DWT1117

Background

The Respondent carries on business in the international road transport sector. The Claimant was employed by the Respondent as a truck driver from October 2005 until his employment ended on 6th September 2008. He complained that during the currency of his employment he was not afforded adequate breaks and rest periods in accordance with the Act and that he was required to work excessive weekly hours. The Rights Commissioner found that the Complaint was not well founded. The Claimant appealed against that decision to the Court.

Position of the parties

Claimant.

The Claimant contends that the Respondent contravened the Act in relation to him in three respects, namely: -

1. In failing to provide him with a daily rest period of at least 11 hours, contrary to s.11 of the Act
2. In failing to provide him with appropriate breaks at the intervals prescribed by s,12 of the Act,
3. In permitting him to work more than a average of 48 hours per week, contrary to s,15 of the Act.

Evidence of the Claimant

In evidence the Claimant told the Court that he took two 30-minute breaks per day, the timing of which was dictated by the requirements of his job. He said that he was never told that he should take a break after having worked for 4.5 hours. Nor was he told that he should have a rest period of 11 hours between finishing work and resuming work on the following day.

He said that the practice of the Respondent in allocating work was to communicate with him by text, giving him the time and place at which he was to deliver or collect a load. This, he said, dictated the time at which he had to commence work. According to the Claimant he drove to the location to which he was directed and undertook the preparatory work associated with loading or unloading the vehicle. This could take between 20 and 30 minutes. The loading and unloading was undertaken by the client. He said that he was required to remain with his truck while it was being loaded or unloaded so as to monitor the operation. He specifically denied that he could leave his vehicle during these times and spend his time as he wished.

In cross-examination the Claimant confirmed that he is a qualified international truck driver and is familiar with the law relating to his occupation, including the requirements relating to breaks. When asked if he was ever required to physically participate in the process of loading and unloading the vehicle, he said that when delivering animal foodstuffs to farmers he assisted in unloading the truck. It was put to the Claimant that the Respondent did not make deliveries to farmers.

In response to questions from members of the Court the Claimant said that he would normally drive to his assigned destination and he might then have a break if there was time available. He usually took breaks in the cab of the truck. He accepted that he had never raised a grievance with the Respondent in relation to the provision of breaks. He believed that had he done so his continued employment would have been in danger.

According to the Claimant when he arrived at his destination he removed the cover from the vehicle and it was then loaded or unloaded by the client's staff. He said that, contrary to what was claimed by the Respondent, he could not leave the vehicle while it was being loaded or unloaded, as he remained responsible for the vehicle. He accepted that the Respondent had never specifically instructed him to remain with the truck

In relation to the daily rest periods, the Claimant denied that on occasions on which he did not obtain the requisite rest it was his decision to resume work before the expiry of the 11 hour period since he last worked. He said that the work schedule with which he was provided dictated his starting and finishing times.

The Claimant said that on most days he got less than 11 hours daily rest before resuming work. He said that this pattern pertained during the last 12 months of his employment. He said that throughout his employment he worked considerably in excess of 48 hours per week.

The Respondent

The Respondent contends that having regard to the nature of its business a driver is responsible for organising his work so as to take the necessary breaks. It contends that the Claimant had adequate opportunities to take breaks in the course of his working day and the Respondent cannot be held liable if the Claimant failed to take breaks. It contends that during the working day there are significant periods of inactivity which cannot be regarded as working time. When these periods are discounted the Claimant's weekly working hours did not exceed an average of 48. With regard to the daily rest periods, it is the Respondent’s case that if the Claimant did not have sufficient time between finishing a shift and commencing work on the following day to avail of the required rest period he should have informed the Respondent and an adjustment in the work schedule would have been made.

The Respondent provided the Court with a document showing hours during which the Claimant was on duty, the hours which it is claimed are reckonable as working time, and the daily rest periods available to the Claimant. The data contained in this document related to the period commencing on 23rd June 2008 and ending on 6th September 2008. This document was supported by GPS records tracking the movement of the Claimant’s vehicle during the period covered.

The Respondent contends that any time during which the Claimant is not engaged in driving or in ancillary activity is not to be regarded as working time. According to the Respondent ancillary work, which is reckonable as working time, includes preparing the vehicle for loading or unloading, daily checks on the vehicle and fueling. The Respondent contends, however, that time spent waiting to have the truck loaded or unloaded, and other inactive periods, are not to be regarded as working time. In that regard the Respondent submitted that other inactive periods arise where a driver arrives at a location before the scheduled time for loading or unloading in consequence of which they have free time to spend as they chose.

Evidence of Mr Darren O’Sullivan

Mr Daren O’Sullivan, who is Operations Manager with the Respondent, gave evidence. The witness referred to the document put in evidence by the Respondent relating to the hours worked by the Claimant. This document showed that weekly hours, measured by the duration between the time at which the Claimant started work and the time at which he finished, exceed 48 hours per week by a significant margin on a regular basis. However, if as contended by the Respondent, periods of inactivity are discounted, the average working hours during this period did not exceed 48 per week. The document further shows that the daily rest period available to the Claimant, that is to say the period between finishing work on one day and resuming on the next, was frequently less than 11 hours. This witness did not compile the data in this document and was unable to assist the Court in respect to the details recorded.

