Complainant

Respondent

Anonymised Parties

HGV Driver

Transport 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-00012414-001

02/06/2017

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

CA-00012414-002

02/06/2017

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

CA-00012414-003

02/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012414-004

02/06/2017

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

CA-00012414-005

02/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000

CA-00012414-006

02/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012414-007

02/06/2017

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

CA-00012414-008

02/06/2017

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

CA-00012414-009

02/06/2017

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

CA-00012414-010

02/06/2017

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

CA-00012414-011

02/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012414-012

02/06/2017

The complainant commenced employment as a HGV driver with the respondent on 3 September 2014. He was employed in a full-time capacity.   The complainant with the assistance of his union raised a number of issues regarding his terms of employment which were processed through correspondence and meetings. As matters were unresolved they were referred to the WRC.

Complaint No. CA-00012414-001:

This is a complaint under the National Minimum Wage Act, 2000. The complainant’s union official on 27 April 2017 submitted a written request under Section 23 of the Act for a written statement of the complainant’s average hourly rate. The respondent replied with certain details but the information received did not meet with the requirements of the Act, specifically with the interpretation of aspects of the legislation as previously set out by the Labour Court in a determination involving the respondent.   The contractual obligation of the complainant is to be available for the hours as permitted by the E.U. Driving Regulations which has been determined as 48 hours per week, even if the complainant does not actually work the maximum hours. The complainant was not always paid for 48 hours per week. The complainant frequently worked hours in excess of 48 and the respondent’s definition of working time is in conflict with the determination of the Labour Court.

Complaint No. CA-00012414-002:

This is a complaint under the Organisation of Working Time Act, 1997, and it is in relation to daily rest periods. This complaint was withdrawn at hearing.

Complaint No. CA-00012414-003:

This is a complaint under the Organisation of Working Time Act, 1997, and it is in relation to working more than the maximum number of 48 hours per week. This complaint was withdrawn at hearing.

Complaint No. CA-00012414-004:

This is a complaint under the Terms of Employment (Information) Act, 1994. The complainant’s terms of employment were changed without notification to the complainant. There was a change from weekly to fortnightly pay and a change to the rate for Public Holiday and Annual Leave.

Complaint No. CA-00012414-005:

This is a complaint under the Organisation of Working Time Act, 1997, in relation to the complainant being penalised for raising issues in relation to working excessive hours and not getting breaks. This complaint was withdrawn at hearing.

Complaint No. CA-00012414-006:

This is a complaint under the National Minimum Wage Act, 2000, in regard to the complainant being penalised for raising issues under that Act. This complaint was withdrawn at hearing.

Complaint No. CA-00012414-007:

This is a disputeunder the Industrial Relations Act, 1969.   The dispute was withdrawn at hearing.

Complaint No. CA-00012414-008:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant did not have a set roster. The complainant on many occasions was not notified of the requirement for him to work additional hours.

Complaint No. CA-00012414-009:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant did not receive his full weekly rate of pay when he was paid for a week’s annual leave. The respondent is incorrect in their calculation of pay in respect of annual leave.

Complaint No. CA-00012414-010:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant did not receive the correct payment in respect of Public Holidays and was paid less than the amount due to him.

Complaint No. CA-00012414-011:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant on many occasions did not receive the necessary 24 hours’ notice of his start times. In addition, his finishing times were unknown, being determined by the loads that he was detailed to collect, deliver and unload on a particular day.

Complaint No. CA-00012414-012:

This is a complaint under the Terms of Employment (Information) Act, 1994. The complainant has not received a written statement that complies with the provisions of the legislation. The main defects relate to the employer’s name being incorrect, the rate of pay is incorrect and the hours of work are not specified.

Complaint No. CA-00012414-001:

No request under Section 23 0f the National Minimum Wage Act has been furnished for a pay reference period in line with the legislation. In addition, an investigation under the Act has already taken place and under Section 24 of the Act the complaint cannot be investigated by an adjudication officer.

Complaint No. CA-00012414-002:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-003:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-004:

The respondent accepts that changes were made as part of an overall review of contracts in order to rectify any deficiencies therein. The complainant was notified of the changes. The complainant suffered no detriment as a result of the changes.

Complaint no. CA-00012414-005:

This complaint was withdrawn at hearing.

Complaint No CA-00012414-006:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-007:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-008:

Due to the nature of the job it is not always possible to give notice of finishing times.

Complaint No. CA-00012414-009:

The respondent accepts that there may have been issues in this regard and has engaged in a process to correct matters.

