ADJ-00006964

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006964

Parties:

	Complainant	Respondent
Parties	Agency Worker	Agency and Recruitment provider

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00009336-001	19/01/2017

Date of Adjudication Hearing: 05/07/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

In particular, the Complainant herein has referred a complaint of a contravention of the National Minimum Wage Act, 2000 contained in part 3 of Schedule 5 of the Workplace Relations Act 2015 which designates that certain Acts included therein to be deal in accordance with Part 4 of the Workplace Relations Act of 2015

Background:

The Complainant issued his Workplace Relations Complaint Form on the 19^th and 20^th of January, 2017.

Summary of Complainant’s Case:

The Complainant sought to obtain a statement from his Employer of his average hourly rate of pay in a particular reference period as he is entitled and obliged to do under Section 24 of the 2000 Act. This was sent to the Employer on the 13^th of July, 2017. He got a response to this on the 13^th of September 2016. On foot of this information he states that he is getting paid below the Minimum Wage in circumstances where he is not getting paid for the journey he has to undergo morning and evening to a place of work that he says is not his place of work.

In explaining this distinction, the Complainant states that his place of work is at an address in Inchicore in Dublin (which is the company’s registered office and Headquarters) but he is required to attend at another facility in Finglas on a daily basis and therefore is entitled to be paid for that travel time.

The Complainant explained that his first day of work took place in the Inchicore premises – his place of work - and thereafter he was expected to attend at a different place of work in Finglas.

The Complainant’s representative asked me to consider the European Case of Federacion de Servicios Privados del sindicato comisiones obreras -v- Tyco Integrated Security SL.

I understand that the case being made regarding the Minimum Wage claim arises in circumstances where the inclusion of this extra hour of travel brings the overall wage down below the minimum wage.

Summary of Respondent’s Case:

The Respondent points out that it is an Agency with 600 employees on it’s books and it has very few employees at the Inchicore site and the reality is that everyone taken on to their books knows that they will be sent to a place of employment other than the Registered Office. The first day as described by the Complainant is not a working day and is in fact a day of induction and light training. The Respondent confirmed that the Complainant like all other Agency workers in their employment does not get paid for this induction day and it is simply an opportunity to generally advise on the type of workplace to which individuals are being assigned. It was never expected or intended that the Complainant would consider this day to be a working day nor should employees consider this place to be the primary place of work.

The Complainant knew he would be going to Finglas to work. The Respondent asks therefore that I have regard to Section 8(2) of the National Minimum Wage Act which specifically excludes time spent travelling between an employee’s residence and place of work and back, as in any way constituting working time for the purpose of this Act.

Findings and Conclusions:

I have considered the case of Federacion de Servicios Privados del sindicato comisiones obreras -v- Tyco Integrated Security SL which involves a successful claim having been brought for travel time being considered working time. I do not accept that the facts in that case bear any resemblance to the case I have heard in this Adjudication process. I can see no good reason to extend the acknowledged hours of work to include the time spent travelling to and from the workplace which I find to be the premises in Finglas.

Decision:

In circumstances where I am not prepared to accept that travel time should be included for the purpose of calculating hours of pay I find that there has been no breach of the Minimum Wage Act, 2000.

There is further no general entitlement to be paid for the induction day as described and I am satisfied that the Respondent did reply to the Statement as requested pursuant to Section 24.

Dated: 30/8/17

Workplace Relations Commission Adjudication Officer: Penelope McGrath