FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : JOHNSTON LOGISTICS LTD - AND - MR JOSE LITO D QUIBER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision R-033301-ma-05-DI
BACKGROUND:
2. The Claimant, a Philippino National, was employed as an articulated truck driver by the Company, Johnston Logistics Ltd, from May, 2001, until his employment ended in March, 2005. His contract of employment stated that his minimum working day consisted of eight hours with a guarantee of forty five hours work per week applicable to day and night shift. At the time of his initial appointment the Claimant was paid a rate of €5.59 per hour plus lodgings to the the value of €0.49 per hour, giving him reckonable pay of €6.08. The National Minimum Wage up to the 30th June, 2001, was €5.59 and from the 1st July, 2001, €5.97 per hour. In October, 2002, his rate of pay was increased to €5.86 per hour and including lodgings his reckonable pay was €6.35. In February, 2004, the Claimant was being paid €7.46 per hour.
- The Union contends that its member, the Claimant, worked an average of sixty hours per week and not forty five as stated in his contract, therefore the Claimant was paid an hourly rate of pay less than the National Minimum Wage. The dispute before the Court concerns a claim by the Union on behalf of its member for payment of the correct hourly rate of pay for each hour he worked retrospectively to May, 2001.
- The Company rejects the claim on the basis that the Company pays its drivers for hours worked excluding time spent travelling to and from home to the depot and meals and other breaks. Overtime is paid once twelve hours per day have elapsed from the time of leaving home and returning home. The Claimant also received a tax free subsistence payment of €50.9 per week at the time of his recruitment and this amounted to €97 per week by the time he left the employment. The payment of subsistence is to compensate the driver for meals and breaks.
The matter was referred to a Rights Commissioner for investigation and Decision. The Rights Commissioners Decision issued on the 3rd October, 2005, as follows:
" The respondent Company deducted 1.25 hours per shift travelling time from the hours recorded by the claimant. I find this to be excessive. Based on the tachographs presented to the trade union, only 51.44% of those journeys could be taken as starting and finishing at Newbridge rather than at the Rathcoole Depot. Furthermore, there were occassions when the claimant facilitated the company by handing over the truck to a colleague in Newbridge. In addition, an analysis of the tachographs provided by the Company in its submission shows that the return journey from Rathcoole to Newbridge would take 1.1 hours rather than 1.25 hours deducted by the Company.
Having taken the above into account I find that the claimant was paid below the Minimum Wage from when his employment started in 2001 to the 31st January 2004. When the above factors are taken into account they show that the claimant was at a loss of €1,541 for the period from when he commenced employment to the 31st January 2004. I therefore award the claimant compensation of €1.541.."
On the 10th October, 2005, the Union appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Sections 27(1) of the National Minimum Wage Act, 2000, on the basis that the Rights Commissioner was correct in his findings, which established that the Claimant was paid below the National Minimum Wage, however, the Rights Commissioner was wrong in law and in his conclusions and calculations of the hours worked by the Claimant and subsequently erred in his award of €1,541.
A Labour Court hearing took place on the 24th February, 2006.
- The Company rejects the claim on the basis that the Company pays its drivers for hours worked excluding time spent travelling to and from home to the depot and meals and other breaks. Overtime is paid once twelve hours per day have elapsed from the time of leaving home and returning home. The Claimant also received a tax free subsistence payment of €50.9 per week at the time of his recruitment and this amounted to €97 per week by the time he left the employment. The payment of subsistence is to compensate the driver for meals and breaks.
DETERMINATION:
The Court has considered the written and oral submissions made by the parties. From the evidence presented, the Court has formed the view that the Claimant was paid less than the minimum wage for his period of employment.
The Court has calculated the arrears due on the bases of hours worked, less breaks and travel time, taking into account the Claimant’s weekly wage plus accommodation allowance, vis-á-vis the appropriate National Minimum Wage.
Following the above exercise, the Court allows the appeal of the Rights Commissioner’s Decision and awards the Claimant the sum of €6,619.60.
The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
31st March 2006______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.