MWD1612

Background

The Respondent Company operates an international transport business. It employed the Complainant as an international truck driver from 29 January 2009 until March 2013.

Complaint

The Complainant submits that the Respondent infringed section 10 of the Act.

Section 10 of the Act states

10.—An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.

The Complainant submits that the Respondent did not notify him of a pay reference period it selected under section 10 of the Act before he served a notice under section 23 of the Act. He submits that the Respondent cannot belatedly notify him of the selected pay reference period.

The Respondent submits that it selected a pay reference period in accordance with section 10 of the Act. It submits that the Complainant cannot introduce into the Act restrictions on section 10 that were not inserted by the Oireachtas. It submits that it has complied with its obligations under section 10.

Determination

The Court determines that the Act empowers an employer to select a pay reference period. The Court finds that it did so and accordingly determines that the Complaint is not well founded.

Section 8 Complaint

The Complainant submits that the Respondent infringed section 8 of the Act.

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, or

(iii) time spent on travelling between an employee's place of residence and place of work and back.

Complainant’s Case

The Complainant submits that he was not paid the National Minimum Wage in force during his employment with the Respondent.

The Complainant submits that the main statement of his terms of employment states that “your normal hours of work will be in accordance with the European Committee Driving Hours Regulations, Friday to Thursday. You will be expected to stay overnight on a regular basis in your vehicle. You will receive breaks, and must make sure that you take the required breaks, that are in line with the European Committee Driving Hours Regulations.” He submits that this contractually commits him to working a weekly average of 48 hours and that in accordance with Section 8(1) (i) the minimum wage should be calculated on that basis.

He further submits that he in fact worked in excess of the “working hours” claimed by the Respondent. He submits that the Respondent relies on the definition of working time for the purposes of the Organisation of Working Time Act and the Road Transport Regulations 2012 in advancing that position. He submits that the Minimum Wage Act defines working time differently to that Act and those Regulations. He submits that the Minimum Wage Act does not exclude time spent on a ferry or waiting time for the purposes of calculating working hours. Accordingly he submits that the totality of his hours for the purpose of this Act exceed 48 hours per week but that he is satisfied that his claim that the minimum wage should be calculated based on a 48 hour contracted working week is consistent with any properly assessed working time within the meaning of this Act.

He further submits that he is entitled to have his holiday pay calculated based on his statutory minimum wage entitlements and not as calculated and paid by his employer.

Respondent’s Case

The Respondent submits that the Complainant was paid his statutory minimum wage.

It submits that the Complainant did not work 48 hours per week. It submitted details of the Complainants tacograph records in support of its contention that he worked less hours. It submits that when his recorded hours of work are reconciled with his daily pay the Complainant was paid in excess of the National Minimum Wage at all times.

Findings of the Court.

The Law

How the Court is to interpret and apply the Act was considered by the Court in Determination MWD146 In that case which is very similar to this case, the Court decided as follows.

• 
  That Act (the National Minimum Wage Act 2000) was enacted to establish a national minimum rate of pay which is expressed in terms of a rate applicable to every hour worked. Where a rate of pay is fixed by reference to a period of time other than per hour (as in this case a rate per day) in determining if the Act is complied with it is first necessary to establish the number of hours to which the payments relate. This is determined in accordance with s.8 of the Act of 2000. It provides: -
  
  • 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—
    • (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, 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, or
        (iii) time spent on travelling between an employee's place of residence and place of work and back.
  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).
  
  A reference period, for the purpose of the Act, is determined in accordance with s.10. This provides: -
  
  • An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.
  
  The effect of this provision is that where the amount per hour varies, it can be averaged over the prescribed reference period. This is of little practical relevance in the instant case. As will be seen from what follows, the Claimant received the same rate and had the same contractual working hours at all times.
  Application to the instant case
  In this case each of the Claimant was furnished with a statement of the main terms and conditions of his employment pursuant to S.3(1) of the Terms of Employment (Information) Act 1991. The statement recites the following under the heading ‘Hours of Work’: -
  
  • Your normal hours of work will be in accordance with the European Committee Driving Hours Regulations, Friday to Thursday. You will be expected to stay overnight on a regular basis in your vehicle. You will receive breaks that are in line with the European Committee Driving Hours Regulations.
  Under the heading ‘Remuneration’ the contract recites: -
  
  • Your Basic rate of pay will be €60.55 per day payable two weeks in arrears by credit transfer as detailed on your pay statement. On days worked, you will also be paid a daily allowance which is payable in line with the European Committee Driving Hours Regulations and Revenue. Therefore your take home pay for days worked will be no less than €100 per day.
  With regard to working hours, the contractual obligation of the Claimant was to be available to the Respondent for such hours as are permitted by the ‘European Committee Driving Hours Regulations’. The import of this expression is unclear. The Court was, however, informed by the Respondent that it is intended to refer to Regulation (EC) 561/2006, commonly referred to as EU Rules on Driving Hours. It follows that the Claimant was contractually required to be available to drive for the maximum number of hours permitted by that Regulation. It is also clear from the Claimant’s contract of employment read as a whole that the specified rate of €60.55 per day was intended to remunerate him for the hours in respect of which he was contractually required to be available to work.
  
