DWT1398

This is an appeal by Lucey Transport Limited against the decision of a Rights Commissioner in a claim by Marius Serenas under the Organisation of Working Time Act 1997 (the Act). In this Determination the parties are referred to as they were at first instance. Hence, Lucey Transport Limited (which is the appellant herein) is referred to as the Respondent and Marius Serenas is referred to as the Claimant.

Facts giving rise to the claims

The Respondent is a limited liability company providing road transport and warehousing services to a range of industries. The Claimant is a driver and was first employed by the Respondent in that capacity on or about 6^thSeptember 2007. On or about 4^thMay 2012 the Claimant lodged a complaint with a Rights Commissioner under the Act in which he alleged that the Respondent contravened ss 15 and 17 of the Act in relation to him. Specifically, he alleged that the Respondent required him to work in excess of 48 hours per week, over the statutory reference period, contrary to s.15 of the Act. He further alleged that the Respondent failed to notify him of his starting and finishing times at least 24 hours in advance, contrary to s.17 of the Act.

The hearing before the Rights Commissioner

The claims were heard by a Rights Commissioner on 21^stJuly 2012. The Respondent was not represented at that hearing. The Claimant attended the hearing and was represented by a solicitor. Having heard the uncontested evidence of the Claimant the Rights Commissioner found that the claims before him were well founded. He awarded the Claimant compensation in the amount of €9,000.

The Respondent appealed to this Court.

Position of the parties

The Respondent

The Respondent did not take issue with the facts alleged by the Claimant in grounding his claim. Rather, it contends that the Rights Commissioner had no jurisdiction to entertain the complaint in so far as it relates to s.15 of the Act. In advancing that submission the Respondent contends that at all material times the activity in which the Claimant was engaged was excluded from the scope of s.15 of the Act. It contends that instead mobile activities of the type in which the Claimant was engaged are regulated by Statutory Instrument No 2/2005, entitled European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2005, which were made for the purpose of implementing Directive 2002/15/EC. It was further submitted that the aforementioned Regulations have been replaced, with effect from 30^thJanuary 2012, by Statutory Instrument 36/2012, entitled European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. These Regulations, it was pointed out, provide for the making of a complaint to a Rights Commissioner alleging a contravention of their terms and a right of appeal to this Court. It was submitted that if the Claimant had a cause of complaint concerning the organisation of his working time it should have been processed pursuant to the 2012 Regulations and not under the Act. It was further pointed out that the complaint to the Rights Commissioner giving rise to this appeal was presented after the 2012 Regulations came into effect.

On that basis it was submitted that neither the Rights Commissioner, nor this Court on appeal, had jurisdiction to entertain the within complaints.

The Respondent further contended that the definition of working time and the reference period over which it is to be measured, for the purposes of the Regulations of 2012 are different to that provided in the Act. In that regard it was pointed out that periods of availability during which a mobile worker is not actually working are excluded for the purposes of the Regulations but are included for the purposes of the Act. This, it was submitted, materially affected the validity of the Claimant’s complaint in relation to his working time if considered by reference to the Regulations as opposed to the Act.

With regard to the complaint under s.17 of the Act, the Respondent concedes that a requirement for notification of starting and finishing times is not specified in the Regulations and that this aspects of the case can be dealt with under the Act. The Respondent submits, however, that it fully complied with its obligations under s.17 of the Act.

A similar question to that raised by the Respondent, in relation to the applicability of the Act vis-�-vis S.I. No.2/2005, was considered by this Court in Determination DWT0934-Goode Concrete and 58 Workers. In that Determination the Court held that road transport activity of the type in issue in the instant case came within the ambit of the Act. The Respondent submissions in the instant case are predicated on the proposition that theGoode Concretecase was wrongly decided. In advancing that argument the Respondent submitted that Directive 2002/15/EC (upon which S.I 2/2005 and S.I. 36/2012 are based) applying as it does to a specific sector, takes precedence over Directive 2003/88/EC which is of general application (and upon which the Act is based). According to the Respondent, it must follow that the domestic law provisions implementing Directive 2002/15/EC ( S.I 2/2005 and S.I. 36/2012) must likewise take precedence over the Act. The Respondent accordingly claims that the Claimant’s claim is misconceived and should have been brought under S.I. 36/2012

The Claimant

On behalf of the Claimant it was submitted that the decision in theGoode Concretecase governs the points of objection taken by the Respondent. Counsel for the Claimant adopted the Court’s reasoning in that case in submitting that his entitlement to pursue a complaint under the Act is unaffected by either S.I. 2/2005 or S.I 36/2012. It was submitted that the Claimant was required to work in excess of the permitted 48 hours per week specified in s.15 of the Act. It was further contended that the Respondent did not provide the Claimant with 24 hours’ notice of his starting and finishing times, contrary to s.17 of the Act. In these circumstances the Claimant contends that the decision of the Rights Commissioner was correct in fact and in law and should be affirmed.

Conclusion of the Court

As previously observed the central issue arising in this case was fully considered by a different sitting Division of this Court, in so far as it relates to the effect of S.I. 2/2005, vis-�-vis the Act, inGoode Concrete and 58 Workers. The Determination in that case was subsequently appealed to the High Court on a point of law but that appeal was not pursued.

Although this Court will, in the interests of legal certainty, normally follow its own previous decisions it is not obliged to do so. Accordingly the Court will consider all the submissions made in this case notwithstanding its decision inGoode Concrete. Moreover, for reasons that will be more fully explained later in this Determination, different considerations apply in relation to the effect of S.I. 36/2012, vis-�-vis the Act than those that arose in that case.

