FULL RECOMMENDATION
) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : COSGRAVE TRANSPORT (LIMERICK) LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - ROMAN BILICKI (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal Of Rights Commissioner Decision R-129511-mw-13.
BACKGROUND:
2. The Employer referred an appeal against the Decision of the Rights Commissioner to the Labour Court on the 1st May 2015 in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 17th September, 2015.
DETERMINATION:
This is an appeal by Cosgrave Transport (Limerick) Ltd (hereafter the Respondent ) against the decision of a Rights Commissioner in his claims under the National Minimum Wage Act 2000 by Roman Bilicki (the Claimant).
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 claim under the National Minimum Wage Act 2000.
Background
The Claimant was employed by the Respondent in his capacity as a truck driver. He commenced employment on or about 4thJuly 2007 and his employment ended on or about 13thDecember 2012.. He is a mobile worker within the meaning of the European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) (hereafter referred to as the Regulations). The Respondent is a road haulage contractor to whom those Regulations apply.
The Claimant was employed pursuant to a contract of employment in writing. He was paid at the rate of €95 per day (he was paid a slightly higher rate when working in Dublin and in the UK). The Claimant’s hours of work were not specified in his contract of employment. The Respondent furnished the Claimant with a staff handbook which provide that the working hours of employees to whom this document applied are as specified in their letter of appointment. The Claimant was not provided with any such letter of appointment.
The Claimant complied with the requirement of s.23 of the Act before submitting the within claim.
The Dispute
The dispute between the parties relates to whether, having regard to his working hours, the Claimant was remunerated at less than the national minimum hourly rate of pay. The Claimant contends that he worked up to 60, and at times up to 65 hours per week. He was paid €95 per day over a five day week. His weekly pay was €475. On the Claimant’s contentions his effective hourly rate of pay was between €7.30 and €7.91.
The Respondent denies the Claimant’s claims. It is the Respondent’s case that the Claimant never worked more than 51 hours in any week and that his average working hours were considerably less. The Respondent submitted that the Claimant’s effective hourly rate of pay never went below €9.32.
The only records maintained by the Respondent were those extracted from a tachograph installed in the cab of the truck driven by the Claimant.
In the course of the hearing of this appeal it was agreed by the parties that the case turned on whether period during which the truck driven by the Claimant was being loaded and unloaded in the course of his working day is reckonable as working time for the purposes of s. 8 of the Act.
Material Facts
In his evidence to the Court the Claimant said that he started work at between 4am and 8am, depending on the work to which he was assigned. He finished work between 6pm and 9pm. The truck driven by the Claimant carried goods contained in containers. On arrival at a client’s premises the Claimant opened the seal on the container and the client was responsible for loading or unloading the container. The Claimant did not participate in this work.
At the commencement of the loading /unloading process the Claimant took a break of 45 minutes duration. One hour after his arrival at the client’s premises he was required to telephone the Respondent’s office to indicate how much longer the process would take. This was required in order to facilitate the allocation of additional work to the Claimant. The standard arrangement that the Respondent had with its clients was that a period of two hours was allocated to load / unload the truck. If this operation extended beyond two hours the client incurred a charge. The Claimant generally remained with his truck during these periods although it was not required to do so. The tachograph fitted to his truck was turned off during these periods.
In separate proceedings brought pursuant to the Regulations the Court held that these periods comprised breaks and periods of availability, within the meaning of those Regulations, and were not part of his working time for the purposes of the Regulations.
The Issue in the Instant Case
The question that now arises is whether these periods of inactivity are properly to be regarded as working time within the meaning of s.8 of the Act for the purpose of determining if the Claimant was remunerated at the national minimum rate of pay. If the periods during which the Claimant took a break from work, and the periods of availability within the meaning of the Regulations, are discounted as working time the Act was not contravened. If, however, they are properly to be regarded as working time his complaint is well founded and he is due significant arrears of pay under the Act. Consequently this case turns on the true construction of s.8 of the Act and its application to the facts of the case.
Statutory Provisions
Section 8 of the Act provides: -
- (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 tosection 9, “working hours”, in relation to an employee in a pay reference period, means—
(a) the hours (including a part of an hour) of work of the employee as determined in accordance with—- (i) his or her contract of employment,
(ii) any collective agreement that relates to the employee,
(iii) any Registered Employment Agreement that relates to the employee,
(iv) any Employment Regulation Order that relates to the employee,
(v) any statement provided by the employee's employer to the employee in accordance withsection 3(1) of theTerms of Employment (Information) Act, 1994,
(vi) any notification by the employee's employer to the employee undersection 17of theOrganisation of Working Time Act, 1997,
(vii)section 18of theOrganisation of Working Time Act, 1997, or
(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,
- (i) his or her contract of employment,
(2) “Working hours” under this section shall include—
- (a) overtime,
(b) time spent travelling on official business, and
(c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,
- (i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,
(ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, while laid-off, on strike or on “lock-out”, or time for which the employee is paid in lieu of notice, or
(iii) time spent on travelling between an employee's place of residence and place of work and back.
