FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COSGRAVE TRANSPORT (LIMERICK) LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - MARIUSZ BONCZAK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-142055/142065/143738/143739-wt-14.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 9th April, 2015. A Labour Court Hearing took place on 17th September, 2015. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Mariuzak Bonczak (hereafter the Claimant) against the decision of a Rights Commissioner in his claims under the Organisation of Working time Act 1997 against his former employer, Cosgrave Transport (Limerick) Ltd (hereafter the Respondent). The Respondent has also cross-appealed against the same decision.
The Claimant presented a multiplicity of claims to the Rights Commissioner under various statutes and in respect of various alleged infringements of those statutes, much of which were based on overlapping facts. Many of the claims were presented on different dates. There was also a multiplicity of appeals and cross-appeals.
All of the cases were conjoined by the Court and heard together.
This Determination relates to the Claimant’s claims under the Organisation of Working Time Act 1997 (the Act).
Background
The claims arising under the Act are as follows: -
- 1. That the Claimant was not afforded adequate daily rest period in contravention of s.11 of the Act,
2. That the Claimant was not afforded adequate rest and intervals at work in contravention of s.12 of the Act
3. That the Claimant was not provided with sufficient advance notification of his finishing times in contravention of s.17 of the Act,
4. That the Claimant was not adequately remunerated in respect of Public Holidays in contravention of s.21 of the Act.
5. That the Claimant was not adequately remunerated in respect of annual leave in contravention of s. 23 of the Act.
Conclusions
Having considered the submissions of the parties and the evidence adduced at the hearing of the appeal the Court has reached the following conclusions.
Applicability of sections 11 and 12 of the Act
The Claimant is a mobile worker within the meaning of European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) (hereafter the Regulations). The Claimant has brought separate proceedings alleging various contraventions of the Regulations.
In Determination DWT1398,Lucey Transport Limited and Marius Serenasthis Court extensively considered the applicability of provisions of the Act to mobile workers which overlap with provisions of the Regulations.
Having considered the applicable legal principles the Court concluded in that case as follows: -
- It seems to the Court that there are clear difficulties with the provisions of the Act and those of the Regulations in their current form standing side by side and a Rights Commissioner, and this Court on appeal, having concurrent jurisdiction to entertain a complaint arising from the same set of facts under both the Act and the Regulations. Such a result could not have been intended. Moreover, a consideration of considerable relevance in theGoode Concretecase was that the Regulations then in force operated in the field of criminal law only whereas the Act provided for civil redress in disputes between individual workers and their employer. That is no longer the case. In these circumstances, there is force in the argument that since Directive 2002/15/EC takes precedence over Directive 2003/88/EC, (as is clear from Recital 2 in the preamble to Directive 2002/15/EC) any conflict or inconsistence between the Act, which gives effect to the latter, and the Regulations, which give effect to the former, should be resolved in favour of the Regulations.
- It seems that any ambiguity concerning the applicability of the Act to workers engaged in activity now covered by S.I. 36/2012 could easily be resolved by the making of regulations pursuant to s.3(3) of the Act exempting such workers from the relevant provision of the Act. Regrettably, no such regulations have been made. Nevertheless, the Court has come to the conclusion that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. Moreover, when read as whole, it could not be said that the Regulations now provide a lesser level of protection to workers to whom they relate than that provided by the Act. It follows that the Regulations, rather than the Act, should now be relied upon in pursuing complaints concerning any infringement of the rights of such workers concerning their working time.
It was submitted by the representative of the Claimant that in light of the making of these Regulations the decision inLucey Transport Limited and Marius Serenasshould not be followed in respect of a period prior to the making of the Regulations.
The Court does not accept that submission.
In is clear from the decision inLucey Transport Limited and Marius Serenas, and for the reasons stated therein, that the Regulations are intended to definitively and exclusively regulate the organisation of working time of persons performing road transport activities. Consequently provisions of the Act that overlap with provisions of the Regulations are inapplicable to persons to whom the Regulations relate. That Determination was followed by the Court in Determination DWT1577,Stan O’Reilly t/a C&D Recycling and Aigars Plauka. The making of Regulations under the Act by the Minister for Jobs, Enterprise and Innovation in 2015 merely codified the law in that regard and does not invalidate or offset the conclusions reached by the Court inLucey Transport Limited and Marius Serenas.
Sections 11 and 12 of the Act overlap with provisions of the Regulations. Consequently the Court must hold that those provisions of the Act are inapplicable in the instant case. In reaching this conclusion the Court notes that at the time material to this aspect of the claim there was no provision for the making of a complaint to a Rights Commissioner concerning a contravention of Regulation 9 of the Regulations, which overlaps with s.11 of the Act. The only sanction for a breach of that Regulation lay at the material time within the criminal law. That omission has since been rectified. Nevertheless, the Court is satisfied that the clear intention of the lawmaker in promulgating the Regulations was that the entitlements of mobile workers to daily rest periods should be governed by the Regulations and not by the Act. In so far as the Regulations as originally drafted may have contained an omission, that omission cannot be rectified by this Court.
Accordingly, the decision of the Rights Commissioner in respect of the complaint under s.11 of the Act is set aside. The decision of the Rights Commissioner in respect of s.12 is affirmed.
Section 17 of the Act
The Court is satisfied on the evidence that the Claimant was not notified of his finishing times in accordance with s.17 of the Act. There is no overlap between s.17 of the Act and any provision of the Regulations. Accordingly the decision of the Rights Commissioner on that aspect of the claim is affirmed. The Court can see no reason to interfere with the Rights Commissioner’s award of compensation in the amount of €750 for this contravention.
Accordingly, the decision of the Rights Commissioner on this point is affirmed.
Sections 20 and 21
These claims relate to an alleged underpayment in respect of annual leave and Public Holidays. In effect these claims are grounded on a contention that the Claimant was remunerated at less than the national minimum wage in respect of public holidays and annual leave.
Section 20(2)(b) of the Act provides that pay in respect of annual leave shall be at the worker’s normal weekly rate. Section 20(4) provides that the “normal weekly rate” is to be determined in accordance with Regulation made for the purpose of the section. Section 23(5) provides that the expressions “appropriate daily rate” and normal daily are to be construed in accordance with Regulations.
Regulations for the purposes of both sections are now contained in the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. 475 of 1997).
Regulation 3 of these Regulations prescribes how a workers normal weekly rate is to be calculated for the purposes of annual leave. Regulation 4 of those Regulations prescribes how the appropriate daily rate or the normal daily rate is to be calculated for the purposes of public holidays.
In both cases the Regulations provide that the rate of pay is to be calculated by reference to the rate payable to the workers concerned immediately before the holiday or holidays in issue.
While the Regulations predate the National Minimum Wage Act 2000, they have not been amended so as to provide that the mode of calculation is to be modified so as to produce a result that conforms to the Act of 2000. Consequently, where a dispute arises as to whether a worker is remunerated at less than the national minimum in respect of any period, including holidays, that dispute falls to be determined under the Act of 2000. In the instant case there are serious issues as to whether the Act of 2000 was contravened by the Respondent in relation to the Claimant. Those issues were fully addressed in proceedings brought by a co-worker of the Claimant under that Act. The Claimant herein has not brought a claim under the National Minimum Wage Act 2000 and he cannot pursue a claim which properly falls to be considered under that Act under the Act of 1997.
Accordingly, the Court has no jurisdiction to entertain a claim alleging a breach of the National Minimum Wage Act 2000 in proceedings brought under the Act of 1997.
The decision of the Rights Commissioner on this point is set aside.
Disposal
The decision of the Rights Commissioner is varied in terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
2nd October, 2015______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.