FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : A PUBLIC TRANSPORT COMPANY (REPRESENTED BY CATHY MAGUIRE, B.L., INSTRUCTED BY HUGH HANNON, SOLICITOR FOR THE COMPANY) - AND - A WORKER (REPRESENTED BY NATIONAL BUS AND RAIL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer Decision No: ADJ-00003433
BACKGROUND:
2. An Adjudication Officer hearing took place on 30th September 2016 and a Decision was issued on 7th December 2016. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17th January 2017, in accordance with Section 28 (1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 10 March 2017.
DETERMINATION:
The complainant in this case works as a spare driver for a public transport company. In that capacity he is required to provide cover for drivers who are not available for normal driving duties. He is employed on a fifteen week roster. For five of those weeks he has a set start and finish time. However for 10 of those weeks he can be rostered for early duties, late duties or a mixture or early and late duties.
An early duty is one that commences between 4:30 and 10.00 am. The Respondent notifies the complainant of their precise starting time at 13.00 hours on the day before the Complainant's rostered early day. The Complainants' finish time for that day is thereafter determined by the roster they are assigned for that day.
The Complainant submits that this does not amount to 24 hours’ notice of his start and finish time and accordingly infringes section 17 of the Organisation of Working Time Act.
The Respondent submits that it is acting in compliance with a collective agreement in place with the Complainant’s trade union and otherwise in compliance with the Act. It further submits that the Complainant receives several weeks’ notice that they are rostered for an early or late duty, that they are equally aware that early duties commence between 4:30 am 10:00 am and is accordingly aware of his normal start and finish times. It submits that as they are notified of a normal start and finish times the Respondent is not obliged to provide the Complainant with 24 hours’ notice actual of their precise start and finish time on any given day.
The Law
Section 17. of the Organisation of Working Time Act 1997 States:
17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
Discussion and Findings
The Respondent places reliance on a “collective agreement” that it submits sets out the Complainant’s normal start and finish times. However it was not in a position to prove the existence of that agreement to the Court. The Complainant disputes the existence of such an agreement. As there is no evidence of the existence before it of the impugned collective agreement the Respondent seeks to rely upon, the Court must discount the existence of such an agreement.
The Respondent concedes that the “contract of employment” does not specify the precise starting and finishing times of work of the Complainant. It also accepts that there is no employment regulation order or registered employment agreement in effect in relation to the matters before the Court.
Accordingly the Court finds that Respondent must comply with the terms of the Act and “notify the employee at least 24 hours before the first day or as the case may be the day in each week that he or she proposes to require the employee to work of the times at which the employee will normally be required to start and finish work on each day or as the case may be the day or days concerned of that week.”
The Respondent draws the Court’s attention to the use of the word “normally” in the Act. It submits that it must give the Complainant 24 hours’ notice of the times at which he will normally be required to start and finish work on each day or days concerned of that week. It submits that by providing the Complainant with in excess of 24 hours’ notice of his roster he is on notice that his normal hours of work will commence between 4.30 and 10.00 am. It submits that this satisfies its obligation to provide the Complainant with 24 hours’ notice of the times at which he willnormallybe required to start and finish work each day.
The Court does not accept that submission. The Act requires the Respondent to notify the Complainant of his start and finish time 24 hours before the scheduled start and finish time. That scheduled start and finish time may be those that he will normally work on each day of the week on which he is rostered for early duties. Alternatively it may be a precise time that varies on one or more day that will be notified to him 24 hours in advance of that departure from his normal start time.. However the Court finds that it cannot be a range of starting times that are spread over a 5.5 hours ranging from 4.30 am to 10.00 am. Such a range deprives the Complainant of knowledge of his starting time and substitutes it with a starting time range that has no foundation in the Act.
The Court on this analysis finds that the Complainant has not been provided with 24 hours’ notice of his start time on in excess of 20 occasions in the relevant statutory reference period. Accordingly the Court finds that the Complainant has not been accorded notice on those occasions as required by Section 17(1) of the Act.
The Court notes that that the infringement is systemic within the Respondent’s rostering notification system. However the Court also notes that the Respondent is taking steps to provide all staff so affected with at least 24 hours’ notice of their start and finish times each day.
On that basis the Court finds that the award of compensation decided upon by the Adjudication Officer in this case is reasonable and proportionate. Were the Respondent not taking steps to bring itself into line with the terms of the Act the Court would consider a substantially higher award of compensation.
Determination
The Court finds that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1200. The Court further orders the Respondent to comply with the terms of section 17 of the Act and to take all necessary steps to enable it to so comply therewith.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
20 April 2017______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.