FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : EDWARD JAMES FEENEY (REPRESENTED BY BOURKE CARRIGG & LOFTUS, SOLICITORS) - AND - MILAGROS BAQUIRAN (REPRESENTED BY PHILIPPINE CONSUL) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners decision WT/16228/03/TB.
BACKGROUND:
2. The appeal concerns a worker who came to work in Ireland on 10th August, 2002 with a work permit obtained by her employer for whom she previously worked in Hong Kong for two years as a domestic helper under Hong Kong Legislation. Her employment ended on the 13th May, 2003. The worker claimed that she had to work excessive hours and did not receive her correct holiday entitlements contrary to the provisions of the Organisation of Working Time Act, 1997. The dispute was referred to a Rights Commissioner for investigation. On the 21st April, 2004 the Rights Commissioner issued his decision as follows:
"I uphold the complaint and award the claimant €1,000 compensation".
On the 26th May, 2004 the Employer appealed the decision to the Labour Court. The Court heard the appeal in Castlebar on the 6th July, 2004.
EMPLOYER'S ARGUMENTS:
3. 1. The claimant did receive rest periods during the course of each working day. She did not work and was not required to work over 48 hours per week in any week during the period of her employment in this jurisdiction.The Employer categorically denies that the claimant worked 69 hours per week.
2. The claimant resided in the dwellinghouse where she was required to carry out the terms of her employment under which she would have been required to carry out certain work at different times during the course of her working day. The terms of Section 4(2) of the Organisation of Working Time Act, applied to her employment.
3. The Employer denies that the claimant received no annual leave entitlements. The Employer was never notified by the claimant that she wished to take annual leave.
4.WORKER'S ARGUMENTS:
1. During her employment the claimant was required to work very significantly over the legally defined average maximum working hours per week. She did not receive her entitlement to advance notice of working hours. No contract of employment was provided or written statement of her terms of employment relating to her hours of work including the standard working hours which the claimant would be expected to work. She was normally required to work from 9.00 a.m. to 8.30 p.m. six days per week.
2. The Employer did not keep records of the days and hours worked each week using Form OWT 1 or a substantially similar form to this, as required under the Organisation of Working Time Act (Records) Regulations, 2001 (part of the 1997 Act).
3. On the work permit application form employers are required to declare that "the full benefit of all relevant Irish Employment Rights legislation will be applied to their employee". This means
(a) Maximum working hours and minimum periods of rest (as laid down in the Organisation of Working Time Act, 1997)
(b) Minimum holiday entitlements and pay arrangements in respect of holiday (as laid down in the Organisation of Working Time Act, 1997). Her annual leave entitlements which she is owed amount to €698 calculated as follows:
1.66 x 7 months x7.8 = 90.6 hours x €6.35= €575.00
1.66 x 1.6 months x7.8=20.7 hours x €5.97= €123.00.
DETERMINATION:
The claimant was employed by the respondent as a domestic helper in Hong Kong. On or about 10th August 2002 the claimant came to Ireland with the respondent’s wife and children and continued to work for the respondent in this jurisdiction until 13th May 2003. Her gross salary was €125 per week.
The claimant brought proceeding before a Rights Commissioner claiming infringements of a number of employment rights statutes in respect of her employment, including the Organisation of Working Time Act 1997. The respondent did not attend before the Rights Commissioner for reasons which were not explained to the Court. In respect of her claim pursuant to the Organisation of Working Time Act 1997, the claimant contended that she was required to work up to 69 hours per week, that she was not provided with breaks, and did not receive annual leave. The Rights Commissioner found for the claimant and awarded her compensation in the amount of €1,000. The Rights Commissioner also awarded the claimant separate compensation for an infringement of the Terms of Employment (Information) Act 1994. The Rights Commissioner expressed the view that the claimant’s claim for arrears of wages (which was taken under the Payment of Wages Act 1991) should have been taken under the Minimum Wage Act 2000.
This appeal is concerned only with the claim under the Organisation of Working Time Act 1997.
