FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DMR TRANSPORT LIMITED - AND - MR JACEK MAJCHRZAK (REPRESENTED BY MR BLAZEJ NOWAK) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-127787/90/92/94/96/98-WT-12/MMG.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Worker in relation to the Employer's alleged breach of several sections of the Organisation of Working Time Act, 1997. The Worker contends that he did not receive his statutory entitlements owing to him under the Act in respect of breaks, rest periods between shifts, notice periods in terms of requisite start and finishing times of work and sufficient payment for annual leave and public holidays. The Employer refutes the Worker's claim and agreement could not be reached. The matter was referred to a Rights Commissioner for investigation. On the 5th June, 2013, the Rights Commissioner issued his Decision as follows:
"It is my recommendation that the Claimant be awarded the sum of €2,000 in compensation to be paid by the respondent for the breaches of the Organisation of Working Time Act".
The Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 10th June, 2013. The Court heard the appeal on the 6th February, 2014, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker contends that he was not afforded the opportunity to take breaks during his shift.
2. As a result of the nature of the business, the Worker was regularly required to work irregular shift patterns and was not properly notified of his start and finishing times.
3. The Worker asserts that he did not receive the correct rate of pay for the hours of work carried out and was not properly paid for annual leave and public holiday entitlements.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer contends that the onus was on the Worker to take his break during his shift. The Employer further contends that breaks were fully paid however, they were not monitored given the nature of the work involved.
2. The Employer maintains that the Worker was fully remunerated for all amounts owing to him in terms of annual leave and public holiday pay.
3. The Employer asserts that the Worker's role was a "task and finish" basis and as a result, finishing times were likely to change on a regular basis. On this point, the Employer argues that the Worker was not required to work hours in excess of statutory limits.
DETERMINATION:
This is an appeal by Jacek Majchrzak (the Claimant) against the decision of a Rights Commissioner in his claim against DMR Transport Limited (the Respondent) under the Organisation of Working Time Act 1997.
The Claimant was employed by the Respondent as a truck driver. His work involved the collection of waste for disposal. His normal weekly wage was €441.99, although that amount varied on occasions. In addition to that amount the Claimant received payments by way of subsistence allowances.
The Claimant made complaints to a Rights Commissioner in which he alleged that he was not afforded his entitlements under sections 11,12, 15, 17, 19 and 21 of the Act. The Claimant had no regular starting and finishing times and he was employed on a‘task and finish’basis. That is to say that the Claimant was allocated a particular number of collections per day and that when those collections were completed he was free to return to his depot and finish work for that day.
The Rights Commissioner found that the complaints in relation to sections 11,12 and 21 of the Act were well founded. He made no findings in relation to the complaints concerning sections 15,17 and 19 of the Act. The Rights Commissioner awarded the Claimant compensation in the amount of €2,000 for the contraventions which he found to have occurred. However, the Rights Commissioner gave no indication of the breakdown of that award.
Records
Section 25(1) of the Act provides as follows: -
- “25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
- (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
Having considered the evidence adduced in the course of the appeal the Court has reached the following conclusions in relation to the complaints raised by the Claimant.
Section 11
In the absence of any reliable rebutting evidence the Court accepts the Claimant’s contention that he was not afforded a break of at least 11 hours between his finishing time on one day and his commencement time on the following day. Accordingly his claim in respect to s.11 of the Act is well founded.
Section 12
The Claimant contends that he was not afforded the breaks provided for by this section. The Respondent contended that the Claimant was entitled to take breaks and that if he chose not to take them that was a matter of his own choosing.
