Employer underpaying public holiday and annual leave pay

Brid Hegarty

The first issue is that I only get 8 hours pay for a bank holiday which I don't work, when my standard work day is a 12 hour shift. I've been on

The other issue was with the June bank holiday that I did work. It was a night shift going from Monday to Tuesday and I got paid double time for the 5 hours of it that fell before midnight. But I did not get any extra allowance on top of s. Again, I got two different answers when I rang the WRC. One said I should get an extra 7 hours to make it up to 12 hours (5 + 7 = 12), and the other person saying that I should get an additional 12 hours on top of that.

The third issue is to do with holidays pay, which again they seem to be taking junks out of.

What are my options here? Join Siptu temporarily? Make an e-complaint to the WRC? Go to a lawyer?

I don't see a problem.

Unless you work 5 x 12 hour shifts a week. Which I doubt. A public holiday is 20% of working week.

It is correct also you get double for the hours you work on public holiday, but not next day

Mrs OBumble

Join SIPTU for as long as you're working there.

Brid Hegarty

@[Deleted User] Unless you work 5 x 12 hour shifts a week. Which I doubt. A public holiday is 20% of working week.

Thanks Lorenzo. But then it should be 9.6 hours pay and not 8. It just annoys me that the WRC gave two different answers. Anyway, it's one or the other, so I definitely should be getting more than 8 hours.

@[Deleted User] It is correct also you get double for the hours you work on public holiday, but not next day

Well yeah, but it's just funny to think that I would have got paid an extra 7 hours if I refused to work that shift. I could have said that I'd something on in advance and they would've gave it to someone else and I'd have ended up working the same number of shifts that week.

Tell me how

https://www.boards.ie/discussion/2058212253/employer-underpaying-public-holiday-and-annual-leave-pay

What are my options here? Join Siptu temporarily? Make an e-complaint to the WRC? Go to a lawyer?

Can I add another option, and I say this with all due respect, but you've started a number of threads on here where you feel that you are being treated unfairly at work and my immediate recollection of these is that you have been looking for something to get aggrieved about rather than there being a fundamental issue that is worth getting upset about.

It would seem, going by some of your other threads that you are recently new in this role and if so, possibly still on probation, it is worth noting that if this is the case, that the company can decided to terminate your employment at any point within the probation period without giving any justification for doing so. If you meet the wrong solicitor (should you go that route) you can safely assume they will exercise that right and you will have a solicitors bill to take care of also.

You have also started a thread which started with the following 'What's an aspect about yourself that you've managed to become aware of and get under control?' It is with this in mind that I suggest that you try to focus on learning and performing your duties as best you can and becoming valuable to the company so they are looking for ways to keep you happy rather than assuming a company or person within is automatically out to pull the wool over your eyes in some way or another. The likelihood of them trying to skim from pay is very small (although not impossible) as if caught for it, with payroll records, it would be pretty cut and dried. When coming in to a new company, a good rule of thumb is to take your lead from others already there. Have they flagged concerns about pay in this way? The chances of you working in successive companies within a short time span where they are treating employees unfairly and you are the only one experiencing this would be close to zero.

As I said at the start, with all due respect, you will be much more content and successful at work if you don't go looking for problems unless it is clear that they are there.

Edit - I was thinking about this and I want to be clear, I am not suggesting categorically that you are imagining being mistreated, and I know people start threads when they want guidance or support, and that is what a good 'Work Problems' forum is for. I just think it would be in your own long term best interest to focus on what you can do and contribute within your place of employment. I think it would give you the best chance of being content, or at least not worried or stressed about your job.

Dempo1

https://www.boards.ie/discussion/comment/117994151#Comment_117994151

Well that pretty much covers everything 😁

AnRothar

The other issue was with the June bank holiday that I did work. It was a night shift going from Monday to Tuesday and I got paid double time for the 5 hours of it that fell before midnight. But I did not get any extra allowance on top of s.

You worked a 12 hour shift consisting of 5 hours on Bank Holiday Monday and 7 hours on Non Bank Holiday Tuesday.

