FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : AN OIGE Y.H.A. (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms. Jenkinson Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Decision MW1844/00/CW.
BACKGROUND:
2. The appeal concerns a worker who commenced employment as a youth hostel warden in 1983. Her duties entail the smooth running of the hostel on a continuous basis over 7 days. The hours of work are defined in the worker's statement and terms and conditions of employment. The normal hours of work are from opening of the hostel in evening time to closure of the hostel the following morning Monday to Sunday. At present the hostel is officially closed from 10.30 a.m. to 5 p.m.
The union claims that the employee works 7 nights per week 5 .p.m. to 10 p.m. in reception -35 hours- and also works 7 days in reception 9 a.m. 10 a.m.- 7 hours- and that during the week she has to work after 10 p.m. to 12 midnight Sunday to Wednesday or even to 2.a.m.,Thursday to Saturday night. This equates to an average of 14 hours extra per week. There is also cleaning which takes a further 21 hours. The Union claims that the employee works between 80-90 hours per week and receives only £100 p.w. for these hours. The Union claims that the employee should receive the minimum wage of £4.70 for 39 hours and appropriate overtime for hours worked in excess of 39. The Union claims that while free lodgings are provided, no board is provided as all food is purchased and cooked by the claimant. The Union disputes the Rights Commissioner's Decision in that regard.
The Company rejected the claim stating that though the claimant has an employment contract the reality of the relationship needs to be looked at. The worker's position as a hostel warden constituted a way of life, she determines her own hours, has total
independence over her day to day duties and An Oige does not control her in any way. She is provided with family accommodation and An Oige pays all costs associated with the accommodation, heat, light, maintenance, etc,. The claimant, if she so desires, can carry on her own secondary business in the hostel itself.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision, issued on the 8th of February, 2001, found that the place of work and residence of the worker are the same. He saw no written evidence that the employee is working more than 40 hours per week and the remainder of her time is on standby or on call at her place of residence. The Rights Commissioner found that she receives free lodging, which qualifies for a £17-21 offset and that she is entitled to provide and charge for meals for her own profit. Without any guidance to the contrary the Rights Commissioner put a national value or this equivalent to the value of full board and lodging for the worker i.e. £42.63. This is in accordance with Part 1 of the schedule of Section 19 of the Act. The Rights Commissioner considered the worker is entitled to a weekly rate of pay of £176 less £42.63, i.e. £133.37 for hours demonstrably worked in excess of 40. The worker is entitled to be paid at the rate of £4.40 per hour. The Rights Commissioner decided that the worker is entitled to the following from the Association:-
"An award of £33-37 per week for the period from the 1st of April, 2000 to the 13th of July, 2000, (date of dispute referral).
A payment of £100 towards expenses. He required the Association to amend the terms of employment of the worker to conform to this Act."
An Oige implemented the Rights Commissioner's Decision from date of issue at all its locations.
On the 8th March, 2001, the Union appealed the Decision to the Labour Court. The Court heard the appeal in Tralee on the 21st of August, 2001.
DETERMINATION:
The Court has considered all aspects of the appeal of the Rights Commissioner's Decision. Included in the Union's appeal is an assertion that no board is provided to the employee, she purchases and cooks all her own food and therefore the Rights Commissioner should not have taken this element into account when deciding on the deduction to be made from the employee's wages.
The Court is satisfied that no board is provided, therefore, the Court determines that the Rights Commissioner's Decision should be amended accordingly.
In assessing the amount to deduct in respect of board and lodgings, the Rights Commissioner was guided by Section 19 of the National Minimum Wage Act, 2000 as regulated by S.I. No. 95 of 2000, this sets the deduction for board at £25.31 and lodgings at £17.21 per week.
The Court determines that a deduction for board should not be made from the weekly rate of pay (£176) as decided by the Rights Commissioner, as the claimant is not in receipt of
board. The Court determines that the lodgings element only (£17.21) should be deducted. Therefore, the claimant is entitled to be paid £158.79 per week from the 1st of April, 2000 to the 30th of June, 2001 and as the national minimum wage has increased since the 1st of July, 2001 to £4.70 per hour, the employee is now deemed to be entitled to £170.79 per week.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th September, 2001______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.