TED1626

Background

The Complainant undertakes her work each day in a number of different locations. She works in Parnell Street between 6am and 8am each day. She then works from 8.30am to 10am in Blackrock. She works from 11am to 12 noon in O’Connell Street and from 4pm to 8pm in Ballsbridge. She complains that she was not afforded her entitlements under sections 11 and 12, 17, 19 and 21 of the Act.

Section 11

Section 11 of the Act states

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer

The Complainant submits that up until 20 July 2015 she finished work each day at 8pm and commenced the following morning at 6am. She complains that, contrary to section 11 of the Act, this did not afford her an 11 hour break. The Complainant further states that time spent travelling to and from work must be included in the calculation of her working time.

The Respondent submits that section 4 of the Act applies in this case. It submits that while the Complainant, in the period prior to 20 July 2015, did not receive a break of 11 hours between the end of one shift and the start of the next in any 24 hour period she did receive compensatory rest. It submits that she had a total rest time of 14 hours spread out over the day. It submits that this complies with section 11 of the Act as affected by section 4 of the Act. It submits that after 20 July 2015 the Complainant’s shift pattern changed and she was scheduled off work for a single period of 11 hours and 30 minutes each day.

Findings of the Court

Section 4 of the Act states

• (2) Without prejudice to section 6, sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day.

• 6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of section 11 , 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11 , 12 or 13 .

  (2) Where by reason of the operation of subsection (1) or (2) of section 4 , or section 5 , an employee is not entitled to the rest period or break referred to in section 11 , 12 , or 13 the employer concerned shall—

  (a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or

  (b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee's conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4 , or section 5 .

  (3) The reference in subsection (2) (b) to the making of arrangements as respects an employee's conditions of employment does not include a reference to—

  (a) the granting of monetary compensation to the employee, or

  (b) the provision of any other material benefit to the employee, other than the provision of such a benefit as will improve the physical conditions under which the employee works or the amenities or services available to the employee while he or she is at work.

• Section 6(2) places a positive obligation on the Respondent to 'ensure' that an Employee has access to adequate rest periods when scheduling work. The rights set out in Section 11 are fundamental rights and can only be compromised where the provisions of the Act are strictly complied with. In this case the Respondent confirmed that it did not discharge its obligation to 'ensure' that the Employee had equivalent rest available to her. It is not sufficient to seek to retrospectively determine that a rest period that departs from the provisions of Section 11 of the Act is the equivalent of the rest period mandated in that Section. The obligation is to 'ensure' that an equivalent rest period is allowed in the work schedule. Failure to do so amounts to an infringement of the Act and the Respondent loses the exemption set out in Section 4 of the Act. Moreover the Respondent’s own records show that while the Complainant was scheduled to finish work at 19:30 hours each evening, she in fact consistently worked until 20:00 hours thereby reducing her daily continuous rest period by a further 30 minutes. The Court finds that the Respondent paid no regard to the extent to which the provisions of Section 11 were being compromised in this case.

Applying the decision in Noonan Services above the Court finds that there was a positive obligation on the Respondent to show how it factored that reduction in the daily rest period into the scheduling of the Complainant’s shift pattern. It did not do so. Instead it submitted that the totality of her rest time exceeded 11 hours.

The Court notes that after 20 July 2015 the Complainant, consequent upon a restructuring of her shifts, received daily rest periods in accordance with Section 11 of the Act.

The Respondent did not explain to the Court why it had not applied the amended shift pattern to the Complainant before July 2015.

Determination

The Court finds that the Respondent, prior to 20 July 2015, did not discharge its obligations under Section 11 of the Act. Thereafter it did so.

The Court accordingly determines that the Complaint is well founded in respect of the period up to 20 July 2015. The decision of the Rights Commissioner is set aside.

The Court orders the Respondent to pay the Complainant compensation in the sum of €500.00.

The Court so determines.

Section 12

The Complainant contends that she did not receive breaks in accordance with section 12 of the Act.

The Respondent contends that prior to 20 July 2015 the Complainant was not required to work for more than six hours and accordingly did not accrue an entitlement to a 30 minute break under section 12 of the Act. It further submits that the Complainant finished her shift at noon and did not recommence work again until 4pm thereby availing of a break under section 12 of the Act.

