FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FLS AEROSPACE (IRL) LTD - AND - FLSA CRAFT GROUP OF TRADE UNIONS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's decision WT15211/03/JH
BACKGROUND:
2. The issue before the Court is an appeal of the Rights Commissioner's Decision WT15211/03/JH under the Organisation of Working Time Act, 1997 and concerns the application of certain sections of the Act to employees in the Aircraft Overhaul Department of FLS Aerospace (Ire) Ltd. A Rights Commissioner's hearing took place on the 5th December, 2003 and the 15th January, 2004 and her decision was issued on the 19th February, 2004 as follows:
"I propose in the first instance to deal with those employees engaged in the turn around of aircraft. In respect of this group I am satisfied that S.I. No. 20 of 1998 applies to these workers. This decision is based on the facts,as accepted by both sides, that the workers involved must provide that service at an airport, that the immediacy of the work is such that it meets the requirements of section 2 of the schedule in that it is required for the purpose of the transport timetable, it is the same activity that is carried on for the purpose of ensuring the continuity or regularity of any service which provides a means of transport referred to paragraph 1 of the schedule; and/or for the purpose of ensuring the safety of such a means of transport.
In respect of the remaining employees (maintenance engineers) represented by the trade unions I do not accept that Statutory Instrument No. 20 of 1998 or No. 21 of 1998 apply....... I do not accept that the maintenance workers at FLS are engaged in a transport activity as specified in the Directive. In further support of my decision I would cite article 17 (derogations) where it is stated that Member States may derogate from articles 3,4,5,8 and 16 in the case of specified workers. (Section 2.(1)(c)(ii) dock or airport workers). I accept the Union contention that the workers employed in aircraft maintenance who are party to this complaint are not airport workers.......
Based on all of the foregoing I find that the claimants as represented by their trade unions have a valid complaint in respect of the decision of FLS to apply the exemption clauses in S.I. No. 20 and No. 21 to employees engaged in aircraft maintenance and not engaged in aircraft turn around. FLS is now required to put in place working time arrangements in respect of workers employed in aircraft maintenance to comply with the Organisation of Working Time Act, 1997. These arrangements to be put in place no later than the end of April 2004".
The Company appealed the Rights Commissioner's Decision on the 24th March, 2004, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Company believes the Rights Commissioner erred in her decision that Statutory Instrument No. 20 of 1998 and No. 21 of 1998 do not apply to aircraft maintenance employees in FLS Aerospace. A Labour Court hearing took place on 7th July, 2004. The following is the Court's Determination:
DETERMINATION:
This is an appeal by FLS Aerospace (IRL) Limited against a decision of the Rights Commissioner WT15211/03/JH. The case concerns:
- i Craftsmen employed in Line Maintenance by the appellants. These are craftsmen working directly on the aircraft at the runway with a view to turning these aircraft around as quickly as possible. The question posed was whether these craftsmen were covered by the Organisation of Working Time (Exemption of Transport Activities) Regulations, 1998, S.I. No. 20 of 1998 (S.I. 20) i.e. those regulations give exemption from the provisions of Sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997 (The Act) for all persons involved in activities connected with air transport. The Rights Commissioner’s decision was that these workers were covered by the provisions of the Regulations and accordingly could not rely on the Act. That decision has not been appealed.
ii. Craftsmen employed in Maintenance Engineering in the Aircraft Overhaul Department. Most of these craftsmen’s work consists of the servicing of planes, which have been removed from service. The work is conducted in hangers adjacent to the airport. On occasion the craftsmen are also required to attend aircraft in service, on the runway. The question posed was whether these craftsmen are exempt from the provisions of the Act by reason of S.I. No 20 of 1998 or, if not, whether they could be classified as persons providing services at a harbour or airport within the meaning of the Organisation of Working Time (General Exemptions) Regulations 1998, S.I. No 21 of 1998. In her decision the Rights Commissioner found that these workers were not covered by either the provisions of S.I. No 20 of 1998 or S.I. 21 of 1998. and accordingly could avail of the full protection afforded to them by the Act. It is that aspect of the Rights Commissioners decision, which the company has appealed to this Court.
The employer is engaged in the maintenance of aircraft and is a Maintenance Repair Organisation (MRO) based at Dublin Airport. Its airline customers’ ability to operate their flight timetables is directly dependent on its service levels. The Aircraft Overhaul Department is involved in the maintenance of aircraft at all levels. It provides on-site component support alongside dedicated airframe workshops. The Line Maintenance Department is based on the ramp at Dublin Airport and provides a turnaround service, including routine inspections, aircraft pushbacks and minor check ups. Aircraft Overhaul work is carried out in all hangars and workshops. Primarily it includes light and heavy maintenance programmes on aircraft including inspections, safety checks, repairs and modifications. There are approximately 350 employees involved in aircraft overhaul. The work is mostly preplanned/scheduled, out of service work. A variety of shifts operate giving 24-hour 7-day coverage. Aircraft needing overhaul/maintenance are towed from the airport into the hangars. The company occupies six hangars and ancillary buildings stretching over 700 meters along the north aprons at Dublin Airport.
