S.I. No. 475/1997:

ORGANISATION OF WORKING TIME (DETERMINATION OF PAY FOR HOLIDAYS) REGULATIONS, 1997

ORGANISATION OF WORKING TIME (DETERMINATION OF PAY FOR HOLIDAYS) REGULATIONS, 1997

I, TOM KITT, Minister for Labour, Trade and Consumer Affairs, in exercise of the powers conferred on me by sections 7 , 20 , 22 and 23 of the Organisation of Working Time Act, 1997 (No. 20 of 1997), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 305 of 1997 ), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 ( S.I. No. 330 of 1997 ), hereby make the following regulations:

1. These Regulations may be cited as the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, and shall come into operation on the 8th day of December, 1997.

2. (1) In these Regulations "the Act" means the Organisation of Working Time Act, 1997 (No. 20 of 1997).

(2) References in these Regulations to a sum paid to an employee in respect of time worked by him or her shall, where appropriate (and, in particular, in a case of the employer's insolvency), be construed as including references to a sum that is liable to be paid to the employee in respect of time worked by him or her and references to an employee's pay shall be construed accordingly.

3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the 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.

(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over--

( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

or

( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was 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.

4. The following, namely--

( a ) the rate at which an employee is paid in respect of a day off under section 21 of the Act,

( b ) the rate of an employee's additional day's pay under that section, and

( c ) the appropriate Daily rate of the employee's pay for the purposes of section 23 of the Act,

(each of which is referred to hereafter in these Regulations as "the relevant rate") shall be determined in accordance with the subsequent provisions of these Regulations.

5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then--

( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to 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) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday,

( b ) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over--

(i) the period of 13 weeks ending immediately before that public holiday,

or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then--

( a ) in the case the employee's pay is calculated wholly be reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the sum 9including 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) paid in respect of the normal weekly hours last worked by the employee before that public holiday,

( b ) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over--

(i) the period of 13 weeks ending immediately before that public holiday,

or

if not time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday:

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

6. If--

( a ) the employee concerned does not work or is not normally required to work on a day which is a public holiday,

and

( b ) he or she is required to work half the time required to be worked by a wholetime employee of the employer, being an employee employed to do work that is identical or similar to that which the employee concerned is employed to do,

and

( c ) the pay of the employee concerned is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations,

then the relevant rate in respect of that public holiday shall be the sum that is equal to one-tenth of 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 last 2 weeks of normal working hours worked by the employee before that public holiday:

Provided that the relevant rate to which the employee concerned shall be entitled under this Regulation in respect of a public holiday shall not exceed a sum that is equal to one half of the relevant rate to which he or she would be entitled in respect of that holiday if Regulation 5(l)(a) of these Regulations were to apply to him or her.

7. Nothing in these Regulations shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the pay in respect of a public holiday.

GIVEN under my hand this 1st day of December, 1997.

TOM KITT, T.D.

Minister for Labour, Trade and Consumer Affairs.

EXPLANATORY NOTE

These Regulations set out the methods for calculating, for the purposes of the Organisation of Working Time Act, 1997

( a ) the normal weekly rate of an employee's pay (sections 20 and 23) and

( b ) the appropriate Daily rate of an employee's pay (section Copies of the Regulations may be purchased from the Government