Complaint No. CA-00012414-010:

The respondent accepts that the calculations may not have been in accordance with the requirements of the legislation but has now corrected matters.

Complaint No. CA-00012414-011:

This complaint about starting and finishing times is actually a duplicate of the complaint contained in CA-00012414-008 as it is technically the same breach.

Complaint No. CA-00012414-012:

The respondent has undertaken a complete review of this documentation in respect of all employees and matters have been rectified to the satisfaction of the WRC inspectorate.

Complaint No. CA-00012414-001:

Preliminary Issues:

Section 24(2) of the National Minimum Wage Act, 2000, states:

The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer a dispute to an adjudication officer under Section 41 of the Workplace Relations Act, 2015 –

(a)    unless the employee –

(i)                  has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay period, or

(ii)                having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b)    where, in respect of the same alleged underpayment, the employer is or has been –

(i)                  the subject of an investigation by an inspector under section 33 or 34, or

(ii)                prosecuted for an offence under section 35.

The complainant’s representative on 27 April 2017 emailed the respondent’s HR Manager and, on behalf of the complainant, requested “as provided for under the Minimum Wage Act 2000 a written statement of their average hourly rate of pay. The reference period to be applied is Week 1, Week 2, Week 3, Week 4 for October 2016.   The Act provides that the statement should be provided within 1 month of this request. I request that the statement complies with section 23 of the Act.” The HR Manager replied with a table which contained the week number for weeks 1 – 4 of October 2016, the complainant’s name, hours for those weeks, Sunday hours and gross pay. The representative was dissatisfied with the details of the response and on 19 May sent a similarly worded request to the respondent’s Manager. A reply was received from the HR Manager attaching an amended table which included an additional column in relation to the hourly rate.

At the hearing the respondent raised two objections regarding this complaint. It was argued that the request made under Section 23 of the Act was not a valid request as the request was for a period citing Week 1,2,3 and 4. A week is not defined in the Act in question but the Interpretation Act defined a week as commencing at midnight on Saturday and running to midnight the following Saturday. The request submitted therefore did not specify a valid pay period.

The second objection was that a WRC inspector had carried out inspections at the respondent’s workplace under the National Minimum Wage Act, 2000, and that the complainant had received a payment on foot of this inspection. The respondent argued that the adjudication officer could not therefore hear this complaint.

Section 23(1) of the Act states:

Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.

Section 10 of the Act states:

An employee shall select as a pay reference period for the purposes of the Act a period not exceeding one calendar month.

The complainant’s existing Statement of Terms of Employment has a section entitled “Minimum Wage Reference Period” in which is stated: “it will use the reference period of 4 calendar weeks with which to work out your hours against the National Minimum Wage.”

As noted, the complainant’s representative, on his behalf, requested a statement for Week 1, Week 2, Week 3 and Week 4 of October 2016. The respondent replied on two occasions giving details for the requested weeks and raised no objections as to the validity of the request. Having regard to all these circumstances it appears to me that the request under Section 23 was a valid request.

The respondent’s other objection was that they had been the subject of an inspection by a WRC Inspector and that the adjudication officer was therefore precluded from considering the complaint. I wrote to the inspector under Section 24(4) of the Act asking if an inspection under the Act into alleged underpayments had been undertaken. The Inspector replied that “I conducted the inspection under a number of Acts including Organisation of Working Time Act, National Minimum Wage Act and Workplace Relations Act. I examined the records for a sample number of employees to establish compliance with the National Minimum Wage Act, Section 35. I did not examine all employees. I found some small breaches of the Statutory minimum rate of pay for 2 members of staff whom worked in the office. I did recoup arrears of pay for them. In relation to drivers I calculated their rate of pay based on the hours of work presented to me by the employer (Tachographs and Timesheets and the wages they were paid in those periods. I did not question the working hours in relation to Ferry crossings.   Any arrears of pay for drivers was in relation to Annual Leave entitlement”.

It appears to me therefore that the inspector did not carry out an inspection into the specific complaint before me, i.e. that the complainant was not in receipt of his entitlements under the National Minimum Wage Act, but rather carried out a general inspection under a number of pieces of legislation in respect of the workforce employed by the respondent. I also note that the payments received by the complainant as a result of the inspection were in respect of Annual Leave entitlements.   I therefore do not accept that I am prevented from considering this complaint.

