DWT1678

Background

Baku GLS Ltd (the Respondent) operates an international haulage business. Mr Mankauskas was employed by the Respondent as an international truck driver commencing in April/May 2011. He submitted a number of complaints to the Rights Commissioner in which he alleged that the Respondent infringed various sections of both the National Minimum Wage Act and the Organisation of Working Time Act. The Rights Commissioner issued his decision on those complaints on 13 May 2015. The Complainant appealed against those decisions to this Court on 19 May 2015. The Court heard the appeals on various dates and following several adjournments the matter was finally heard by the Court on 15 April 2016.

National Minimum Wage Act

Section 14

The Complainant submits that, contrary to section 14 of the Act, he was not paid the statutory minimum wage as determined by the Minister in accordance with the Act. He submits that when his hours of work calculated in accordance with section 8 of the Act are divided into his weekly/monthly rate of pay the resulting hourly rate of pay is less than the statutory minimum hourly rate of pay.

The Respondent submits that it substantively complied with the provisions of the Act. It accepts that on some occasions a simple division of the weekly hours worked into the weekly rate of pay produces a shortfall in the statutory minimum for that week. However on other occasions it submits that it overpaid the complainant and that when these two are netted off it paid the Complainant the hourly minimum rate of pay.

The Law

Section 14 of the Act states

14.—Subject to sections 17 and 18—

• (a) an employee who has attained the age of 18 years shall, subject to sections 15 , 16 and 41 , be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay, and

  (b) an employee who has not attained the age of 18 years shall be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than 70 per cent of the national minimum hourly rate of pay.

The Respondent submitted copies of the Complainants hours of work as recorded by the tacograph. Those hours of work disclose that the Complainant in the period 21/02/2013 to 03/04/2014 worked a total of 2207.14 hours over a 47 week period. Dividing those figures into each other produces an average working week of 47 hours. Dividing the weekly pay of €350 by 47 produces a hourly rate of €7.44. On the face of it this falls short of the minimum wage by €1.21 per hour worked.

The Respondent submits that such a calculation would be in error. It submits that the appropriate total calculable number of hours worked is 1837.14 which produces an hourly rate of €8.97. The Court however does not accept that method.

Section 8 of the Act 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 to section 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 with section 3 (1) of the Terms of Employment (Information) Act, 1994 ,

  (vi) any notification by the employee's employer to the employee under section 17 of the Organisation of Working Time Act, 1997 ,

  (vii) section 18 of the Organisation 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,

  or

  (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.

  (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,

The Court does not accept that argument but notes the difference in approach to this matter between this Act and the Regulations.

Section 8 clearly includes “time spent travelling on official business” for the purposes of calculating working hours. In this case the Complainant was required to travel with his truck by ferry between Ireland and France or between Ireland and the UK. The Court takes the view that this by any measure constitutes travelling on official business and must be included for the purpose of calculating working hours for the purpose of the Act.

Accordingly the Court determines that the Respondent did not pay the Complainant the statutory minimum wage.

Jurisdiction

The Respondent in a second line of argument submits that the Court does not have jurisdiction to hear the complaint. It submits that the Complainant did not meet the statutory precondition for bringing a complaint under Section 26 of the Act. It submits that he failed to substantively comply with the provisions of section 24 of the Act.

Section 24 of the Act in relevant part states: -

• (2) A dispute cannot be referred to or dealt with by a rights commissioner—

  (a) unless the employee—

  (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

  (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

  and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

The Court does not accept that argument. The Court finds that the Complainant made an application under section 23 of the Act on 20 February 2014. Accordingly the Court finds that it has jurisdiction to hear the complaint.

Tacograph Records

The Complainant submits that the Court cannot rely on the records produced by the Respondent. It submits that no evidence of proper calibration or operation of the tacograph was produced to the Court and therefore cannot be relied on.

The Court does not accept that argument. The Court finds that the Company tacographs were regularly checked in accordance with the requirements of the Road Safety Authority and were passed fit for purpose. Furthermore the Court finds that the records produced by the tacograph are records for the purpose of proceedings under the regulations. Accordingly, unless there is compelling evidence that the records cannot be relied on, the Court finds that they are a reliable record of the hours worked by the Complainant who had a statutory obligation to ensure that it recorded his hours while at work.

Accordingly the Court rejects the Complainants submissions on this point.

Determination

The Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €3,000.00. The Court so determines.

Working Time Act

The Complainant submits that the Respondent infringed sections 11,12,13,14,15,16,17,20 and 21 of the Act. However in the course of the hearing the Complainant accepted that the complaints under sections 11,12,13,15 and 16 were not before the Court as they properly fell to be dealt with under S.I. 36/2012. Accordingly those issues were not considered further by the Court. The Court then proceeded to hear the parties regarding the remaining complaints.

Section 14 Complaint

Section 14 of the Act makes a general provision that employees who are required to work on a Sunday should be compensated for so doing. Where such compensation is not otherwise provided for in the employee’s wages the Court has the power to require and employer to so compensate him or her in respect of time worked on Sunday.

It is common case that the Complainant worked on Sunday in the relevant statutory period. The Respondent submits that it provided for that requirement in the Complainant’s salary level. The Complainant submits that there is no evidence of that provision and claims that it was not provided for.

