Complainant

Respondent

Anonymised Parties

A Fisherman

A Seafishing Company

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-00016638-001

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-002

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-003

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-004

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-005

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-006

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-007

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-008

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016638-009

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016638-010

04/01/2018

The Claimant is a Filipino national and worked for the Respondent company since May of 2016 . The Complainant takes issue with matters relating to hours worked and the perceived failure to make appropriate remunerative payments during the course of the employment.

The Complainant was provided with a translator and was able to give evidence on his own behalf. The Complainant’s legal representative addressed me on the law.

No Employee, Director or Manager appeared on behalf of the Respondent. However, the Respondent did request it’s own legal representation to attend at the hearing for the purpose of indicating that the absence of anyone form the Respondent was not intended to be disrespectful and to urge on me that I would consider the Respondent’s submissions provided to the WRC on the 8th of June 2018. In the course of this interchange, I did make it clear that if credible evidence is given and remains unchallenged then I would have to accept such evidence. I am satisfied that Counsel on behalf of the Respondent understood my position when she withdrew from the hearing.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended)

A decision of an adjudication officer under Section 41 of the Workplace Relations Act shall do one or more of the following:

(i)                  Declare the complaint was or was not well founded;

(ii)                Require the Employer to comply with the relevant provision;

(iii)               Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

The Respondent provided a full submission. As per Counsel’s request this submission was considered in the course of the hearing and by me in deliberating and drafting this decision.

The Complainant commenced his employment in 2013 but there is some doubt as to the status of that employment which I understood became regularised in and around in May of 2016.

I note that A Memorandum of Understanding for the Monitoring and Enforcement of the Terms of Employment of non EEA crewmen was entered into by various State parties in early 2016. This memorandum provided a new system of atypical worker permission for non-EEA persons in the sea fishing sector. This Memorandum required inter alia that employers (who were licensed vessel owners) were to be responsible for ensuring a valid contract of employment drafted in accordance with National and EU employment rights legislation was in place for all workers. I would fully accept that the intention of this scheme was inter alia to ensure that such workers’ employment rights were protected.

Prior to the introduction of this scheme the position of non-EEA workers in the fishing sector was irregular. Such workers were generally paid by virtue of receiving a payment which was a percentage share of the value of the catch.

The scheme came into operation in 2016 and closed in or around the end of July 2016. 171 permits were provided to non-EEA workers under this scheme.

The objective is to ensure per the Memorandum:

“…to minimise the potential for the abuse of migrant workers by unscrupulous employers…”

I note that at Clause 7 relates to the Organisation of Working Time Act 1997 and states:

“The Organisation of Working Time Act 1997 will apply, where applicable to this employment”

It was the introduction of this scheme that legitimised the Complainant’s employment. Under this scheme the Complainant had two “Atypical Working Scheme Letter of Approval”. The second was obtained in the name of the Respondent company whilst the first was obtained in the name of a Mr.TW who was and is a Director of the Respondent Company. I accept the Complainant’s representative’s point when he says that the reference to Mr. TW on the Letter of Approval is an error as the Complainant’s employer was always the Respondent company as is evidenced by all of the payslips going back to May of 2016. I cannot speculate how the name came to change on this document but I accept that the Respondent herein is the Employer. Also the Respondent submission regarding the ownership of the vessel on which the complainant worked does not, to my mind, have relevance. On balance I therefore reject any argument that there was some illegality attaching to the circumstances of the employment such that would render some aspect of the relationship null and void (whether the Letter of Approval, the Visa Stamp or the Contract of Employment), allowing for the fatal application of the principle set out in Hussein   -v- The Labour Court and Anor [2012] IEHC 364. I therefore reject this preliminary issue made on the Respondent’s part. I am mindful also of the fact of the dubious status of Hussein.

The Complainant has asked that I accept that reasonable cause has been shown for the purpose of extending the period of calculation from 6 months to 12 months. It was submitted that I am entitled by virtue of Section 41 of the Workplace Relations Act 2015 to extend the time and consider matters that date back to 12 months prior to the institution of the claims if reasonable cause is shown. In the circumstances it was submitted that there can be no better cause than being a non national migrant worker, whose status was uncertain and who had a poor command of English and consequently a limited understanding of how to protect his own rights and entitlements. I am prepared to accept this argument and am considering a twelve month time frame going back from the date of the Workplace Relations Complaint Form dated the 4th of January 2018.

