FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CONTRACT PERSONNEL MARKETING IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARIE BUCKLEY (REPRESENTED BY IWU) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner’s Decision R-076846-Wt-09/JOC
BACKGROUND:
2. The Company is involved in field marketing in Ireland. The worker (one of two involved in the claim) began employment with the Company in 1991 as a Merchandiser. The Company's case is that working hours vary depending on client activity and work available and that workers can accept or reject the work on offer. They can work anything from zero hours to 48 hours in any given week.
In November, 2008, the worker referred a case for unfair dismissal to the Rights Commissioner's service. At the hearing it was established that she had not been dismissed. Following the withdrawal of her complaint the workers has been on certified sick leave from February, 2009. In March, 2009, the worker's Union referred a complaint to the Rights Commissioner that the claimants are on-call but did not receive any payment for same. The Company's case is that such a claim is not covered by the Organisation of Working Time Act, 1997 (the Act).
The case was referred to a Rights Commissioner whose decision was as follows:
"I find the claimant's case to be well founded and I award each claimant €750 and I instruct the respondent to provide the claimants with a minimum floor payment on a weekly/monthly basis going forward."
The Company appealed the decision to the Labour Court on the 22nd December, 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 2nd March, 2011, in Cork.
COMPANY'S ARGUMENTS:
3. 1. The worker's case relates to "on-call" but this is not covered by the Act which deals with rest periods, working time and annual leave; "on-call" is specifically excluded. Furthermore the worker has never worked on-call; she is employed as a Merchandiser. An employee who is on-call must make themselves available when required by the employer. This is not the case with the worker, or indeed any other Merchandiser employed by the Company, who are free to accept or reject any work offered.
2. It is also not true that the worker is employed under zero-hour contracts. The provisions of the Act which related to on-call applies to workers who arerequiredto make themselves available for work.
UNION'S ARGUMENTS
4. 1. The claimant is engaged in zero-hour work and, as such, attract Section 18 of the Act. Section 18 operates to ensure that the employee receives remuneration in circumstances where employee is not required to work for the employer at all in the week even though they are contractually obliged to be available for work.. The Rights Commissioner noted that having an employee available for work but not giving them any is unacceptable.
DETERMINATION:
Ms. Marie Buckley (“the Complainant”) instituted proceedings under Section 27(2) of the Organisation of Working Time Act 1997 (the Act) before a Rights Commissioner. She claimed that as an employee on “Zero Hours Contract” the Employer had breached Section 18 of the Act, by not providing compensation when it failed to provide her with work.
The Rights Commissioner found the Complainant’s claim well founded and awarded her the sum of €750 and instructed the Respondent to provide the Complainant with a minimum floor payment on a weekly/monthly basis going forward.
Contract Personnel Marketing Limited (for ease of reference herein after referred to as “the Respondent”) appealed this Decision and submitted that the Complainant was a casual worker and was not encompassed by the terms of Section 18 of the Act.
Ms. Mairead Crosby, IBEC on behalf of the Respondent, stated that the Complainant has been employed with the Company since 19th March 1991. She is employed as a Merchandiser, which entails merchandising products in stores on behalf of the Respondent and its clients, ensuring high product visibility on promotional stock and on any product merchandised. Working hours vary depending on client activity and hours fluctuate depending on the work available. The Complainant has the right to accept or refuse offers of work. The hourly rate varies depending on the work undertaken. The Complainant could work anything from zero to forty-eight hours in any given week.
Ms. Crosby submitted details of all engagement between the Respondent and the Complainant in the period from 28th October 2008 until 26th January 2010. This information demonstrates that the Complainant was offered and accepted work on a number of occasions each week up to 17th November 2008, however since then despite being offered various jobs she declined the work citing many different reasons. The information showed that the Complainant was certified ill for a number of different periods from 8th January 2009 until 26th January 2010.
Mr. Noel Murphy, IWU on behalf of the Complainant asserted that the Complainant was engaged on a zero-hours working practice as defined by Section 18. He submitted that the Complainant was assigned work “based on the clients’ needs” and “these hours may vary from week to week”, “without much visibility on upcoming work”. He referred to a letter from the Respondent dated 23rd November 2007, addressed “To Whom It May Concern” which stated that the Complainant was employed on a permanent full time basis and works up to a maximum of 20 hours per week.
Mr. Murphy also referred to letter from the Respondent dated 4th September 2008 concerning a grievance meeting held on 23rd July 2008, this letter stated that“While work was not available in recent months, we still very much consider you a loyal and committed employee of CPM ….”
Mr. Murphy submitted details of the hours worked by the Complainant in the period between 27th October 2008 and 15th December 2008. These figures demonstrate that the Complainant worked 20 hours during the week commencing 17th November 2008 and between 40 and 55 hours in the remaining weeks. The Complainant was on certified sick leave from 8th January 2009 and has not worked since. He submitted that between the weeks ending 15th December 2008 and 13th March 2009 – the date the claim was submitted under the Act, that no work was given to the Complainant. He said that for 26 weeks before she lodged the claim she had worked 355 hours and on the basis of her 40-hour week contract she should have worked 1,040 hours, he submitted that she was therefore on call for 685 hours.