The Court has considered the information before it and has found no evidence of any provision for compensation for the requirement to work on Sunday. The Complainant was paid in and around the minimum wage which makes no provision for working on Sunday. Furthermore the Complainant was not provided with any documents that made reference to any provision in his pay related to that requirement. Accordingly the Court finds that in the absence of any evidence to the contrary the Complaint is well founded.

Determination

The Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1,000.

Section 17 Complaint

Section of the Act requires that a worker has certainty over his working hours and that where an employer needs to vary those it is requires that it give the worker 24 hours’ notice of the revised start and finish times.

The Complainant submits that his hours were changed on a daily basis and that he was notified by text of his next load which altered his start and finish time at short notice.

The Respondent submits that the Complainant had a broad general knowledge of his journey times. He was notified of his start time and his journey’s end which enabled him to determine within reasonable parameters his start and finish time. It acknowledges that, on occasions, it notified him while in transit of his next load. It submits that once notified he was in a position to guestimate his start and finish times with a high degree of accuracy.

Section 17 states

• 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

The Court finds that the Complainant was notified of his start times and his destination in accordance with section 17 of the Act. The Court also finds that the Respondent, on occasions, notified introduced variations to the intended schedule for the Complainant while in transit. On occasions it did not provide him with 24 hours notice of such variations. This had the effect of infringing section 17 of the Act.

The Respondent submits that the business requires such flexibility in order to be able to operate. The Court accepts that contention. However it does not relieve it of its obligation to comply with section 17 other than in the case of emergencies. The normal flexibility of a business is not in the nature of an emergency. It is part of the structure of the industry and must be managed in a manner that respects a worker’s entitlements under section 17 of the Act.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €500.

Section 20/21

These sections determine how holiday pay is to be determined. The Court in a related case decided that the Respondent failed to pay the Complainant the minimum wage. Accordingly the Court finds that the substantive underpayment arising out of this complaint has been dealt with in that decision. However the Complainant submits that his entitlement to payment of his statutory holiday pay was infringed and seeks compensation for the infringement.

The Respondent submits that the substantive matter would fall to be dealt with in other proceedings and that there is no merit in the complaint.

Findings of the Court

The Court finds that there was an infringement of the Complainants rights to holiday pay in accordance with the Act. The Court also notes that entitlement to annual leave has its origin in a directive of the European Union and is a matter related to health and safety of workers. Accordingly an infringement of any aspect of those provisions must be gravely considered by the Court.

Having done so, the Court finds that the infringement here was unintended and was at the lower end of the scale.

Determination

The Court determines that the complaints are well founded and orders the Respondent to pay the Complainant compensation in the sum of €250 for the breach of section 20 of the Act and €250 for the breach of section 21 of the Act.

The Court so determines.

S.I. 36/2012

The Complainant submits that he made a request to his employer, under the Regulations, for copies of the relevant records to which he has an entitlement. He submits that the Respondent did not provide them to him within a reasonable time. He acknowledges that the Respondent did produce them when the matter came before the Rights Commissioner. He submits however that that the delay involved in producing them amounts to a failure to comply with the Regulations. He submits that otherwise the Regulation is meaningless and unenforceable and a claimant has no effective means of securing the records and there is no temporal limitation on the time available to the Respondent to meet a request for records.

The Respondent submits that it complied with it its obligations under the Regulations. It received a request for copies of records from the Complainant and it supplied those to him. It submits that as there is no time limit set out in the regulations for so doing the Court does not have the power to introduce a time limit that the Oireachtas did not see fit to provide for.

The Law

• 12. An employer shall do each of the following in relation to each mobile worker employed by him or her:

  (a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

  (b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

  (c) include time worked for another employer in the calculation of the mobile worker’s working time;

  (d) keep records which are adequate to show that these Regulations are being complied with;

  (e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records;

  (f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

  (g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

  (h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).

The Court does not accept that view. Section 18 of the Regulations provide

18. (1) A mobile worker (or, in the case of a mobile worker who has not reached the age of 18 years, the mobile worker’s parent or guardian with his or her consent) or, with the consent of the mobile worker, a trade union of which the mobile worker is a member may present a complaint to a rights commissioner that the mobile worker’s employer has contravened Regulation 5, 8, 10, 11 or 12 in relation to the mobile worker.

Sub-section 4 states

4) Subject to paragraph (5), a rights commissioner shall not entertain a complaint under this Regulation if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment, whichever is earlier.

It is clear that the Regulations intend to provide a worker to whom records have not been provided to bring a complaint to a Rights Commissioner under Section 18 of the Act. It is also clear that there is an express time limit of 6 months from the date of the infringement within which a complaint must be brought. Accordingly the Court finds that a reasonable interpretation of this section implies that the Respondent is required to act within a reasonable time after which the failure to respond becomes a failure to comply with the Regulations.

In deciding what is a reasonable time the Court must take all factors into conisation. In this case the Court finds that the Respondent did provide records albeit belatedly. Accordingly the Court finds that there is not sufficient failure on the part of the Respondent to decide that it has not complied with the Regulations.

Determination

The Court determines that the complaint is not well founded and determines accordingly.

Section Obligation to notify mobile worker

An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.

The Complainant submits that he was not notified of these regulations.

The Respondent submits that he was so notified and makes reference to induction training conducted by the Company.

Findings of the Court

The Court finds, on the balance of probabilities, that the Complainant was notified of these regulations and accordingly the Complaint is not well founded.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
12 September 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.