FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FLEXSOURCE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SAULIUS KARALIUNAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-123107-wt-12/JW.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 10th July 2012 and the following Decision was issued on the 23rd August 2012:
- "As the [Worker] did not attend the hearing these complaints fail for lack of prosecution."
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 14th September 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 30th January, 2013.
DETERMINATION:
This is an appeal by Saulius Karaliunas (the Claimant) against the decision of a Rights Commissioner in his claims against Flexsource Limited (the Respondent) under the Organisation of Working Time Act 1997 (the Act).
The Claimant contends that sections 11 and 17 of the Act were contravened in relation to his employment. Section 11 provides, in effect, that an employee must receive 11 hours daily rest in a period of 24 hours. Section 17 provides that where an employee does not have contractual starting and finishing times the employer is required to provide written confirmation of the starting and finishing times that the employee is required to work 24 hours in advance.
The facts
The material facts giving rise to these complaints are not in dispute and can be summarised as follows:
The Claimant is an agency worker and the Respondent is a temporary work agency. It is accepted that the Respondent was the Claimant’s employer at all times material to these claims. The Respondent’s client, on whose premises the Claimant worked, operated a working pattern by which workers worked either early mornings (either from 6am or 8am) until 2.30pm. Another group of workers then commenced at 2.30pm and usually worked until 11pm.
Section 11 Complaint
The Claimant worked on an as and when required basis. He was notified by text on a daily basis as to the times on which work was available. It is accepted that in the period cognisable by his claims there were eleven occasions on which he did not obtain 11 hours rest between the time at which he finished work and the time on which he recommenced work on the following day.
The Respondent contends that the Claimant worked on shifts and that the occasions on which it did not obtain the request rest coincided with a change of shifts. The Respondent relies on s.4(1) of the Act which provides: -
4.—(1) Without prejudice tosection 6,11or13or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to insection 11or13or, as the case may be, both those sections.
Conclusion on Section 11 Complaint
The validity of the Claimant’s complaint under s.11 depends on whether the exemption provided by s.4(1) of the Act applied. The Act does not define the term ‘shift work’ Article 2.6 of Directive 2003/88/EC does provide such a definition of as follows: -
- 'shift work' means any method of organising work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks.
Section 2(2) of the Act provides that where a word or expression is used in the Act and is also used in the Directive, it has the same meaning in the Act as in the Directive. Hence, the definition of shift work contained in the Directive is the appropriate definition for the purpose of the Act. Accordingly, the Court must consider if the Claimant’s pattern of working was shift work within the statutory meaning ascribed to that term.
The requirement for daily rest is a health and safety imperative and is an important social right derived from the law of the European Union. Section 4(1) of the Act provides a derogation from that right. It is well settled in the law of the European Union that a derogation must be interpreted strictly (see Case C-222/84Johnson v Chief Constable of the RUC[1986] IRLR 263. Par 36 and C-447/09Prigge v Deutsche Lufthansa AGIRLR 1052, par 72).
An essential feature of shift work, as so defined, is that workers attend for work according to a certain pattern over a given period of days or weeks. In this case the Respondent had a pattern of working involving morning work and afternoon/evening work. However the Claimant did not work according to any particular pattern. He worked as and when he was required and the hours of his attendance varied from one day to the next depending on the exigencies of the Respondent’s client. Consequently the Court does not accept that he was employed on shift work for the purposes of s.4 of the Act and the exception provided by subsection (1) of that section did not apply to him.
The Court accepts that the Claimant was not contractually required to accept any work assignment offered. The Court further accepts that on each occasion on which he was offered an assignment without the request period of daily rest he accepted the assignment. Nevertheless, the Respondent is obliged by the Act to ensure that its employees obtain the requisite rest period and the Claimant’s acquiescence in accepting the assignments offered does not relieve the Respondent of liability under the Act.
In these circumstances the Court must hold that the Respondent contravened s.11 of the Act and the Claimant’s complaint in that regard is well-founded.
Section 17 Complaint
Section 17(1)of the Act provides: -
- 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.
It will be noted that this subsection applies in situations in which an employee isrequiredto work particular hours. In this case the Claimant was notified by text message of the hours available on a particular day and was offered employment for those hours. He was free to accept or reject the offer. Consequently he was not required to work those hours as he was free to decline the offer without penalty.
In these circumstances s.17 had no application in this case. Accordingly the Claimant’s complaint under s.17 of the Act is not well-founded.
Determination
The Court holds that the Claimant’s complaint alleging a contravention of s.11 of the Act is well-founded. His claim alleging a contravention of s.17 is not well-founded.
Redress
Having regard to all the circumstances of this case the Court determines that the appropriate form of redress is an award of compensation. The Court measures the amount of compensation that is just and equitable at €600. An award in made in the Claimant’s favour in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
31st January, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.