FULL RECOMMENDATION
SECTION 27(1); NATIONAL MINIMUM WAGE ACT; 2000 PARTIES : ENORA TEORANTA - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision MW3574/01/CW & MW3581/01/CW.
BACKGROUND:
2. The Company was set up in March, 1998, at the request of �darás na Gaeltachta, solely to take the overflow from another Company in the area on a temporary basis. In August, 1998, the new business was asked to assemble fibre optic cables and this resulted in very high piece-rate earnings. All operators were given a choice of piece work or straight time and they all opted for piece-rate. There was no difficulty with wages when the workers were working on the fibre optic cable. In September, 2000, the Company changed to cooper cable and staff suffered a significant reduction in pay. The Union argued that their wages fell below the National Minimum Wage. The Company rejected the claim. The claim was referred to the Rights Commissioner for investigation and recommendation.
The Rights Commissioners recommendation is as follows:
" I decide that the employees are awarded the following arrears and expenses.
£ (Euro) £ (Euro) £ (Euro)
Arrears Expenses Total
Ms Joyce 181 (229.82) 250 (317.43) 431 (547.26)
Ms B Gannon 67 (85.07) 250 (317.43) 317 (402.51)
Ms M.A. Flaherty 113 (143.48) 250 (317.43) 363 (460.91)
Ms E Folan 84 (106.66) 250 (317.43) 334 (424.09)
Ms S Flaherty 112 (142.21) 250 (317.43) 362 (459.65)
On the 2nd of August, 2001, the Company appealed the Rights Commissioner's recommendation to the Labour Court under Section 27(1) of the National Minimum Wage Act, 2000. The Court investigated the appeal in Galway on the 12th of September, 2001.
UNION'S ARGUMENTS:
3. 1. There were operational difficulties which seriously limited the workers earning potential.
2. Workers were present and available for work at the plant at all times and should have been paid at least the National Minimum Wage.
3. Workers reject the contents of Management's statement as the hours of attendance at work and the wage figures differ from the amount of money paid into the workers bank accounts.
4. The compensation claimed by the workers is in respect of expenses arising from loss of earnings, attendance at meetings in respect of their claim, child-minding expenses, postage, bank charges, etc.
COMPANY'S ARGUMENTS:
4. 1. Two of the five workers involved joined the Company on a part-time basis on the 2nd of October, 2000, and as such were only entitled to a training rate of £3.30 (4.19 Euro).
2. One of the workers would only have been entitled to a rate of £3.96 (5.03 Euro) and her average hourly rate for the period was £4.63 (5.88 Euro). One of the workers opted for piece-rate at the time of hiring.
3. There are major inaccuracies in the amounts earned as shown by the Union and in the hours worked.
4. The claim for expenses was for £200 (253.95 Euro) for each of the worker's involved, the Rights Commissioner awarded £250 (317.43 Euro), some of the workers involved did not appear to attend any meeting or hearing.
DETERMINATION:
The Court has given serious consideration to this appeal. The Court hears this appeal under Section 27 of the National Minimum Wage Act, 2000. For the purposes of the Act, Section 10 allows an employer to select a pay reference period of not more than one calendar month. The method of payment in this Company was on a weekly basis and there is no evidence to suggest that the employer indicated to the employees that a different period was being used so as to comply with the requirements under the Act.
The Court is satisfied that the employer has not complied with the Act. While employees were paid on an output/productivity basis, the employer has not ensured that the employee's reckonable pay when divided by the employee's hours of work complied with the minimum hourly rate of pay at all times.
The employer has indicated to the Court that two of the claimants were paid a training rate and, therefore, were not entitled to the experienced adult worker rate as specified in the Act. S.I. No. 99 of 2000 (Prescribed Courses of Study or Training) Regulations, 2000 lays down the criteria the payment of a training rate for the purposes of the Act. Included in such specifications are the requirements to be assessed for certification by a certifying body or the arrangements concerning written confirmation of the employee's completion of the course identifying the level of employee attainment against the objectives, which must include provision for the employee's signature. It also includes workplace training, which means planned, and structured training carried out under normal operational job pressures and can be delivered inside or outside the workplace. The Court is not satisfied from the information supplied that these two workers were "trainees" for the purposes of S.I. No. 99 of 2000.
The Union claimed that five employees were paid less than the legal minimum entitlement in the period from the 1st of September to December, 2000, and that the Company were, therefore, in breach of the Act.
Based on the Court's examination of the Company's data, the Court finds that the following payments are outstanding, and, therefore, determines that the employer pay the amounts as stated below:
Ms. Brid Joyce £67.05 (84.15 Euro)
Ms. M. A. Flaherty £144.65 (183.67 Euro)
Ms. E. Folan £135.16 (171.62 Euro)
Ms. Susan Flaherty £161.23 (204.72 Euro)
Ms Brid Gannon ---------
And the Court recommends that the employer should pay the expenses payments as Recommended by the Rights Commissioner to all five claimants.
The Rights Commissioner's Recommendation is hereby amended. The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st November, 2001______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.