Complainant

Respondent

Anonymised Parties

A Crew Member

A Fishing Company

Representatives

SIPTU

Richard Grogan & Associates

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-00029109-001

17/06/2019

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

CA-00029109-002

17/06/2019

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

CA-00029109-003

17/06/2019

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

CA-00029109-004

17/06/2019

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

CA-00029109-005

17/06/2019

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

CA-00029109-006

17/06/2019

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

CA-00029109-007

17/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00029109-008

17/06/2019

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

CA-00029109-009

17/06/2019

The complainant has lodged claims under the Organisation of Working Time Act, the Payment of Wages Act and the Terms of Employment (Information) Act.

The complainant was employed by the respondent from 10 September 2017 until 9 March 2019 as a Deckhand/Fisher under the Scheme for Employment of Non-EEA Crew in Parts of the Irish Fishing Fleet

Complaint 001- Payment for Annual Leave- OWT Act

The complainant states that the annual leave year commenced on 1 April 2018 and ended on 31 March 2019. The complainant states that therefore he worked in excess of 11 of the 12-month period. The complainant states that according to the respondent’s submission, the complainant was paid 17.6 days holiday pay (exclusive of two public holidays, Christmas and St. Stephen’s Day 2019). The complainant submits that based on a 20 day annual leave entitlement, 11 months worked at 1.67 days per month equates to 18.4 days annual leave entitlement.

18.4 days at 7.8 hours per day at €9.55 per hour equals €1,370.61

Complaint 002- Payment for Public holidays – OWT Act

The complainant states that in the respondent’s submission, it has combined the annual leave and public holiday entitlements and advised that on 29 December 2018 the complainant received €1461.50 in total payments. The complainant states that the respondent accepts that he was not paid in respect of 1 January 2019 which constitutes a clear breach of the legislation.

3 days at 7.8 hours per day at €9.55 per hour equals €223.47.

The complainant contends that if outstanding pay for both annual leave and public holidays are to be combined this equates to a total of €1594.08 rather than the €1461.50 the respondent alleges he paid, leaving an outstanding sum in the amount of €133.

Complaint 003 -004-005-006 Hours of work OWT Act

The complainant submits that during the reference period of this claim, the obligations set out in the Statutory Instrument relating to record keeping clearly resided with the respondent. However, whilst the respondent has included a number of “Hours of Rest Sheets” for the period January to October 2018, none have been provided for the reference period for the within claim. The complainant submits that records for the period have not been kept, endorsed or provided by the respondent which constitutes a serious breach of the requirements of the Statutory Instrument. The complainant further states that it is clear from the records provided that he was required to work a minimum of a 14 hour day on most of the days he worked, including an unbroken 28 day period in July 2018 which is in breach of the Statutory Instrument. It is submitted that the respondent has only provided “records” for 8 of the complainant’s 18 month employment period.

The complainant maintains that an 18.5 hour working day was common during periods at sea. The complainant was employed on a boat, the boat would often be at sea for many days at a time. The crew was small and the complainant fished for prawns. Once the first nets were hauled in, they would be sent back out. It was frequently the case that by the time the complainant was finished processing the prawns, the next catch was ready to be brought in and processed. The complainant states that it was arduous, difficult and at times dangerous work and that he worked well in excess of the maximum hours allowable.

Complaint 007 Sunday Working – OWT Act

The complainant asserts that his contract provides for “compensation for Sunday work on a quarterly basis in the form of a landing bonus”. It is accepted that the complainant received such a bonus in March, April and August 2018. However, the complainant submits that he was entitled to receive such a bonus in December 2017, March June September December 2018 and March 2019. As there are no specified amounts for the landing bonus/Sunday payment in the complainant’s contract, his union representative has submitted data based on the average amounts received in such bonuses in 2018. The total for the three bonuses received is €5,694 – an average of €1898 per bonus. The Union submits that working on that average, the two outstanding bonuses for December 2018 and March 2019 total €3796.

