DWT175

Decision of Rights Commissioner

The Rights Commissioner decided that the complainant was not in attendance when the case was called and dismissed the complainants before him for want of prosecution.

Complainant’s Case

The Complainant was originally employed by Cemex Ltd. That company was taken over by Kilsaran Concrete Ltd. Arising out of the same facts the Complainant initiated proceedings against both Cemex Ltd and Kilsaran Concrete Ltd. When the matter came before the Court Kilsaran Concrete Ltd accepted liability for all matters before it. The complaints against Cemex Ltd were then withdrawn.

Organisation of Working Time Act

The Complainant submits that the Respondent infringed section 12 of the Act. He gave evidence to the Court that he was required to work continuously from the time he reported for work each morning until he finished work in the evening. He was free to take breaks as he chose but was required to be permanently available to answer the phone to take orders from customers. He submits that he was therefore not free to dispose of his time as he wished. He further submits that he was not aware at the commencement of a break when it would be interrupted by a phone call. He submits that he therefore did not receive breaks within the meaning of section 12 of the Act.

The Respondent told the Court that it could not offer any evidence to contradict the complainant’s evidence.

The Law

Section 12 of the Act 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).

• 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
  (a) 4 months, or

• 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 tosubsection (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.
  

  (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject tosubsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(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 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.