Is Travelling to Work Working Time? The Tyco Case

 

travelling-to-work-working-time

Tyco was a Spanish security firm who closed all their regional offices across Spain in 2011. This meant that the employees did not have a fixed place of employment and had to travel to all their jobs to install security equipment.

The workers brought a case to the Court of Justice of the European Union (CJEU) arguing that time spent travelling to work should be counted as working time. The CJEU agreed with them.

This decision applies to workers who do not have a fixed place of work and are required by their employers to travel to service clients. This could include, for example sales reps, care workers or tradesmen employed by companies.

This could result in employers having to pay such workers for time spent travelling to and from work. The journey from home to their first work appointment, and the journey from their last appointment to home in the evening, must be included when pay, working hours and rest breaks are being calculated, according to the CJEU decision.

Employees may also be entitled to a reduction in hours actually spent working, as travelling time would also go towards the 48 hour maximum working week permitted under EU working time legislation.

In Ireland, the Organisation of Working Time Act 1997 (“the Working Time Act”) implemented the original Working Time Directive (Council Directive 93/104/EC) into Irish law. The Working Time Act sets down minimum requirements around working hours, rest periods and accrual of annual leave. The purpose of the Directive is to make provision for the protection of the safety and health of workers.

Working time, according to the working time directive is considered to be time during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

The Tyco case is relevant from an Irish context in that our national courts are obliged to interpret Irish laws in line with European legislation, and decisions of the European courts. The decision has direct effect with regard to public sector workers, however legislation will be required to make it effective for private sector workers.

The Labour Court in Ireland has addressed this issue in the past.

In Breffni Carpentry Services Ltd and Deniss Solodounikovs (DWT0816) the Labour Court held that only the hours which the Complainant spent at the workplace, and not travelling time, could be regarded as working time.

In this case, however, the employee appears to have been based out of his employer’s premises.

The National Minimum Wage Act 2000

A further complicating factor in Ireland arises from the National Minimum Wage Act 2000 (NMWA), which provides a statutory basis for setting minimum rates of pay in Ireland. It also sets out the basis for calculating the working hours of an employee, to establish whether an employee is being paid the applicable minimum hourly rate of pay.

Irish cases in respect of claims for wages while travelling are likely to be brought under the heading of non payment of wages in accordance with the NMWA.

Implications for employers and employees?

Clearly, there are huge implications for Irish employer and employees if this decision is given a statutory basis in Ireland.

Employers would be well advised to agree some type of arrangement or protocol with their employees, if it is not already provided for in the contract of employment.

It would also be advisable for employers to try to schedule the first and last call of the day close to the employee’s home so that travelling time is kept to a minimum. Many employers currently do this, as well as agreeing a fixed rate for travelling time.

It is probably prudent for employers to treat travelling time in circumstances where the employee travels to a variety of locations in discharge of his/her duties as working time.

7 Employment Claims in Relation to Hours of Work You Should Know About

hours of work

There are 7 employment related claims which an employee can bring to the Workplace Relations Commission (WRC) in relation to hours of work.

They are all breaches of the Organisation of Working Time Act, 1997.

  1. I do not get my daily rest period

Section 11 of the Organisation of Working Time Act, 1997 prescribes that you are entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours.

  1. I do not get breaks

Section 12 of the Organisation of Working Time Act, 1997 sets out your rest period entitlements (15 minutes every 4 hours and 30 minutes worked, 30 minutes for every 6 hours worked).

  1. I do not get a weekly rest period

Section 13 of the Organisation of Working Time Act, 1997 states that to a rest period of at least 24 consecutive hours in each period of 7 days.

  1. I have to work more than the maximum permitted hours

Section 15 of the Act provides that you should not be required to work more than an average of 48 hours in each 7 day period. The reference period for calculating the average is either 4 months for most employees, although there are exceptions.

  1. I do not receive my annual leave entitlements

Section 19 and 20 of the Organisation of Working Time Act, 1997 sets out your minimum entitlements. All employees-casual, part time, full time, temporary-are entitled to annual leave. This will generally depend on the time worked.

  1. I have not received my public holiday entitlements

Section 21 and 22 of the Organisation of Working Time Act, 1997 provides your entitlements. These are either a paid day off on the holiday or a paid day off within a month or an extra day’s annual leave or an extra day’s pay.

  1. I work excessive night hours

Section 16(2) of the Organisation of Working Time Act, 1997 provides that an employee should not work more than 8 hours, or an average of 8 hours over a 2-month period, in any period of 24 hours. There are specific rules for mobile and road transport workers set out in statutory instrument 36 of 2012, European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. Road transport workers who work at night shall not exceed 10 hours in a 24-hour period.