Substantive Issue:

The complainant’s hours of work as set out in his Statement of Terms of Employment state:

Your normal hours of work, which run from Monday through Sunday, will vary each day and each week, and be determined largely by ferry timetables and client collection and delivery scheduling as determined by the company from time to time, on any given day. Hours of work will be in accordance with the EU Drivers Hours (EC) Regulations 561/2006 and / or the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulation 2012.

Under the heading of Remuneration it states:

You will be guaranteed a minimum payment of no less than €106, less applicable deductions, for days worked….your basic rate of pay will be no less than €8.65 per hour worked.

The complainant’s representative referenced previous cases involving the same respondent and, in particular, Labour Court Determination No. MWD146. It was argued therefore that the Court’s determination in that case was that an employee with a similar Statement of Employment was contractually required to be available for work over the maximum permissible period provided for under EC Regulation 561/2006, namely 48 hours per week and should be paid accordingly. Based on this 48-hour week argument the total underpayment to the complainant since 2014 until 2016 is €976.61. There is also about 22 weeks in 2017 to be considered for which no firm figures were submitted.

I have also looked at two further similar Labour Court Determinations which relate to the same respondent, MWD 1611 / 1612. The provisions contained in the Statement of Terms of Employment were the same in those cases as apply in the present case and were considered in the light of the Determination referenced above.   The Court in respect of each of the two further cases stated:

The Court finds that the circumstances of this case closely resemble the details as outlined above. The complainant was employed on a daily rate of pay and was contractually required to work in accordance with the terms of the European Community Driving Hours Regulations. Accordingly, the rationale of that decision applies to this case.

The court further finds that Section 8(1)(i) of the Act states that “the hours of work of an employee shall be determined in accordance with his or her contract of employment.” In this case the contracted hours of employment are those set out in the relevant road transport regulations and accordingly the complainant is contractually committed to work those hours in return for payment of his daily pay. The national minimum hourly rate should accordingly be determined by reference to that daily rate divided by those contracted hours.

I find nothing in this case before me that is different from the above cases and therefore it follows that my decision must be in accordance with the precedents laid down by the Court. Detailed calculations were presented on behalf of the complainant. The respondent’s position was that their main arguments in relation to this complaint rested with the preliminary issues which have been dealt with above. No specific challenge to the figures was put forward at the hearing.

Complaint No. CA-00012414-002:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-003:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-004:

In November and December, 2016, the complainant’s terms of employment were changed insofar as the pay period changed from weekly to monthly and the rate changed from daily to weekly / fortnightly. The respondent offered no evidence regarding written notice being furnished to the complainant but stated that the contracts have been reviewed by a WRC Inspector who was satisfied with their content.

Section 5(1) of the Terms of Employment (Information) Act, 1994, states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement of employment furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a)    1 month after the change takes effect, or

(b)    where the change is consequent on the employee being required to work outside the state for a period of more than 1 month, the time of the employee’s departure.

As no evidence was produced to show that the respondent complied with the Act I must find this complaint to be well founded.

Complaint No. CA-00012414-005:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-006:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-007:

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-008:

The complainant argued that there was an obligation on the respondent to provide 24 hours’ notice of the hours that he was due to work but that in practice the complainant was notified by text of his start time the day or evening beforehand which was less than 24 hours’ notice. He was never notified of a finishing time. Therefore, he had no notice of the hours that he was required to work each day.   The respondent stated that the nature of the business was such that it was not always possible to provide drivers with a finishing time.

Section 17 (2) of the Organisation of Working Time Act, 1997, states:

If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this section referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

The respondent’s reply was that the complainant would be advised by text of starting times but that due to the nature of the business and matters beyond their control it was not possible to notify him of his finishing time. The respondent also argued that the issue covered in this complaint is a duplicate of the issue contained in Complaint No. CA-00012414-011 in relation to starting / finishing times and consequently the complainant cannot be compensated twice for what is technically the same breach.   As noted earlier, the complainant was contractually obliged to work 48 hours per week. The evidence is that the complainant did work in excess of his contractual hours and that he did not receive the notice specified in Section 17(2) of the Act in this regard. I shall deal with the issue raised by the respondent in my consideration of CA-00012414-011.

Complaint No. CA-00012414-009:

Section 20(2) of the Organisation of Working Time Act, 1997, states:

The pay in respect of an employee’s annual leave shall –

(a)    be paid to the employee in advance of his or her taking annual leave,

(b)    be at the normal weekly rate or, as the case may be, at the rate which is proportionate to the normal weekly rate….