The employees who are associated with this appeal are employed by the employer as Maintenance Engineers in the Aircraft Overhaul Department.
Company Arguments
Detailing the nature of the business, the company stated that:
(i) line maintenance work needs to be completed in a specific tight timeframe so that aircraft can be returned to service in order to meet the flight departure times.
(ii) aircraft “down-time” is built into the airlines’ timetable and it is crucial that FLSA meet the deadlines to avoid major disruption to flight timetable and passengers.
(iii) delays in completion of the work carry very severe financial penalties. As ‘non routine’ (i.e. unplanned) work can add considerably to the man-hours expended on a maintenance check, the company say that the flexibility provided by S. I. No: 20 of 1998 is essential.
(iv) maintenance engineers also carry out an increasing amount of maintenance repair and service at foreign airports by ‘maintenance repair teams’ generally supplied by Aircraft Overhaul. This is a 24/7 emergency requirement.
Without prejudice to its position on S.I. No. 20 of 1998, the company maintains that if the maintenance engineers are not covered by S.I. No 20 of 1998, then in any event they are covered by S.I. No. 21 of 1998. It holds the view that these employees are wholly or mainly involved in the provision of a service at an airport. This work must be performed at the airport as the runways and taxiways of the airport are required for the aircraft to access the maintenance hangars, and for security reasons also.
Employees in aircraft overhaul must have the same overall technical qualifications as employees in line maintenance. It is a normal and frequent operational requirement for employees from aircraft overhaul to transfer to line maintenance during busy periods.
The company says that minimising “down-time” is a key area in gaining competitive advantage for an MRO like FLS Aerospace.
Unions Arguments
The Unions hold the view that FLS Aerospace is not exempt from compliance with the Organisation of Working Time Act, 1997.
It does accept that the craft workers in Line Maintenance are engaged in turnaround activity that provides a service to a means of transport and are therefore covered by S.I. No. 20 of 1998, as decided by the Rights Commissioner. This decision was not appealed. However, the Unions strongly opposed the company’s view that all of the remaining craftworkers were also exempt.
The Unions contend that maintenance work carried out in other sections, Component Repair and Aircraft Overhaul could be carried out in any location and did not necessarily have to be located at the airport. The Unions do not accept that all workers within the transport sector are exempt from the Act. Referring to the imminent legislation to give effect to Directive 2000/34/EC and citing from the EU White Paper on the sectors excluded from the Directive, the Unions point to the reference in the Commission’s statement:
“the test should relate to the nature of the activity, not to a definition of “sector” in which the employee works”.
The Law
Article 1 (3) of Council Directive 93/104/EC (The Directive) states:
This Directive shall apply to all sectors of activity, both public and
private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training.
The transport activities exemption was transposed into Irish Law by means of S.I. No 20 of 1998.
S.I. No 20 of 1998 covers: -
1. an activity consisting of or connected with the operation of any vehicle, train, vessel, aircraft or other means of transport (whether of goods or persons) other than any activity of a person holding a position of an administrative, managerial or clerical or nature that is not directly related to the operation of such a means of transport.
2. an activity that is carried on :a. for the purpose of the transport timetable, that is to say an activity that is carried on for the purpose of ensuring the continuity or regularity of any service which provides a means of transport referred to in paragraph 1 of the Schedule, or
b. for the purpose of ensuring the safety of the means of transport, other than any activity of a person holding a position of an administrative, managerial or clerical or nature that is not directly related to the doing of the things required to be done for either such purpose.”
All these activities are exempt from the provisions of The Act relating to rest periods, weekly and nightly working hours.
Article 17 (2.1) allows derogations from Articles 3, 4, 5, 8 and 16, provided that the workers are granted equivalent periods of compensatory rest or, in exceptional cases, where it is not possible for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection:
- (c) in the case of activities involving the need for continuity of service or production, particularly:
- (ii) dock or airport workers
Among the activities exempted are, at paragraph 3(b)(ii) of the Schedule to the regulations, the provision of services at a harbour or airport.
The scope of the regulations was considered by O'Sullivan J. inCoastal Line Container Terminal Ltd v. Services Industrial Professional Technical Unions [2000] E.L.R. 1.The learned High Court judge held that S.I. No 21 of 1998 was clearly intended to apply to dock or airport workers as set out in Article 17 of the Directive when it referred, in paragraph 3(b)(ii) of the Schedule, to those engaged "in the provision of services at a harbour or airport". Consequently the Labour Court had been correct in determining that terminal operatives driving cranes and other such equipment for the purpose of loading or unloading vessels at a facility operated by the company at Dublin Port were not employed in a transport activity but were employed in the provision of services at a harbour and thus were covered by S.I. No 21 of 1998 as opposed to S.I. No. 20 of 1998.
Findings of the Court
The first question the Court must consider is whether the workers concerned in this case come within the scope of S.I No 20 of 1998. Since the decision in theCoastal Line Containerscase the position of non-mobile workers in the transport industry has been considered fully by the European Court of Justice inBowden and Others V Tuffnells Parcels Express Limited Case C-133/00.