You may also be interested in 12 Pay Related Employment Claims Employers and Employees Should Know About.

 

 

The Working Time Records All Irish Employers Must Keep

working-time-records

Are you a small employer?

Confused about the working time records you need to keep?

I don’t blame you.

You’ve plenty of other stuff to do. But creating and keeping these records is important.

After reading this you will be clear about what you need to do.

And I will give you a form which will keep you right.

Let’s get started.

The Legal Obligation

The Organisation of Working Time Act 1997 obliges employers to keep records for 3 years; these records should record the following:

  • the starting time,
  • finishing time,
  • hours worked each day,
  • hours worked each week
  • leave taken.

If you don’t have an electronic clocking in system you need to complete a form, OWT1, on a daily and weekly basis.

Here’s the OWT1 form which is contained in the relevant regulations, the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001. These regulations derive from the Organisation of Working Time Act, 1997 and they provide some important exemptions in respect of the record keeping.

There are exemptions:

  1. for workers who determine their own working time and
  2. for work performed voluntarily by the employee.

In addition to the working time records referred to above you, as employer, are obliged to keep a record of the statement you have given each employee in accordance with the Terms of Employment (Information) Act, 1994-2001.

You have given all your employees these statements, haven’t you? If you haven’t, you are leaving yourself open to a claim from each employee.

Completing the OWT1 Form

Where you and the employee agree, an employee can fill out this form and have you counter-sign it. You then keep it for inspection from inspectors from NERA or the Department of Jobs and Enterprise.

Rest Breaks

You will be exempt from keeping records of rest breaks if

  • you have an electronic record keeping system or
  • you record the working hours on form OWT1 and the following conditions are complied with:
  1. you inform the employee in writing of their entitlement to rest breaks as set out in sections 11, 12 and 13 of the Organisation of Working Time act, 1997
  2. you inform the employee of procedures to allow the employee notify you when he is unable to take a break that he is entitled to, and the reason why he has been unable to take the break.

Once your employee tells you he has not been able to take his break you must allow him to take the break he was due. If your employee does not take this opportunity then he is at fault, not you.

You must also keep proof of having told the employees of the breaks they are entitled to, the procedure for when he is unable to take it, and records of the occasions when the employee tells you he was unable to take the break.

Failure to keep the required records can lead to a Court conviction and fine of up to €1,900.

Read more about rest breaks here.

What to Do Now

Keeping these records is not rocket science, but just require a little bit of discipline.

Download the OWT1 form here if you don’t have electronic recording, and you will not have to worry when the inspector calls.

Your records may also prove very useful in defending other claims against you and will certainly indicate that you are a responsible employer.

Proposed Change to Employees’ Annual Leave Entitlement to Prove Costly for Employers

There is a provision proposed in the new Workplace Relations Bill 2014 which, if passed, will have serious cost implications for employers in Ireland.

annual-leave-entitlements

This new provision will change section 19 of the Organisation of Working Time Act 1997, and provides that time spent by an employee on certified sick leave will be counted as time spent at work, and carrying out his/her duties. This means that the employee will accumulate annual leave during the leave year or within 6 months of the leave year, or within 15 months from the end of that leave year if the employee was unable to take annual leave due to illness.

The cost implications of this new provision are obvious for small business owners who have employees returning from long term sick leave, as the employee will have accrued annual leave while they were out sick.

The background to this is a number of European employment related decisions in 2009-Stringer v Revenue and Customs Commissioners and Schultz-Hoff v Deutsche Rentenversicherung Bund-which saw the Court of Justice of the European Union (CJEU) decide that employees who could not take annual leave due to being on sick leave were entitled to take the leave at a later date.

Public sector employees derived the benefit of the CJEU decision above because of the legal principle of Direct Effect-that is, that public sector employers as emanations of state are bound by the EU decisions.

However the Labour Court in Ireland has held that in respect of private sector employees and companies, the Labour Court was bound by Irish legislation-the Organisation of Working Time act, 1997.

However that Act is due to change now, courtesy of the Workplace Relations Bill, 2014.

Update August, 2015

This change in entitlements to sick employees has now come into effect from Saturday, August 1st, 2015.

Workers will now

  • Accrue holiday entitlements when they are out on certified sick leave and
  • be able to carry over annual leave for a period of 15 months after the leave year in question.

Working Time and Minimum Rest Periods in Irish Employment-What You Need to Know

working-time-ireland

Rest periods in work.

Do they cause problems for you?

