ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Fisherman | A Fisheries Business |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00023762-001 | ||
CA-00023762-002 | ||
CA-00023762-003 | ||
CA-00023762-004 | ||
CA-00023762-005 | ||
CA-00023762-006 | ||
CA-00023762-007 | ||
CA-00023762-008 | ||
CA-00023762-009 | ||
CA-00023762-010 |
Date of Adjudication Hearing: 23/05/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time act, 1997 and Section 6 of the Payment of Wages Act, following the referral of the complaints to me by the Director General, I inquired into the 10 complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
CA -00023762-001 under Section 24 of the National Minimum Wage Act, 2000 was withdrawn at hearing.
The Complainant was represented by Ms Rosemary Mallon BL instructed by Mason Hayes and Curran and the Respondent was represented by Brian Leahy, BL instructed by Conway Solicitors. Both parties made extensive written and oral submissions. The case was enabled by an Arabic Interpreter. Complaint CA-00023762-001 was withdrawn at the Hearing.
Background:
This case surrounds a 6-month period of employment between the complainant, an Egyptian Deckhand/Fisherman and the respondent, a fisheries Business. It is important to explain that the complainant was employed under a National Scheme for the employment of Non-EEA crew in parts of Irish Commercial Sea Fishing Fleet. This scheme arose from a Memo of Understanding for the monitoring and Enforcement of the terms of employment of Non-EEA crew men pursuant to the establishment of the A typical Worker Permission scheme (2016). The scheme was to minimise “the potential for the abuse of migrant workers” and to provide a mechanism to assist those currently in Ireland in “difficult situations” to enter a new employment relationship. The Scheme agreed between 11 parties was to standardise terms of conditions of employment in a reportedly unstable setting. It was to be marked by the following:
The Memo of Understanding (MOU) outlined that Authorised Officers of Minister for Transport Tourism and Sport held enforcement roles under the EC Regulations of 2003 (SI 709/2003). The MOU was due to be reviewed after 12 months. Of background relevance to the case is the current national objective that EU Directive 2017/159, Working in Fishing Convention will be transposed into Irish law by the 15th of November,2019 regulating maximum hours of work, minimum hours of rest, and manning requirements aboard commercial fishing vessels. Member States shall determine what penalties are applicable when national provisions enacted pursuant to this Directive are infringed or not met. In the present case, the complainant’s role incorporated the following job profile in his contract of employment signed on 4 February 2018 1 Assisting in preparation of the vessel before going to sea 2 Assisting with fishing Operations 3.Processing of Fish 4 General Maintenance and Running of fishing operations 5 Assisting at landing and berthing. The Respondent is a Fishing Business and the Owner served frequently as a Master on the ship.
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Summary of Complainant’s Case:
Counsel for the complainant gave an outline of the background to the status of non-EEA crewmen and the atypical worker permission scheme. The Memorandum of Understanding entered into by various state parties in early 2016 required that employers as licensed vessel owners were responsible for ensuring that a valid contract of employment drafted in accordance with National and Eu employment legislation was in place for all workers. This was to replace the previous system of “share of the catch payments “. There were 171 permits issued during the lifetime of the scheme. The Complainant is an Egyptian national who worked for the Respondent from 4 February to 17 August 2018. Counsel submitted that he may need to avail of an extension of time in accordance with Section 41(8) of the Workplace Relations Act, 2015 to address certain parts of his claim. The rationale for this was directed at the complainant being a foreign worker, who was unaware of his employment rights. In addition, he experienced a personal bereavement in April 2018 which necessitated his return to his native country in June 2018 to support his family who were grieving. The Complaint before the WRC was lodged on 4 December 2018. Counsel opened the contract of employment and delineated several express terms relevant to the case. In particular, the complainant was to be paid weekly for every hour worked at an hourly rate not less than the national minimum wage ,Sunday work to be paid on a bi yearly basis in the form of a landing bonus ,periods of inactivity/ boat tie up were to be paid not less than minimum wage ,statement of wages to be provided and no provision for deductions in wages for any cost of travelling to work , training or repatriation . The contract of employment entered by the parties required the employer to comply with the provisions of the Organisation of Working Time Act, 1997 and the EC (Workers on Board Sea Going Vessels) (Organisation of Working Time Act) Regulations 2003 (S.I No.709/2003). Counsel contended that the employer was obliged to maintain records in relation to hours of work and rest as required by law. In the preparation for the case, the complainant’s solicitor had made a data protection request seeking copies of records maintained under the Organisation of Working Time Act. These were not realised prior to the respondent submission in the case dated 16 May 2019. These records were not provided to the complainant in an endorsed manner during his employment period. Counsel submitted that the Respondent required the complainant to endorse blank working time records, in breach of the S.I. which were subsequently filled out inaccurately by the respondent. She went on to outline that a vast differential unfolded during the employment relationship, where the complainant worked many unpaid hours. The boat was manned by between 3 and 5 men and was at sea for extended periods as demonstrated by the ship log book. The log book recorded fishing days of between 13.9- and 21-hours duration. There was no means of exit from this workplace. The Complainants legal team submitted that the boat where the complainant work must be regarded as a “floating factory “ The Complainant had experienced a myriad of contraventions of employment law and he sought financial redress. He had endeavoured to compile his personal records of time worked but this stood in stark contrast to the records maintained by the respondent. There were repeated gaps in time where the complainant submitted that he had been at work but were not visible in the respondent records. During the 13 trips undertaken by the complainant, work done was underreported in the main records subject to external inquiry. He received one share payment of €2,511.55 nett, this was not linked to his hours of work, and was exclusive of his first and last fishing trip. The pay slips were silent on bank holiday, Sunday premia or bank holiday pay. Counsel for the complainant submitted that the complainant had worked well more than the stated parameters of the 2003 regulations for Sea Going Vessels and had not been treated in accordance with the spirit of the umbrella agreement of 2016.
