Complainant

Respondent

Anonymised Parties

A Support Worker

Care Provider

Act

Complaint Reference No.

Date of Receipt

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

CA-00015618-001

03/11/2017

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

CA-00015618-002

03/11/2017

The Complainant works as a Support Worker at a non-profit organisation which provides service for people with sensory and physical disabilities. The organisation is primarily funded by the Health Services Executive and the Department of Employment Affairs and Social Protection. The Complainant is paid €15.50 per hour. She receives a premium of time and one quarter for hours of work on a Sunday (€19.38 per hour). She claims that she does not receive her statutory breaks. She also claims that her Sunday premium should be at a rate of double time.

The Complainant submits that she is employed by the Respondent, care provider. However, her work is coordinated by Mr. P, who is employed by a named Foundation which coordinates the Respondent’s services funded by the Health Service Executive (HSE). The Complainant submits that she is paid time and ¼ for hours worked on Sunday. However, she claims that employees of the named Foundation are paid double time for work on Sunday. She argues that she should also be paid double time.

The Respondent submits that they comply with the statutory requirement to pay a premium for hours worked on Sunday. As of May 2017 premium of 25% is paid to all employees of the Respondent with arrears paid from October 2015. The Respondent provided copies of payslips showing the premium paid to the Complainant. The Respondent submits that the named Foundation is not an employer of the Complainant but acts as a coordinator as per the HSE requirements.

Section 14 of the Organisation of Working Time Act, 1997 provides as follows: (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 under Part IV before [an adjudication officer] 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 [an adjudication officer] 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 [an adjudication officer] or the Labour Court, can be readily applied or followed by the [adjudication officer] or the Labour Court for the purpose of the proceedings).

This section provides that an employee required to work on a Sunday is entitled to a premium payment for the work which may consist of a payment or time off in lieu or a combination of both.

In Park House Hotel Ltd. v Wlodarczyk DWT 24/2016, the Labour Court said that what was intended by this section was that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged. In Viking Security Ltd v Valent DWT 89/2014, the Labour Court held that it could only be satisfied that an employee had obtained his or her entitlements under this section “where the element of compensation for the obligation to work on Sunday is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”.

It is common case that the employees of the Respondent are paid a premium of 25% for each hour worked on Sunday, notwithstanding the fact that the latest Contract of Employment issued to the Complainant outlines the rate of pay as follows: “The pay rate applicable to this post is €15.50 per hour which includes an appropriate premium payment reflecting your contractual requirement to Sunday as and when required. You will be paid this premium basic rate of pay for all hours worked (exclusive of overtime and overnight) including Sundays.” The Parties confirmed at the hearing that in May 2017 Sunday premium of 25% was introduced with arrears paid from October 2015. The payslips presented by the Respondent confirmed same.

The Complainant argues that she should be paid double time in line with the arrangements in the named Foundation. The parties clarified that the Foundation acts as an intermediary between the Respondent and the HSE, who is the contract provider, and coordinates the work of the Complainant on behalf of the Respondent. The Respondent argues that the Foundation is a separate employer and the Respondent is not aware of the Sunday premium arrangements within the Foundation. The Respondent submits that by paying 25% on top of the hourly rate of pay it complies with the requirement of Section 14 of the Act.

There is no dispute as to the fact that a premium is paid. However, the parties have a different view as to the level of compensation to be paid. In the absence of a collective agreement, an employee is entitled to the premium payment for Sunday working payable to a comparable employee in a collective agreement in force in a similar industry or sector. This means that the Sunday premium is to be set by reference to the going industry rate which will be determined by looking at collective agreements already in force for comparable workers and would be equivalent to the closest applicable collective agreement which applies to the same or similar work under similar circumstances and which provides for a Sunday premium (see Duesbury Ltd v Frost DWT 32/2010). There was no evidence adduced by the Complainant in respect of value of compensation paid to a comparable employee for work performed on Sunday.

