FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BREFFNI CARPENTRY SERVICES LIMITED - AND - DENISS SOLODOUNIKOVS (REPRESENTED BY PC MOORE AND CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision R-050230-WT-07.
BACKGROUND:
2. A complaint was submitted to the Labour Court in accordance with Section 28(1) of the Organisation of Working time Act, 1997. A Labour Court hearing took place on the 2nd April, 2008. The following is the determination of the Court:-
DETERMINATION:
A complaint was presented to a Rights Commissioner by P. C. Moore Solicitors on behalf of the Employee in February 2007 pursuant to Section 27 of the Organisation of Working Time Act, 1997(the Act). The complaint related to the Respondent’s failure to grant him breaks in accordance with the provisions of section 12 and notification of overtime hours in accordance with section 17 of the Act.
A Rights Commissioner hearing was held on 24th October 2007. The Rights Commissioner found that the complaint was well founded and awarded the worker
€2000.00 compensation in respect of breaches of the Act. The Complainant appealed against that decision on the basis that the amount of compensation awarded was insufficient.
Mr. Grogan, Solicitor for the Complainant stated that the Employee’s hours of work were from 8am to 5pm and he received a break at 10.00am for 15 minutes and a second break at 1.00pm for 45 minutes. However, he maintained that the Employee was sometimes required to start as early as 7.00am and finish as late as 7.00pm and on those days he did not receive the appropriate breaks under section 12 and did not receive notification of having to work the additional hours in accordance with section 17 of the Act.
The Employer did not contest the evidence except to state that the earlier starting and later finishing times occurred on those occasions when they travelled from Cavan to the work bases in Dublin, as opposed to starting work at the Company’s base in Cavan.
While the applicability of the Registered Agreement for the Construction Industry is in contention in this case and was not a matter before this Court, the Court is satisfied that “travelling time” is a well established concept in the construction industry and is covered by the Registered Agreement for the Industry, where an allowance is normally paid in respect of travelling to work on sites, other than at the employer’s head office. The Registered Employment Agreement clearly classifies the allowance as an expense, wholly and necessarily incurred in the course of employment.
This term “working time” is defined by Section 2(1) of the Act and provides: -
- “working time’’ means any time that the employee is—
(a) at his or her place of work or at his or her employer’s disposal,
and
(b) carrying on or performing the activities or duties of his or
her work,
This definition covers time during which an employee is actually carrying out the activities of his or her work. Accordingly, the Court is satisfied that only the hours which the Complainant spent at the workplace, and not travelling time, can be regarded as working time.
The Court is supported in this proposition by the Judgment of the ECJ which considered the definition of “working time” under the Act in C-303/98Sindicato de Medicos de Asistencia Publica (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana[2000] ECR 1- 7963.
In that case, the Court held that the doctor’s presence on call at a health centre was required and was therefore “working time”
- "the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties on that instance".
and C-151/02Landeshauptstadt Kiel v Norbert Jaeger[2003] ECR 1-08389
- “they are required to be present at the place determined by the employer and to be available to the employer to provide their services immediately in case of need. “
Section 12 Rests and Intervals at Work
Section 12(1) of the Act provides that an employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes and for a period of more than 6 hours without a break of at least 30 minutes; such break may include the 15 minutes.
On the uncontradicted evidence of the Respondent, the Court notes that the Complainant was provided with a total of one hour in respect of two breaks during his working hours. Therefore, as the Complainant was not required to work for more than six hours without a break of at least 30 minutes, the Court is satisfied that this provision of the Act was not contravened by the Respondent therefore; the claim under section 12 is not well founded.
Section 17 Provision of information in relation to working time
Section 17 provides that if the hours for which an employee is required to work for his or her employer include such hours as the employer may from time to time decide, notification of additional hours must be given at least 24 hours in advance of the first day of work in that week, subject to unforeseeable circumstances justifying a change in the notified times.
Solicitor for the Complainant contended that the employee was not given prior notification before each working day when he was required to start early and to finish late. The Respondent told the Court that the Complainant’s hours of work were fairly standard; occasionally in an attempt to avoid traffic congestion, he finished work earlier than 5.00pm and then travelled home to Cavan.
On the basis of the Court’s findings on the definition of working time, the Court does not accept that there was a breach of Section 17 of the Act, as he was not required to work additional hours.
The Rights Commissioner found that the Employer had failed to produce records and therefore found in favour of the Complainant.
Section 25 of the Act requires an employer to maintain records, which show that the provisions of the Act are complied with in relation to the employee. This section further provides that where such records are not maintained the onus of proving compliance with the Act rests with the employer. The Court notes that the hours when the Employee was working and as defined by the Act, are not in dispute between the parties and therefore, the Employer is not required to prove compliance.
In conclusion, the Court is satisfied that the Complainant’s hours of work did not vary (except on a small number of occasions when he worked shorter hours than required); he received breaks at least in accordance with the Act, and he did not work outside of his standard hours 8.00am to 5.00pm.
Therefore, the Court does not concur with the findings of the Rights Commissioner and overturns his decision. The Complainant’s appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th May, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.