FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : ARMIN GREFKES AND BERNADETTE MOLONEY-GREFKES T/A DRUMCREEHY HOUSE - AND - MARIKA LUBIG DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commissioner’s Decision r-086476-MW-2009.
BACKGROUND:
2. The Complainant was employed by the Respondent from15 March 2009 to 16 September 2009. Her claim is that she was not paid the national minimum wage during the time of her employment. A Rights Commissioner hearing took place on the 1st March 2010.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 6th July 2010, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 21st April 2011.
DETERMINATION:
The facts in this case are not in dispute. The Respondents advertised on a German website a full-time work experience job vacancy in their guesthouse for the summer season of 2009. The Complainant, a German national, who was unemployed in Germany at the time, came across the advertisement and applied for the job. Following an exchange of correspondence and some telephone conversations the Respondents offered the Complainant the job on the basis that they would pay her €100.00 euro per week and in addition would provide her and her husband with free accommodation, access to a car provided by the Respondents and the use of the Respondent’s computer and internet access for the purposes of making Skype calls home.
The Complainant commenced employment on 15 March 2009. The Complainant terminated her employment on 16 September 2009.
The Complainant subsequently submitted a complaint to the Rights Commissioner under the National Minimum Wage Act 2000 (the Act). Her complaint was that she had not been paid the then prevailing national minimum wage. The Rights Commissioner heard the complaint on 1 March 2010. He upheld the complaint and awarded the Complainant the sum of €4,084.05 being the amount to which she was entitled under the Act.
Findings of the Court
Section 14 of the Act provides that:-
- (a) an employee who has attained the age of 18 years shall, subject to sections 15, 16 and 41, be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay
In this case the employee worked 40 hours per week for which she was paid €100.00. This amounts to an hourly rate of €2.50 per hour. The Minister, in S.I. No 667 of 2006, had set the national minimum wage at the time at €8.65 per hour. On this basis the worker was underpaid by €6.15 for each hour worked in the course of her employment.
Section 14, however, is subject to Sections 15, 16 and 41 of the Act which permit the payment of an amount less than the minimum wage in certain circumstances. The Court considered each of these Sections in turn.
Section 15 makes provision for the payment of a reduced rate to workers who enter into employment for the first time having attained the age of 18 and does not apply in this case. The Complainant was in her forties and had considerable work experience in the restaurant and hospitality industry in her native Germany.
Section 16 provides that:-
- (1)Subject to subsection (3) and sections 17 and 18, where an employee who has attained the age of 18 years undergoes a course of study or training authorised by the employer within the workplace or elsewhere during normal working hours, such courses or training to be prescribed in regulations made by the Minister, the employee shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at a rate of pay that on average is not less than the following percentages of the national minimum hourly rate of pay:
Whilst it is clear that the parties intended that the arrangement they were entering into was in the nature of a contract of employment to enable both the Complainant and her husband to gain English language experience and to resettle in Ireland it was not a course of study or training authorised by the employer within the workplace or elsewhere during normal hours. Furthermore it was not a course or training prescribed in Regulations made by the Minister as provided for in Section 16 of the Act.
Accordingly, it did not come within the scope of that Section.
Section 41 makes provision for the Labour Court to exempt an employer from its obligation to pay the minimum wage where it can show to the Court’s satisfaction that it has an inability to pay the prescribed rate. No such application was made in this case.
Accordingly, the Court finds that the employer was required to pay the employee the national minimum wage.
Section 11 of the Act provides
- 11. (1) The Minister shall, by order, after taking into account the impact the proposed rate may have on employment, the overall economic conditions in the State and national competitiveness, declare a national minimum hourly rate of pay for the purposes of this Act
(2) A national minimum hourly rate of pay may include an allowance for board with lodgings, board only or lodgings only at such rates as the Minister may specify in the order under subsection (1)
Calculations
It is common case that the Complainant worked 887 hours in the course of her employment. In accordance with the terms of the Act she was therefore entitled to a total payment of €7,672.55. She was paid the sum of €2,217.50 by her employer in respect of the hours she worked. Accordingly, and having regard to the allowances for board and lodgings applicable, she was underpaid in the amount of €4,346.67.
Decision
The Court rejects the appeal and orders the Respondents to pay the Claimant the sum of €4,346.67.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
19th July, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.