I note that the Complainant’s working pattern for the twelve month period from January 2017 to January 2018 were as follows:

January to March 2017 – The complainant was in the Philippines

23rd March 2017 to 15th September 2017 – The Complainant worked with the Respondent Company

16th September to January 2018 – The Complainant had left the employment of the Respondent company.

In extending the time to twelve months I am only considering breaches of legislation for the period between March and September 2017 as the relevant employment period, a period of about 25 weeks or 6 to 7 months. Any awards made can only relate to that period.

In their submissions both parties have made to Human Trafficking, though there is no evidence to suggest that this is relevant here. Counsel for the Complainant agreed that the use of such language in the Complainant’s submission was overly dramatic and not relevant. I therefore see it as a non-issue and in any event outside of my jurisdiction.

I make no finding regarding the claim that the Complainant is being funded by some shadowy third party. This is not within my remit or competence. Likewise, I am not in a position to assess the nature and extent of any investigation conducted by another arm of the WRC into this particular workplace. My sole function is to consider the evidence provided by both parties in respect of individual breaches or otherwise of particular pieces of legislation which govern all workplaces both at sea and on dry land.

The Complainant representative opened up S.I. No. 709/2003 – European Communities (Workers on Board Sea-Going Fishing Vessels)(Organisation of Working Time) Regulations 2003 which states inter alia:

“(1) The master, or person authorised by the Master, shall maintain and the owner of a sea-going vessel shall ensure that there is maintained on board the sea-going fishing vessel a record of the daily hours of work or rest for each worker on board the vessel that complies with the requirements of paragraph(2)

(2) Each record under paragraph (1) shall

(a) be completed monthly in arrears;

(b) be in the form set out in Schedule 1 or in a form to substantially like effect as will enable an authorised officer to understand the particulars contained therein without difficulty.

(3) Each record maintained under Paragraph (1) shall be endorsed by the master, or a person authorised by the master, and by the worker on board a sea-going vessel in question. The master or, as the case may be, a person authorised by the master shall, no later than 7 days after the last day of the calendar month to which the record relates, give the worker on board a sea-going fishing vessel a copy of the record as endorsed.

(4) The records referred to in paragraph(1) shall be retained for at least one year from the date of their making . If during that period, ownership of the sea-going vessel changes, then the duty to preserve records shall be with the owner of the sea-going vessel for the time being or, if the sea-going vessel ceases to be registered in the State, with the last owner before ceasing to be so registered.”

Section 25 of the Organisation of Working Time Act 1997 also deals with records and states inter alia:

“(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two 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, in such form, if any as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least three years from the date of their making.

…

(4) Without prejudice to subsection (3), where and employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of the Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer”

The Complainant gave evidence that no such documentation was formally prepared and recorded. He accepts that occasionally he was asked to sign documents but as often as not these were blank. The content and significance of such documents was never explained to him.

THE LAW IN RELATION TO THE ORGANISATION OF WORKING TIME

Section 19 and 20 of the Organisation of Working Time Act provide that an employee is entitled to both annual leave and that it shall be paid. The Claimant in this case was never provided by the Respondent with paid annual leave.

Section 21 of the Organisation of Working Time Act provides that an employee is entitled in respect of a public holiday to either:

(a)    A paid day off

(b)    A paid day off within a month of that day

(c)     An additional day of annual leave

(d)    An additional day’s pay

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. In the course of the time frame which is the subject matter of the within proceedings a number of public holidays occurred and the Claimant did not receive his entitlements in relation to public holidays.

Part II of the Organisation of Working Time Act 1997 deals with minimum rests periods. Section 3(2) of the 1997 Act states inter alia that subject to subsection (4) that Part II of the Act shall not apply to a person engaged in sea fishing. Subsection (4) provides that the Minister may by order provide that a specified provision or provisions of this Act or, as the case may be, of Part II shall apply to a specified class or classes of person referred to in subsection (1) or (2) and for so long as such order remains in force the said provision shall be construed and have effect in accordance with the order.