Hours of Work
The Claimant’s hours of work are not determined in accordance with any of the instruments referred to at s.8(1)( a) of the Act. In relation to paragraph (b) of subsection (1) of the section it is self-evident that during a period of availability the Claimant is required by his employer to hold himself available to work. Moreover, while at the premises of the Respondent’s clients he is at his place of employment in that he is required to be there in order to discharge the duties of his employment.
It was submitted on behalf of the Respondent that the periods of availability should properly be classified as time spent on standby within the meaning of paragraph (i) of the exclusions referred to at subsection (2) of s.8 of the Act. However, a period can only be a period of standby or on-call is it is spent other than at a place of work.
It should be noted that there is a significant difference between the definition of ‘a period of availability’ for the purpose of the Regulations and the definition of time spent on standby or on call for the purpose of the Act. The definition a period of availability for the purpose of the former is contained in Article 3(b) of Directive 2002/15/EC as follows: -
- (b) "periods of availability" shall mean:
- periods other than those relating to break times and rest times during which the mobile worker is not required to remain at his workstation, but must be available to answer any calls to start or resume driving or to carry out other work. In particular such periods of availability shall include periods during which the mobile worker is accompanying a vehicle being transported by ferryboat or by train as well as periods of waiting at frontiers and those due to traffic prohibitions.
These periods and their foreseeable duration shall be known in advance by the mobile worker, that is to say either before departure or just before the actual start of the period in question, or under the general conditions negotiated between the social partners and/or under the terms of the legislation of the Member States.
It follows that a period of time may be properly classified as a period of availability and can be discounted for the purpose of complying with the maximum working hours permitted by the Regulations. But the same period may nonetheless be reckonable as working time for the purpose of computing the worker’s hourly rate of pay for the purposes of the Act.
It is also noteworthy that Regulation 6 of the Regulations excludes periods during which breaks are taken from the notion of working time. That Regulation provides: -
- Periods of availability, break times and rest times shall not be included in the calculation of working time.
In that regard it is clear that the notion of working hours for the purpose of the Regulations and Directive 2002/15/EC, on the one hand, and the definition of working time for the purpose of the Act are quite distinct. The former is for the purpose of ensuring road safety and ensuring that mobile workers are not fatigued to a degree that they endangers themselves and other road users. The latter is for the purpose of determining if a daily or weekly rate of pay when translated to an hourly rate is not less than the rate prescribed under the Act.
Conclusion
It is clear from s. 8(1)(b) of the Act that a period during which a worker is available for work at his or her pace of employment, and is paid as if he or she is carrying out or performing the activities of his or her employment, comprises working time. The Court is satisfied that while at the premises of one of the Respondent’s clients in the course of his normal duties the Claimant was at his place of employment. The question then arises as to whether the Claimant was paid, or ought to have been paid, in respect of the periods during which he was not physically working. That question can only be answered by reference to the contractual terms that governed the employment relationship between the parties.
The written contract of employment is silent on the question of working hours. However a term can have contractual effect in a contract by incorporation, where the contract is to be read in conjunction with some other document. A contractual term may also be implied by custom and practice, or it can arise by application of the so called officious bystander test enunciated inShirlaw v Southern Foundaries Ltd[1939] 2 K.B. 206 (see the decision of Hedigan J inMcCarthy v HSE[2010] 21 ELR 165).
In this case the only documents referred to as defining aspects of the Claimant’s conditions of employment were the employee handbook and a letter of appointment. The employee handbook says nothing about the periods during the day to which the daily rate paid to the Claimant relate and the Claimant was not issued with a letter of appointment. Where an implied term is contended for it is for the person advancing that claim to prove what they assert. No evidence was proffered in the course of the appeal on which it could be held that it is either custom and practice or a notoriously known fact that employers in the same line of business as the Respondent do not pay employees for time spent taking breaks or in respect of periods of availability.
It is also of some significance that the Claimant’s daily rate of €95 (or the higher rate where applicable) was not adjusted where the duration of periods of availability were either longer or shorter than the norm.
The evidence disclosed that part of the period during which the Claimant’s truck was loaded or unloaded he took a break from work. However there is nothing in either his contract of employment or in any other document having contractual effect from which it could be concluded that the breaks which the Claimant was required to take were unpaid.
Having regard to the foregoing, the Court has reached the conclusion that the fixed daily rate paid to the Claimant must be construed at being in respect of all hours from the time he commenced work in the mornings until he finished working in the evening. Consequently, during periods in which he took a break and during periods of availability he was paid as if he was carrying out or performing the activities of his employment. It follows that the daily rate paid to the Claimant, when expressed as an hourly rate, fell short of the national minimum rate prescribed under the Act. In these circumstances the Claimant is entitled to recover the difference between his actual rate and the national minimum rate.
Disposal
The Court accepts that the Respondent contravened the Act in relation to the Claimant and is complaint is well founded. The Rights Commissioner measured the amount of arrears due at €6083.04. That calculation was based on the Rights Commissioner’s finding that the Claimant worked on average 58 hours per week (inclusive of breaks and periods of availability) The Rights Commissioner also awarded the Claimant the sum of €135. The Court can see no basis upon which it could conclude that the Rights Commissioner erred in his findings or his calculations. Accordingly the decision of the Rights Commissioner to that effect is affirmed.
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.