Complaint 008 – Payment of Wages Act

It is submitted that it is an express term of the complainant’s contract that he be paid for every hour worked for his employer and that if he were to work more than 39 hours per week, he must be paid for all the additional hours worked. The complainant asserts that during periods of inactivity/boat tie-up when he may not be physically working that he be paid a rate not less than a 39 hour week at the National Minimum Wage (NMW) rate. The reference period for the within claim is from 18 December 2018 to 17 June 2019, however the complainant left his employment on 9 March 2019 accordingly there was a total of 12 weeks from 18 December 2018 to 9 March 2019. The complainant contends that during this 12 week period, he received weekly wage payments totalling €2702.63 which equates to 276 hours worked. However, the complainant states that he actually worked a total of 589 hours both at sea and during periods of inactivity/ boat tie-up which should have attracted an additional €2873.57. The Union contend that the non-payment in the amount of €2873.57 constitutes a breach of the Payment of Wages Act.

Complaint 009 – Terms of Employment (Information) Act

The complainant submits that he was entitled to receive a statement in writing of the terms of his employment and such a document is required to be provided to him not later than two months after the commencement of his employment i.e. November 2017. It is submitted that the contract of employment provided to the complainant was issued in May 2018 but did not comply with the requirements as set out in section 3 of the legislation and therefore the respondent is in breach of the legislation.

The respondent did not attend the hearing nor did the respondent’s legal representative attend. The respondent’s legal representative submitted a written submission prior to the hearing as follows.

Complaint 001 – Annual Leave

It was stated that the complainant went on holidays on 21 December and returned at the end of January and finished employment on 8 March 2019. On 29 December, the complainant received a sum of €1461.50 being a payment for 19.6 days. Taking account that the annual leave year commenced on 1 April 2018 and finished on 31 March 2019, the employee received his full entitlement according to the respondent.

Complaint 002 – Public Holidays

The reference period on this matter is from 18 December 2019 to 17 June 2019. Because the complainant left the employment on 18 March, it is from 17 December to 8 March. The complainant was paid his normal wages for December, he was paid €1461.50 on 29 December. The complainant was paid for 19.6 days at that stage but the respondent accepts that there is a technical argument here in that he did not get paid for 1 January which is the only outstanding public holiday in the reference period.

Complaint 003 – Daily Rest Periods

The respondent states that it has included records which were maintained in accordance with rest periods for workers on Sea Going Fishing Vessels.

Complaint 004 – OWT Act

The respondent submitted that relevant records are attached and at no stage was the complainant working 18.5 hours without a break.

Complaint 005 – Weekly Rest Periods

The respondent submits that again these are covered under the records which have been maintained and have been produced.

Complaint 006 – Hours of Work

The respondent submits that whilst the complainant has contended that he worked 129.5 hours in a one week period, the records are attached. At no stage did the complainant work 129.5 hours. What the complainant may be thinking under this is that the complainant is taking all time on board. Sea Going Vessels which the complainant was employed on are at sea, rest is provided at sea. The said records are produced in the statutory form. The way the vessels operate is that they are in the prawn industry, nets are cast and are normally hauled up after 6 hours. Between the nets being cast and them being hauled up there is an opportunity for rest. If there is a significant catch at times, it can happen that there is a shorter rest period. If there is a poor catch, there can be a longer rest period. The relevant records are attached and have been signed by a crew member. Nowhere do these records show the type of hours that the complainant is claiming that he worked.

Complaint 007 – Sunday Working

The complainant in this case is covered under the scheme for employment of non-EA Crew in the sea fishing fleet. It was submitted that the complainant received a landing bonus on a quarterly basis. It was contended that the provision in respect of the complainant on the document provides that the employee would receive Sunday Premium by way of a landing bonus which he did receive. They were paid on 9 March, 13 March and 24 August so not always on the exact quarter. Therefore, while there was no loss of income, the would have been late payment.

Complaint 008 – Payment of Wages Act

The respondent states that the complainant is limited to brining a claim within 6 months and encloses a copy of the case in HSE and McDermott. The respondent states that the same argument applies in relation to holiday pay.

Complaint 009 - Terms of Employment (Information) Act

The respondent submitted that it dealt with matters in a reasonable way and in line with the instructions given as to what should be furnished to an employee.

