ADJ-00003211

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003211

Complaints/Dispute for Resolution:  

Date of Adjudication Hearing: 29/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, and Section 13 of the Industrial Relations Act, 1969 and following the referral of the complaint/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute. 

Background

The Complainant is employed with the Respondent Company since 2007. She is paid either €9.50 an hour or €10.00 an hour (depending where she is working) and she works 8.30am to 10am in Blackrock – 11am to 12 noon in the IFSC and from 4pm to 8pm in Ballsbridge five days a week. The Complainant referred complaints to the Workplace Relations Commission on 16^th May 2016 alleging the Respondent had breached the Payment of Wages Act, 1991 and had breached the Organisation of Working Time Act, 1997. The Complainant also referred a dispute under Section 13 of the Industrial Relations Act, 1969. 

Summary of Complainant’s Position. 

Payment of Wages Act, 1991

The Complainant argued that following the decision of the Court of Justice of the European Union C-266/14 of 10^th September 2014 time spent travelling to and from work is working time for the purposes of the Working Time Directive. In the six months prior to 16^th May 2016, the date of the complaint, the Complainant is claiming payment of €9.50 an hour, being €18.00 a day, being €90.00 a week by six months = €2340.00. In the alternative if the Adjudication Officer accepts the Labour Court Determination then it is only 30 minutes a day = €539.50 

Organisation of Working Time Act, 1997.

The Complainant is seeking payment of travelling time between sites at either €4.95 a day or €18.00 a day in relation to annual leave year ending 1^st April 2016, following the Determination of the Labour Court DWT 1157 which determined that travelling between sites is working time.

The Complainant is also seeking payment of travelling time between sites in the calculation of Public Holiday pay for the previous six months prior to 16^th May 2016 when the complaint was lodged.

Industrial Relations Act. 1969

In line with decisions of the Labour Court the Complainant is requesting a determination under the Act that the Complainant is entitled to be paid travelling between sites and to be paid Public Holidays on the basis of time spent travelling between sites. 

Costs

The Complainant is claiming costs of €400.00 in respect of preparation, travel by the Complainant to the Hearing of €5.00 and loss of a half days wages to attend a cost of €40.00. 

Summary of Respondent’s Position. 

The Complainant was paid €9.50 an hour for the first two assignments and €10.00 an hour for the assignment from 4pm to 8pm. 

Payment of Wages Act, 1991.

The Complainant is seeking payment of travelling time to and from her home to her assignments. This is claimed on the basis of the Tyco case of the CJEU. This same issue in relation to the Complainant was considered by the Labour Court at a Hearing in July 2016 and a Determination of the Court MWD 169 was issued in August 2016 which held under the National Minimum Wage Act, that payment of Traveling Time both to and from work according to Section 8 (2) (iii) of the Act working time does not include “time spent on travelling between the employee’s place of residence and place of work and back”

Organisation of Working Time Act, 1997

The Respondent stated that the Complainant is contending that the Respondent is in breach of Section 19 (annual leave) and Section 21 (Public Holidays) in that the Respondent did not take the time spent travelling from one site to another into account when calculating payment for leave. The Respondent stated there is no entitlement to be paid for the time spent travelling between the different sites. 

Industrial Relations Act, 1969.

The Complainant is seeking that time spent travelling between sites should be designated working time and this is based on the decision of the Labour Court in ISS v Gfencheva where the Court decided that time spent travelling between sites was working time. In that case the employee was required to work on different sites by the Employer. In this case the Respondent stated that the Complainant was not obliged to attend different sites but took this work on to maximise her potential for earnings. 

Costs

The Respondent stated that they recognise a Trade Union for the purposes of representing hourly paid workers and this facility was available to the Complainant. Also as part of the Complainants Terms and Conditions of Employment she had available to her the Company Grievance Procedure which she did not utilise. The Complainant has also referred issues to the High Court arising from the Determination of the Labour Court in these issues.

Findings 

Payment of Wages Act, 1991CA-00004498-001

The Complainant is seeking payment of time spent travelling each day.

The Complainant was employed on the following sites –

8.30am – 10am                       Blackrock

11am – 12noon                       Dublin City Centre

4pm – 8pm                  Ballsbridge

The Labour Court in its DecisionDWT1677 issued 29^th August 2016 and involved the Complainant and the Respondent, found as follows –
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.

Further in its findings it states – 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.