The witness told the Court that the activities recorded in the document were all that was required of the Claimant during his employment. He said that the Claimant was required to drive to a given destination and to remove the cover from his truck so as to facilitate it’s loading or unloading. The Claimant had no role in the actual process of loading or unloading and was free to spend the time during which this activity was in progress as he wished.

According to Mr O’Sullivan the Respondent was entirely dependant on information relayed to it by drivers in ensuring compliance with the requirements relating to working hours and rest periods. He said that when a driver completes a job they are expected to ring him and they are always asked how much permissible driving time they have left. The remaining driving time then dictates what additional work, if any, is allocated.

The witness accepted that there were occasions on which the Claimant did not receive 11 hours daily rest but he suggested that this arose because he (the Claimant) chose to start work before the expiry of the requisite rest period. He said that all of the Respondent’s drivers are qualified and experienced international drivers who are expected to be familiar with the relevant legal requirements relating to working time. He said that they are expected to inform the Respondent if a situation arises in which they cannot undertake an assignment having regard to the relevant regulations.

In cross examination the witness told the Court that a driver could only drive for 4.5 hours and must then receive a 45 minute break after which he or she can then drive for a further 4.5 hours, giving a maximum driving period of 9 hours per day. The witness accepted that the document put in evidence by the Respondent showed that on occasions the Claimant’s driving time exceeded 9 hours. The witness also accepted that the Claimant was obliged to sign for a load before leaving a client’s premises. He said, however, that drivers were not expected to check everything that went into the truck and could sign for a load and indicate on the docket that the load was unchecked.

The witness confirmed that he relayed instructions to drivers by text message. These instruction usually contained a time at which the driver was expected to be at a particular location. He said that if the times given did not allow sufficient time to accommodate breaks it was the responsibility of the driver to so inform the Respondent.

The witness agreed that at the time material to the present complaint the Respondent did not maintain records showing compliance with the Act.

In response to questions from the Court the witness said that when work is being planned time is built into the schedule to allow drivers to take breaks. He repeated that the drivers are responsible for taking their breaks at the appropriate time. He also told the Court that if a driver informed him that they could not make a delivery in the time allocated without forgoing a break the delivery time would either be rebooked or the work assigned to another driver. The witness said that on the occasions on which the Claimant had not obtained 11 hours daily rest he had probably not told the truth concerning his finishing time when being assigned his work for the following day.

Mr O’Sullivan told the Court that the time taken to load or unload a truck varied considerable depending on a number of factors. He said that this operation could take from 15 minutes to over one hour. The witness was referred to the disparity between the Claimant’s hours of duty and hours of actual work as shown on the document put in evidence by the Respondent. He was asked to account for the gaps, which in some cases, amount to periods of up to four hours. The witness said that drivers often arrived early at their destination and would have free time before the vehicle was due to be loaded or unloaded. He suggested that this was the explanation for the gaps about which he was asked in relation to the Claimants work pattern.

The Claimant was recalled to give evidence on this point and told the Court that the only gaps in actual working time was when he was waiting with his truck to have it loaded or unloaded or while he was awaiting instruction on his next assignment

The Law Applicable

Both parties accept that the Organisation of Working Time Act 1997 is fully applicable to the Claimant and the Respondent. Two substantial issues of law did, however, arise for consideration relating to the allocation of the probative burden in the case, having regard to the provisions of s.25 of the Act, and the appropriate definition of working time for the purposes of the Act.

Burden of Proof

Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Failure to comply with this requirement, without reasonable cause, amounts to a criminal offence. However, no cause of action accrues to an employee by reason of his or her employer’s failure to maintain the requisite records.

Section 25(4) provides as follows: -

• (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Definition of Working Time

Section 2(1) of the Act contains the following definitions: -

“rest period”means any time that is not working time;

“working time”means any time that the employee is—

• (a) at his or her place of work or at his or her employer's disposal, and
  • (b) carrying on or performing the activities or duties of his or her work,

• • 1. In the case of a mobile worker: the time from the beginning to the end of work, during which the mobile worker is at his workstation, at the disposal of the employer and exercising his functions or activity, that is to say:
    
    the time devoted to all road transport activities. These activities are, in particular, the following:
    

• • -the times during which he cannot dispose freely of his time and is required to be at his workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where the foreseeable duration is not known in advance, that is to say either before departure or just before the actual period in question, or under the general conditions negotiated between the social partners and/or under the legislation of the Member State
    
    
    
    2. In the case of self-employed drivers, the same definition shall app y to the time from the beginning to the end of work, during which the self-employed driver is at his workstation, at the disposal of the client and exercising his functions or activities other than general administrative work that is not directly linked to the specific transport activity under way
    
    The break times referred to in Article 5, the rest times referred to in Article 6and, without prejudice to the legislation of Member States or agreements between social partners providing that such periods should be compensated or limited, the periods of availability referred to in (b) of this Article, shall be excluded from working time
    
    (b)“periods of availability”shall mean:

Conclusion of the Court

The Claimant alleges contraventions of the Act in respect of the Respondent’s failure to provide him with adequate breaks, failure to provide adequate daily rest and permitting him to work excessive weekly hours. The Court has reached its conclusions in relation to each of these heads of complaint by reference to the evidence adduced and by application of the applicable law.

