FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THE TRIBUNE PRINTING & PUBLISHING GROUP - AND - GPMU (REPRESENTED BY O'MARA GERAGHTY MCCOURT SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Decision WT2321/00/FL.
BACKGROUND:
2. The worker concerned was employed by the Company from week ending the 7th of December, 1998, until the 8th of April, 2000, as a Print Technician. The issue before the Court is that the worker concerned was required to work excessive hours without rest breaks. The Company states that all workers are free to take their breaks as and when it is practical.
The issue was referred to a Rights Commissioner for investigation. His decision issued on the 28th of November, 2002. He decided that the employer should pay €1,000 to the claimant in compensation.
The Company appealed the Rights Commissioner's decision to the Labour Court on the 6th of December, 2002, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 14th of October, 2003, the earliest date suitable to the parties.
DETERMINATION:
The Company appealed two aspects of the Rights Commissioner's decision - his findings and decision under Section 11 and Section 12 of the Act.
The employer submitted that the Company was exempted from the provisions of the Organisation of Working Time Act, 1997 by virtue of S.I. 21 of 1998 Organisation of Working Time (General Exemptions) Regulations, 1998. The schedule states that
"an activity falling within a sector of the economy or in the public service -
(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,
(iii) production in the press......"
The provision of the regulation exempts those activities from the application of Sections 11, 12, and 13. However, these regulations state that a provision specifying a rest period or break equivalent to those provided for in Sections 11, 12 and 13 must be provided.
Paragraph 4 of the regulation provides for compensatory rest periods:-
"if an employee is not entitled, by reason of the exemption, to the rest period and break referred to in Section 11, 12, and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break"
Paragraph 5 of the regulation details the duty of an employer in respect to the health and safety of employees:-
(1) an employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is
of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.
(2) in determining the duration of a break referred to in paragraph (1) of this regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.
The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.
Having considered the written and oral submissions, and having investigated the details supplied by both parties, the Court is satisfied with the conclusions drawn by the Rights Commissioner that the employer was in breach of Sections 11 and 12 of the Act, in respect of daily rest periods and breaks. The Court is also satisfied that compensatory rest periods equivalent to the rest period and breaks provided for under Section 11 and 12 of the Act were not available to the appellant.
Accordingly, the Court upholds the decision of the Rights Commissioner and the Company's appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st January, 2004______________________
GB/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.