Are you an employer? Employee?

Working time, rest periods, public holidays,  and annual leave are all dealt with in Irish law in the Organisation of Working Time Act, 1997.

And up to 2 years remuneration can be awarded in compensation to an employee for breaches of the Act.

In fact the hours of work, holidays, some statutory leave entitlements, days off, breaks, and so on are also determined by the Organisation of Working Time Act, 1997.

For employers it is important to note that working time and time off/annual leave should be viewed as health and safety issues for employees also.

The definition of “working time” in the Organisation of Working Time Act, 1997 is an important one:

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,
and “work” shall be construed accordingly.

Section 2 defines “working time” and a “rest period”:

rest period” means any time that is not working time;

Application and non-application

The Organisation of Working Time Act, 1997 does not apply to members of the Defence Forces and an Garda Siochana.

Section 3 of the Act also states that it shall not apply to people working in sea fishing or a doctor in training or workers covered by a collective agreement or those working in exceptional circumstances or an emergency or a person who is employed by a relative and is a member of that relative’s household or a person whose working hours are determined by him/herself.

Section 4 provides exemptions for other groups of employees including those covered by regulations made by the Minister for Enterprise and Employment including people working in the transport industry.

Section 6 of the Act  allows an employer to give compensatory “equivalent” rest periods where an employee is not entitled to a rest period due to the operation of sections 4 or 5.

Exemptions

S.I. No. 21/1998 – Organisation of Working Time (General Exemptions) Regulations, 1998 provides for exemptions for certain workers from the operation of sections 11, 12 and 13 of the Organisation of Working Time Act, 1997.

Here is the list set out in the statutory instrument:

SCHEDULE

1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.

2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.

3. An activity falling within a sector of the economy or in the public service—

(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,

or

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,

and, in particular, any of the following activites—

(i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,

(ii) the provision of services at a harbour or airport,

(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,

(iv) the provision of ambulance, fire and civil protection services,

(v) the production, transmission or distribution of gas, water or electricity,

(vi) the collection of household refuse or the operation of an incineration plant,

(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,

(viii) research and development,

(ix) agriculture,

(x) tourism.

On call or on standby?

If you are on call or standby the prime determining factor as to whether this is “working time” or not will be the requirement to be at a particular place or not-if a physical presence is required it is considered working time; if not, it is not considered working time, even though you may, like a doctor, be on call.

The Organisation of Working Time Act, 1997 does not apply to Gardai and Defence Forces members and certain sections of the Act do not apply to other groups of employees (for example people involved in the transportation of goods or people, people involved in sea fishing, employees covered by collective agreements, doctors in training etc.)

Fishermen

There are special regulations for fishermen, S.I. No. 709/2003 – European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003.

Minimum Rest Periods

Section 11 of the Act stipulates that an employee is entitled to a “rest period of not less than 11 consecutive hours in each period of 24 hours”; this is the daily rest period.

Section 12 states that an employee is entitled to a rest period of at least 15 minutes after working for 4.5 hours and a break of at least 30 minutes after working for 6 hours. Note: a break at the end of the working day is not acceptable and does not comply with the Act.

This 15 minute break can be included in the 30 minute break but would obviously have to start no later than 4 hours and 30 minutes after the commencement of work.

Section 13 deals with weekly rest periods and gives an entitlement to at least 24 consecutive hours of a break in each period of seven days, or at the employer’s discretion two rest periods each of which must be for at least 24 consecutive hours during a second seven days period. This rest period must be preceded by a section 11 daily rest period (see above).

Unless the employment contract provides otherwise, the 24 hours rest period “shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday”.

Compensatory Rest Periods

There are exemptions provided for certain workplaces and industries, In particular circumstances the employer can give compensatory rest periods where it is not possible for the employee to get his/her statutory entitlement in the normal course of events.

Section 6 of the Organisation of Working Time Act, 1997 is the relevant section.

The Labour Relations Commission prepared a Code of Practice, pursuant to section 6 of the act, about compensatory rest periods which you can access here.

Retail/Shop Workers

There are special rules about breaks for  retail workers.The relevant statutory instrument is 57/1998 – Organisation of Working Time (Breaks At Work For Shop Employees) Regulations, 1998.

These regulations cover any retail trade or business, but does not include any premises uses as a hotel or the preparation of food including catering operations or licensed premises.

For any shop employee whose hours of work include the hours from 11.30 a.m. to 2.30 p.m. and who works more than six hours, the minimum duration of the break shall be one hour. The one hour break should take place between the hours mentioned and cannot be granted at the end of the working day.