Failure to Provided a Daily Rest Period of 11 Consecutive Hours in each Period of 24 Hours

The uncontested evidence before the Court disclosed that the Claimant regularly commenced work before the expiry of an 11-hour period since he last worked on the previous day. The Respondent’s defence to the complaint under this head is that the Claimant was himself responsible for any transgression by not informing the Respondent that the starting times assigned to him would result in a contravention of the Act.

The question of whether the Working Time Directive, from which the Act of 1997 is derived, imposes an obligation to provide workers with the opportunity to take breaks or a positive obligation on an employer to ensure that the breaks are actually taken was recently considered by the ECJ in Case C-484/04,Commission v United Kingdom [2006] IRLR 888.

This case concerned guidelines issued by the UK Authorities on the application of statutory provisions equivalent to the Act of 1997. These guidelines provided that “employers must make sure that workers can take their rest, but are not required to make sure they do take their rest”.The Commission brought proceedings against the United Kingdom claiming that in issuing these guidelines it had failed to fill its obligation to effectively implement the Directive. The Court held that the impugned guidelines amounted to an incorrect statement of Community law. In explaining the nature of the obligation imposed by the Directive Advocate General Kotott pointed out (at par 69 of her opinion) that it is for the employer to actively see to it that an atmosphere is created in which the minimum rest periods prescribed by Community law are effectively observed. This, she pointed out, requires that within the employment appropriate rest periods are actually scheduled.

In it’s Judgment the Court held as follows: -

• Workers must actually benefit from the daily and weekly rest periods provided for by Articles 3 and 5 of the Directive. Those provisions impose clear and precise obligations on the member states as to the result to be achieved by such entitlement. A member state which, in the national measures implementing the Directive, provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights, indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights, does not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 or the essential objective of the Directive, which is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled

Failure to Provide Adequate Breaks

The evidence given by the Claimant was to the effect that he received two 30 minute breaks per day. There was no evidence tendered as to the times at which these breaks were taken or as to the intervals of these breaks. As the evidence before the Court does not disclose a breach of s.12 of the Act the complaint under this head is not well founded.

Weekly Working Hours

The issue arising under this heading is whether periods of inactivity during the Claimant’s working day are to be regarded as working time within the meaning given to that term by Article 3 of Directive 2002/15/EC. That question turns on whether, during the periods of inactivity, the Claimant could leave his workstation and was free to dispose freely of his time. In that regard it is noteworthy that Article 3 (a) 1. provides that periods awaiting loading or unloading, where the foreseeable duration is not known in advance, are to be regarded as working time.

The Claimant’s evidence was to the effect that at all material times he was required to remain with his truck and to monitor the loading and unloading of goods. He told the Court that there were no periods during a typical working day in which he could leave his vehicle and dispose freely of his time. Mr O’Sullivan told the Court that the time taken to load or unload the truck was not foreseeable and varied greatly depending on a range of factors. While Mr O’Sullivan did suggest that there were periods during a typical day in which the Claimant could park his truck and dispose of his time as he wished, no specific examples of such occurrences were provided. It is noted that the Claimant expressly rejected this suggestion when recalled to give evidence on this point.

As previously found, the Respondent bears the legal burden of proof in this case by operation of s.25(4) of the Act. Consequently it is for the Respondent to prove that the periods of inactivity were such as to come within the purview of Article 3(b) of Directive and so fall outside the definition of working time. In the Court’s view the evidence adduced by the Respondent does not go far enough to discharge that burden. Accordingly the Court must hold that the Respondent contravened s.15 of the Act in relation to the Claimant.

Determination

For all of the reasons set out herein the Court finds that the Respondent contravened sections 11 and 15 in relation to the Claimant in the six month period prior to the date on which his complaint was referred under the Act. The Court finds that s.12 was not contravened in this period. The appeal is therefore allowed in respectof Sections 11 and 15 of the Act.

The Court is satisfied the appropriate redress is an award of compensation. The Court measures the amount of compensation which is just and equitable in all the circumstances at €7,500. The Respondent is directed to pay the Claimant compensation in that amount.

No part of the award is in respect of pecuniary loss.



Signed on behalf of the Labour Court



Kevin Duffy
7th February 2011______________________
AHChairman



NOTE

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