Complainants Evidence: The Complainant addressed the hearing with the support of an Arabic Interpretation. He outlined that he commenced work in February 2018 on an understanding that he was to be paid weekly with access to a “full share “every six months. He has sourced the job on line. He did not know how this share would be calculated but knew he would pay tax. He detailed how the fishing boat accessed fishing grounds and the various durations in journey time. He worked during steaming, Loading and unloading times. The Complainant explained that fishing traversed both day and night and would rotate around two or three “shots”. Three if only day time and Two and Two if the day and night were involved. The objective was to fish for Prawn and White Fish, where prawn was a more lucrative yield. He estimated that the boat actively involved in fishing was home to a 20-hour working day. He said that the work was consuming and even if fishing did not go ahead there was working to be done. He confirmed that he signed blank time sheets and returned them. The Complainant explained that while he was on a fishing trip in April, his brother notified him that his wife had suffered a miscarriage in Egypt. He explained that he was very upset by this news and felt unsupported by his employer. He carried an enduring disappointment that the skipper had not sympathised with him. The Complainant said that he wanted leave during July and August when he knew it was quiet and went home to Egypt at the end of June. He had every intention of coming back but his job was gone. The Complainant submitted that he had not received bank holiday premia and two trips were unpaid up to 12 August During cross examination the Complainant confirmed that he had been a Fisherman in Ireland since 2006 and had previously received share payments. He had received a 2016 contract under the A typical scheme and understood the difference in the two system of payments. He agreed that he had expected to undertake 20 trips over a 6-month period which would amount to a €20,000 payment. The Complainant recalled being in the wheel house at the end of May where he had signed two-time records one of which was for June,2018. He confirmed that he had sought representation in October 2018. The complainant confirmed that he had worked during early March, he had hoped to get home, but his flight had been cancelled due to weather. He worked March 2-10, 2018. The Complainant confirmed that he returned to Ireland on 25 September. Following intensive inquiry, the complainant disputed that he had ever been given a pre- populated time sheet to sign. He said they were blank. He qualified this by saying that on all the other boats he worked on he had completed the forms himself. This boat was different. The Complainant confirmed that quotas were deemed important in the boat, and these were kept for the trip ending. He submitted that there had been 4 very good trip yields. There was a clear focus on getting as much fish on board as possible. The Complainant confirmed that he had heard of the job through an Agent, but a hiring fee was not paid. In answer to the question from Counsel in relation to being paid all of July and half of August and the complainant’s certainty in this regard, the complainant said he was not certain of being paid as he had not been paid for the first trip. He stated that he was via compliant. The Complainant confirmed that he works oil skin clothing while working. On the Complaint form, the Complainant submitted that he worked a 140-hour week. He confirmed that he caught sleep for only 2 to 3 hours before the alarm sounded. He said it was a “hard job” and he had struggled with it. CA-00023762-002 Annual Leave The Complainant submitted that he had not been paid for annual leave, it had not been incorporated in his pay slips throughout his employment. This amounted to a breach of Section 19 of the Act. CA -00023762-003 Public Holidays The Complainant contended that he had not received public holiday entitlement during his employment from 4 February 2018 to 11 September 2018. This constituted a breach of Section 21 of the Act. CA -00023762-004 Rest Periods The Complainant submitted that he had not been provided with a daily rest period which was in contravention of EC (Workers on Boar Sea going fishing Vessels) Organisation of Working Time) Regulations 2003. He maintained that he had worked largely without recourse to any structured breaks and was called on when work was required. This seemed to him to be continuous on fishing expeditions. Part II of the Organisation Time Act 1997 does not apply to a person engaged in sea fishing and regulation 6 of 2003 Regulations states Maximum hours of work shall not exceed 14 hours in any 24-hr period 72 hours in any 7-day period Or Minimum hours of rest shall not be less than 10 hours in any 24-hr period and 77 hours in any seven-day period to be divided into not more than two periods one of which shall be at least 6 hours in length. Compensatory rest periods are to be applied in on call situations. The Complainant disputed the records generated from the Fishing log and the Skippers personal recollections and submitted that his prepared records were an accurate reflection of the duration of his working time. He re-affirmed that his signature on the records had been recorded on blank sheets. CA- 00023762-005 Rest breaks The Complainant submitted that he had not received breaks during his working day of up to 21 hours per day for a 7-day week. CA -00023762-006 Weekly Rest Periods The complainant submitted that he worked a usual 7-day week without rest periods. CA -00023762-007 duplication of CA -0002367002 The issue of annual leave was addressed at hearing. the Complainant was paid for his annual leave. CA-00023762-008 (maximum hours) The Complainant submitted that he was typically required to work more than 140 to 150 hours per week. He submitted details of the of the hours he worked, which he contended repeatedly over shot the maximum hours laid down in the Regulations. CA -00023762-009 Public Holidays (duplication Ca -0002376-003) This is a duplicate claim. Ca -00023762-010 Payment of Wages The Complainant submitted that he was owed €6,584.51 in unpaid wages. He had received gross pay of €372.45 per week irrespective of his hours worked which had totalled 140 to 150 hrs. He had received a part payment of share in June which netted at €2551. He confirmed that these hours were unpaid along with the bonus payment on the first and last trip. He sought compensation for the breach of the Act. |