In conclusion, the respondent states that in this case, it provided on many occasions the complainant with flights home. Under the scheme, an employer must provide an employee with a return flight when their contract finishes. It is submitted that the employer in this case provided more than of these than is required.

I make the following decision on the basis of the written submissions received and the evidence and witness testimony available to me at the hearing.

Complaint 001 – Payment for Annual Leave OWT Act

Having considered this complaint, I find it to be well-founded. The respondent is ordered to pay the complainant €59.60 in respect of pay for outstanding annual leave.

Complaint 002 – Payment for Public Holidays OWT Act

Having considered this complaint, I find that the respondent is in breach of the legislation. The respondent is required to pay the complainant €74.50 in respect of the public holiday on 1 January 2019

Complaint 003, 004, 005, 006 OWT Act

Section 25 of the Organisation of Working Time Act 1997 deals with records and states inter alia:

“(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least three years from the date of their making.….

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of the Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer”.

Part II of the Organisation of Working Time Act 1997 deals with minimum rests periods: Section 3(2) of the 1997 Act states inter alia that subject to subsection (4) that Part II of the Act shall not apply to a person engaged in sea fishing. Subsection (4) provides that the Minister may by order provide that a specified provision or provisions of this Act or, as the case may be, of Part II shall apply to a specified class or classes of person referred to in subsection (1) or (2) and for so long as such order remains in force the said provision shall be construed and have effect in accordance with the order.

SI No. 709/2003 deals with inter alia Part II matters for employees on fishing vessels namely rest periods and hours of work. Regulation 6 of the Statutory Instrument states:

“(1) subject to the limit of an average of 48 hours of work over a reference period not exceeding 12 months, the limits on hours of work and rest in respect of a worker on board a sea-going fishing vessel shall be either:

a) maximum hours of work which shall not exceed

i) 14 hours in any 24 hour period and,

ii) 72 hours in any 7 day period

or

b) minimum hours of rest shall not be less than,

i) 10 hours in any 24 hour period and,

ii) 77 hours in any 7 day period

(2) Hours of rest may be divided into no more than two periods one of which shall be at least 6 hours in length and the interval between consecutive such periods shall not exceed 14 hours.

Regulation 9 of SI No 709/2003 - European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 states inter alia:

“(1) The master, or person authorised by the Master, shall maintain and the owner of a sea-going vessel shall ensure that there is maintained on board the sea-going fishing vessel a record of the daily hours of work or rest for each worker on board the vessel that complies with the requirements of paragraph (2).

(2) Each record under paragraph (1) shall

a) be complied monthly in arrears.

b) be in the form set out in Schedule 1 or in a form to substantially like effect as will enable an authorised officer to understand the particulars contained therein without difficulty.

(3) Each record maintained under paragraph (1) shall be endorsed by the master, or a person authorised by the master, and by the worker on board a sea-going vessel in question. The master, or as the case may be, a person authorised by the master shall, no later than 7 days after the last day of the calendar month to which the record relates, give the worker on board a sea-going fishing vessel a copy of the record as endorsed.

(4) The records referred to in paragraph 1 shall be retained for at least one year from the date of their making. If during that period ownership of the sea-going vessel changes, then the duty to preserve records shall be the owner of the sea-going vessel for the time being or, if the sea-going vessel ceases to be registered in the State, with the last owner before ceasing to be so registered”.

There is a duty on the respondent to keep working time records by virtue of both the Act and the S.I. The complainant’s own contract of employment confirms this. The respondent submitted some records but they are wholly inadequate and inaccurate.

Complaint 003–004 (combined) Breaks, Daily Rest Periods. I declare this complaint to be well-founded based on the evidence adduced in written submissions and that which was made available at the hearing. I order the respondent to pay the complainant €3,000 compensation for breaches of daily rest and breaks under the legislation.

Complaint 005 – Weekly Rest Periods. I find that this complaint is well-founded. It was clear from the evidence adduced that the hours of rest were well below 77 hours in any seven day period. I order the respondent to pay €2000 compensation in respect of said breach.

