DWT0734

The specific allegations were that the respondent (a) was in breach of Section 12 of the Act in not ensuring that the claimant took breaks in accordance with the provisions of that section of the Act, (b) did not pay the claimant the correct holiday pay and (c) did not notify the claimant of changes in finishing times regarding requirements to work overtime, in breach of section 17 of the Act.

In her decision dated 2nd September 2006, the Rights Commissioner found that the correct holiday pay had been paid to the claimant, that the break periods provided by the respondent could reasonably be regarded as adequate under Sections 11,12 and 13 of the Act and that the claim that insufficient notice was given of changes in finishing times and/or the requirement to work additional hours contrary to S17 of the act was well founded. She ordered the respondent to pay the sum of €1000 to the claimant.

The claimant appealed the decision to the Court on the 16th November 2006 on the grounds that,

(a) he did not receive appropriate rest periods.

(b) he did not receive the correct holiday pay

(c) he did not receive adequate information on finishing times/extra attendance under

Section 17 and that in any event

(d) the amount awarded to him in compensation was insufficient.

Labour Court hearings took place on 8th March ,29th June, 2007 and the 12th November 2007.

POSITION OF THE PARTIES

CLAIMANT/APPELLANT:

3 (1) The claimant was not afforded the correct entitlements with regard to rest breaks. As a mobile worker, it was not always possible to take breaks at the correct times and as a result of that and the needs of the business, breaks were regularly not taken.

(2) The Respondent did not provide the appropriate information to the claimant in relation to changes in finishing times when working overtime.

This, it was alleged by the claimant, constituted a clear breach of the provisions of Section 17 of the Organisation of Working Time Act, 1997.

(3) The Respondent also failed to pay the correct holiday pay to the claimant. (This was not pursued in argument at the hearing).

RESPONDENT:

4 (1) The Respondent provided adequate rest breaks and facilities to the claimant while he was in its employment. Due to the nature of the business it was not always possible to take breaks at the agreed time. The Respondent did, however, make every effort to ensure that workers knew of their entitlements with regard to breaks and that the breaks were taken whenever possible. Furthermore, as the claimant was involved in mobile work, the Respondent was exempt from applying Sections 11,12,13,15 and 16 of the Act as provided for by the Organisation of Working Time Act, (Exemption of Transport Activities) Regulations 1998 (S.I. 20 of 1998).

(2) The Respondent gave notice of changes in finishing times in advance of any overtime working. There were never any complaints submitted by the claimant that he had to work overtime. He was well aware that overtime was an essential part of the business.

(3) The issue of the provision of information with regard to overtime working has already been heard by the EAT, which found that the claimant had been furnished with a contract of employment which dealt with the relevant issues and that the respondent company had complied with the terms of the contract.

(4) The payment of holiday pay was correct. It was calculated on the basis of the normal weekly rate.

DETERMINATION:

Mr Murphy, a representative of the respondent Company, who was the Claimant's

direct foreman, gave evidence at the hearing as did the worker/claimant.

Mr Murphy (the company representative) gave evidence that workers were aware of the times of breaks.

He said that opportunities to take such breaks occurred, albeit not at the exact times, owing to the exigencies of delivering loads of wet concrete, but that the worker would generally have been able to avail of such opportunities.

He would have been aware of others taking breaks and had been told his entitlements, which were also set out in his contract of employment.

Mr Murphy agreed that records of breaks were not kept by the respondent and that he did not have direct knowledge of whether the complainant took the breaks due to him.

The complainant told the Court in evidence that he worked for the respondent as a truck driver. His duties involved delivering loads of concrete to various locations. His normal working hours were from 8am to 5.30pm. He disagreed with the respondent's evidence saying he could only take breaks either in his vehicle or at irregular opportunities between jobs when his truck was being loaded or unloaded. This did not usually occur and in particular he had no recollection of ever having got an afternoon break. The breaks taken in his truck were irregular and unstructured and were often cut short as he had either to go out with a load of concrete or go back to base to collect one. The Court has considered the submissions of both parties, as well as the oral evidence given and determines as follows:

The respondent failed to maintain records in relation to the claimant's working time as is required by S.I. No. 473 of 2001 : Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations2001. Section 25(4)of the Act provides,in effect, that where records are not kept in the prescribed form, the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with inrespect of the claimant, rests on the employer.