Summary of Respondent’s Case:
Counsel for the Respondent confirmed that the Scheme for Non-EEA working on fishing vessels had not been breached and opposed all claims. He sought an order dismissing all claims. Counsel submitted that the heart of the complaint was not really working time but pay. Counsel made a preliminary point that the complainant had not raised this issue with the Respondent prior to his complaint to the WRC in December 2018, some months post the cessation of his employment. The Respondent had complied with the Data Protection request. The Respondent submitted that the claims all emanated from an alleged underpayment of wages which is dispute by the respondent. The Respondent confirmed that the complainant worked from 4 February 2018 until he went on leave on 28 June from where his contract was terminated on 10 September. He ceased pay on August 17, 2018. The Respondent ran a small enterprise which was home to 1 Boat, 1 Captain/Skipper, 1 Book keeper and 4/5 crewmen “any additional time will be at the employees own expense and can only be taken with the consent of the employer. All holiday leave will have to be agreed with the employer. Should the situation arise where the employee takes unapproved leave, it may result in immediate dismissal and cancellation of the work permit “source, contract) It is the Respondent position that working hours were accurately reflected in co-signed “rest sheets” for the months February, March, April and May. The complainant was not in the jurisdiction to sign the June sheet. The following four-month sheets were unsigned. These records were prepared in the full knowledge that inquiry may follow and were accurate. The Respondent submitted a Wages Analysis and submitted that the sum of €8,629.14 inclusive of annual leave, public holiday and Sunday premium was due and paid to the complainant. The Complainant was paid €10,428.60 and bonus of €4,345.14 (Total €14, 773.74) on 29 June 2018. Wages were continued as paid for a further 7 weeks when final payment was issued with a cover note “Dear X, Please find attached pay slip. Unfortunately, we will not be paying any more till you resume working. We have paid you well in advance at this stage. So, from this time on you are on unpaid leave. “ The Respondent referred to the differential in two pay systems on board the boat, one to non-EEA workers as direct employees and the remainder as share fishermen. The Respondent decided that a “fishing bonus “would be paid via pay roll to bring the direct employees gross wage up to the same level as the share fishermen. The Respondent did not accept that the boat amounted to a “floating factory”. The Boat was a workplace environment and the complainant were not ill-treated. He was cognisant of fishing boats environments. The Respondent opened extensive records which captured fishing time, working and rest time and an in-depth analysis of the complainants pay where the complainant was paid a basic €9.55 per hour amounting to €372.45 per week. He submitted 810 hours were worked @€9.55 = €7, 735.50 Holidays paid €618.84 Bank holidays (Time in lieu) € 248.30 106 hours Sunday @25 cent premia €26.50 Total €8,629.14
This totalled to 28 weeks of 39 hr week paid €10, 428.60 + Bonus €4,345.14 Total €14, 773.74 Leaving a difference of a more favourable payment to the complainant of €6, 144.60. The Respondent confirmed that the complainant had received 27 weeklies on line nett payments of €351.14 and one nett bonus payment of €2511.55. There was nothing further owed. Respondent Evidence: The Respondent confirmed that the complainant had entered into a contract for an A typical worker on 4 February. He arrived on recommendation. The complainant was paid a standard flat week. He recalled their first meeting on the way to the 60 ft boat. Food had been secured, diesel loaded, and the boat cast off. A first 4-hour watch followed by a 10-minute fishing time, followed by a dragging of catch. Five to 6 hours later another fishing shoot followed and catch prepared for storage. He estimated that prawns were packed in 3 kg boxes at the rate of 100kg an hour plus 10 boxes of fish an hour. When not engaged in fishing, the TV Galley had wi fi and television and the fishermen had lap tops. The Respondent submitted that the time alleged as worked by the complainant was grossly overexaggerated. he confirmed that records were populated simultaneously as Fishing Industry was strictly monitored. At the end of each day, the Diary, Log and notes were compiled by the Master. The Respondent confirmed that the towing or relief on the wheel was not part of the complainant’s work. The Respondent recalled that the complainant had come to the wheelhouse on 11 April and told him that his wife had lost their child through miscarriage. He said he was sorry to hear this and offered to take him back to land. The complainant wanted to continue. The respondent referred to text messages he had exchanged with his wife where his clear concern for the complainant’s welfare was evident. The Respondent understood that the complainant was going to a family wedding in July 2018 and there was no problem giving that time off. He was aware of the Rest periods provided for in SI 709/2003. He confirmed that best fishing times varied during the 24-hr clock in deep fishing terms. Fishermen were free to take time off during down time on the boat. They were not required to hang about when not needed. The Respondent believed that he had paid the complainant a substantial bonus and he contested owing him any money. During cross examination, the Respondent confirmed that he had mostly been the master of all 13 trips undertaken by the complainant. There were 4 exceptions during May and June 2018. In relation to the rest period records, the respondent confirmed that the Diary/ Log were maintained, and the record was compiled at trip end and the respondent signed everything. He believed that the records were “accurate as far as I can ascertain “ He confirmed that the