FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CELTIC TUGS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) AND SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision WT18578/04/MR to WT18588/04/MR.
BACKGROUND:
2. The Company operates the towage service for shipping entering the Shannon Estuary servicing the ESB, Aughinish Alumina and Foynes Port Facilities. It operates three tugs out of Foynes Harbour which are crewed by the 11 workers involved in the claim. The workers operate a system of two weeks on / two weeks off on a rotational basis i.e. they work 26 weeks on per year, with 26 weeks off. The dispute concerns the four weeks annual leave that the workers are entitled to under the Organisation of Working Time Act, 1997. Basically, the position of the parties is that the Union believes that the four weeks should be taken from the 26 weeks the workers are on duty, whereas the Company believes the four weeks should be taken from the 26 weeks they are off (the workers can report for additional duties during the 26 weeks they are off but they are not obliged to). Week 1 on duty requires an employee to be available 24 hours per day for a 7-day period. Week 2 has the same requirement with the exception that should a crew member leave the vessel he must be available to return within a 4 - hour period.
The dispute was referred to a Rights Commissioner and his decision was as follows:
"In accordance with Section 27(3) of the Act, I hereby declare that this complaint was well founded and accordingly I now require the employer to amend the contracts of the claimants, with effect from 1st January, 2005, so as to allow each of them 4 weeks paid annual leave in a leave year, this annual leave to be taken, by arrangement, during periods when the employee is rostered to attend for work.
As regards the question of retrospection, all of the eleven claims before me, although dated 29th August, 2003, were received by the Labour Relations Commission on 10th February 2004.
Given the terms of Subsections 4 and 5 of Section 27 of the Act, I have concluded that the only periods for which I can consider making a retrospective award are 2003 and 2004. Accordingly, I now require the employer to pay each of the claimants 4 weeks pay in respect of each of those years, subject in each case to the claimant having been in the Company's employment for the relevant period".
The Company appealed the decision to the Labour Court on the 25th of January, 2005, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 27th of April, 2005, in Limerick.
COMPANY'S ARGUMENTS:
- 3. 1 The workers' terms and conditions of employment were clearly explained to them when they were recruited.2. The 26-week period off is referred to as a "rest period". In the case of the Company this rest period is clearly stated in the contract of employment as being 26 weeks to include statutory holiday entitlements.
3. If the Rights Commissioner's decision is upheld it will fundamentally change the basis of sea-going rosters in the Company and elsewhere in the industry. It will change crewing ratios for worse especially at a time when the industry is struggling to compete with foreign crews.
4. If the complainants' annual leave is taken from the 26 weeks they are rostered on this would result in them working 22 weeks on and 30 weeks off. This would give a crew ratio of 2.36 whereas the crewing ratio norm is currently 2 or less.
5. The reason for so much rest period in the shipping industry - 22 weeks plus 4 weeks' annual leave - is to compensate for the long hours attached to the ship. It follows that time given off as compensation must be considered as part of "the working week".
UNION'S ARGUMENTS:
4. 1. The working arrangements do not provide for the annual leave requirement set out in the Working Time Act. The reality is that the workers do not receive holidays.
2 The Act provides for paid leave from working time. The current situation is that the employees cannot take holidays during the periods when they are rostered to work on either first or second duty.
3. The workers concerned have not had annual leave for the last four years.
4. Under the British Merchant Shipping hours of work regulations 2002, which is based on an EU Directive, it is specified that annual leave will be separate from and in addition to periods of rest and compensatory leave. The same principles should apply to the workers concerned.
DETERMINATION:
It is not the intention of the Act that one type of rest period can or should be substituted for another. Therefore annual leave ("annual rest") cannot be substituted for weekly (or daily) rest periods. The workers have an absolute primary right to annual rest before any other working patterns or rest periods are taken into account.
The Court therefore, is of the view that the 4 weeks annual leave period be first deducted from the 52 weeks of the working year and the remaining 48 weeks be divided into 24 weeks on and 24 weeks off (while still available on a call-out / on-call basis).
The Court so decides and varies the Recommendation of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
21st June, 2005______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.