These regulations covers workers in any retail trade or business or shop or wholesale outlet. and includes a barber or hairdressers.

Sunday Work

Section 14 provides for compensation for employees who are required to work on a Sunday, where this “has not otherwise been taken account of” in deciding pay.

Employees can be compensated by an allowance or pay increase or paid time off or a combination of these measures.

Employees can, in certain circumstances,  rely on agreements governing “comparable employees” with a view to establishing appropriate levels of compensation.

Weekly working hours

Section 15 deals with weekly working hours and states that an employee cannot work in excess of an average of 48 hours in a week-the average is taken over a two to twelve month period, depending on the industry and whether you are a night worker or not.

This case-ANDRZEI GERA T/A FAMILY BAKERY SAMO ZDROWIE and JUSTYNA MALECKA-saw two workers each being awarded €10,000 in compensation for breach of the weekly working hours law. You can read the full decisions here and here.

The Organisation of Working Time Act, 1997 also contains provisions covering night workers (section 16 offers extra protection), section 17 covers circumstances where an employee may not have a regular starting and/or finishing time that he/she must be told at least 24 hours in advance of the relevant starting and finishing time (the same applies to overtime required to be worked) and zero hours contracts are covered in section 18.

Certain sectors of activity are exempted from the rest provisions of the Organisation of Working Time Act 1997, for example some transport activities. These exemptions are normally set out in a statutory instrument so legal advices is recommended to check whether your industry is affected by an exemption.

Night Workers

Section 16 of the Act gives additional protection to night workers. Employers cannot expect or oblige night workers to work over 8 hours in a 24 hour period; a night worker is a worker who works at least 3 hours post-midnight as night work is considered to be from midnight to 7 am.

Section 17 of the Act provides that where an employee does not have “normal or regular starting and finishing times of work” the employer must give at least 24 hours notice of the relevant starting and finishing times.

The employee is entitled to the same notice re overtime/additional hours that the employer requires the employee to work.

Zero hours contracts

There has been increasing controversy about the use of zero hour contracts and there are reviews currently (2014) being carried out in Ireland and the UK by Ged Nash and Ed Miliband respectively.

These contracts are contracts of employment with a difference-they do not have a specified hours of work but the employee must be available for work for a certain number of hours in a week or when required, or a combination of both.

The use of zero hours contracts in the UK has soared in the last few years and, unlike in Ireland, there is no compensation for workers who are not called in to work.

The Organisation of Working Time Act, 1997 provides for zero hours contracts in section 18. Unlike in the UK, there is a certain degree of protection for the worker in Ireland.

In the UK if you are not called in to work in any week, you don’t get paid.

In Ireland, there is some compensation for workers who work less than 25% of their contracted hours in a week. If the employee got no work at all, he is entitled to 25% of the possible available hours or 15 hours, whichever is the smaller.

If the employee got some hours, they should be compensated to bring them up to 25% of the possible available hours.

Here’s an example:  say Sebastian is contracted to be available for 20 hours per week but got no work in a given week. Then Sebastian is entitled to be compensated with 25% of the 20 hours, that is 5 hours, or for 15 hours, whichever is less.

5 hours is clearly the smaller so Sebastian is entitled to be paid for 5 hours.

If Sebastian got 3 hours work, then he would be entitled to be compensated by an extra 2 hours to bring him up to 25% of the contracted hours.

Organisation of Working Time Act 1997 and Employers Records

Section 25 of the Organisation of Working Time Act, 1997 obliges the employer to keep certain records:

25.—(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 3 years from the date of their making.
(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
(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 this 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.

 

S.I. No. 473/2001 – Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 provides a form which employers can use to record hours worked on a daily and weekly basis, a record of leave granted to each employee and a weekly record of the starting and finishing times of employees.

We have created a spreadsheet which allows you to maintain these records in accordance with the legislation and regulations.

You can download it here.

Enforcement Procedures and Remedies

Disputes are dealt with by a Rights Commissioner in the first instance with appeals to the Employment Appeals tribunal once referred within 6 months of the alleged breach. The Rights Commissioner has a number of options open to him/her including ordering the employer to pay up to two years remuneration as compensation.

Section 27 of the Organisation of Working Time Act, 1997 provides that up to 2 years remuneration can be awarded to the employee in compensation by the Rights Commissioner or the Labour Court on appeal:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

We always recommend, regardless of whether you are an employer or employee, that you consult with a legal professional for advice as the consequences of an error in this area can be very costly.

The Organisation of Working time act, 1997 also deals with annual leave/holidays from work. Click on the link to learn more.