Conclusions of the Court
Section 18 of the Act, provides protection for employees working on zero-hours contracts, i.e. a zero-hours contract of employment is a type of employment contract where an employee is available for work but with no specified hours of work. It applies where a formal arrangement is in place where employees are required to be available for a certain number of hours per week, or when required, or a combination of both. Employees on zero-hours contracts are protected by the Act but such protection does not apply to casual employment. The Act states:-
- 18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—
- (b) as and when the employer requires him or her to do so, or
(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,
and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).
The Complainant was not supplied with a written contract of employment when she was recruited, however the Respondent submitted a sample contract of employment supplied since to all persons employed on a similar basis to the Complainant. The terms of this contract states as follows :-
- “HOURS OF WORK
Your hours of work will be determined by mutual agreement. The Company will give you as much notice as possible of hours of work, which are available to you, which is usually between 1 to 2 days. However, the Company may require you to be more flexible to meet the needs of the business and therefore it will not always be possible to give you this notice. This will be done in accordance with the Organisation of Working Time Act, 1997.
You have the right to refuse or accept these hours. You are not expected to be on call for work and will not be paid an allowance for same. The refusal of hours on your behalf will have no negative consequence on hours being offered to you in the future.
Please note that hours of work may vary from week to week and thus, the Company gives no guarantee that hours will be offered to you on a weekly basis. The nature of your role means that there may be periods when no suitable work is available and the Company shall incur no liability to you should it fail to offer opportunities to work. There may also be extended periods of time where a high volume of work is available followed by periods of time where no work is available. This shall in no way give rise to an implied term of a guaranteed minimum amount of working hours.
If you agree to hours of work, you will be required to attend work for those hours. Failure to attend will result in disciplinary action up to and including dismissal.
Hours of work are offered on the basis of suitability and length of service i.e. a list of those suitable will be complied and then, once this list has been formed followed by a first in first asked (FIFA) approach. The below objective criteria are used to decide on suitability:
• Availability.
• Previous Experience.
• Performance during pervious assignments.
• Relationship with store, client or customer.
• Location of work in relation to the location of the employee.
• The employee being contractible by phone.
Your normal working hours range between 7:00 a.m. and 12:00 a.m. (midnight) from Monday to Sunday. You may be required to work overtime depending on the requirements of your work and the business, and at the Company's discretion. You are liable to work Saturday/Sunday/public holidays.
These hours shall be given and paid in accordance with the provisions of the Organisation of Working Time Act, 1997.
Rest breaks will be given in accordance with the Organisation of Working Time Act, 1997. These breaks will be taken at your discretion in line with business requirements and will be unpaid.”
Having considered the submissions of both parties, including details of hours worked and of the work offered but declined by the Complainant and having reviewed the terms of the sample contact, the Court is satisfied that the Complainant is not obliged to remain available for work during defined periods. She is not required to report to the Respondent on a daily basis or otherwise, for the purpose of being allocated work. She is not expected to be on stand-by in case work becomes available. She is offered work from time to time as it becomes available and has the option for whatever reason to decline such work. In the event that she declines the work offered she is not subjected to any form of disciplinary proceedings.
In determining the question of the applicability of Section 18 to the Complainant, the Court does not accept that the letter dated 23rd November 2007, addressed “To Whom It May Concern” is of any significance as it was produced for entirely different purposes. The letter dated 4th September 2008 also stated that“Tactical working hours will vary depending on client activity and, as you are employed on a tactical basis, your hours will fluctuate depending on work available. While work was not available in recent months, we still very much consider you a loyal and committed employee of CPM ….”
It proceeded to state “we will endeavour to increase your hours over the coming months.”
In these circumstances the Court is not satisfied that Section 18 of the Act applies.
Determination
Having regard to the findings set out above the within appeal is allowed and the Decision of the Rights Commissioner is set aside.
Ms. Terri Murphy (“the Complainant”) instituted proceedings under Section 27(2) of the Organisation of Working Time Act 1997 (the Act) before a Rights Commissioner. She claimed that as an employee on “Zero Hours Contract” the Employer had breached section 18 of the Act, by not providing compensation when it failed to provide her with work.
The Rights Commissioner found the Complainant’s claim well founded and awarded her the sum of €750 and instructed the Respondent to provide the Complainant with a minimum floor payment on a weekly/monthly basis going forward.
Contract Personnel Marketing Limited (for ease of reference herein after referred to as “the Respondent”) appealed this Decision and submitted that the Complainant was a casual worker and was not encompassed by the terms of Section 18 of the Act.
