Complainant

Respondent

Anonymised Parties

A Worker

Textile Factory

Act

Complaint/Dispute 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-00029806-001

22/07/2019

In his complaint form the claimant submitted that “I was not paid for 25% of the time I was required to be available for work.

He elaborated as follows:

I had requested the WRC to carry out a Workplace inspection which formed part of a complaint by me in November 2018. (Complaint ref CA - 00023144) This was because I and other employees were not receiving our 11 hr rest breaks as per the Organisation of Working Time Act 1977. I was a full time worker working 34 hrs each weekend since I commenced employment in April 2016. Following the inspection in January the company were forced to change my work rota. My previous Rota was Fri 9pm-9am, Sat 5pm-5am, and Sunday 2pm- 12midnight. My manager K.L. wrote to me on 15/2/19 to say my hours of work were being reduced from 34 to 29 as a result of the WRC inspection and the instruction to comply with the Act. This change took affect from March 1st 2019. There followed objections from myself and Siptu had to get involved ( meeting on

29/2/19) I subsequently was placed on call for the remaining 5 hours each week (" if there was work available") from Tuesday @ 3pm to Thursday @11pm from March 1st until week ending May 12/5/19 (total on call hours each week = 56). I informed the company that I was complying with being placed on call under the strictest protest as I never was an on call worker before. The company had extra staff working at weekends and current staff working overtime during this period. The company eventually changed our Rota starting our weekend shiftRota earlier (@5pm on Friday) and finishing later (@1am on Monday) in order to incorporate our 11 hr rest

breaks and 34hrs work into a 3 day weekend shift, which we had originally requested at the meeting on 29/2/19.

I am aware the company still continues to ignore the 11hr rest break rule and also the 48hr average working week (over a prolonged period). This has happened prior to and during the period since the WRC hearing on 6/3/2019 (judgment 14/5/19) and my being made redundant on 7/7/2019.

In his direct evidence the claimant set out a chronology of the meetings that took place between the parties following the referral of the complaint regarding the 11hour rest break to the WRC inspectorate. He stated that he and his colleagues made several suggestions about adjusting the roster to ensure that it complied with the requirements of the Act in relation to rest breaks but they were not taken on board by the respondent. The claimant suggested the respondent continue to pay the 34 hours while scheduled for 29 hours until the matter was sorted to the satisfaction of all parties. When the offer of an additional 5 hours was made, the claimant and his colleague argued that they were not on call workers and the company were putting them on call against their will. It was submitted that insufficient notice of the availability of on call compounded matters and the claimant and his colleague operated the arrangement under strictist protest. It was asserted that this practise lasted from the beginning of March to the 13th.May when the roster was sorted – it was submitted that the claimant and his colleague were entitled to an additional 25% for being on call and that this was never paid to them and was a breach of the Act. The claimant clarified that this was not a penalisation complaint and asserted that   the nub of the issue was the non-payment of the 25% on call rate.

CA-00029667-003

Organisation of Working Time Act, 1997

In his Complaint Form the Claimant alleges that he was not paid 25% of the time that

he was required to be available for work. The Claimant alleges that following a result

of his hours being reduced from 34 hours per week to 29 hours per week effective

from 1st March 2019, that he was “subsequently placed on call for the remaining 5

hours each week”.

(9.2) Claiming 25% premium for “on call” hours. To comply with organisation of working

time legislation the Claimants hours were reduced from 34 hours to 29 hours to

adhere to working time rest periods. When this matter arose, the company had a two week

lead time for the 29-hour rota for affected employees. The company then

advanced it would offer an additional 5 hours work if it was available to employees to

make their earnings to 34 hours until the issue was fully resolved and 34 hours reinstated.

This offer of an additional 5 hours was based on hours being available. There

was no obligation for the employees to accept these hours if offered, so therefore an

on-call situation did not arise. The reduced hour rota commenced on 1st March 2019

and a full 34 rota was re-introduced on the 13th May 2019.

(9.3) It is the Respondents position that the Claimant was never placed on-call and/or asked

to make himself available for work “if there was work available”.

Section 18 of the Act, provides protection for employees working zero hours

contracts. The Claimant was not required at any point to remain available for work

during defined periods. He was not required to be on stand-by in the case that work

would become available. The arrangement was that work could be offered from time

to time if and when it became available with the option, for whatever reason, to

decline such work, which actually happened on a number of occasions.

(9.4) Compensation only arises where the employee is notified in advance of being required to work, or where the contract operates to require the employee to be available for

work during defined periods.

(9.5) The Act only applies where a formal arrangement is in place where employees are

required to be available for a certain number of hours per week, or when required, or a

combination of both. The Claimant in this instance was not required to make himself

available for work at any time during defined periods nor was the Claimant expected

to be on stand-by in the event that work became available.

(9.6) The act does not apply to casual workers and the arrangement between the respondent

and the Claimant was akin to a casual arrangement in that if hours were available,

they would be offered and those hours offered were subject to acceptance by the

Claimant. This is in effect what actually happened. Hours were offered from time to

time but were refused by the Claimant with no repercussions. In this instance the

Claimant had the right to refuse or accept any hours that may have been offered which

in contractual terms is a casual arrangement.

Conclusion

The Respondent requests that the Adjudicator for the reasons set out above find that the said complaint is not well founded.

The respondent denied any breach of the Act and stated that this was a casual interim arrangement – the respondent’s representative insisted that there was no obligation on the claimant or his colleague to accept the hours that were offered. There was not any penalty if the offer was not accepted. It was submitted that this was a casual arrangement and by virtue of the casual nature of the arrangement, it did not fall within the definition of the Act. The claimant’s manager asserted that when work was available they endeavoured to give at least 24 hours notice to the claimant and his colleague but were unable to give that notice all of the time. Sometimes the hours were accepted and sometimes they were not. KL stated that the claimant and his colleague kept insisting they were on call workers when they were not.

18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours (“the contract hours”), or

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).

(2) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent. of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent. of the hours for which such work has been done in that week,

then the employee shall, subject to the provisions of this section, be entitled—

(i) in case the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

or

(ii) in case the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be.

(3) Subsection (2) shall not apply—

(a) if the fact that the employee concerned was not required to work in the week in question the percentage of hours referred to in paragraph (a) or (b) of that subsection, as the case may be—

(i) constituted a lay-off or a case of the employee being kept on short-time for that week, or

(ii) was due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer's control,

or

(b) if the employee concerned would not have been available, due to illness or for any other reason, to work for the employer in that week the said percentage of hours.

(4) The reference in subsection (2) (b) to the hours for which work of the type referred to in that provision has been done in the week concerned shall be construed as a reference to the number of hours of such work done in that week by another employee of the employer concerned or, in case that employer has required 2 or more employees to do such work for him or her in that week and the number of hours of such work done by each of them in that week is not identical, whichever number of hours of such work done by one of those employees in that week is the greatest.

(5) References in this section to an employee being required to make himself or herself available to do work for the employer shall not be construed as including references to the employee being required to be on call, that is to say to make himself or herself available to deal with any emergencies or other events or occurrences which may or may not occur.

(6) Nothing in this section shall affect the operation of a contract of employment that entitles the employee to be paid wages by the employer by reason, alone, of the employee making himself or her self available to do, at the times and place concerned, the work concerned.