  Regulation (EC) 561/2006
  Article 6(3) of Regulation (EC) 561/2006 provides that the total accumulated driving time of a Driver to whom the Regulation relates shall not exceed 90 hours in any two consecutive weeks. However, this Regulation also imports the maximum working hours prescribed by Directive 2002/15/EC, namely 48 per week (Recital (2) and Article 6(2) thereof). Hence, even if the Claimant did not in fact actually undertake work for the maximum permissible period provided for by the Regulation, in the absence of any other contractual term concerning working hours, he was contractually obliged under his contract of employment to be available for work over that period. In these circumstances it is reasonable to conclude that the Claimant’s daily rate of pay, namely, €60.55, was intended to cover the hours that he was expected to be at the place of his employment (in this instance in or with their truck in whatever country to which he was directed by the Respondent) and available to undertake the duties of his employment. This, in the opinion of the Court, necessarily arises from the combined effect of the contractual terms referred to above and the application of s.8 of the Act to those contractual terms.
  
  Records
  Section 22 of the Act provides: -
  
  • 22.(1)—An employer shall keep, at the premises or place where his or her employee works or, if the employee works at 2 or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records as are necessary to show whether this Act is being complied with in relation to the employee and, subject tosection 23(5), those records shall be retained by the employer for at least 3 years from the date of their making.
    
    (2) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.
    
    (3) Without prejudice to subsection (2), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the provision was complied with lies on the employer.
  
  Subsection (1) of this section obligates an employer to maintain such records as are necessary to show whether the Act is being complied with. The Act does not provide that the records must be in any particular form. But they must be in sufficient detail so as to show that the worker was paid not less than the national minimum rate for the hours of work to which the payments received by the worker relate. In this context ‘hours of work’ has the meaning ascribed to that term by s.8 of the Act.
  
  In contending that records were maintained, the Respondent relied on tachograph records and pay statements issued to the Claimants. The tachograph records, at best, relate to the time actually worked by the driver in question. That may be sufficient compliance with the requirement to keep records for the purpose of other enactments. But, as previously noted, working hours for the purpose of the Act of 2000 can relate to the hours during which the worker is contracted to work and for which he or she is paid. That may, or may not, correspond to the time actually worked in a given reference period.
  
  Moreover, s.8(2) of the Act expressly provides that time spent travelling on official business constitutes working time for the purpose of determining if an employee is being paid less than the national minimum wage. It follows that, in part at least, time spent by the Claimant in travelling with his vehicles on ferries can constitute part of his working time for the purposes of the Act. Further, it is significant that the Claimant’s contract of employment (the relevant provision of which is reproduced above) provides that he was regularly required to stay overnight in his vehicle. The effect of this provision is that the Claimant was not free to dispose of their time as they wish in periods during which he was so required. This time too can constitute working time for the purposes of the Act of 2000 if during those periods the Claimant could be required to perform any work including securing the safety of the vehicle.
  
  In the Court’s opinion, in consequence of these considerations, tachograph records do not constitute a reliable means of showing that the Act of 2000 is being complied with within the meaning of s.22(1) of the Act. At best they record time actually or physically worked. But, on the analysis of the relevant statutory provisions above, the Claimant’s entitlement is to be paid the national minimum wage in respect of the hours that he was contracted to work.

The Court finds that the circumstances of this case closely follow the details outlined above. The Complainant was employed on a daily rate of pay and was contractually required to work in accordance with the terms of the European Community Driving Hours Regulations. Accordingly the rational of that decision applies in this case.

The Court notes the terms of section 8(1)(i) of the Act and finds that the provisions of the Complainant’s Contract of Employment which are contained in a document entitled “Statement of Main Terms of Employment”. Require the Complainant to work to the limit of the working hours allowed under the relevant road transport regulations. The Court further finds that section 8(1)(i) of the Act states that the “hours of work of an employee shall be determined in accordance with his or her contract of employment”. In this case the contracted hours of work are those set out in the relevant road transport regulations and accordingly the Complainant is contractually committed to work those hours in return for payment of his daily pay. The national minimum hourly rate should accordingly be determined by reference to that daily rate divided by those contracted hours.

The Court further finds that the definition of working time is not consistent across the National Minimum Wage Act, the Road Transport Regulations and the Organisation of Working Time Act. Working time for the purposes of the National Minimum Wage Act includes “time spent travelling on official business”. Time spent waiting and travelling on a ferry is in the Court’s view time spent travelling on official business and accordingly must be included for the purposes of determining working under this Act.

In those circumstances the Court finds that the Complaint is well founded. The Court notes the calculations submitted by the Complainant and finds that they are accurate and reliable.

Based on the figures supplied by both sides, which were difficult to decipher, the Court finds that the Respondent underpaid the Complainant in the amount of €12,000

Determination

The Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant outstanding wages in the sum of €12,000.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
19th September 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.