including break time in his/her calculation of one fifth of working week (48 ./. 5 = 9.6 rather than 48-break time ./. 5 = ?) and hasn’t yet answered if breaks are paid in contract.

Masala · 11-10-2021 8:22pm

I’ve just lost the will to live after reading this thread.....

marty whelan · 11-10-2021 8:31pm

I get the feeling Ms Hegarty will struggle to find employment where she is happy.

Darc19 · 11-10-2021 8:50pm

https://www.boards.ie/discussion/comment/118006400#Comment_118006400

Ms Hegarty doesn't like when an answer doesn't suit her.

Ms Hegarty has still not given all the relevant information

Ms Hegarty needs to give FUll information - eg, how long employed, how many hours per week on average over a month / three months.

The fact that a shift is 2 hours, 5 hours or 24 hours makes no difference to the method of calculation - it will be the average weekly hours over a period and it may be that you are being overpaid bank holiday. Usually it is taken as the average over the preceding 5 week period (this ensures that those working sporadic weeks get an entitlement)

But unless you are working an average of 48 hours NET (after breaks) per week for the five weeks preceding the bank holiday, you are NOT entitled to 9.6 hours bank holiday pay.

mrslancaster · 11-10-2021 9:04pm

https://www.boards.ie/discussion/comment/118003597#Comment_118003597

"...But if I did have her change the wording of the contract to make it read 42 hours, I still don't think that things would be any different regarding my pay".

If your contract says your basic hours are 42hrs pw, does it not say what the site rates are, eg night allowance, Sunday premium etc? Does that information appear on your payslip?

From the Security ERO:

Overtime rates shall apply as follows:- (a) all hours worked in excess of an average 48 hours per week in the roster cycle will be paid at a rate of time and a half; (b) a rostered cycle shall be a predetermined working pattern, which can be up to a maximum of six weeks, which has been issued to the worker in writing prior to the commencement of the roster cycle.

Annual leave entitlement shall be in accordance with the terms of the Organisation of Working Time Act 1997. Regular rostered overtime is to be included for the purposes of holiday pay. Regular rostered overtime will be averaged over the previous 13 weeks worked, prior to the taking of annual leave.

Public Holiday entitlement shall be in accordance with the terms of the Organisation of Working Time Act 1997.

Dial Hard · 11-10-2021 9:10pm

https://www.boards.ie/discussion/comment/118006400#Comment_118006400

Ms. Hegarty is a man, just for the record.

paul71 · 11-10-2021 9:11pm

https://www.boards.ie/discussion/comment/118005451#Comment_118005451

I already know why the WRC give you an incorrect answer, because you drip feed them information that suited your agenda. You get paid premium rates ONLY for hours worked in the 24 hours of a bank holiday. Anything else is utter nonsense.

A solicitor for your employer will not allow you to drip feed information to a court. They will rip up your fantasy in seconds.

Brid Hegarty · 11-10-2021 10:49pm

@Uncle Pierre For example, you could truthfully and accurately say "I was rostered to work on a Bank Holiday, and I had to do a 12-hour shift". But crucially, you'd be leaving out the vital information of "I was rostered to work on a Bank Holiday, and I had to do a 12-hour shift, but only five of those hours actually fell on the Bank Holiday."

I have the intelligence to comprehend that a new day begins at midnight. I also knew this before making touch with the WRC. If what you're saying is true, then in future I'll be trying to pretend that I've other commitments in advance of bank holidays so that I can get more money!

@Uncle Pierre how many 12-hour shifts do you typically work in a normal calendar week?

I work a 48 week most weeks. I think it averaged 46.9 hours in what I calculated recently. Why?

Brid Hegarty · 11-10-2021 10:59pm

@mrslancaster If your contract says your basic hours are 42hrs pw, does it not say what the site rates are, eg night allowance, Sunday premium etc? Does that information appear on your payslip?

There is no mention of the site rates. I get €1 an hour more if I'm based at two particular locations, and there is no mention of that in the contract. It does, however, say that holidays pay will be calculated based on the hours worked as if they were at basic pay... i.e, without site premium.

