FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE AMBULANCE SERVICE (REPRESENTED BY HSE) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Recommendation Of A Rights Commissioner R-073466-Ir-08
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of its member that his employer failed to provide him with a safe system of work. The worker commenced his employment with the HSE National Ambulance service in November, 2006. He was employed in a non rostered position and was stationed at a number of locations to provide cover where vacancies arose. He was required to provide an on-call service as part of his duties. The Union contend that the hours of work were excessive for its member. The Employers position is that the worker's deployment to various stations was in accordance with agreed procedures in the ambulance service.
The matters were referred to a Rights Commissioner for investigation and recommendation. On the 23rd July, 2009 the Rights Commissioner issued the following Recommendation:
"I find no evidence to support the complaint. I therefore recommend that no further action is required in this matter"
On the1st September, 2009, the Union appealed the Rights Commissioner's Recommendations to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 12th October, 2010.
UNION'S ARGUMENTS:
3. 1 The system of work put in place by the HSE in respect of the worker's roster led to him becoming ill, suffering from exhaustion and stress. The hours of work he was rostered for were excessive and arduous.
2 The Union contends that the idea of being on duty for periods of up to 48 hours at a time and safely driving a large vehicle at high speed in an emergency situation are mutually exclusive.
COMPANY'S ARGUMENTS:
4. 1 The worker was not required to work excessive hours and nor was he subjected to an unsafe system of work.
2 The worker could be assigned to any ambulance station within the HSE Mid Western region to provide relief cover for vacancies arising due to sick leave, annual leave etc. His deployment was in accordance with agreed procedures in the ambulance service.
DECISION:
The case before the Court concerns the worker’s contention that the employer did not provide him with a safe place of work as he was required to work excessive hours, in breach of the Organisation of Working Time Act 1997 (the Act). The Complainant has since left the employer’s organisation.
The Complainant also presented a complaint before a Rights Commissioner pursuant to Section 27 of the Act claiming that he did not receive his daily rest and meal break entitlements, he also claimed that the hours he was required to work were excessive and in breach of the Act. The Rights Commissioner and the Labour Court on appeal found that his complaints were statute barred as he did not comply with the requirements in Section 27(4).
The Union on behalf of the worker submitted that the central issue in this case is whether or not the roster pattern required of the Complainant was compatible with the fundamental requirement placed on the employer, under the terms of the Safety, Health and Welfare at Work Act, 2005 to provide a safe place of work.
The Organisation of Working Time Act 1997 governs the minimum rest periods and other matters relating to working time. The Safety, Health and Welfare at Work Act, 2005 deals with the protection of the safety, health and welfare of all persons at work, for which the Labour Court has only limited jurisdiction (penalisation claims).
In its consideration of the complaints under the 1997 Act the Court was confined to dealing with complaints relating to a six-month period prior to the bringing of the complaint. Under the Industrial Relations Acts, the Court is not so confined.
The Complainant was employed to provide relief cover for absent EMT’s and accordingly was rostered to work in different Ambulance Stations at various times. On each occasion, while he remained at base, the Complainant was rostered to cover the duty of the absent EMT’s including on “on-call” hours. The complaint relates to the period he was based at the Ennistymon Ambulance Station, on relief cover.
Having examined the details supplied relating to the rosters the Complainant was required to undertake while providing temporary relief cover at the Ambulance Station in Ennistymon for the period 11th February 2008 until 28th May 2008, the Court notes the following:
•The Complainant worked a total of 36 days in 3 ½ months.
•The Complainant’s rostered duty hours were generally from 8.00am until 7.00pm and “on call” from 7.00pm until 8.00am.
•The total number of hours on duty and “on call” during the period was 794 hours, an average of just over 51 hours per week.
•The Complainant’s average hours worked including duty hours and hours spent responding to calls in the period were just over 13 hours per day, the remainder of the time was spent at rest while based at the station.
Under the Organisation of Working Time Act, 1997 the Complainant is entitledinter aliato a daily rest period of not less than 11 consecutive hours in each period of 24 hours, to meal intervals and to work no more than an average of 48 hours in a reference period.
The Act provides for the granting of compensatory rest or appropriate protection to those activities exempted by regulation, collective agreement, registered employment agreement or employment regulation order where because of the exemption or collective agreement or emergencies or unforeseeable circumstances, employees cannot avail themselves of the rest or break periods provided.
By S.I. No 21 of 1998 the Minister introduced Regulations exempting certain activities from the provisions of the Act.
As an EMT the worker’s job constituted one of the activities exempted by S.I. No 21 of 1998 consisting as it does of activities involving the need for continuity of service particularily related to the treatment and/or care provided by hospitals. If the rest periods are not available in compliance with the Act then there is an obligation on the employer to provide for equivalent compensatory rest to be taken,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 period and break.
S.I. No. 44 of 1998, the Code of Practice on Compensatory Rest provides further guidance as to what may be appropriate rest period and states that equivalent compensatory rest should be given as soon as possible after the statutory rest has been missed out on.
It is clear that it is up to the employer to decide what is the appropriate compensatory rest period taking into account the circumstances pertaining in the individual place of employment and the health and safety requirements for adequate rest.
The question of whether or not the Complainant’s rostering arrangements are compatible with the Organisation of Working Time Act, 1997 is not a matter for consideration under the Industrial Relations Acts. The Court has been provided with detailed information regarding his duty hours and on call hours during the 3 ½ month period while he was based at the Ennistymon Ambulance Station. This indicates in accordance with the agreed rosters he worked an average of 51 hours per week during that time. As the legislation allows for a reference period of six-months in the case of
- “activities involving the need for continuity of service or production,"
In all the circumstances of this case, the Court cannot concur with the Complainant’s contention that the employer did not provide him with a safe place of work, he was required to work the same roster as those he was covering for in their absence, these were agreed rosters (including the “on-call” duty) and due to the special provisions provided for Ambulance services, the Court cannot find that the employer was in breach of any statutory provisions.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th November, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.