FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GOLD FORCE SECURITY MGT - AND - RYSZARD SUCHOWIECKI (REPRESENTED BY INDEPENDENT WORKERS UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Decision R-060671-WT-08/JOC.
BACKGROUND:
2. This case concerns an appeal by the Employer of Rights Commissioner's DecisionR-060671-WT-08.The Worker was employed by the Company from 13th January, 2007, until 5th November, 2007.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation and a hearing was arranged for 22nd July, 2008. The Rights Commissioner's Decision was as follows:
- "I find the claimant's case to be well founded and I award him €7,500 in compensation for breaches of the Act."
The Company appealed this Decision to the Labour Court on 26th September, 2008, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 28th January, 2009.
DETERMINATION:
This is a claim on behalf of Mr Ryszard Suchowiecki under the Organisation of Working Time Act 1997 ( the Act). The Respondent, Gold Force Security, is a provider of security services. The Claimant was employed by the Respondent in his capacity as a security guard between 13th January and 5th November 2007. The Claimant was absent from work due to an injury from 22nd July 2007.
The substance of the claim is that the Claimant was required to work excessive hours. The Rights Commissioner held for the Claimant and awarded him compensation in the amount of €7,500.
Section 15 of the Act provides as follows:-
15.-(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a "reference period") that does not exceed -
(a) 4 months, or
(b) 6 months-
(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
(ii) where due to any matter referred to in Section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection
Paragraph 2, point 2.1 (b) of Article 17 of Directive 93/104/EC contains the reference to:-
(b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;
It would, therefore, appear that the averaging period referred to at Section 15 of the Act, in the case of the provider of security services, is six months.
The Court was provided with the records of hours worked by the Claimant in the 27 weeks during which he worked for the Respondent. During this period his average working hours were 47.59. Consequently the Respondent did not contravene Section 15 of the Act.
DETERMINATION.
The Decision of the Rights Commissioner is set aside and substituted with a determination that the complaint herein is not well founded.
Signed on behalf of the Labour Court
Kevin Duffy
9th February, 2009.______________________
JMcC.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.