Yes the Sunday premium is mentioned in the contract, and the night allowance only applies to the workers who are on the old contract that they had from the previous security company.

Brid Hegarty · 11-10-2021 11:10pm

https://www.boards.ie/discussion/comment/117999381#Comment_117999381

I do get paid for breaks but your calculation coming to 8 hours is wrong regardless of breaks.

Brid Hegarty · 11-10-2021 11:15pm

https://www.boards.ie/discussion/comment/118006538#Comment_118006538

I made it as clear to the WRC as I have here in my very first post, that not all of the 12 hours fell within the 24 hour period.

mrslancaster · 12-10-2021 3:52am

https://www.boards.ie/discussion/comment/118006538#Comment_118006538

The legislation says benefit for the Public Holiday for a qualifying employee is one of the following:

a) A paid day off on the day

b) A paid day off within a month

c) An additional day of annual leave

d) An additional days pay

People say they get double pay for working on a Public Holiday but there is no mention of premium rates or double pay. It is just a coincidence that if the company decides on option (d) an additional days pay, then the effect could be the same as double payment...eg say the normal daily hours are 8, and an employee works their standard 8hrs on the PH, then they are paid for the hours they worked PLUS option (d) an additional days pay. The company might choose one of the other options and the employee would receive the normal pay for the PH shift PLUS a,b or c.

For a night worker the benefit is the same. For example say a night worker has a shift on a PH of 6 hours, say from 10 to 4 (so 2 hours before midnight and 4 hours after) they are paid for the hours they work PLUS one of the options as the employer decides. If the company choose option (d) then the employee is paid an additional days pay.

mrslancaster · 12-10-2021 6:06am

https://www.boards.ie/discussion/comment/118006462#Comment_118006462

The 5 week reference period is only used to determine if a part-time employee is entitled to PH benefit. If they worked 40 hours or more they get the same as anyone else, ie one of the 4 allowed options.

If the company chooses the additional days pay option, the normal weekly pay rate is used. If the weekly pay rate changes they use the average of the previous 13 weeks.

Uncle Pierre · 12-10-2021 8:59am

https://www.boards.ie/discussion/comment/118006952#Comment_118006952

If after all that's been said here, you still don't understand why the number of hours you typically work in any given week is relevant here, then I'm not going to explain it again. I suggest you read earlier replies again if you really do need an explanation.

Good luck with your imaginary commitments for future bank holidays.

Brid Hegarty · 12-10-2021 8:19pm

@Uncle Pierre If after all that's been said here, you still don't understand why the number of hours you typically work in any given week is relevant here, then I'm not going to explain it again.

Well of course I understand, but I don't know how my answer (which I've now given) strengthens your argument! I'm all ears though.

Brid Hegarty · 12-10-2021 8:27pm

@mrslancaster If the company choose option (d) then the employee is paid an additional days pay.

So in other words I should get an extra 12 hours pay on top of the 5 hrs double time that I got??

Thanks for your help in all of this by the way

Uncle Pierre · 12-10-2021 8:59pm

https://www.boards.ie/discussion/comment/118010904#Comment_118010904

Again with all due respect, I think the question that you posed in your next post quite clearly shows that you don't in fact understand it yet.

Furthermore, I have not made any argument. I have simply stated the fact that neither you nor anybody else can expect to be paid bank holiday rates for work that wasn't actually carried out on a bank holiday.

I then asked for further relevant information which you had not yet provided and which would be helpful in actually answering the questions you posed, and hopefully even explaining it in a way that you might actually understand.

I suspect I'm not the only one here however who has grown weary of tone and attitude, and so I do not wish to try assist you any further.

Good look in finding the answers you so clearly seek, and with all your future endeavours, be they real or imaginary.

Brid Hegarty · 12-10-2021 9:40pm

https://www.boards.ie/discussion/comment/118011138#Comment_118011138

I'll try make the point I made earlier in a different way, and maybe you'll address it then:

Lets suppose you were working for this company too and you got the bank holiday off, and you got 8 hours pay for that. And suppose another dude called John worked a 12 hour day shift on that same bank holiday and he gets 12 hours double pay. Then lets say I get rostered to start a 12 hour shift which starts at 11pm on that same day! How much pay are you saying I should get? And what if (just supposing) that exact occurrence happened to me for all of the public holiday days in the year? Would you not think that a little unfair?

