FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : BUS EIREANN - AND - MR LIAM MCSHANE (REPRESENTED BY NATIONAL BUS AND RAIL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00028571, CA-00037001-005 On four occasions in 2020, the Complainant believed that in asking him to drive a bus, the Respondent was in breach of the law and he declined to do so. He based his refusal on what he argued was set out in the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2012 -2015 ,S.I. No. 36/2012, ‘the Regulations’. He claims that by seeking to make him drive a bus on the relevant occasions, the Respondent breached the protections afforded to him under the regulations and that, by withholding payment from him for the shifts in question, his rights under the Payment of Wages Act 1991, ‘the Act’ were breached. This claim is denied by the Respondent. An Adjudication Officer decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Complainant arguments Regulation 10(1) of the Regulations provides as follows; ‘Subject to any derogations under Article 8 of the Directive, the working time of a person performing mobile road transport activities, who performs night work in any period of 24 hours, shall not exceed 10 hours during that period’. Article 3(g) states ‘Week shall mean the period between 00.00 hours on Monday and 24.00 hours on Sunday’ Article 7 states ‘If night work is performed, the daily working time does not exceed ten hours in each 24 hour period.’ The reference to each 24 hour period means one of the 7 clockface periods described in Article 3(g). The Court is provided with details of the Complainant’s working hours midnight to midnight on 15/1/2020, 25/2/2020, 11/3/2020 and 22/4/2020, which show that the Complainant was being required to work in excess of 10 hours in the periods in question, including periods of night work. The Complainant declined to work the hours concerned in breach of the law. On the first occasion, he was allocated to other duties but was not paid for the hours worked. There is no collective agreement to step outside the 10 hour rule. The Court’s attention is drawn to a publication by the relevant UK authority from 2005, which emphasises the importance of the 24 hour period and stresses that this should not be confused with 10 hours per shift. This has been disregarded by the Respondent. No prior notice was given to the Complainant that wages would be deducted, contrary to s.5,2(b) of the Act. On 15 January 2020 the Complainant attended for work and was allocated to other functions but was not paid, in breach of his rights under the Act. Summary of Respondent arguments Article 10(1) refers to ‘any period of 24 hours’, it does not specify or define such periods as midnight to midnight only. The Regulations define ‘night work’ as between 01.00 hours and 05.00 hours and it is not disputed that the Complainant was working night hours. However, the 24 hour period commences at the end of the previous daily rest period or weekly rest period. Neither the Directive nor Regulations support the argument that all 24 hour periods can only be measured from midnight to midnight. This matter has been addressed by the Court of Justice of the European Union in determining that all time is either ‘working time’ or ‘rest’. Therefore, it is logical to calculate the commencement of working time by reference to the time after which a rest period ends, not by reference to the clock face. The RSA Guidelines provide that ‘working time is the time from the beginning to the end of work’. Two RSA audits in 2019 and 2020 raised no issues about the manner in which the Regulations are implemented by the Respondent. In accordance with Article 22(4) of the Council Regulation, a Guidance Note prepared by a group representing each member state provides that a 24 hour period ‘starts from the end of the qualifying daily or weekly rest period taken’ In the case of ‘Michielson v. Geybels (C-394/92)’ the European Court found that a 24 hour period commenced on the activation of the tachograph following a daily or weekly rest period, (not at 00.00 hours). The Complainant’s argument has no basis in law. The Labour Court is not required to have regard to observations by a UK authority. The Respondent deals with any delays for drivers by facilitating later start times to ensure compliance with the legal requirements. This could have been applied in the case of the Complainant. It is conceded that the Complainant was allocated to other duties on the first occasion that this matter arose, 15 January 2020, that he was not paid for hours worked and that he is entitled to payment for those particular hours. With regard to the other claims, the Court is referred to ‘Sullivan v. Department of Education (1998) 9 ELR 217’ in which the word ‘payable’ in the Act was interpreted to mean ‘properly payable’. The Complainant did not receive payment because he did not perform his work, so nothing is ‘properly payable’ to him for the dates in question. The applicable law Payment of Wages Act 1991. 1. “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Deliberation The Respondent concedes that the Complainant attended for duty on 15 January 2020, was allocated to different duties and is entitled to be paid for the hours worked. The Court determines formally that this is the case and directs that the relevant payment be made. With regard to the other occasions, the Complainant did not attend for work. The Court has determined in a parallel case that the basis for the Complainant’s refusal to attend for work on those occasions is not grounded in the law. Therefore, no remuneration to him from the Respondent is ‘properly payable’ for those occasions and, accordingly, the withholding of such payments does not amount to a deduction from what is properly payable within the meaning of the Act. Determination The Decision of the Adjudication Officer is varied.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