fishing times were rounded to the hour record, for example ,10.55 am became 11 am. He relied on the Diary, catch and watch but accepted that some estimation was needed at times The Respondent confirmed that a Grievance and Disciplinary procedure was in being. There was no system of notification of hours in advance. The Respondent confirmed that days off were not a feature of the fishing trip on a minimum numbers crew. He was unclear where the 2 rest periods of 6 hours duration were provided in the complainant’s case. He had endeavoured to run a happy boat. He was not aware of any official review or validation of the A Typical scheme. He had not given the complainant notice of his termination of employment. He had issues getting replacement staff for the boat and he couldn’t wait around long term. He informed the complainant of his decision to cancel his permit CA-00023762-002 Annual Leave The Respondent contended that the complainant had been paid his annual leave owed and totalled the payment made as €618.84 as 8% of 810 hours worked. CA -00023762-003 Public Holidays The Respondent contended that the complainant had received 3 days in lieu for public holidays on 17 March, 2 April, 7 May and 4 July and had been paid €248.30 as 26 hrs x €9.55 CA -00023762-004 Rest Periods The Rest periods have been delineated on the EC Regulations record sheet and confirm a continuity of compliance throughout the working time. CA- 00023762-005 Rest breaks The Respondent submitted that the Complainant availed of rest breaks while working on the boat and these are recorded on the spreadsheets co-signed by the complainant. The Respondent denied taking a signed blank sheet from the complainant. All breaks were given in compliance with the Regulations and Organisation of Working Time Act, 1997 and the complainant had not raised his dissatisfaction during the employment. He discounted the accuracy of the latter day compiled notes by the complainant himself. He regarded these records as untrue and not reflective of the extended periods of “down time on the boat “. the Respondent disputed the complainant evidence on this point. CA -00023762-006 Weekly Rest Periods The Respondent disputed that the complainant was denied weekly rest periods .The Complainant signed to confirm that he receive the breaks . CA -00023762-007 duplication of CA -0002367002 Addressed. CA-00023762-008 (maximum hours) The Respondent disputed that the complainant worked 305 hours in February 485 in March ,517 in April 482 in May and 520 hrs in June. He wished to rely on the Records maintained under the 2003 regulations and the log book in support of his position. Instead, he pointed to the excess payment made during July and half of August 2018 when the complainant had left the jurisdiction. CA -00023762-009 Public Holidays (duplication Ca -0002376-003 Addressed Ca -00023762-010 Payment of Wages The Respondent disputed making any illegal deduction in the complainant’s wages. The complainant was a participant in a hybrid employment arrangement where he received the benefits of the Atypical scheme and the bi annual share payment to match the share fishermen scheme. Both were processed through the PAYE system. The P45 indicated a 27-week record of employment and a cumulative earning of €14,773.74 gross payment. The Respondent contended that the complainant was paid for many weeks without working and the respondent had been generous in that the complainant had been overpaid by €1,799.46. |
Findings and Conclusions:
I have given this case careful consideration. I have read and reflected on the written submissions and I have considered the evidence adduced in the case. I also took some time to study the A Typical scheme and the eventual contract that arose between the parties, which has led to the circumstances of this case. I am appreciative to the parties who agreed to work through the challenges of Ramadan during the extended day of hearing. 1.The first marker in the case for me arises from S. I 709/2003: EC (Workers on Board Sea Going Fishing Vessels) Organisation of Time Regulations. These gave effect to Council Directive 93/104/EC and Directive 2000/34/EC. Hours of Rest: time outside hours of work and does not include short breaks. Hours of Work: Any time during which a worker on board a sea going vessel is required to do work on the business of or in connection with the vessel. Regulation 5 sets out the duty of every owner and master of a sea going vessel to ensure that minimum hours of rest and maximum hours of work are adhered to. Every owner is to be provided with all necessary resources for the purposes of compliance with obligations under these regulations. Regulation 6 is of significance in this case. Subject to the limit of an average of 48 hours of work over a reference period not exceeding 12 months, the limit on hours of work and rest in respect of a worker on board a sea going vessel shall be either (a) Maximum hours of work which shall not exceed (1) 14 hours in any 24-hr period and (2) 72 hours in any seven-day period Or (b) Minimum hours of rest which shall not be less than (1) 10 hours in any 24-hour period (2) 77 Hours in any 7-day period Hours of rest may be divided into no more than two periods, one of which shall be 6 hours in length and the interval between consecutive such periods shall not exceed 14 hours. A worker who is on call shall have an adequate compensatory rest period if his hours are disturbed by call outs to work. An exception exists for emergencies, where adequate rest in the wake of such an emergency is to be provided as soon as practicable. Regulation 9 obligates the Master to maintain a “record of the daily hours of work or rest for each worker in compliance with paragraph 2, completed monthly in arrears endorsed by the master and by the worker on board. A copy to be then provided no later than 7 days after the last day of the calendar month to which the record relates. An authorised Officer on finding a “failure to comply with Regulation 5 or 9” shall take measures to ensure compliance and may detain a sea going vessel In any proceedings for an offence under these regulations, it is a defence for the defendant to show that he or she had taken “all reasonable steps” to ensure compliance with these Regulations. 