ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000586
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00000603-001 | 02/11/2015 |
At: Workplace Relations Commission, Haddington Road, Dublin 4
Date of Adjudication Hearing: 15/02/2016
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 24 of the National Minimum Wage Act 2000 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background.
The Complainant has been employed with the Respondent since 2007. The Complainant is paid €9.50 an hour when working on the majority of the sites assigned to her by the Respondent and she is paid €10.00 an hour on one specified site. The Complainant referred a complaint to the Workplace Relations Commission on 2nd November 2015 alleging the Respondent had breached the National Minimum Wage Act in that she had not been paid the National Minimum Wage for all hours worked.
Summary of Complainant’s Submission and Presentation.
The Complainant stated that she was not paid the travel time to and back from the sites being an estimated 2 hours per day being 10 hours per week being €86.50 being €4498.00 per year by 6 years = €26,988.00. In addition 1.5 hours travelling during the first shift was not paid therefore due €20,241.00.
The Complainant referenced the Court of Justice Decision Case C-266/14 in support of their argument that the Complainant should have been paid for all travelling time. The Complainant submitted a Section 23 letter on the Respondent on 10th September 2015 – Copy provided to the Hearing.
Summary of Respondent’s Submission and Presentation.
The Respondent confirmed that the Complainant had lodged a Section 23 Notice on the Respondent by letter dated 10th September 2015.
The Respondent stated that the Complainant worked a total of 10 hours prior to July 2015 and that the average hourly rate she was paid was €8.875 an hour. The Respondent stated that the Complainant has worked a total of 6.5 hours a week since July 2015 and therefore is paid €9.90 an hour.
The Respondent argued that the Respondent has not breached the National Minimum Wage Act.
Findings
The Respondent provided the Adjudicator with a schedule of shifts and sites the Complainant worked in from March 2015 to September 2015.
In the period prior to 20th July 2015 the Complainant worked the following shifts and sites –
6am to 8am Kings Inn St, Dublin 1. Paid €9.50 an hour
8.30am to 10.30am Blackrock, Co Dublin Paid €9.50 an hour
11am to 12 noon IFSC, Dublin 1 Paid €9.50 an hour
4pm to 8pm Ballsbridge, Dublin 4 Paid €10.00 an hour
In the period after 20th July 2015 the Complainant worked the following shifts and sites –
8.30am to 10am Blackrock, Co Dublin Paid €9.50 an hour
11am to 12 Noon IFSC, Dublin 1 Paid €9.50 an hour
4pm to 8pm Ballsbridge, Dublin 4. €Paid €10.00 an hour
The Complainant therefore worked a total of 9 hours prior to 20th July 2015 and she was paid a total €87.50 per week = €9.72 an hour. She worked a total of 6.5 hours after 20th July 2015 and she was paid €63.75 per week = €9.80 an hour
The Complainant’s Legal Representative argued at the Hearing that the Complainant was entitled to be paid for all hours travelling to and from work each day and that in addition she was entitled to be paid 1.5 hours travelling time during her first shifts in the morning. They referenced the Court of Justice of the European Union Decision C-266/14 Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire and Security Corporation Servicios SA in support of their argument.
The “Tyco” decision concerned a Spanish Company who at one time had regional Offices from which its employees worked from. However “Tyco” closed its regional offices in 2011 and attached all its employees to the central office in Madrid. The Employees continued to travel between their homes and their first and last client sometimes travelling up to 100 km. The same employees were also required to travel once a week to the offices of a transport logistics company near their homes to pick up equipment, spare parts and materials required to carry out their jobs. The employees concerned were notified on the eve of their working day the task list for the following day.
A complaint came before the CJEU for a decision as to whether the time spent by the employees on daily travel between their homes and the premises of their first and last customer should be designated as working time by their Employer. A Decision was issued by the CJEU on 10th September 2015 and it found as follows: In light of all the foregoing considerations, the answer to the question asked is that point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes “working time” within the meaning of that provision”.
The Complainant’s case is very different. The Complainant had a regular roster of sites and regular shifts both prior to and after 20th July 2015 as set out above and neither did she have to travel once a week to collect her materials to do her work. Therefore I find that the Decision of “Tyco” of the CJEU has no relevance to the current complaint.
However the Labour Court in it’s Decision DWT 57/2011 in ISS Ireland Ltd v Gfenheva, found that time spent travelling between locations in a working day should be counted as working time for the purposes of the Organisation of Working Time Act, 1997. The time spent at each location and the time allocated for travelling between each of the locations was designated by the Respondent. In the current case the Respondent assigns the Complainant to specified locations at specified times, therefore the time spent by the Complainant in travelling between each of the designated sites must be counted as working time.
The evidence provided by the Respondent shows that the Complainant worked the following shifts at different sites. Both Parties confirmed that the Complainant was not paid for travel between her sites in the morning as follows:
Prior to 20th July 2015
2 hours from 6am to 8am at €9.50 an hour at Kings Inn St, Dublin 1
Travel to Blackrock 30 minutes
2 hours from 8.30am to 10.30am at €9.50 an hour at Blackrock Site
Travel to IFSC, Dublin 1 30 minutes
1 hour from 11am to 12 Noon IFSC, Dublin 1.
The Complainant commenced her next shift at 4pm to 8pm 4 hours.
The Complainant therefore worked a total of 10 hours, including 1 hour travelling time between sites as designated by the Respondent and was paid €87.50 per week = €8.75 an hour
Therefore I find there was no breach of the National Minimum Wage Act prior to 20th July 2015
After 20th July 2015
1.5 hours from 8.30am to 10amat €9.50 an hour Blackrock
Travel to IFSC, Dublin 1 30 minutes
1 hour IFSC from 11am to 12 noon at €9.50 an hour
The Complainant therefor worked a total of 3 hours in the morning and 4 hours in the afternoon from 4pm to 8pm, a total of 7 hours, including 30 minutes travelling time. She was paid €63.75 =€9.10 an hour.
Therefore I find that there is no breach of the National Minimum Wage Act, 2000 in the period after 20th July 2015.
There was no complaint under the Payment of Wages Act, 1991 – 2015
Decision.
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 24 of the National Minimum Wages Act, 2000 I am required to make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I declare the complaint is not well founded.
Rosaleen Glackin
Adjudicator
Dated: 28/04/16