So you worked 5 hours on the Bank Holiday and got paid at double time for these hours.

The overall length of the duty is not relevant to attracting a premium, just that part that you actually worked which fell on Bank Holliday Monday.

You were paid correctly.

As posted by LorenzoB above I seriously doubt that you are working 5 * 12 hour shifts in a week.

While you are working shift work you do not appear to know much about it.

Rather than asking random strangers on the internet get one of your colleagues to explain it to you. Especially how it pertains to your employment.

Brid Hegarty

@AnRothar While you are working shift work you do not appear to know much about it.

Are you implying that you know something about shift work that I don't? Because if you do then spit it out. To be honest, my colleagues don't seem to understand this stuff.

But there are many things about shift work that I don't know. Like for example, why is it that shift workers only get overtime for weeks that more than 48 hours are worked, but with regular workers it's anything over 39 hours. Why is it that shift workers don't have to be paid anything extra for night shifts. And (if I'm wrong with all this) their not even entitled to a 5th of their regular week's wages for a bank holiday.

@AnRothar I seriously doubt that you are working 5 * 12 hour shifts in a week.

The bottom line is that 8 hours pay is less than a 5th of my working week. And as a matter of fact, there are guys site who often work five 12 hour shifts a week, who still only get 8 hours for their bank holidays. Not to mention that one of these workers could happen to be rostered for 5 night shifts during a week with a bank holiday and only end up getting 5 hours double time.

beachhead

As far as I am aware when you join a company on shift work your hourly rate compensates for the unsocial hours of shift work.That means your hourly rate is more than the minimum wage at least.It makes no difference if day or night shift though some companies will pay extra for nights or weekends.

Mattie500

Would breaks be included in the calculation for hours worked?

Op, assuming you are not being paid for breaks, though your 12 hrs shifts mean you are at work for 48 hrs per week, you are only being paid for 40 hours. When that is divided by 5 to pay you for the BH, it amounts to 8 hrs. If you don’t get paid for breaks, you don’t get paid for them on a BH either.

In relation to the pay on shift worked, that is a bit less clearcut. But as a BH starts an ends on the same day, anytime after midnight the next day is not the BH. What you should check is whether the shift who worked the night before got extra pay after midnight, if they did, then all seems fair.

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.

Iirc, night workers were not paid double only for the part of their shift that falls on the PH. The amount due is your daily rate of pay afaik. Wrc or siptu could answer that for you.

If your pay changes every week according to the hours worked then your daily pay is your average daily rate based on your pay in the previous 13 weeks, excluding o/t.

If you dont normally work and are not required to work on a PH, then pay should be one fifth of your normal weekly hours last worked before the public holiday. Depending on if its same every week or calculated based on the 13 weeks previously. Excluding o/t.

The company are not obliged to pay for your breaks. Also some night work that is hazardous or involves heavy physical or mental strain is limited to 8 hours and the average for night work should be 8 hours when its averaged out over 2 months. Maybe your company is using that calculation as a basis for pay but thats a H&S issue and not for payment.

Whats the problem with your holiday pay?

Brid Hegarty

https://www.boards.ie/discussion/comment/117996151#Comment_117996151

Is your question in relation to BH pay, holidays pay, or overtime?

I know a guy who at the company I'm talking about who took a case against his previous company (Synergy), and won. He said it was because they wouldn't honour his overtime. They did however take off breaks when they calculated this, so he didn't get as much as he expected.

https://www.boards.ie/discussion/comment/117997521#Comment_117997521

It’s a question about your contract of employment. If you are not paid for breaks, then you have to deduct breaks from your BH pay, so if you are at work for 48 hours but don’t get paid for the breaks you get, you will be paid 20% of your 48 hours, less breaks, giving you 8 paid hrs on the BH.

Brid Hegarty

@Dav010 ...you will be paid 20% of your 48 hours, less breaks, giving you 8 paid hrs on the BH.

I'd get out your calculator again because that ain't right. You're starting out with the answer you want, which is 8, and working from there.

