Council road worker entitled to pension payment increase over compulsory overtime

Ann O'Loughlin

A road worker with a county council for 50 years is entitled to have his pension payments increased because he worked at least nine hours compulsory overtime every week, the High Court has ruled.

Reckonable back payments to now retired road maintenance worker Padraig Browne (83), who worked for Mayo Co Council, will, however, be limited to six years, having regard to the statute of limitations period, Mr Justice Garrett Simons said.

The pensioner will be entitled to a future increase in his ongoing pension payments to reflect the fact that he worked at least nine hours extra, the judge said.

Mr Browne will not be entitled to recover any shortfall in the lump sum payment made to him on his retirement in 2008 but is entitled to interest for the six years of calculable employment, he said.

Mr Browne was based at a council machinery yard near Newport in Mayo working as a tipper truck driver getting materials for road repairs to a number of locations around the county and ensuring supplies were "topped up" at various locations.

He claimed he was required to start work at 7am, an hour before the official starting time of 8am, in order to ensure supplies would be ready for workers starting on the roads at 8am.

Due to the distances of travel involved, he said regularly returned to the machinery yard well after 4pm finishing time, he said.

He claimed the overtime was compulsory and on one occasion many decades ago, when he refused, he was moved out of his area and lost out on subsistence/meal allowance and on overtime for a certain period.

The council contended that the employment contract only required the plaintiff to complete 39 hours per week and that any hours worked in excess of that amount constituted optional overtime hours.

Mr Justice Simons said his decision was prepared on the basis of an agreed 1991 ministerial circular relating to how overtime payments were to be calculated as part of pensionable remuneration.

He found that once it is recognised that the interpretation of the employment contract must be informed by the 48 hour weekly threshold under the Organisation of Working Time Act 1997, the compass of the factual dispute between the parties narrowed significantly.

The dispute turned, primarily, on the question of whether it had been compulsory for Mr Browne to perform a minimum of nine hours of overtime work per week (excluding annual leave weeks). The court concluded that this amount of overtime hours was compulsory.

The court also concluded that the overtime was regular and recurring and had to be carried out at specified hours. It also had to be performed outside normal hours to facilitate the timely commencement of work by other employees and was "part and parcel" of Mr Browne's employment, the judge said.

His conclusions were grounded on the wording of the employment contract read in light of the employment rights legislation and the pattern of working hours and the agreed overtime spreadsheet.

They were also grounded by the exigencies of road construction and road repair works; and the fact that Mr Browne had been required to commence his working day one hour ahead of normal working hours, with his precise end time being dictated by the exigencies of completing deliveries and returning the tipper truck to the machinery yard.