Section 12 in relevant part states

• 12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

  (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

  (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

  (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

It is common case that prior to 20 July 2015 the Complainant commenced work at 6am. She subsequently travelled to two other locations and finished work at noon. Two questions arise for determination by the Court in this case. The first is whether time spent travelling to and from work is working time within the meaning of the Act. The second is whether the time spent travelling between O’Connell Street and Ballsbridge is working time within the meaning of the Act.

The Complainant submits that the CJEUin Federaci�n de Servicios Privados del sindicato Comisiones obreras (CC.OO.) vTyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA (C-266/14 ) 10 September 2014stated that time spent travelling to and from work was working time for the purposes of the Working Time Directive. It submits that the Complainant was entitled to the benefit of that decision. Were it so applied to the Complainant’s working hours she would accrue and entitlement to a 30 minute break under section 12 of the Act as her hours exceeded 6 hours each morning.

The Respondent submits that the Complainant cannot rely on the decision in the Tyco case as her circumstances are not at all similar to those that applied in that case. It submits that the Complainant in the Tyco case was under the control of the Respondent from the time he left his house to drive to his first appointment of the day. It found that because of the specific facts of that case the Complainant’s base was his house for the purposes of starting work. It submits that the Complainant’s first place of work is set and fixed and she reports there every morning. It submits that this is no different to a worker reporting to a fixed employment location to commence work. It submits that it is no concern of the Respondent how she arranges herself to be at work at the scheduled commencement time. Accordingly it submits that there is no parallel between the instant case and the Tyco case.

The second issue that arises is whether the time spent by the Complainant travelling from O’Connell Street to Ballsbridge is working time for the purposes of the Act.

The Complainant submits that time spent travelling from one work location to another constitutes working time. It submits that the time spent travelling from O’Connell Street to Ballsbridge is no different to other periods spent travelling.

The Respondent rejects that submission.

Findings

It is well settled law that time spent travelling between work locations in the course of the working day is working time for the purposes of the Act. The reason for this is that the time is not at the disposal of the employee. It is time spent travelling in order to undertake the work of the employer and is effectively time that is under its control.

However time spent travelling to and from work at the start and end of the working day is not normally considered working time. There are circumstances where such travel may become working time. The CJEU has set out one such occasion in the Tyco case referred to above. However the circumstances between that case and this are not at all similar. In that case the complainant had no fixed base as it had been closed for efficiency reasons by Tyco. Accordingly the complainant, whose work required him to travel to customer sites to carry out work as and when required, commenced work as soon as he left his home to travel to his first customer each day. Likewise he travelled home after he finished with his final customer. The distances he travelled were variable but quite extensive. Accordingly he had no certainty regarding his start or finish time as he was not finished work until he returned to his base which was his home.

In this case the Complainant reported to the same location each morning. She moved to other fixed locations during the day and finished in a fixed location in the city centre at the same time each day. She then made her way home.

In essence therefore she commenced work in the city centre and finished work in the city centre. That work pattern is markedly different from that which applied in the Tyco case. Accordingly the Court does not consider the decision in that case relevant to the instant case.

However the Court finds merit in the Complainant’s case that she was required to make her way from Ballsbridge to the City Centre between her penultimate and last work assignment of the day. The fact that there was a significant time lapse between the ending of one assignment and the commencement of the next one does not materially affect the nature of the travel that had to be undertaken. It was similar in nature to the travel undertaken earlier in the day and should properly be considered working time.

When this additional travel time is added to the six hours work undertaken by the Complainant between 6am and noon each day, her total working time exceeds six hours. Accordingly she was entitled to a break of 30 minutes that cannot be taken at the end of the day. It could however be taken between her penultimate and final assignment of the day.

As such a break may be unpaid and as the complainant could avail of such a break after noon each day and as her final assignment did not end until 8pm, the Court cannot identify any infringement of section 12 of the Act.

Determination

The complaint under section 12 is not well founded. The Court so determines.

Section 19

Section 19 of the Act in relevant part states

• (3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

The Respondent submits that the Complainant was granted the holidays she requested and that this amounts to an agreement between her and her employer within the meaning of section 19(3).

Findings of the Court

The Court finds that the entitlement to an unbroken period of 2 weeks is not absolute. It is subject to amendment by way of “any agreement between the employee and his or her employer.” In this case the Complainant applied to take her holidays in a manner that best suited her circumstances. The Respondent agreed to those requests.