Brid Hegarty

@mrslancaster What's the problem with your holiday pay?

I'll get back to you on that shortly.

https://www.boards.ie/discussion/comment/117999347#Comment_117999347

There are two variables in this which so far you haven’t answered.

1. are your breaks paid?
2. how much break time do you get during your 12 hr shift?

If you answer those questions, we might be able to help you, those break periods may have to be deducted from your 48 hours before you do your 20% calculation for BH pay.

Darc19

https://www.boards.ie/discussion/comment/117999347#Comment_117999347

Maybe you need to understand basic calculations on work hours.

If you work 9am to 5pm and have a one hour lunch, that is a 7 hour day.

If you start work at 5pm and finish at 5am and have one and a half hours of breaks to that is a 10.5 hour day

When you don't give the correct information to the wrc, they will give you a wrong answer

Mrs OBumble

https://www.boards.ie/discussion/comment/117999347#Comment_117999347

Just go and join the damn union.

They've answered these questions thousands of time. They know how the law is applied by the court / WRC, and how employers respond to that. They know how to challenge wrong applications of the law, in a way that maximised a change of the desirerd response from your employer.

AnRothar

To the OP.

We have no idea what is in your contract of employment.

Start by reading ORGANISATION OF WORKING TIME ACT

and websearch the following

Explanatory Booklet on Holidays and Public Holidays

for Employers and Employees

DIRECTIVE 2003/88/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 4 November 2003

concerning certain aspects of the organisation of working time

then

Just go and join the damn union.

Brid Hegarty

@Darc19 When you don't give the correct information to the wrc, they will give you a wrong answer

Always appreciate being spoken down to. Thanks

AnRothar

https://www.boards.ie/discussion/comment/118001444#Comment_118001444

Once upon a time I had the opportunity to have an individual explain the trapdoor to me.

I would love to hear the actual question you put to the WRC.

Brid Hegarty

@mrslancaster Whats the problem with your holiday pay?

Well am I right in saying that holidays pay should be calculated including the public holidays pay? Because given that they've already underpaid me for the public holidays (as mentioned), then this means that the holidays pay has to incorrect even if they are including the holidays pay in their calculation. Even using the hours they gave me for the bank holidays, it's still coming up slightly low.

Spook_ie

Well as regards holiday entitlement you could start here

https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/leave_and_holidays/annual_leave_public_holidays.html#lcde4d

and see which scenario applies to your situation.

mrslancaster

https://www.boards.ie/discussion/comment/118002722#Comment_118002722

Pay for holidays/Annual Leave is based on the normal weekly rate you received when you last worked before the AL starts. This is the fixed amount you are paid each week including any fixed regular bonus or allowance, and should include compensation for board or lodgings if they are part of the job. Otherwise if your pay is variable, or changes each week because of commission or piece work, then holiday pay is based on the average weekly pay over the 13 week period before AL starts.

So if an employer underpaid you for a PH, it could only affect a pay rate that was based on the 13 week average method of calculation. If the pay rate was based on a fixed weekly rate it would not change it. (You should be paid correctly for PH.)

The number of paid AL days due is calculated based on hours worked or time spent on some statutory absences eg maternity leave. The leave year is apr-mar but many companies use the calendar year. The statutory paid AL is 4 working weeks if you've worked at least 1365 hours in the current year or pro-rata if you join/leave a company during the year. Some companies pay more than the statutory 4 weeks AL.

After working 8 months you are entitled to two weeks unbroken paid AL. You should be paid in advance for any AL you take and any unused days can be carried over for 6 months. There are special arrangements if carry-over is due to certified illness. If you have any unused AL when you leave your job, you should be paid for those days, also if you leave just before a PH falls then you should be paid in lieu.

Brid Hegarty

@mrslancaster So if an employer underpaid you for a PH, it could only affect a pay rate that was based on the 13 week average method of calculation. If the pay rate was based on a fixed weekly rate it would not change it. (You should be paid correctly for PH.)