2.The Contract of Employment is governed by: 1 Terms of Employment (Information) Act 1994 2 National Minimum Wage Act ,2000 and 2015 3 S.I 709/2013 The Regulations as above 4 The Organisation of Working Time Act, 1997. The contract was a fixed term contract signed and witnessed by both parties on 4 February 2018. There was provision for a 12-month renewal subject to approval from the Minister. Wages were to be “paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay.” The employee was to be paid for 39 hours inclusive times of inactivity and boat tie up with provision for deduction of full board. There was no provision for deductions for training, travelling or repatriation. The employee was to receive a statement of wages and deductions made. Of interest, compensation for Sunday working was to be paid on a bi yearly basis in the form of a landing bonus. Counsel for the Respondent later equated this with a 25 cent per hour premia. This was not inserted in the contract. Of further interest is the reference to Hours of Work and Rest periods. The Organisation of Working Time Act plus the EC Regulations of 2003 were marked as a baseline of legislative framework and an employer was permitted to make provision for more favourable conditions than these providing they complied with the statutory minimum requirement. The Employer was obliged to provide translated documents if requested. The entire employment relationship was mentioned as being wholly contingent on the presence of an “A typical working scheme letter of approval and appropriate entry visa”. Provision also existed for repatriation providing certain circumstances were met. 3 Fishing Logs compiled by the Respondent These documents referred to a European community’s log book and detailed moment of departure, fishing Operations, end of fishing and landing. It also recorded the catch kept on board. The Respondent relied heavily on this log as an accurate measurement of the work done. The Complainant took issue with this as they submitted that there were several omissions on transfers, journey time to the fishing beds and time spent unloading the catch. 4 The Record of time worked and rest time in accordance with the system set down in SI 709/2003 These records were handwritten, and considerable conflict ensued on whether the complainant’s signature was front loaded rather than post-dated the entry of data. It is of note that hours of rest in any 24 hr and 7-day period were left unpopulated. This was the Respondent domain. These 5 documents proved the most contested by the complainant who chose to rely on a latter day compiled record of time worked and rest obtained. I have gone to these lengths to set out these foundation documents of employment and ancillary documents because of the enormous divergence of views in what both parties interpreted as comprising the 6- 8-month record of employment in this case. It is fair to say that both partiers held very strong views that their views were correct. The letter of approval in this case was issued on 20 February 2018 with an order to place stamp 1 on the complainant’s passport. It is of note that it post-dated the commencement of employment. Preliminary Issue on Time Limits: I have given some thought to the parties stated positions on time limits in this case. The complaints were submitted to the WRC on 4 December and refer to a period from 4 February onwards. I have decided to allow an extension of time in accordance with Section 41(8) of the Workplace Relations Act, 2015. I have done this as the complainant was vulnerable as an international worker, where English was not his first language and he did not contact his representatives until October 2018, following which he acted promptly. The complainant did not have the benefit of a translated contract of employment or a comprehensive knowledge of the A typical scheme. I have not found that the Respondent is prejudiced by this decision. I am satisfied that the Respondent had a full working knowledge of the A typical scheme. The entire period of employment is now comprehended in this claim in accordance with Section 41(8) of the Act . As I probed the facts presented in this case, I identified a lack of a defined or agreed measurement tool on working time. Both parties gave forthright accounts of how they viewed the working day. Both parties differed significantly. I am mindful that the workplace was mobile and a fishing boat of 60 ft in length open to the prevailing weather conditions. I found that there were certainly entries in the correct places of the fishing time log and the 2003 regulations master time sheet on time worked and rest periods. I did identify that the last two columns of the latter sheet were unfilled. this was unhelpful. These documents/records along with the party’s recollections are the only means that I can find to help me understand what happened in this case. I appreciate that the complainant’s personal records were latter day estimates which may have been retrospective analysis rather than a contemporaneous record. However, it is the gulf between these records which is simply amazing. I have taken account that a fishing boat is not your typical workplace supported by a defined administrative function. However, it remains a workplace covered by domestic legislation, EU Directives and Regulations. The Respondent held a very high level of responsibility that workers benefited from daily and weekly rest breaks in an uncertain 24 hr work environment. I have found that I cannot rely fully on any of the records as a wholly accurate reflection of time worked, which is a key requirement of the regulations. For example, if I take the first fishing trip 4 February at 20.20 hrs to 10 February at 3 am. The Fishing log recorded this as 96 hrs away from land. The Master copy for Regulation purposes records the complainant as 58 hours worked, and 110 hrs rested. Whereas the complainant’s own records indicate his 145-hr work commitment Feb 5 to Feb 11. Counsel for the Complainant re-affirmed this discrepancy throughout the case over the 13 trips. Counsel for the Respondent re-affirmed that the complainant did not understand just what working time on a boat is. Article 2 of Directive 2003/88/EC concerning certain aspects of the Organisation of Working Time Act defines “working time “and “rest time “for the purposes of the Directive 1 working time means any period during which the worker is working, at the employer’s disposal and carrying out his activities or duties, in accordance with national laws and practice 2 Rest time means any period which is not working time, and must be expressed in units of time, days, hours, or fractions thereof. The Directive does not provide for any intermediate category between working time and rest periods. I have found that the identification of what is working time and what is rest time goes to the root of this case. It is of note that most of the hours worked by the complainant were on the boat many miles from land and an opportunity to pursue his own interests. It is equally of note that fishing opportunities are commercial transactions and weather dependent as evidenced by the Respondent who recorded the first half of 2018 as a poor fishing period. I drew some insight into the challenges of work measurement in a recent judgement of the Court of the European Union in a request by the Spanish High Court for a Preliminary Ruling in Federation de Services de Comisiones Obrerers (CCOO) and Deutsche Bank SAE, C-55/18 concerning the lack of a system for recording the time worked each day by the workers employed by the bank. The ECJ endorsed the Advocate Generals Opinion that, in the absence of such a working time recording system, it is not possible to determine objectively and reliably either the numbers of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours as overtime. Accordingly, it was held that that the Directive must be interpreted as precluding a law of a Member State that does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured. I have reflected on the world we currently live in, where even walking steps can now be measured and reflected simultaneously to the walker. It is not inconceivable that a replica system could be commissioned and achieved in the fishing industry which would meet with agreement by the fisherman and the Master of the ship. There must be a better way than incompatible records which have not helped to resolve this conflict. I began to form the view early in the case that the transition from life as a self-employed share fisherman to a holder of an Atypical Scheme contract may not have been appreciated in terms of tax treatments of the different employment arrangement. It was certainly behind the complainant’s disappointment at the measure of his share bonus. In addition, the entrepreneurial spirit of a share fisherman may differ from the “direction and control “that is fundamental to a direct employment situation. Both parties differed considerably in what they considered to be working time. The Complainant described his work as being ever present and participant on the boat up to and including providing breakfast to the wheel room when required. He said that he got very little sleep and was dressed in his oil clothing continuously as a mark of time worked. The Respondent had a narrower view of the complainants working time. He agreed that the complainant fulfilled his contracted role, however, there were large parts of every day where the complainant was not working, and he spent this time watching DVDs in addition to having his meals. In addition, he was free to leave shortly after the boat was unloaded at port. For my part, I was somewhat mystified at both descriptions as they were completely polarised. Both parties had travelled together for 9 out of the 13 trips, I would have expected a more pronounced uniform recollection of events in a confined environment. I noted that the complainant presented in a fraught manner during his evidence. It seems to be that he was quite troubled by his experience on the boat. His verbal and nonverbal communication pointed to a distress separate to his personal tragedy and it was clear to me that he held a lingering negative view of his time spent on the boat. I have reflected on this as I note that the complainant was a seasoned fisherman by the time of his start with the Respondent. He was not a novice by any means. I am mindful of the spirit of the Working Time Directive, which lays down minimum safety and health requirements for the organisation of working time in respect of periods of daily rest, breaks, weekly rest, maximum weekly working time, annual leave and aspects of night work, shift work and patterns of work. As rights guaranteed by the Charter of fundamental rights of the EU , the limitation of maximum working hours , daily and weekly rest periods and paid annual leave are subject to Article 52 of the Charter where “ subject to the principle of proportionality , limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others “ I am also mindful that while a provision for exceptions exists in the Regulations, neither party gave evidence that emergency events superseded the fishing trips. I could not find any evidence that compensatory rest periods were relied at any stage. I note that the contract was not translated into English. The complainant had not requested this. I note that the contract provides for activation of grievance, but this was not raised formally. It was unclear to me whether this Grievance Policy existed as it was not submitted in evidence. As I have stated, I found it very difficult to reconcile the records submitted by the parties as an accurate reflection of time worked. This has made my work in addressing the claims under the Organisation of Working Time Act /SI 709/2003 very challenging as I have no desire to wrong either party. However, I have been asked to decide in the case. CA-00023762-002 Annual Leave Both parties accept that the complainant commenced annual leave on 28/29 June. By then he had received a weekly net payment in respect of his agreed 39-hour week with an augmentation of a share of the catch. The complainant was then paid for a further 6 weeks before being unilaterally removed from the payroll on 17 August. He would have acquired additional annual leave for this period as it seems to me that while the parties were in sporadic contact during August 2018, the Respondent did not withdraw his consent to paid leave until the September 12 notification. While I note that the Respondent did not describe the payments made as