S.I. No. 709/2003 deals with inter alia Part II matters for employees on fishing vessels namely rest periods and hours of work. Regulation 6 of the Statutory Instrument states:

“(1) Subject to the limit of an average of 48 hours of work over a reference period not exceeding 12 months, the limits on hours of work and rest in respect of a worker on board a sea-going fishing vessel shall be either:

(a)    maximum hours of work which shall not exceed

(i)                  14 hours in any 24 hour period, and

(ii)                72 hours in any seven-day period

or

(b)    minimum hours of rest shall not be less than,

(i)                  10 hours in any 24-hour period, and

(ii)                77 hours in any seven-day period

             (2) Hours of rest may be divided into no more than two periods, one of shall be at least 6

                 hours in length and the interval between consecutive such periods shall not exceed 14      

               hours.

         (3) A worker on board a sea- going fishing vessel who is on call shall have an adequate

             compensatory rest period if his hour of rest are disturbed by call-outs to work”

This complainant gave his own evidence. He was an engineer and in that capacity was stuck on the boat more than most.The Complainant was employed by the Respondent from in or around 2013 before the permit scheme commenced. Prior to the permit scheme the Claimant was paid by way of a “share” of the catch. He had “skin in the game” so to speak. This changed in October 2016 (as can be seen from his bank statements). Regulation it seems brought less wages but the same amount of work. The Complainant was then being paid significantly lower weekly wages which varied from €371.91 a week to €179.24 a week. It was put to me that the payment rates made no sense and that the inference had to be as the Complainant was still working hard that he was not getting paid for all the work he did. I have to operate on the assumption that the Complainant was getting the then Minimum wage at €9.55 per hour.

The Complainant sought to describe the boat on which he worked as a “floating factory” though such a description was expressly rejected. The boat he said could be at sea for many days at a time with he and his fellow fishermen working long and arduous hours.

The Complainant described limited rest periods and even as the boat travelled out to the fishing grounds his cooking and engineering duties meant he worked around the clock. In evidence he confirmed that he would often only get rest of 4 to 5 hours in any 24 hour period. The Complainant says that the payslips that suggest he worked only a 39 hour week are therefore at odds with the truth. The Complainant claims he worked well in excess of 39 hours a week. Overtime was not paid at a premium rate or at all.

The Complainant gave evidence that he was not given rest periods. He had no acknowledged public holiday or annual leave. As his income had dropped off the complainant took a loan from his Employer who appeared to then run the loan through the wage slips

I heard evidence in respect of the losses to the Complainant and it was put tpme that in March there was non-payment of 55 hours. In April there was 346 hours unpaid. In May there was 337 hours unpaid. In June there was 284 hours unpaid   and in July there was 371 hours unpaid. There were no unpaid hours in August (when the boat was in harbour) and September (the month the Complainant left the employment.

The intention of the permit scheme for non-EEA persons working on fishing vessels was to inter alia ensure that they were paid in a fair manner in accordance with the law for the work done and to ensure that their rights to rest and breaks were protected. The Respondent’s actions towards the Claimant was entirely in breach of the law, the contract of employment and the intention of the scheme. It is submitted that the Claimant in all the circumstances is entitled to the back pay due and owing to him together with significant compensation for the serious breaches of the working time legislation.

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 -CA-00016638-001 - this claim was withdrawn.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-002 – I am satisfied the claim that the Complainant did not receive his annual leave entitlements is well founded and I award €600.00

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-003 - I am satisfied the claim that the Complainant did not receive his public holiday entitlements is well founded and I award €200.00

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-004- I am satisfied the claim that the Complainant did not receive his daily rest period entitlements is well founded and I award €200.00

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-005- I am satisfied the claim that the Complainant did not receive his breaks is well founded and I award €200.00

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-006- I am satisfied the claim that the Complainant did not receive weekly rest period entitlements is well founded and I award €200.00

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00016638-007- This is a repetition and is withdrawn

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-008 – I am satisfied the claim that the Complainant was required to work more than the maximum number of hours is well founded and I award €300.00

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00016638-009 - this is a repetition and is withdrawn.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 -CA-00016638-010

- I am satisfied that the Employer herein deducted the Complainant’s pay by significant amounts over a period of time between March and September of 2017 and award €13,305.00