By any measure such an arrangement constitutes an agreement between the worker and her employer within the meaning of section 19(3) of the Act. This is particularly the case where the timing of annual leave is decided at the absolute discretion of the employee as happened in this case.

Accordingly the Court decides that the complaint is not well founded.

The appeal is dismissed.

Section 19 Payment for Annual Leave

Section 19 in relevant part states

• (2) (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate,—

• (4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.

• 3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

  (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

  (3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—

  ( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

  Or

  ( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €250.00.

Section 21

The Respondent acknowledges that it did not pay the Respondent strictly in accordance with the terms 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 €250.00.

Minimum Wage Act

The Complainant submits that she was not paid the minimum wage in accordance with law. Her contract provided she her hourly rate of pay was €9.50 per hour in respect of the work she carried out between 6am and noon and €10 per hour in respect of the work she carried out between 4pm and 8pm.

The complainant submits that while her nominal rate was her contract rate of €9.50 or €10 per hour she was not paid for the hours she spent travelling to and from work and for the time spent travelling between her various work assignments. She submits that when these are factored in she was not paid the statutory minimum hourly wage for the hours she worked.

The Respondent submits that the Complainant was not entitled to be compensated for the time spent travelling to and from work. It submits that otherwise she was paid the national minimum hourly rate of pay at all relevant and material times.

The Law

The National Minimum Wage Act 2000 sets down a minimum hourly rate of pay for adults working in the state. In relevant part it states: -

• 11.—(1) The Minister shall, by order, after taking into account the impact the proposed rate may have on employment, the overall economic conditions in the State and national competitiveness, declare a national minimum hourly rate of pay for the purposes of this Act.

  (2) A national minimum hourly rate of pay may include an allowance for board with lodgings, board only or lodgings only at such rates as the Minister may specify in the order under subsection (1).

  (3) Subject to sections 12 and 13, the Minister may, by order and after taking into account the matters referred to in subsection (1), amend or revoke an order made under this section, including an order made under this subsection.

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

The Complainant submits that she was not paid for the time spent travelling to and from her home to work and relies on the Tyco case referred to above. Based on her contention that she was entitled to include those hours as working hours she submits that her hourly rate of pay fell below the national hourly minimum rate of pay.

The respondent submits that the Act expressly excludes time spent travelling between an employee’s place of residence and place of work and back. It submits that the Complaint is misconceived.

Findings of the Court

The Court finds that the travel time contended for by the Complainant is expressly excluded under section 8(2) of the Act. The Complainant presented no other prima facie evidence that her pay fell below the national minimum hourly rate of pay.

The Court accordingly finds that the Complaint is not well founded and fails.

Terms of Employment Act

The Complainant submits that Contract of Employment given to the Complainant was not dated, the Annual Leave Year is incorrect and does not conform to the statutory definition, the Complainant was not informed of her right to take two weeks uninterrupted annual leave, there is no reference to S.I. 49/1998, there is no reference to PRSA’s and there is no reference to Section 3(a) and 3(ga).

The Respondent submits that the Complainant was issued with a written statement of her terms and conditions of employment that conforms fully with Section 3 of the Act.

Findings of the Court

The Court has examined the documents provided to the Complainant. The Court finds that the Respondent’s name is not correctly stated as Ltd is omitted.

Section 7 of the Act permits complaints to be taken to an Adjudication Office that an employer has infringed sections 3,4,5 or 6 of the Act. It makes no provision for complaints that other sections of the Act have not been complied with. Accordingly the Complaint that the Respondent has not provided a statement of the Annual Leave Year does not come within the scope of complaints that can be properly brought before the Court.

The Court finds that the Statement of Terms and Conditions of Employment was issued on 1 February 2009 and this date appears on each page of the document. Receipt of the document was acknowledged on 23 July 2009.

The Court finds that the Complainant was paid the nominal rate of at least €9.50 per hour. The Complainant seeks to include additional unpaid hours for the purpose of determining her hourly rate. Those hours cannot be properly included for the purposes of this complaint.

Determination

Having considered the matter the Court finds that the complaint is not well founded. The decision of the Rights Commissioner is affirmed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
29th August, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.