Section 12 confers a right on an employee to the breaks specified and the concomitant obligation on the employer is to facilitate the exercise of that right. The duty imposed on an employer by s.12 of the Act appears at first blush to be negative in nature. These provisions must, however, be read in light of the judgment of the Court of Justice of the European Union (CJEU) in case C-484/04,Commission v United Kingdom[2006] IRLR 888. This case arose from infringement proceedings taken by the EU Commission against the UK concerning its implementation of the Working Time Directive (Directive 93/104). In its decision the CJEU held, in effect, that an employer has a positive duty to ensure that workers take the breaks specified
The application of this decision was considered by this Court inAntanas v Nolan Transport[2011] 22 ELR 311. Here the Court held: -
- The uncontested evidence before the Court discloses that the Claimant regularly commenced work before the expiry of an 11-hour period since he last worked on the previous day. The Respondent’s defence to the complaint under this head is that the Claimant was himself responsible for any transgression by not informing the Respondent that the starting times assigned to him would result in a contravention of the Act.
The question of whether the Working Time Directive, from which the Act of 1997 is derived, imposes an obligation to provide workers with the opportunity to take breaks or a positive obligation on an employer to ensure that the breaks are actually taken was recently considered by the ECJ in Case C-484/04,Commission v United KingdomIRLR 888.
This case concerned guidelines issued by the UK Authorities on the application of statutory provisions equivalent to the Act of 1997. These guidelines provided that “employers must make sure that workers can take their rest, but are not required to make sure they do take their rest”. The Commission brought proceedings against the United Kingdom claiming that in issuing these guidelines it had failed to fill its obligation to effectively implement the Directive. The Court held that the impugned guidelines amounted to an incorrect statement of the law. In explaining the nature of the obligation imposed by the Directive Advocate General Kotott pointed out (at par 69 of her opinion) that it is for the employer to actively see to it that an atmosphere is created in which the minimum rest periods prescribed by Community law are effectively observed. This, she pointed out, requires that within the organisation appropriate rest periods are actually scheduled. In it’s Judgment the Court stated the law as follows: -
- Workers must actually benefit from the daily and weekly rest periods provided for by Articles 3 and 5 of the Directive. Those provisions impose clear and precise obligations on the member states as to the result to be achieved by such entitlement. A member state which, in the national measures implementing the Directive, provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights, indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights, does not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 or the essential objective of the Directive, which is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled
Accordingly the Court is satisfied that s. 12 was contravened in relation to the Claimant.
Section 15
The Court is satisfied that the Claimant was required to work more than 48 hours per week on a regular basis. Accordingly s.15 was contravened in relation to the Claimant.
Section 17
The Claimant had regular starting times. However his finishing time varied by virtue of the ‘task and finish’ nature of his employment. Consequently, the finishing time was not determined by the Respondentper se. Rather, the finishing time was determined solely by the volume of work to be undertaken and the pace at which the work was performed. Consequently, finishing times were not capable of ascertainment in advance. It follows that the Respondent could not have provided the Claimant a statement specifying his finishing time.
In these circumstances the Court cannot see how s.17 could apply to the type of work arrangement under which the Claimant was employed. Consequently the Court finds that the Respondent did not infringe s.17 of the Act in relation to the Claimant
Section 19
It is clear that the Claimant did not receive annual leave during the currency of his employment with the Respondent. Rather, he received payment in accordance with s.23 in respect of untaken leave on the cessation of his employment. There was no claim before the Rights Commissioner under s.23 of the Act. In any event, it appears to the Court on the information before it, that his cessor pay was properly calculated. In these circumstances the Court finds that the Respondent did not contravene s.19 in relation to the Claimant.
Section 21
The Claimant contends that he was underpaid by €80 in respect of three public holidays. There appears to be no issue on this point. Accordingly the Court finds that s.21 was contravened by the Respondent in relation to this matter.
Determination
Having regard to the foregoing, the Court awards the Claimant compensation as follows: -
1. An award of €500 in respect of the contravention of s.11 of the Act2. An award of €1,500 in respect of the contravention of s.12 of the Act
3. An award of €1,500 in respect of the contravention of s.15 of the Act.
4. An award of €80 in respect of the contravention of s.21 of the Act.
The Respondent is directed to pay the Claimant the amounts aforesaid
The Claimant’s appeal is allowed and the Rights Commissioner’s decision is varied in the terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
14th February 2014______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.