annual leave in accordance with Section 19 of the Organisation of Working Time Act, 1997 as he should have, I have not established that the complainant was denied paid annual leave. The claim is not well founded. CA -00023762-003 Public Holidays Section 21 of the Organisation of Working Time Act 1997 provides for the statutory treatment of public holidays. I note that the contract is silent on public holidays. I have not been able to identify where the complainant was provided with the time in lieu or payment suggested by the respondent. I found that the complainant received standard payments per week which did not vary outside augmentation by bonus. I find that the Respondent breached Section 21 of the Act. The claim is well founded . CA -00023762-004 Rest Periods The Limits on hours of work and rest subject to an average of 48 hours of work over a reference period not exceeding 12 months are set down in regulation SI 709/2003 . Section 11 of The Organisation Of Working Time Act requires provision of a daily rest break . There is a marked conflict in the records submitted in accordance with S 25 of the Act and the complainants own records , albeit compiled post conclusion of the employment relationship . The Fishing log compiled for external examination ought to have been a trouble shooter and clarifier in this regard. It was not . I am left to consider the evidence of both parties and in that I find that I must resolve the conflict in favour of the complainant . I found that the respondent adopted an overly casual approach in the recording of times and omitted to fill in the columns on “hours of rest in any 24 hrs and hours of rest in any 7-day period “which were specifically ear marked for the person in charge. I found repeated inconsistencies in the records submitted. I could not establish that the complainant received the minimum 10 hours of rest in a 24-hour period or 77 hours in a seven-day period. The claim is well founded. CA- 00023762-005 Rest breaks I have given a lot of thought to how both parties addressed the question of rest breaks. I cannot reconcile that a fisherman on a boat many miles from base was resting for 239 hrs over 16 days at sea in February, or even 325 hrs over a 22 cumulative commitment in April 2018. I also have difficulties in reconciling the complainant’s own records on his recollection of working time. I appreciate that the parties did not rely on rosters and really the Complainant was present in the workplace during the full hours of voyage. In 2003 the ECJ in Landeshaupstadt Kiel and Norbert Jaeger , C 151-02 dealt with the matter of on call working where Jaeger , who was allowed to rest and sleep , but was required to be present in his workplace , available to the employer and constrained by location was found to have “ working time “ applied to this entire time .I appreciate that the EC Regulations relied on in this case rely on compensatory rest breaks but I did not identify records of usage . I could not identify viable records from which I could deduce that the complainant availed of rest breaks or compensatory rest periods. I note that the complainant is covered by both the EC Regulations and the Organisation of Working Time Act in his contract of employment and the Regulations do not cover short breaks. I have identified a continuous breach of Section 12 of the Act. CA -00023762-006 Weekly Rest Periods The Complainant was contracted for a loosely worded 39 hr week with a clause that every hour worked was to be paid at a rate not lower than minimum wage. This included periods of inactivity. The critical column on recording “Hours of Rest in any 7-day period “remained unfilled in all record sheets. I have explained that based on the evidence of the parties, I have issues with the accuracy of the records provided. I cannot identify that the complainant secured a minimum of 10 hours in any 24 hours and 77 hours in any 7-day period. I have identified a continuous breach of the Regulations 709/2003 and Section 13 of the Act. The Claim is well founded. CA -00023762-007 duplication of CA -0002367002 CA-00023762-008 (maximum hours) The EC Regulations 709/2003 outline that the maximum hours of work shall not exceed 14 hours in any 24-Hour period and 72 hours in any seven-day period. The contract of employment does not address over time pay. As stated there is a sustained divergence in the records presented by both parties in this case. The Respondents records support the respondent’s submissions that the complainant did not exceed maximum hours of work. The Complainant personal records point to a sustained breach. It is regrettable given the complainants past knowledge of working on boats, that this matter was not addressed during the working experience. The Health and Safety of workers in the face of extended hours of work is a real concern and one enshrined in EU law. I could not identify an accurate record of hours of work undertaken in this case. The problem remains that working time had different meanings for the parties. The records also have different meanings. I could not establish that the Respondent records accurately reflected compliance with the maximum hours rule set down in the Regulations. I find the claim to be well founded. CA -00023762-009 Public Holidays (duplication Ca -0002376-003 CA -00023762-010 Payment of Wages The complainant has claimed a payment of €6,584.51 in wages he submits were properly payable under his contract of employment. The Respondent disputes this and submits that he was overpaid .I have considered the terms of the contract of employment The Employee will be paid weekly, including periods of inactivity /boat tie up, an amount not less than the national minimum wage for 39 hours ……… which equates to a minimum annual wage of €19,367.40 subject to lawful deductions on lodging. A careful reading of this clause suggests that €19,367 annual payment is a floor payment. The question of the share payment is referenced solely in relation to compensation for Sunday working bi annual. The actual payment of bonus is far more than this payment, and this is a key issue in this claim. The Respondent explained that the landing bonus was an equitable attempt at reconciling the different payments made to the same crew members. He said it was to reconcile