In that case three part time clerical workers employed by the defendants, a major parcel delivery service, sought paid leave pursuant to the provisions of the UK Working Time Regulations. Although full-time clerical workers received paid holidays, as part-timers, the applicants had no contractual entitlement to paid leave. They were refused on the grounds that Regulation 13, which gives all workers a general right to four weeks’ paid annual leave, did not apply to certain transport sectors of activity namely “air, road, sea, inland waterway and lake transport, sea fishing, other work at sea”. As they were employed in the road transport sector of activity they were refused. They subsequently brought a claim.
The Employment Appeal Tribunal was of the view that;
(a) on the one hand a literal interpretation of Article 1(3) of the Directive [as implemented in this jurisdiction by the Act and S.I.No 20 of 1998] supports the conclusion that the exclusion applies to all workers in the road transport sector including non-mobile workers. That view was supported by the opinion of a number of responsible Community Bodies to the effect that a formal amendment was required before such workers could be covered by the Directive.
(b) on the other hand a conclusion which results in a huge number of workers being excluded from benefits freely available to colleagues in other sectors by reference to no scientific or social considerations and if for any political or economic reasons at all, only for dubious one, was so unattractive it may never have been intended.
The EAT raised a series of questions the most important of which were;
1. If in the course of interpreting national laws in the light of the wording and purpose of the directive a national court encounters a broad purpose but also in the same provision a wording destructive of that broad purpose, is the national court entitled to apply their national laws to the facts of the particular case so as to give effect to the broad purpose, notwithstanding the clarity of the wording which appears to exclude that purpose, or to put it in a more practical fashion
2. Are all workers in the road transport sector of activity referred to in Article 1 (3) excluded from the scope of the Directive.
The European Court of Justice answered by stating that all workers in the road transport sector of activity including non-mobile ones are covered by the terms of Article 1(3). It did not however address the question of the interpretation of the Directive.
Both the Act and the Regulations were enacted to transpose European Directives. In interpreting this type of legislation the courts have, where necessary, developed an approach known asteleological or purposive construction.
Advocate General Tizzano in his opinion in Tufnell gives some guidance as to how this approach should be adopted.
At paragraph 29 and 30 he states …….
- “the departure point of the interpretation of a provision must be its literal sense, followed by an analysis of the terms used in their ordinary sense. That is to say by reference to the meaning which the words used have in ordinary language”.
- “It is often the case however that a literal interpretation of the text is not by itself always sufficient to solve the problem of interpretation; help is then provided by the further interpretative criterion normally used by the Court.In particular ……. every provision of Community Law must be placed in its context and interpretedin the light of the provisions of Community Law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.”
At paragraph 35 he states:
- “…….the exclusion laid down by the provisions cover specific activities carried out in a particular sector…… it is intended to cover entire sectors of activity, seen as a whole, and therefore extends to all workers in the sector under consideration.
“all workers employed in the [road] transport sector, including office staff, are excluded from the scope of the Directive”.
- “…….the exclusion laid down by the provisions cover specific activities carried out in a particular sector…… it is intended to cover entire sectors of activity, seen as a whole, and therefore extends to all workers in the sector under consideration.
- " While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole."
The wording of S.I. No 20 of 1998 differs from that of the Directive. It does not refer to sectors of activity. S.I. No 20 of 1998 excludes from the provision of the Act an activity connected with the operation of any aircraft and or an activity that is carried on for the purpose of ensuring the safety of such a means of transport other than any activity of an administrative managerial or clerical nature not directly related to the operation of such a means of transport.
It appears to this Court that in order to accept the Unions contention, it would have to define the word activity as meaning all employees employed in a company the main purpose of which is the provision of air transport and performing an activity carried on for the purpose of ensuring the safety of the aircraft.
This, the Court is not prepared to do. The ordinary plain meaning of the word is clear and if such an alternative interpretation had been desired, it could have been inserted in the instrument. Where the ordinary meaning is clear, the Court must follow the words of the Statute or Regulations. The Court, therefore finds that the maintenance engineers are both performing an activity connected with the operation of an aircraft and an activity carried on for the purpose of ensuring the safety of the aircraft and therefore are exempt from the application of Sections 11, 12, 13, 15 and 16 of the Act as provided in paragraph 3.1 of S.I. No 20 of 1998.
Since the question as to whether the workers concerned are covered by the provisions of S.I. No 21 of 1998 is now moot, there is no reason for the Court to address that question.
Determination
It is the Determination of the Court that the complainants (Maintenance Engineers) are covered by the Organisation of Working Time (Exemption of Transport Activities) Regulations, 1998 (S.I. No. 20 of 1998) but are not covered under the Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998) and are therefore exempt from the provisions of Section 11, 12, 13, 15 and 16 of the Act. However the Court further notes that this decision may be rendered moot when the provisions of Directive 2000/34/EC, bringing all non mobile workers carrying on activities within the transport sector within the protection provided by the Working Time Directive, and which should have been implemented by August 2003, come into force. The Court strongly recommends that the parties enter into discussions in relation to the provision of rest periods to the workers affected by this determination.
The decision of the Rights Commissioner is set aside and the appeal is allowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th_September, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.