I am not surprised the WRC gave a different answer to the one you're giving. But in order for you to make it seem like I'm imagining things, you of course have to imply that I would be too stupid to explain it properly to the WRC.

@Uncle Pierre Again with all due respect, I think the question that you posed in your next post quite clearly shows that you don't in fact understand it yet.

But why can't you just answer the bloody question? Why did you ask how many hours I work per week? You obviously had a thought before you asked that question. So how did the answer I gave - being 46.9 hours/week - match up with your thought? Give me something. If you could have used my answer to make me look stupid you probably would've by now, so why don't you tell me why you asked it instead of playing guessing games?

mrslancaster · 13-10-2021 6:27am

https://www.boards.ie/discussion/comment/118010952#Comment_118010952

No, there is no double time.. sorry if i'm confusing things, i'll try to use an example to explain what i mean a bit better.

Company X chooses the "day off with pay" option. The PH falls on Thursday. Company X closes for the day. Employees get paid the same as every other week even though they work a day less.

Company Y chooses the "additional days pay" option because they can't close. Employees who work get paid as per usual for the hours they work on their shift. In addition they get a benefit for the PH which in Company Y is an additional days pay. That is the normal daily pay (excl o/t). If wages change from week to week then the days pay is based on the average over the previous 13 weeks (excl o/t).

Employees who dont work get one fifth of their normal weekly pay (excl o/t) as benefit for the PH in addition to their weeks wages. Again if wages change from week to week then the one fifth is based on the average over the previous 13 weeks (excl o/t).

Company Z chooses the "additional day of annual leave" option because its a restaurant and they dont want to close because a PH is extra busy so employees are required to work. Employees work their shift and just get paid for the hours worked as per usual. The benefit for the PH in Company Z is that employees get an extra days AL which can be taken at a less busy time during the year.

Uncle Pierre · 13-10-2021 10:08am

Here I am again, despite myself.

The reason why the average number of hours worked per week is relevant is that it's central to the calculations required for bank holiday pay, if the company chooses the option of giving an additional day's pay.

As Mrs Lancaster says above: Employees who don't work get one fifth of their normal weekly pay (excl o/t) as benefit for the PH in addition to their week's wages. Again if wages change from week to week then the one fifth is based on the average over the previous 13 weeks (excl o/t).

Hopefully you see how the number of hours worked per week has an effect on wages from week to week, and might now understand why I asked.

On your other point - I accept that the way these things work out in any individual circumstance may not always seem fair. But whether or not they seem fair makes no difference to how they are worked out.

Brid Hegarty · 20-10-2021 11:42pm

@mrslancaster OP, are you paid the same pay each week, excluding o/t? If an employee works or is normally required to work during any part of the day which is a public holiday, then the relevant rate for the public holiday is the sum paid in respect of the normal daily hours last worked by you, before that public holiday.

Thanks again. Forgive me but I have to play devil's advocate with you there. Supposing your normal working hours were 10 hours but the last shift you worked before the bank holiday happened to be a 12 hour shift. Does that mean you get 12 hours pay or 10 hours pay for that bank holiday?

As in your "normal daily" hours are 10, but your "last" daily hours were 12!.

@mrslancaster Company Y chooses the "additional days pay" option because they can't close. Employees who work get paid as per usual for the hours they work on their shift. In addition they get a benefit for the PH which in Company Y is an additional days pay. That is the normal daily pay (excl o/t). If wages change from week to week then the days pay is based on the average over the previous 13 weeks (excl o/t).

So what should I get? My average was 47.2 hrs/wk. So if I divide this by 4 that means my average shift would've been 11.8 hours. So I should get 11.8 hours pay for the bank holiday. Now the question is - giving that they paid me double time for is 5 hours - should this 11.8 hours pay be paid in addition to the 5 hours I got?

Of course the 11.8 hours is based on my average day. If it were a 5th of my average working week (as I've seen mentioned somewhere), then it would be 9.44 hours.

Employer underpaying public holiday and annual leave pay

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