FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : JOHN THOMAS BRADBURY T/A BRADBURYS (REPRESENTED BY FRANCIS B TAFFE & CO SOLICITORS) - AND - SANDRA GEGECKIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of a Rights Commissioner's Decision R-147870-MW-14/EH
BACKGROUND:
2. The Employee referred an appeal against the Decision of the Rights Commissioner to the Labour Court on the 16th February, 2015 in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 18th November, 2015.
DETERMINATION:
This is an appeal under section 27(1) of the National Minimum Wage Act 2000.
The Complainant worked for the Respondent as a Deli Assistant from 20 February 2014 to 10 July 2014. She complained to the Rights Commissioner under Section 24 of the Act that the Respondent failed to pay her the statutory minimum hourly rate of pay.
The Rights Commissioner found that the Complainant had not made out a case under the Act. The Complainant appealed against that decision to this Court.
The case came on for hearing on 18 November 2015.
Complainant’s Case
The Complainant cites the terms of her contract of employment which states
“5 days per week which will include weekends and bank holidays, daily hours of work will fall between 7.00 a.m. and 7.00 p.m. or the local retail hours and seasonal retail hours, example Christmas trading hours. Notice of your working will be in the form of a weekly rota, posted in advance as is reasonably practical.”
The Complainant argues that on a plain reading the contract requires her to be available for work between 7.00 a.m. and 7.00 p.m. and that this amounts to a contractual liability to work 12 hours per day seven days per week. She relies on section 8(1) of the Act which states
8.—(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—
- 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,
(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,
whichever, in any case, is the greater number of hours of work.- 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,
(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,
but shall not include—- (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
- (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,
She argues that as her contract of employment requires her to be available for work 12 hours each day over seven days per week she is entitled to have her wages determined on that basis.
The Respondent argues that the Complainant was paid for all hours for which she was rostered in accordance with the Statute.
The Court has considered the submissions of both parties. Having reviewed the contract of employment the Court finds that while the Complainant was available to be scheduled between 7 a.m. and 7 p.m. her working hours were determined each week and notified to her by way of a written roster. Accordingly she was not required to keep herself available for work outside of the rostered hours.
The Complainant refers to the decision of this Court inO’Leary International Limited v Voldemaras Rakauskas MWD149 [3 March 2014].In that case the Court said
- It seems clear that the effect of subsection (1)(a) of this section is to provide that the working hours of an employee, for the purposes of determining if the Act has been complied with, are the hours during which he or she is contractually obliged to be available to his or her employer. Paragraph (b) of subsection (1) deal with a situation where no working hours are specified by one of the instruments referred to in paragraph (a) of the subsection or where the actual hours worked are different to those determined in accordance with paragraph (a). Significantly, where there is a difference in working hours as determined in accordance with paragraph (a) as compared to those determined in accordance with paragraph (b), whichever mode of determination produces the greater number of hours is to be used.
The net effect of this provision is that where an employee’s hours of work are determined in accordance with paragraph (a) and they work additional hours during a reference period the applicable hours should be calculated in accordance with paragraph (b). Conversely, where an employee actually works less hours in a reference period than those determined in accordance with paragraph (a), his or her working hours for the purpose of the section are nonetheless determined by reference to paragraph (a).
In that context the Court distinguishes this case from MWD 149 above.
Finally the Complainant argues that she did not receive her statutory breaks and accordingly worked in excess of the contract hours which brought her hourly rate below the statutory minimum wage.
The Court has found in separate proceedings that the Complainant had not made out that case and accordingly the Court sees no basis for coming to a different conclusion in this case.
Determination
Taking all the evidence and submissions into account the Court determines that the Complainant was paid the statutory national minimum wage. The Complaint is not well founded. The decision of the Rights Commissioner is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
24th February, 2015______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.