Yeah, that makes it very messy. For the two BHs that I did work I should be getting a 5th of the working week (9.6 hours pay), which I'll need to put into the calculation. The BH I did work makes the calculation messier. I think I might call citizens information to help me calculate what I should be paid.

@mrslancaster also if you leave just before a PH falls then you should be paid in lieu.

Yet another way that companies get away with not paying employees properly. Would anyone even notice this?

witchgirl26

https://www.boards.ie/discussion/comment/117996126#Comment_117996126

People get overtime for time worked over & above what their contracted hours are - that could be 39 hours, 48 hours, 10 hours. Doesn't matter if it's shift work or not - it's based on their contracted hours. And most people who work office jobs of 39 hours don't get any overtime or time in lieu at all as it's factored into their wages.

As for the bank holiday pay - you were paid double for the time that you worked on the bank holiday. I don't see a problem with this. The time past midnight is not the bank holiday & therefore you wouldn't be entitled to double pay for that.

Brid Hegarty

@beachhead As far as I am aware when you join a company on shift work your hourly rate compensates for the unsocial hours of shift work.

I don't know. There are people on certain parts of the site who work work minimum wage who work night shifts.

Brid Hegarty

@witchgirl26 As for the bank holiday pay - you were paid double for the time that you worked on the bank holiday. I don't see a problem with this. The time past midnight is not the bank holiday & therefore you wouldn't be entitled to double pay for that.

Here is what I wrote in my OP, but now worded better:

"I got two different answers when I rang the WRC. One person said I should get an extra 7 hours to make it up to a total of 12 paid hours (5 + 7 = 12), and the other person said I should get an additional 12 hours (BH allowance) on top of the 5 hours that I got paid."

So either way, one of those answers has to be correct. It can't be the case that someone gets less money for working the BH. It doesn't make sense.

@witchgirl26 People get overtime for time worked over & above what their contracted hours are - that could be 39 hours, 48 hours, 10 hours. Doesn't matter if it's shift work or not - it's based on their contracted hours. 

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

"The nature of Security work means that hours of work may be variable. Your average hours of work each week are 24 hours. However, hours may vary due to business needs and operational requirements. Your precise hours will be based on your rostered work pattern, which is published to you in advance."

Brid Hegarty

@mrslancaster Pay for holidays/Annual Leave is based on the normal weekly rate you received when you last worked before the AL starts. This is the fixed amount you are paid each week including any fixed regular bonus or allowance...

Are you sure? In one part of my contract it reads:

"Site Premium rates are agreed by the customer on an individual basis and are strictly site specific."  

And in another:

"The value of holiday entitlement will be calculated at the basic hourly rate applicable to your normal place of work." 

I know that my contract seems to suggest that the site premium I get (depending on my location on site) can be ignored when it comes to calculating holidays pay. But a contract cannot negate statutory rights. There has been another worker questioning this too.

Thanks

jimmycrackcorm

https://www.boards.ie/discussion/comment/118003539#Comment_118003539

You are a part time worker then as you are only working 24 hours per week. So this applies :

Part-time employees

You are entitled to a day's pay for the public holiday if you meet both these conditions:

• You have worked for your employer at least 40 hours in the 5 weeks before the public holiday
• The public holiday falls on a day you normally work

If you are required to work that day you are entitled to an additional day's pay.

If you do not normally work on that particular day, you should get one-fifth of your weekly pay. Even if you are never rostered to work on a public holiday, you are entitled to one-fifth of your weekly pay as compensation for the public holiday.

So you got paid 5 hours which is one-fifth of your contracted hours. I don't know why you think it should be 9.6. I don't think you told the WRC you are only part-time and only working 24 hours per week. And the hours worked after midnight were not bank holiday hours. So looks correct to me.

You haven't given specifics about your issue with holiday pay, but I do think you aren't clear about your entitlements, and I also think employers use payroll software that does these calculations correctly as long as the correct information is recorded.

AnRothar

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

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

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

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

@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

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

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

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

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?

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

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

marty whelan

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

Darc19

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

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

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

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

paul71

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

@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

@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

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

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.