According to the evidence, the complainant’s pay was €440.00 per week or €88.80 per day.   Instances were given of the complainant being paid €80.73 per day of annual leave instead of the correct payment of €88.80 per day. The respondent accepted that errors had occurred in this regard. Having regard to the evidence before me I find that the respondent was in breach of Section 20 (2) of the Act.

Complaint No. CA-00012414-010:

The complaint is to the effect that the payment that the complainant received in respect of a Public Holiday was €80.73 instead of the correct amount of €88.80 for that day.   The complainant, in his submission, states that this is a breach of Section 21(6) of the Act and further argues that this particular respondent had previously been found to have breached Sections 20 and 21 of the Act and had been sanctioned by the Labour Court in that regard and that any award of compensation should reflect the fact that the respondent had continued to engage in practices that were in breach of the legislation. It was submitted on behalf of the respondent that the breaches complained of had occurred but that the respondent was now fully compliant with the Act and consequently the argument for a deterrent element to any award no longer applied. On the basis of the evidence before me therefore I find this complaint to be well founded.

Complaint No. CA-00012414-011:

This complaint is that the respondent failed to give the complainant the required notice in respect of starting and finishing times. Section 17(1) of the Organisation of Working Time Act, 1997, states:

If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

The respondent stated at the hearing that the complainant would always be notified of his start times but that it was not possible to provide notification of finish times due to the nature of the business. The complainant disputed that he always received the required 24 hours’ notice of his starting time and never received notice of finishing times.   The complainant again brought attention to the fact that the respondent had been sanctioned by the Labour Court for similar breaches in the past. As regards the respondent’s argument that this complaint is a duplicate of the complaint contained in CA-00012414-008, I note that the legislation deals with these matters under separate subsections and that therefore, whilst arising from similar events, have to be considered as separate breaches of the Act. I therefore find this complaint to be well founded.

Complaint No. CA-00012414-012:

Section 3(1) of the Terms of Employment (Information) Act, 1994, states:

An employer shall, not later than 2 months after the commencement of an employees’ employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…

It then lists the various particulars required in order to comply with the legislation.

This complaint alleges that the statement was not received within the time frame required and that it does not comply with the provision of particulars set out in the Act. The defects complained of include the employer’s name being incorrect, the rate of pay not being stated correctly and the hours of work not being specified. The respondent stated that a complete review of this matter had been undertaken and that any defects were being rectified for all employees.

I find that the statement of employment was defective in relation to the matters raised and that consequently the respondent was in breach of Section 3 of the Act.

Complaint No. CA-00012414-001: (National Minimum Wage Act, 2000)

For the reasons stated I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,225.00 in outstanding wages.

Complaint No. CA-00012414-002: (Organisation of Working Time Act, 1997)

This complaint was withdrawn at hearing.

Complaint No.: CA-00012414-003: (Organisation of Working Time Act, 1997)

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-004: (Terms of Employment (information) Act, 1994)

For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €750.00 as compensation in this regard.

Complaint No. CA-00012414-005: (Organisation of Working Time Act, 1997)

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-006: (National Minimum Wage Act, 2000)

This complaint was withdrawn at hearing.

Complaint No. CA-00012414-007: (Industrial Relations Act, 1969)

This dispute was withdrawn at hearing.

Complaint No. CA-00012414-008: (Organisation of Working Time Act, 1997)

For the reasons stated above I find that there was a breach of the Act and that the complaint is well founded. I order the respondent to pay to the complainant the sum of €500.00 as compensation in this regard.

Complaint No. CA-00012414-009: (Organisation of Working Time Act, 1997)

For the reasons stated above I find that there was a breach of the Act and that the complaint is well founded. I order the respondent to pay to the complainant the sum of €90.00 as compensation in that regard.

Complaint No. CA-00012414-010: (Organisation of Working Time Act, 1997)

For the reasons outlined above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €25.00 as compensation in this regard.

Complaint No. CA-00012414-011:

For the reasons outlined above I find that there was a breach of the Act and that the complaint is well founded. Taking all of the circumstances into consideration I order the respondent to pay to the complainant the sum of €350.00 as compensation in this regard.

Complaint No. CA-00012414-012: (Terms of Employment (Information) Act, 1994)

As set out above I find this complaint to be well founded. I note that the respondent has engaged professional assistance in reviewing the statement of employment issued to their employees and I require the respondent to produce a statement that complies fully with the provisions set out in Section 3 of the Act. In addition I order the respondent to pay to the complainant the sum of €750.00 as compensation in this regard.