DWT182

This is an appeal by Arturas Glemza (Complainant) against decision ADJ- 00006633of an Adjudication Officer in his complaint against his former employer Noel Recruitment (Ireland) Limited (the Respondent). The complaint was made pursuant to the Organisation of Working Time Act 1997 (the Act). The Adjudication Officer found that the complaint was not well founded.

Background

The Complainant was employed by the Respondent between the 24^thMay 2016 and 22^ndJanuary 2017.The Respondent is an Employment Agency who placed the Complainant with one of their clients for the duration of his employment with them. The Complainant was employed on a Permanent Contract. The Complainant is claiming that the payment of his Annual leave and Public Holidays did not take into account the 45 minutes he spends travelling each day worked when he had to travel between his home and the depot where he worked. The Complainant is relying on the “Tyco” case to argue that this time should be considered working time. The Complainant is also claiming a Sunday premium for the 6 Sundays he worked during the cognisable period. He worked an 8hour shift on each occasion. The complaint was lodged on the 19^thDecember 2016. The cognisable period is 20^thJune 2016 to 19^thDecember 2016.

Complainant’s case.

The Complainant was placed by the Respondent with one of its clients for the duration of his employment. Each day he worked he was required to travel to that workplace. He does not dispute that he was in the same workplace for the duration of his contract. It is the Complainants case that in line with the decision of the Court of Justice of the European Union (CJEU) in the case of C-266/14Federaci�n de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SAhis time spent travelling to work should be considered working time. In particular, he relied on paragraph 5 on page 4 of the Judgement which states

• “… as the Advocate General observed in point 38 of his Opinion, the journey of workers, who are employedin a job such as that at issue in the main proceedings, to go to the customer designated by their employer, is a necessary means of providing those workers technical services to those customers. Not taking those journeys into account would enable an employer such as Tyco to claim that only the time spent carrying out the activity of installing and maintaining the security system falls within the concept of ‘working time’ within the meaning of point (1) of Article 2 of Directive 2003/88, which would distort that concept and jeopardise the objective of protecting the safety and health of workers”andparagraph 7where the Court went on to say“In those circumstances, workers in a situation such s that at issue in the main proceedings must be regarded as carrying out their activity or duties during the time spent travelling between home and customers”

The Complainant also made a claim under section 14 (1)of the Act in relation to Sunday premium. It is the Complainant’s case that the fact he is a permanent employee as defined by S 6(2)of the Protection of Employees (Temporary Agency Work ) Act 2012 does not negate his entitlement to be compensated for Sunday work in accordance with s14 of the Act.

Respondent’s case

It is the Respondent’s position that the decision in the Tyco case does not apply to the claimant’s case. The CJEU ruling in that case was in relation to technicians based in regional offices around Spain who installed security systems in homes and commercial properties. Time spent travelling from the regional office to the first customer and from the last customer back to the regional office was considered working time. Tyco closed all the regional offices in 2011 and the technicians began to operate from home. The employees in question travelled varying distances daily from their homes to the places where they were to carry out work. Tyco did not treat the first or last journey of the day as working time and considered the working day started when they reached their first client and ended with their final appointment. It is the Respondent’s position that there is no comparison between the Tyco situation and the position of the Complainant. The Complainant is not working from home, he travelled to and from the same location everyday he worked. He was not required to travel differing distances and he was assigned to the same client for the duration of his contract. The Respondent argued that the decision of this Court inBreffni Carpentry Services Ltd and Denis Solodounkovs (DWT0816)was a more appropriate authority as in that case the Complainant was based out of his employer’s premises rather than working from home. In that case the Labour Court held that only hours which the Complainant spent at the workplace, and not travelling time, could be regarded as working time.

In relation to the claim for Sunday premium it is the Respondent’s case that as the Complainant is a Permanent Employee as defined by S 6(2)of the Protection of Employees (Temporary Agency Work ) Act 2012 parity for Sunday work does not apply and the Complainant cannot rely on s14 of the Act.

The legal position

2.— (1)In this Act—

working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work,

and “work” shall be construed accordingly.

Sunday work: supplemental provisions.

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings underPart IVbefore a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) In subsection (3)“ comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

Discussion

It is not disputed by the Complainant that the Act does not allow for travel time in the manner that is being claimed. He is instead relying on the “Tyco” decision of the CJEU. In the penultimate paragraphs on page 5 of the decision the CJEU states ..

• “it would be contrary to that directive if the resting time of workers without a habitual or fixed place of work were to be reduced because the time they spend travelling between home and customers were excluded from the concept of “working time” within the meaning of point (1) of Article 2 of that directive.”

In relation to the claim under s14 of the Act, it clearly states “shall be compensated” and this section was not amended by theProtection of Employees (Temporary Agency Work) Act 2012. The Complainant is therefore entitled to be compensated for the Sundays he worked within the cognisable period.

Determination

The Court is satisfied that the circumstances of this case do not come within the ratio of the Tyco case and travel time to and from his place of work is not reckonable as “working time” for the purposes of the Act. In Determination DWT0816,Breffni Carpentry Services Ltd and Denis Solodounkovsthis Court held that the time spent by a worker traveling to his place of work and from his place of work to his home is not working time within the statutory meaning of that term. The Decision is “Tyco” does not disturb the reasoning in that case. The Adjudication Officer’s Decision is affirmed. The appeal fails.

In relation to the claim for payment of Sunday premium the appeal succeeds. The Court awards €210 euro in compensation for a breach of the Act.

The Adjudication Officer's Decision is varied in accordance with this Determination.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
29 January 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.