these payments. The Complainant understood that he was to get a full landing share and objected to the discretionary reduction to 50% plus tax deductions. I can only go on the terms of the contract of employment in this claim. I do not have claim for Sunday pay. The P45 recorded payment of 27 weeks of work at €14, 773.74, inclusive of gross payment of bonus 4345.14 this equals a gross payment of €10,428.60 for the 27 working weeks. The complainant was present at work until the end of June after which he took approved leave from which he did not return. The Respondent terminated his employment and cancelled his work approval on September 12 having curtailed salary from August 17. I found this a very careless management of an international worker. While I appreciate that the Respondent held a certain discretion in the face of a n on present employee, this was a discretion that should have been more fairly applied. The Complainant was not heard on his wish to continue in employment. It is clear to me that the complainant was on 13 trips during his tenure. He also worked on land for which the 39-hour week seemed to fit better as the issues submitted were in relation to the “at sea “part of his employment. In seeking to reconcile both parties’ records and seeking to reflect on both party’s evidence, I am satisfied that the complainant worked more than 39-hour week when he was at sea. I cannot accept that payment of a landing bonus is a lawful or equitable cover payment for that time. I see this as a separate arrangement between the parties. I prefer to look at the “every hour “measurement. I have found some discrepancies in the complainant’s records which point to an over exaggeration of records, however at the heart of the discrepancy is his lack of understanding of working and rest time and not having access to a reliable verifiable measurement tool. The Respondent has totalled the complainant’s hours of work as 2309 at sea and the Respondent has totalled the hours at a cumulative 810. 27 weeks at 39 hours is 1053 hrs =€10,056. The Respondent recorded the complainant on the record sheets as being on annual leave until August 17, 2018, after which pay stopped. The hourly pay was €9.55 per hour. The Respondent did not seek to recoup any payment. Section 5 of the Payment of Wages Act, 199 outlines that (6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. I have concluded that the complainant was correct in understanding that he was to be paid for every hour worked in his contract of employment. The reference to a landing bonus mentioned Sunday pay and is not linked to core pay. The lack of a shared and mutual understanding of working time on a fishing vessel goes to the root of the differential between 810 and 2309 hours. I find that the complainant was underpaid for the work that he did on the fishing vessel. I find his claim to be well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in this case.
CA-00023762-002 Annual Leave I have found that the complaint is not well founded.
CA -00023762-003 Public Holidays I have found the claim to be well founded
CA -00023762-004 Rest Periods I have found the claim to be well founded
CA- 00023762-005 Rest breaks I have found the claim to be well founded
CA -00023762-006 Weekly Rest Periods I have found the claim to be well founded
CA -00023762-007 duplication of CA -0002367002
CA-00023762-008 (maximum hours) I have found the claim to be well founded
CA -00023762-009 Public Holidays (duplication CA -0002376-003)
This has been addressed.
Outcome:
I have established significant breaches of the Organisation of Working Time Act and the SI 709/2013 in a short-lived period of employment. This employment was established to rule out such incidences.
I have considered the Labour Court Recommendation of the Labour Court in DWT 1914 Sandra Cooney’s Home Care Ltd and Deirdre Morgan, where the complainant in the case worked every day in the earlier part of last year January -July 2018. The Court reflected on C 484/04 Commission V United Kingdom [2006] IRLR 888, from the Court of Justice of the EU.
Workers must actually benefit from the daily and weekly rest periods provided by article 3 and 5 of the Directive …….A member state which, in the national measures implementing the Directive , provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights , indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights , does not guarantee compliance with either the minimum requirements laid down by Art 3 and 5 or the essential objectives of the Directive …….
The EC Regulations 709/2003 gave effect to Council Directive 93/104/EC and 2000/34/EC. They are to be respectfully adhered to, notwithstanding the challenges of a mobile and weather dependent workplace. I would urge the parties to reflect on the purpose and importance of rest periods in the context of the overall health and safety of the crew of an isolated vessel . The provision of a Workplace Risk assessment tool may be of mutual benefit .
I have established that the complainant experienced sustained breaches of the terms of the Regulations and the Organisation of Working Time Act. I would like to highlight that I make an award of compensation for economic loss but also to serve as a proportionate and real deterrent
“against future infractions “
Having regard for all the circumstances, I order the Respondent to pay the complainant a composite sum €9,500 as compensation for the highlighted breaches, which I consider as just and equitable.
Ca -00023762-010 Payment of Wages
Section 6 of the Payment of Wages Act requires that I decide in relation to the claim consisting of a grant of redress in accordance with section 6 of the Act.
I have found that the claim is well founded. The working relationship is over. I find that a grant of compensation is reasonable in this case. I have taken account of the 27 weeks of pay already received by the complainant. I note that this payment was not grant aided.
I order the Respondent to pay the complainant €4,200, subject to statutory deductions in compensation for the underpayment of wages which were properly payable.
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Dated: 5th September 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Working Time on A Sea Going Vessel, Payment of Wages. |