The respondent denied that the claimant worked in excess of the statutory maximum hours. He further contends that she worked intermittently during the day and, in consequence, her employment came within the exemption from the requirement to provide daily and weekly rest provided by section 4(2) of the Act. The respondent did not maintain records relating to the claimant's working time. The respondent accepted that the claimant did not receive annual leave but contended that she never requested leave.
The respondent further submitted that the claimant’s contract of employment was made in Hong Kong and is governed by the law of that jurisdiction. This contract provides for one weeks unpaid annual leave and for rest periods in accordance with Hong Kong Employment Ordnance Chapter 57
The claimant told the Court that she worked from 9am to 8.30pm six days per week doing general housework and child minding. She was not granted breaks during the day and was not aware of her statutory entitlement to breaks.
Conclusions of the Court.
The Court is satisfied that the contract entered into between the claimant and the respondent in Hong Kong was in respect of her employment in that jurisdiction and could only be performed in that jurisdiction. When the claimant came to work for the respondent in this jurisdiction an implied contract of employment came into being which was governed by the law of Ireland. In any event Section 37 of the Act renders void any provision in a contract of employment which purports to exclude or limit the application of, or is inconsistent with, any provision of the Act. Accordingly, the Court is satisfied that the provision of the Act are applicable to the claimant’s employment in Ireland.
The respondent failed to maintain records in relation to the claimant’s working time as is required by S.I. 473/2001: Organisation of Working Time (Records)(Prescribed Form and Exemptions) Regulations 2001. Section 25(4) of the Act provides, in effect, that where records are not kept in the prescribed form, the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with in respect of the claimant, rests on the employer.
The Court has evaluated the evidence of the claimant regarding the hours which she normally worked with the respondent and the rebuttal evidence given on behalf of the respondent. On the evidence the Court does not accept that the respondent has proved, on the balance of probabilities, that the claimant's evidence should be rejected and that the relevant provisions of the Act were complied with. Whilst there may have been times during the working day when the claimant was not engaged in undertaking tasks associated with her employment, her physical present at her place of employment and her availability for work meant that such periods must be regarded as part of her working time within the meaning of the Act and the Directive on which it is based. (see the Judgment of the European Court of Justice in CaseC-241/99, Confederacion Intersindical Galega (CIG) v Servicio de Saude (Sergas) ECR [2001] 15139
Accordingly the Court finds that the respondent contravened Section 12, of the Act in failing to provide the claimant with breaks in accordance with that section and that he contravened Section 15 of the Act in requiring her to work hours in excess of the maximum number prescribed by that section.The Court also finds, on the respondent’s admission, that he contravened Section 19 of the Act in failing to provide the claimant with annual leave in accordance with that section.
Redress.
The Rights Commissioner awarded the claimant compensation in the amount of €1,000 in respect of her complaint under the Organisation of Working Time Act 1997 (which included compensation for the economic value of the holidays withheld, calculated at the national minimum wage, amounting to €698). Whilst the claimant did not appeal against the amount of compensation the Court is, nonetheless, entitled in this de novo hearing to take its own view on the appropriate level of compensation.
InCementation Skanska (Formerly Kvaerner Cementation) and Tom Carroll Determination 0338this Court stated as follows in relation to the computation of compensation for failure to provide annual leave in accordance with the Act:
“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559 which were quoted with approval by Lavin J in the Royal Liver case). In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”
In the Court's view similar considerations apply in computing compensation for contraventions of Sections 12 and 15 of the Act.
Having regard to all the circumstances the Court is satisfied that the appropriate level of compensation in this case is one of €1,000 in respect of respondent’s failure to provide the claimant with her entitlement to annual leave and a further €1,000 in respect of his failure to allow breaks in accordance with Section 12 and in requiring the claimant to work hours in excess of the maximum hours permitted by Section 15.
The total amount awarded under the Organisation of Working Time Act, 1997 is therefore €2,000 and the respondent is ordered to pay to the claimant compensation in that amount.
For the avoidance of doubt this award is in addition to that awarded by the Rights Commissioner under the Terms of Employment (Information) Act 1994.
The decision of the Rights Commissioner is amended accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
15th July, 2004______________________
TOD/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.