FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : SLIEVE BLOOM COACH TOURS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - LIAM O' REILLY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation Rights Commissioner Decision No: r-085118-mw-09/TB
BACKGROUND:
2. This case concerns an appeal by the Employer of Rights Commissioner Decision No: r-085118-mw-09/TB. The issue concerns a Driver employed by the Company who claims to have worked 75 hours per week and received a weekly rate of pay well below the National Minimum Wage that applied at the time. The Claimant's position is that he remained with the vehicle at all times and took on additional tasks relating to his employment throughout the working day.
The Employer's position is that the worker drove on certain routes during the day and was not under the control of the employer in between his assigned routes. The Employer further contends that the worker was aware that he was entitled to rest periods during the time between routes each day.
The dispute was referred to a Rights Commissioner for investigstion. His Decision issued on the 18th March, 2010 and found, on the uncontested evidence of the Complainant that the worker had been underpaid the National Minimum Wage. The Right's Commissioner awarded the worker
€15,657.
On the 9th April, 2010 the employer appealed the Rights Commissioner's Decision in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on 6th July, 2010.
COMPANY'S ARGUMENTS:
3 1 The worker was employed to operate a particular bus route. Between routes there were significant break periods that the worker was not required to carry out any duties on behalf of the employer or to be available for work. The worker was aware that he was entitled to take this time as rest periods
2 The Company complied wth the National Minimum Wage Act, 2000 as the worker was only required to work during the hours that he was actively completing his route and was paid for those hours only. He was not entitled to be paid for the intervening periods as he was not required to work
WORKER'S ARGUMENTS:
4 1 The worker was employed throughout the day, while on his route and in between times also. If he was in between routes he would clean the bus, make sure that it had adequate fuel and he was also required to reconcile the cash payments made.
2 The worker was not aware that the time in between routes was classed as rest periods as he continued in his work during this time. He was also unable to leave the vehicle as it could not be locked. In addition it was not practical to take this time as rest periods as he was often parked in rural locations with no facilities nearby.
DETERMINATION:
This is an appeal by Slieve Bloom Coach Tours against the decision of a Rights Commissioner who found in favour of Mr. Liam O’Reilly in respect of complaint under the National Minimum Wage Act 2000 (the Act). The Rights Commissioner awarded the Complainantthe sum of €15,657.00.
The Employer failed to attend the hearing before the Rights Commissioner for reasons which were explained to the Court.
For ease of reference, the parties are referred to by their designations at the time of the Rights Commissioner’s hearing i.e. Mr. Liam O’Reilly as “the Complainant” and Slieve Bloom Coach Tours as “the Respondent”.
The Complainant claims to have been underpaid by the Respondent in terms of the minimum wage prescribed by the Act during the course of his employment with the Respondent between 26th April 2008 and 28th August 2009.
The Court is satisfied that the conditions precedent to its jurisdiction prescribed by section 24(2) of the Act have been met.
The Complainant was employed as a bus driver by the respondent and he submitted that during the period of his employment he worked an average of 75 hours per week Accordingly, based on his weekly earnings of €418.64 he calculated his pay at €5.58 per hour, when the national minimum wage was €8.65.
The Complainant told the Court that he worked from 6.30am to 7.30pm Mondays to Fridays and from 8.00am to 7.30pm on Saturdays.
The Respondent denied the Complainant’s contention and stated that the Complainants duties required him to drive the bus on the Portlaoise/Mountmellick/Tullamore route. It outlined the details of each of the four bus runs on Mondays to Fridays and on Saturdays. The first run commenced at 7.15am Mondays to Fridays and 8.30am on Saturdays and finished at 6.40pm every day. His duties required him to be available 15 minutes before the start of each run in the morning and 15 minutes at the end of day.
The Respondent held that between each bus run he was not carrying out or performing the activities of his work at the employer’s place of employment nor was he required to be available for work. It held that there were four break periods during the day – 55 minutes, 1 hour and 35 minutes, 1 hour and 50 minutes and 1 hour and 20 minutes, a total of 5 hours and 20 minutes. The Respondent accepted that the Complainant was not informed that he would not be paid during these breaks.
The Complainant disputed the Respondent’s contention and stated that during the break periods he was engaged in fueling, defrosting and cleaning the bus. He also said that he spent some time checking the cash.
The Complainant was not provided with a written contract of employment. Nor was he provided with a statement particularising the terms of his contract, including his hours of work and the breaks to which he was entitled.
The Court accepts the details of the working day submitted by the Respondent as outlined above. hHowever, it is of the view that the Complainant was required to be in attendance during the break periods referred to. He was in charge of the bus at such times. The Court is satisfied that the hours worked including the break periods referred to but excluding a period of one hour for lunch, come within the definition of “working time” as defined by section 8 of the Act.Section 8(1)(b) provides as follows: -
8(1) for the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9, "working hours", in relation to an employee in a pay reference period, means-
(a) [not relevant]
(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,
On that basis the Court has calculated his working hours at 64 ¼ hours per week and thereby finds that he was paid €6.52 per hour, which was in breach of the Act. Therefore, the Court is satisfied that the Complainant is entitled to recover arrears of wages in the amount of
€9,324.33. It is the Determination of the Court that the Respondent herein pay to the Complainant arrears in that amount.
The decision of the Rights Commissioner is set aside and substituted with the terms of this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd July 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.