ADJ-00012904

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012904

Parties:

Complaints:

Date of Adjudication Hearing: 08/08/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

BACKGROUND.

The Complainant was employed as a Fisherman under the Scheme for Employment of Non-EEA Crew in parts of the Irish Commercial Sea-Fishing Fleet. He was employed from April 2016 until the employment terminated in September 2017. He was paid £9.15 an hour and he received £356.00 gross per week. The Complainant referred complaints to the Workplace Relations Commission on 14th January 2018 alleging the Respondent had breached the National Minimum Wage Act, 2000 – the Organisation of Working Time Act, 1997 – 2015 and the Payment of Wages Act, 1991.

The Complainant confirmed to the Hearing that he did receive payslips in relation to his weekly wages and these were supplied to the Hearing by the Respondent.

SUMMARY OF COMPLAINANT’S POSITION.

National Minimum Wage Act, 2000. The Complainant confirmed to the Hearing that he did not serve a Section 23 Form on the Respondent in relation to his complaint under this Act.

Organisation of Working Time Act, 1997. Section 19 and Section 23. The Complainant stated that he did not receive his annual leave entitlements from the Respondent on termination of his employment. The Complainant did not provide any information at the Hearing in relation to what annual leave he had taken and what annual leave, if any, he was claiming.

Section 21. The Complainant stated he did not receive his Public Holiday entitlements. The Complainant did not identify which Public Holidays he was claiming in the reference period covered by this complaint i.e from 5th August 2017 to 28th September 2017.

Section 11. The Complainant stated he was usually required to work 20 hours a day over 7 days. The Complainant did not provide any evidence to support this complaint.

Section 12. The Complainant stated that he never got a break until all the work was done and he stated he sometimes worked 22 hours without a break.

Section 13. The Complainant stated that he usually worked 7 days a week in breach of the Act.

Section 15. The Complainant stated that he usually worked 120 hours a week.

Payment of Wages Act, 1991. The Complainant stated that he only received between £157.41 and £2109.78 approximately, for working in excess of 120 hours a week.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent stated there was a WRC Inspection of the vessel in June 2017 and the Respondent was found to be wholly compliant with the various legislation pertaining to such employees. The Complainant was interviewed by the WRC Inspector and stated he had no complaints. Letter dated 12th June 2017 from a named WRC Inspector provided at the Hearing.

The Respondent stated that although they employed him under the Scheme the Complainant was unlawfully in the State and as such the Contract of Employment he was provided with was an illegal contract. At all times the Respondent complied with the Contract of Employment.

The Respondent stated that they have all working time records as required by the Act of 1977 and by S,I, 709/2003 and these were provided to the Hearing. These were also provided to the WRC Inspector. The named Inspector wrote to the Respondent by letter dated 12th June 2017 to inform them their inspection was complete and the Respondent noted there were no findings of any breach of the law by the Inspector.

National Minimum Wage Act, 2000. The Respondent confirmed to the Hearing that the Complainant did not lodge a Section 23 notice on them as required by law. The Respondent informed the Hearing that the Complainant lived on the boat. He was provided with a Contract of Employment and there were no deductions made from his wages. The Complainant was paid each week.

Organisation of Working Time Act, 1997.

Section 19 and Section 23. The Complainant took 4 weeks annual leave for August 2017 and was paid gross of 400.29 on the following dates 3/8/2017 –£ 400.30 on 10/8/2017 -£400.29 on 17/8/2017 – £400.29 on 25/8/2017 – £400.30 on 31/8/2017. The Complainant was due to return to work on 1st September 2017 but did not do so but he was paid his wages of £400.30 on 8/9/207. The Complainant has been paid his annual leave entitlements.

Section 21. The Complainant has not stated what Public Holiday he is alleging he was not paid in the reference period.

Section 11. The Complainant is governed by S.I. 709/2003 as the Complainant was working on a fishing vessel as a Deckhand. Hours of work are governed by Regulation 6 of the S.I.