Ms. Mairead Crosby, IBEC on behalf of the Respondent, stated that the Complainant has been employed with the Company since 24th June 1991. She is employed as a Tactical Merchandiser, which entails merchandising products in stores on behalf of the Respondent and its clients, ensuring high product visability on promotional stock and on any product merchandised. Working hours vary depending on client activity and hours fluctuate depending on the work available. The Complainant has the right to accept or refuse offers of work. The hourly rate varies depending on the work undertaken. Ms. Murphy could work anything from zero to forty-eight hours in any given week.
Ms. Crosby submitted details of all engagement between the Respondent and the Complainant in the period from 28th October 2008 until 21st January 2010. This information demonstrates that the Complainant was offered and accepted work on a number of occasions each week from 28th October 2008 up to 14th January 2009, however since then despite being offered various jobs she declined the work citing many different reasons. The Complainant was certified ill for a number of different periods from 8th January 2009 until 26th January 2010.
Mr. Noel Murphy, IWU on behalf of the Complainant asserted that the Complainant is engaged in zero-hours working as defined by Section 18. He submitted that the Complainant is assigned work “based on the clients’ needs” and “these hours may vary from week to week”, “without much visibility on upcoming work”.
Mr. Murphy submitted details of the hours worked by the Complainant in the period between 27th October 2008 and 14th March 2009. The figures show in the period the Complainant did not work four of the weeks and for the remaining weeks she worked from 0.5 hours up to 20.5 hours per week. He submitted that for 26 weeks going back from the date of her claim (13th March 2009) the Complainant worked 73 hours. He said that on the basis of her 40-hour week contract she should have been offered 1,040 hours and it could therefore be deemed that she was on call for 967 hours. He further submitted that work was only declined when notice was inadequate for the work involved heavy lifting. The information showed that the Complainant was on certified sick leave from 21st April 2009 and has not worked since.
Conclusions of the Court
Section 18 of the Act, provides protection for employees working on zero-hours contracts, i.e. a zero-hours contract of employment is a type of employment contract where an employee is available for work but with no specified hours of work. It applies where a formal arrangement is in place where employees are required to be available for a certain number of hours per week, or when required, or a combination of both. Employees on zero-hours contracts are protected by the Act but such protection does not apply to casual employment. The Act states:-
- 18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—
- (b) as and when the employer requires him or her to do so, or
(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,
and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).
The Complainant was not supplied with a written contract of employment when she was recruited, however the Respondent submitted a sample contract of employment supplied since to all persons employed on a similar basis to the Complainant. The terms of this contract states as follows :-
- “HOURS OF WORK
Your hours of work will be determined by mutual agreement. The Company will give you as much notice as possible of hours of work, which are available to you, which is usually between 1 to 2 days. However, the company may require you to be more flexible to meet the needs of the business and therefore it will not always be Possible to give you this notice. This will be done in accordance with the Organisation of Working Time Act, 1997.
You have the right to refuse or accept these hours. You are not expected to be on call for work and will not be paid an allowance for same. The refusal of hours on your behalf will have no negative consequence on hours being offered to you in the future.
Please note that hours of work may vary from week to week and thus, the Company gives no guarantee that hours will be offered to you on a weekly basis. The nature of your role means that there may be periods when no suitable work is available and the Company shall incur no liability to you should it fail to offer opportunities to work. There may also be extended periods of time where a high volume of work is available followed by periods of time where no work is available. This shall in no way give rise to an implied term of a guaranteed minimum amount of working hours.
If you agree to hours of work, you will be required to attend work for those hours. Failure to attend will result in disciplinary action up to and including dismissal.
Hours of work are offered on the basis of suitability and length of service i.e. a list of those suitable will be complied and then, once this list has been formed followed by a first in first asked (FIFA) approach. The below objective criteria are used to decide on suitability:
• Availability.
• Previous Experience.
• Performance during pervious assignments.
• Relationship with store, client or customer.
• Location of work in relation to the location of the employee.
• The employee being contractible by phone.
Your normal working hours range between 7:00 a.m. and 12:00 a.m. (midnight) from Monday to Sunday. You may be required to work overtime depending on the requirements of your work and the business, and at the Company's discretion. You are liable to work Saturday/Sunday/public holidays.
These hours shall be given and paid in accordance with the provisions of the Organisation of Working Time Act, 1997.
Rest breaks will be given in accordance with the Organisation of Working Time Act, 1997. These breaks will be taken at your discretion in line with business requirements and will be unpaid.”
Having considered the submissions of both parties, including details of hours worked and of the work offered but declined and having reviewed the terms of the sample contact, the Court is satisfied that the Complainant is not obliged to remain available for work during defined periods. She is not required to report to the Respondent on a daily basis or otherwise, for the purpose of being allocated work. She is not expected to be on stand-by in case work becomes available. She is offered work time to time as it becomes available and has the option for whatever reason to decline such work. In the event that she declines the work offered she is not subjected to any form of disciplinary proceedings.
In these circumstances the Court is not satisfied that Section 18 of the Act applies.
Determination
Having regard to the findings set out above the within appeal is allowed and the Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th April, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.