Complaint 006 – Excessive Hours of Work. The Statutory Instrument highlighted above clearly states that hours of work shall not exceed 72 hours in any seven day period. Based on the evidence adduced at the hearing, it is apparent in the instant case that this rule was broken on many occasions. I find the within complaint to be well-founded. I order the respondent to pay the complainant €2000 in compensation in respect of said breach.

Complaint 007 – Sunday Working 

In relation to this claim, I note that the contract states that “the employee shall receive compensation for Sunday work on a quarterly basis in the form of a landing bonus”. During the cognisable period of the within complaint, the respondent failed to provide the complainant with two outstanding bonuses for December 2018 and March 2019. I note the complainant left the employment on 9 March 2019. Having considered this complaint, I find that this complaint is well-founded and the respondent is in breach of the legislation. The respondent is ordered to pay the complainant €2,900 in respect of said breach.

Complaint 008 – Payment of Wages Act

The Contract of Employment – Clause 5 deals with wages and states:

“The employee will be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay.

The employee will be paid weekly in arrears into the employee’s bank account.

The employee will be paid weekly, including during 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…

The reference period for the within claim is from 18 December 2018 to 17 June 2019. I note that the complainant left his employment on 9 March 2019. During this 12 week period, it was submitted that the complainant received weekly wage payments totalling €2,702.63 which equates to 276 hours worked. However, the complainant submitted that he actually worked a total of 589 hours both at sea and during periods of inactivity/ boat tie-up which should have attracted an additional €2,873.57.

I am satisfied that the minimal records attaching to the respondent’s written submission were not as prescribed by legislation. The said records were incomplete, inaccurate and inadequate. Based on the submissions received and evidence available to me at the hearing, I find that this complaint is well-founded. As stated in the legislation, the onus of proving compliance rests with the respondent. The burden of proof has not been discharged by the respondent and therefore I find for the complainant in this matter.   The non-payment in the amount of €2,873.57 constitutes a breach of the Payment of Wages Act. I order the respondent to pay the monies owed to the complainant in the amount of €2,873.57 for said breach.

Complaint 009 – Terms of Employment (Information) Act

Section 3 (1) of this legislation clearly states as follows: 

3 (1) An employer shall, not later than 2 months after the commencement of an employee’s 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, that is to say-

a)      The full names of the employer and the employee

b)      The address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 1963).

c)       The place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places.

d)      The title of the job or nature of the work for which the employee is employed.

e)       The date of commencement of the employee’s contract of employment.

f)        In the case of a temporary contract of employment, the expected duration therefore or, if the contract of employment is for a fixed term, the date on which the contract expires.

g)      The rate or method of calculation of the employee’s remuneration.

h)      The length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval.

i)        Any terms or conditions relating to hours of work (including overtime).

j)        Any terms or conditions relating to paid leave (other than paid sick leave).

k)       Any terms or conditions relating to –

   (i)         Incapacity for work due to sickness or injury and paid sick leave,     and

   (ii)      Pensions and pension schemes

l)        The period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice.

m)    A reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Having considered this complaint, I find it to be well-founded. The Contract as presented does not meet the minimum standard required by the Terms of Employment (Information) Act 1994 in respect of the various particulars which are required to be included in same. Having regard to the nature of the breach, I order the respondent to pay €750 in compensation to the complainant in respect of same.   

Decision is outlined above.

Summary:

Complaint 001 – Annual Leave

award €59.60 – pay for outstanding annual leave

Complaint 002 – Public Holidays

award €74.50 - pay for public holiday on 1 January 2019

Complaint 003 –004 (combined) Breaks, Daily Rest Periods

award of €3,000 – compensation for breach of daily rest and breaks

Complaint 005 – Weekly Rest Periods

award of €2,000 – compensation for breach of weekly rest periods

Complaint 006 – Excessive Hours of Work

award of €2,000

Complaint 007 – Sunday Premium 

award of €2,900

Complaint 008 – Payment of Wages Act

Underpayment of wages – award of €2,873.57

Complaint 009 – Terms of Employment (Information) Act

award of €750

The awards of pay and compensation should be made to the complainant within 42 days from the date of this decision.

Organisation of Working Time Act, Payment of Wages Act, terms and conditions of employment,