However the Labour Court went on to say that because there was a significant gap of 4 hours between the Complainant’s last assignment at 12 noon and her next assignment did not commence until 4pm that in effect the Complainant was entitled to an unpaid break of 30 minutes.

In accordance with this Decision of the Labour Court I find that the Complainant was not paid 30 minutes travelling time from Blackrock at 10am to the City Centre for her next assignment at 11am.The period covered by this complaint is from 17^th November 2015 to 16^th May 2016, a period of 26 weeks.

I find that the Complainant is entitled to be paid €4.75 a day being 30 minutes travelling time from Blackrock to the City Centre, = €23.75 a week x 26 weeks = €617.50 

Organisation of Working Time Act, 1997.CA-00004498-003 -004

This complaint revolves around payment for annual leave and Public Holidays which the Complainant maintains should include time spent travelling between sites.

The Labour Court has found in DWT1677 that travelling time between sites is working time for the purposes of the Act.

I find that in light of this Decision the Complainant is entitled to have her annual leave pay calculated in accordance with Section 20 of the Organisation of Working Time Act, 1997, for the 2015/2016 annual leave year, this to include payment per week of €23.75 being 30 minutes travelling time as set out above in the complaint under the Payment of Wages Act, 1991. 

The second element of the Complainant relates to payment for Public Holidays. The period covered by this complaint is from 17^th November 2015 to 16^th May 2016 when the complaint was lodged. In light of the Decision of the Labour Court in DWT1677 I find that the Complainant is entitled to have 30 minutes travelling time at €4.95 each day included in the calculation of pay for Public Holidays in accordance with Section 22 of the OWTA, 1977 and S.I. 475/1997. 

Industrial Relations Act, 1969.CA-00004498-002

The Complainant is seeking a Recommendtaion that time spent travelling between sites is working time.

The Complainant worked from 8.30am to 10am in Blackrock, Dublin – 11am to 12 noon in the City Centre and from 4pm to 8pm in Ballsbridge, Dublin.

I have already made a Decision in ADJ 0000586 that the CJEU Decision in Case C=-266/14 the TYCO case has no relevance to the current situation.

However the Labour Court in its decision DWT 57/2011 in ISS Ireland Ltd v Gfenheva found that time spent travelling between locations in a working day should be counted as working time for the purposes of the Organisation of Working Time Act, 1997. The time spent at each location and time allocated for travelling between each of the locations was designated by the Respondent. In the current case the time spent travelling between Blackrock, Dublin at 10am and the time she arrives at her next location at 11am in the City Centre should be designated as working time for the purposes of the OWTA, 1977. However the Complainant finishes her last assignment in the morning at 12 noon and she is not required to attend at another location until 4pm. This is a gap of 4 hours. These 4 hours cannot be considered as working time for the purposes of the OWTA 1997. 

I recommend that the 30 minutes the Complainant spends travelling between Blackrock, Dublin at 10am and the commencement of her next assignment at 11am in the City Centre should be considered working time for the purposes of the Organisation of Working Time Act, 1997 

Decision

Payment of Wages Act, 1991 CA-00004498-001

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant €617.50, subject to any lawful deductions, within 42 days of the date of this Decision. 

Organisation of Working Time Act, 1997 CA-00004498 -003 and 004

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare these complaints are well founded.

Section 19/20 I direct the Respondent to pay the Complainant the difference between the amount already paid to the Complainant in respect of her annual leave for the 2015/2016 annual leave year and the amount that should have been paid taking account of the 30 minutes travelling time per day at €4.75 an hour. This to be paid to the Complainant within 42 days of the date of this Decision

Section 21/22. I direct the Respondent to pay the Complainant the correct amount in relation to each of the 6 Public Holidays in the reference period being 25^th and 26 the December 2015 – 1^st January 2016 – 17^th March 2016 – 28^th March 2016 and 2^nd May 2016. The payment to take account of 30 minutes travelling time each day of €4.75. This to be paid to the Complainant within 42 days of the date of this Decision. 

Industrial Relations Act, 1969- CA-00004498-002

In accordance with Section 13 of the Industrial Relations Act, 1969 I recommend that travelling time spent by the Complainant travelling from Blackrock, Dublin at 10am to the City Centre for11am should be considered as working time for the purposes of the organisation of Working Time Act, 1997 in accordance with the Decision of the Labour Court in DWT 1677. 

Costs

On the basis of the evidence from both Parties I do not award costs. 

Rosaleen Glackin 

Adjudication Officer 

Date:_____02 March 2017_____