The Respondent submitted that the claimant was a mobile worker and was therefore exempt from the general requirements of the Act in relation to breaks.

The Court accepts that this submission is correct. However the claimant's employment did come within the ambit of the Organisation of Working Time (inclusionof Transport Activities Regulations) 2004. Article 7 of the Regulations provides as follows:-

If a mobile worker is not entitled, by reason of an exemption under Regulation 6, to the rest period and break referred to in sections 11, 12, and 13 of the Act, the employer shall ensure that such a mobile worker has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as adequate rest.

It appears to the Court that this provision imposes a positive duty on an employer to whom the Regulations relate to so organise the work of workers covered by the Articlethat they have real opportunities to avail of adequate breaks during their working day.

In evaluating the evidence adduced as to the opportunities for breaks available to the claimant the Court prefers his evidence to that of the Respondent.In particular the Court accepts that the claimant's work was so organised as to leave him with little or no practical opportunity to take adequate breaks.

The scheduling of the claimant's deliveries did not any include provision, in practice, for the taking of breaks and, having regard to that scheduling, the provisions relating to breaks in his contract of employment were illusory. The duty to provide breaks is a health and safety imperative which has been characterised as a fundamental social rightin European law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union[2001] I.R.L.R. 559 which were quoted with approval by Lavan J. inRoyal Liver Assurance Limited v Mackin & OthersHigh Court unreported 15th November 2002). It is, in the Court's view, insufficient for an employer to merely provide in a contract of employment that an employee is entitled to breaks at a specified time and thenput in place working arrangements which make the exercise of that entitlement difficultor impossible.

In the circumstances of the instant case the Court is of the view that the employer should have ensured that there was sufficient time between deliveries so as to accommodate the claimant in taking breaks. The Court is satisfied on the evidence that the respondent failed in this duty.

Accordingly the Court is satisfied that the claimant is entitled to succeed in this aspect of his appeal.

Holiday Pay:

This aspect of the appeal was not actively pursued by the claimant at the hearing. Accordingly the Court affirms the Decision of the Rights Commissioner which held that it was not well founded.

Provision of information in relation to working times:

The Rights Commissioner in her Decision said:

• "I find that contrary to the provisions of S.17 of the Act, the Respondent failed to give the claimant the required notice of changes in finishing times and/or the requirement to work additional hours. I declare that the complaint in relation to S. 17 is well founded and order the respondent to pay the complainant compensation in the sum of €1000."

(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.

(2)If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as "additional hours") the 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 that week on which he or she proposes to require the employee to work all or as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or as the case may be, the day or days concerned, of that week.

Despite the fact that the parties argued this question under S17(1) of the Act at the original hearing, with reference to the fact (as found by the Employment Appeals Tribunal) that the claimant's contract of employment specifies hours of work, including normal starting and finishing times, a plain reading of the Rights Commissioner's Decision makes it clear that she found against the respondent under Section 17(2) of the Act, regarding adequate notice of overtime.

At a further hearing the respondent argued that overtime was rostered and predictable in the short-term and that this roster was posted up in the canteen. It was argued for the claimant that the notice given was usually much shorter than that and if there were records, either by way of pinned up roster or by clock cards, they could and should have been produced.

It was agreed that if such records could be found, they would be forwarded to the Court. No such records were forwarded to the Court.

The Court does not find that the claimant has established a case for increasing the Rights Commissioner's award which, however, should stand given the Respondent's failure to produce records.

DETERMINATION

The Court is satisfied that the respondent contravened the Act in not affording the claimant adequate breaks.

The Court is further satisfied that the other aspects of the complaints herein are notwell founded.

The Court determines that the respondent pay the claimant compensation in the amount of €1,750 in respect of the contravention of the Section 12 of the Act which occurred, in addition to the €1,000 already awarded in respect of alleged breaches of S17 of the Act, thus making a total award of €2,750.

The decision of the Rights Commissioner is varied accordingly.



Signed on behalf of the Labour Court



Raymond McGee
22nd February 2008______________________
AHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.