Section 12. The Respondent provided records to the Hearing (these were also provided to the WRC Inspector). These are signed by both the Complainant and the Skipper. These cover the period from April to August 2017.

Section 13. The Respondent provided records to the Hearing.

Section 15. The Respondent stated that the Complainant worked 20 days on and 12 days off. The Respondent provided records to the Hearing in relation to maximum hours worked.

Payment of Wages Act, 1991.  The Respondent stated that the Complainant was paid a Bonus of £6729.68 in July 2017. This Bonus is paid to employees if the catch is good. The Respondent also stated that the Complainant lived on board the vessel and that no deductions were made in respect of accommodation from the Complainant.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, I find as follows.

The Complainant was provided with a written statement of his Terms and Conditions of Employment under the Scheme for Employment of Non-EEA Crew in parts of the Irish Commercial Sea-Fishing Fleet. This Contract was signed and witnessed by both Parties. The Complainant was employed on a Fixed Term Contract commencing on 4th April 2017 for a period of 12 months. He was employed as a Deckhand. He was paid the National Minimum Wage and the Contract also provides that he would be paid weekly for 39 hours, including during periods of inactivity/boat tie up. I note the Contract also provides that the Complainant may request a statement of wages of their average hourly rate of pay for any pay reference period in the previous 12 months.

National Minimum Wage Act, 2000.

Both Parties confirmed that the Complainant did not serve a Section 23 notice on the Respondent seeking their average hourly rate of pay for a specified period. Therefore I have no jurisdiction to hear this complaint.

Organisation of Working Time Act, 1997 – 20215.

Section 19 and 23. The Complainant confirmed that he was on annual leave for the month of August 2017 – 4 weeks and he also confirmed that he had been paid his wages for each week. Payslips provided to the Hearing. I find there has been no breach of Section 19 and 23 of the Act.

Section 21. Public Holidays. The Complainant provided no evidence to the Hearing of Which Public Holiday he was claiming he had not been provided with his entitlements. He was asked to specify his complaint. He stated at the Hearing that he had no problem. I find there has been no breach of Section 21 of the Act.

Sections 11 – 12 – 13 – 15. The Complainant was employed as a Fisherman. Accordingly, he is governed by S.I. 709/2003, European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Wo5rking Time) Regulations, 2003. Regulation 6 of the Statutory Instrument relates to Hours of Work and Rest and Regulation 9 deals with the maintenance of Records. Regulation 10 deals with the appointment of “Authorised Officers” while Regulation 11 deals with Inspections and Complaints. I am not an “Authorised Officer” under S.I. 709/2003. Accordingly, I do not have jurisdiction to hear these complaints lodged with the WRC.

Payment of Wages Act, 1991 – 2015.

The Complainant has not provided any information at the Hearing in relation to any deductions made from his Wages as defined by Section 5(1) of the Act. The Complainant did confirm at the Hearing that he had in fact been paid a Bonus of £6729.68 in July 2017. I find there has been no breach of Section 5 of the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00016639-001 National Minimum Wage Act, 2000.

In accordance with Section 41(5) of the Workplace Relations Act, 2015, I declare I do not have jurisdiction to hear this complaint as the Complainant failed to serve a Section 23 Letter on the Respondent.

Organisation of Working Time Act, 1997 – 2015

CA-00016639—002 – In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above, I declare this complaint is not well founded. The Complainant received his annual leave entitlements.

CA-00016639-003 – In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded.

CA-00016639-004 – 005 – 006 – 008. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and my findings above I declare I do not have jurisdiction to hear these complaints which are governed by S.I. 709/2003 and I am not an authorised officer under that statutory instrument.

CA-00016639-007 – This is a duplicate of CA-00016639 -002 and I have issued my Decisio0n above in relation to this complaint.

CA-009016639-009 – This complaint is a duplicate of CA-00016639-003 and I have issued my Decision above in relation to this complaint.

Payment of Wages Act, 1991 – 2015 CA-00016639-010.

In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded.

Dated:   November 27th 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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