Taking the above into consideration, I am satisfied that the rate of pay €19.38 does contain an element of compensation in line with Section 14 of the Act. Iam of the view that 25%, amounting to €3.875 for each hour worked on Sunday is reasonable in all the circumstances. Therefore, on the evidence before me I am satisfied that the Complainant received an appropriate premium.

Having taken into consideration all evidence available to me I find that the complaint is not well founded.

The Complainant submits that her work involves caring for a client in the client’s home. The Complainant claims that she works 12 hours shifts and she does not receive any breaks. The Complainant submits that during a twelve hour shift she has an opportunity to sit down and have her meals with the client she is caring for. Similarly, she can sit down and watch TV, have a cup of tea etc. with the client. However, she is not in a position to leave the client alone, leave the house of the client and spend her breaks as she wishes.

The Respondent rejects the claim. The Respondent submits that the Complainant and other Support Workers take breaks with the individual they support. Breakfast, lunch and tea breaks are approximately one half hour each. Also, the particular individual supported sticks to a particular routine in her home and from 6pm to 9pm daily she watches ‘soap operas’. This allows the Support Worker to go to the staff bedroom for a half hour breaks or join the individual supported in watching TV.

In this case the four Complainants gave direct evidence, the import of which was that the Respondent contravened Section 12 of the Act by failing to organise their work so as to facilitate them taking the breaks. There was no dispute between the parties that the Respondent is maintaining working time records in the prescribed form. However, the Complainant refuses to sign off these records to confirm the hours she worked and the fact that she received her breaks as she is of the opinion she does not get them.  

Section 12 of the Organisation of Working Time Act, 1997 provides as follows:

Rests and intervals at work

(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).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The evidence before me shows that that the Complainant works twelve hours shifts, she works alone. There was no dispute that the Respondent did not schedule any specific breaks for the Complainant over the course of her shift. It was left to the Complainant to take her breaks when possible. There was no dispute that the Complainant spends time, albeit in presence of the Client she cares for, watching TV, eating meals, having tea etc. She is also permitted to move to the staff bedroom for short periods of time between 6pm and 9pm when, as per her daily routine, the client is watching TV. However, due to the nature of her duties, she is not at a liberty to leave the house   and/or leave the client unaccompanied. It is not in dispute that these are the arrangements for breaks and the Complainant avails of them in this form.

In its submissions, the Respondent stated that there are periods of inactivity during which the Complainant could take her breaks. The Respondent accepted that the nature of the business was such that the Complainant is not at liberty to leave the home of the client she cares for or leave the client unassisted. The Complainant, on the other hand, claims that the periods of inactivity during her shift are not breaks or rest periods. The Complainant asserted that she does not receive her breaks while at work as per the Organisation of Working Time Act, 1997.

Although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring compliance with the Organisation of Working Time Act, 1997.In The Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004 the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks: “Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty.” In Nutweave Ltd t/a Bombay Pantry v Kumar DWT 1537 the Labour Court noted that, for the purposes of the Act, a break is a period which the worker knows in advance will be uninterrupted; which is not working time; and which he or she can use as he or she pleases. The Court noted the decision of the CJEU in the Sindicato de Médicos de Asistencia Publica (SIMAP) v Consellaria de Sanidad y Consuma de la Generalidad Velenciana (C-303/98) that a period during which a worker is required to resume his or her duties immediately if required to do so is to be regarded as working time.

In all the circumstances of this referral, I accept that that there was no system in place for ensuring breaks and/or compensatory breaks would be taken and the Complainant did not receive the required breaks while at work. The Complainant was at the Respondent’s disposal and would be required to resume her duties immediately if so required. I am satisfied that the Respondent acted in contravention of Section 12 of the Organisation of Working Time Act 1997, by failing to afford the Complainant rest breaks as prescribed therein, and find this complaint to be well-founded.

Having considered all aspects of this complaint I declare that the complaint is well founded. I consider it just and equitable to direct the Respondent to put a system in place that will ensure compliance with Section 12 of the Act and further to pay the Complainant compensation in the amount of €1000 within six weeks of the date of this Decision.

Sunday premium, breaks