The Court’s reasoning in theGoode Concretecase are fully set out in Determination DTW0934. The rationale of the decision can be summarised as follows: -

• •The original working time Directive, 93/104/EC, excluded the road transport sector from its scope. The Organisation of Working Time Act 1997, which implemented Directive 93/104/EC in Irish law, did not replicate that exclusion. Rather, statutory regulations, S.I. 20 1998 made pursuant to s.3(3) of the Act, effectuated such an exclusion from sections 11,12,13, 15 and 18 of the Act.
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  •Directive 2002/15/EC was enacted to make specific provision in European law in relation to the organisation of working time in the road transport sector and more specifically that sector involved in the transport of goods by vehicles weighing more than 3.5 tonnes . It is clear from the recitals to Directive 2002/15/EC that it was intended to take precedence over Directive 93/104/EC. Directive 93/104/EC was subsequently amended by Directive 2000/34/EC. Both Directives were subsequently replaced by a consolidated Directive, 2003/88/EC. Article 14 of Directive 2003/ 88/EC expressly provided that its terms shall not apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities.

  •By order dated 13^thDecember 2004, the Minister for Enterprise Trade and Employment made Regulations, pursuant to s. 4(3) of the Act, entitled Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 (S.I. 817 2004). These regulations revoked S.I. 20 1998. They introduced, in effect, new exemptions from the application of sections 11, 12, 13, 15 and 16 of the Act in respect of certain categories of mobile workers. However, those Regulations specifically excluded from their scope workers engaged in activity of the type in issue in this case (those covered by Directive 2002/15/EC). The effect of the revocation of S.I. 20 1998 was to bring activities covered by Directive 2002/15/EC within the scope of the Act for all purposes from the date of the revocation, namely 13^thDecember 2004. Moreover, since the Regulations did not apply to workers covered by Directive 2002/15/EC the exclusions provided therein could not apply to those workers. Therefore from the 13^thof December 2004 the activities of HGV drivers were covered by the provisions of the Act and there were no exemptions or exclusions in respect of those workers .

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  •By order dated 13^thDecember 2005 the Minister for Transport made Regulations, pursuant to s.3 of the European Communities Act 1972 entitled European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulation 2005 (S.I. No. 2 2005). These Regulations made provision for the regulation of working time of mobile workers and more specifically employed heavy goods vehicle operators engaged in road transport activities. In line with the requirement of Directive 2002/15/EC they created a criminal offence of failing to comply with the restrictions on the working time of those to whom they applied. S.I 2/2005 did not provide any form of civil redress for a contravention of its terms. It did not restrict the application of the Act of 1997 and left undisturbed the right of such workers to pursue a claim under the Act through a Rights Commissioner, and on appeal to this Court.

  •For the detailed reasons set out in Determination DWT0934 the Court concluded: -

  • Mobile workers (including those who drive, or travel in, vehicles in the course of their employment) are covered by the general provisions of the Organisation of Working Time Act 1997.The generality of mobile workers are exempt from the requirements of sections 11,12,13 and 16 of the Act but they must be provided with adequate compensatory rest, as that term is defined in Directive 2003/88/ECMobile workers who work in activities covered by Directive 2002/15/EC (in the main employed HGV drivers)are fully covered by the Act of 1997 and arenotexempt from the requirements of sections 11,12,13 and 16 of that Act.The Rights Commissioners and this Court on appeal have jurisdiction to deal with complaints from all mobile workers alleging a contravention of the Act of 1997.The European Communities (Organisation of Working Time of persons Performing Mobile Road Transport Activities) Regulations 2005 (S.I. No. 2 of 2005) provides for criminal sanctions for a breach of its provisions but for no civil remedy.Neither the Rights Commissioners nor this Court have jurisdiction to entertain a complaint concerning a contravention of these Regulations.

The Doctrine of Supremacy

It is settled beyond argument that European law is superior to national law within the legal order of the European Union. Where there is conflict between Union law and domestic law it is the law of the Union that prevails. While that principle is easily stated its application in practice can give rise to difficulty, particularly where the legislative instrument is a Directive.

Directives are addressed to the Member States. Article 288 of the Treaty on the Functioning of the European Union (TFEU) provides: -

• “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”

The approach which national courts and tribunals should adopt in dealing with an apparent conflict between national and Union law contained in a Directive was most recently set down in Case 282/10Dominguez v. Centre Informatique du Centre Ouest Atlantique[2012] IRLR 321. Here the CJEU held that the Court should: -

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  •By applying the interpretative methods recognised by domestic law seek to find an interpretation of that law that allows the Directive to have effect.

  •If such an interpretation is not possible, it is for the national court to determine whether, in the light of the legal nature of the respondents in the proceedings, the doctrine of direct effect of the Directive applies against the Respondent.

  •If the national court is unable to achieve the objective laid down in the Directive the party injured as a result of domestic law not being in conformity with European Union law can nonetheless rely on the judgment of 19 November 1991 in joined cases C 6/90 and C 9/90Francovich and othersin order to obtain, if appropriate, compensation for the loss sustained.

Questions arising

The question arising from the submissions advanced by the Respondent is, in essence, whether S.I. 2/2005 and/or S.I. 36/2012 must be interpreted as impliedly taking the type of road transport activity in issue outside the purview of Act of 1997. As previously noted in this Determination the within claim was presented to a Rights Commissioner on 4^thMay 2012. Accordingly, having regard to the six-month time limit prescribed by s.27 of the Act, the cognisable period in respect of which the Rights Commissioner and this Court has jurisdiction is that beginning on 5^thNovember 2011. While s.27 of the Act allows for an enlargement of time by up to a further 12 months, no application for such an extension was made either to the Rights Commissioner or this Court.

If the Regulations have the effect contended for by the Respondent the dispute between the parties falls to be determined solely by reference to the Regulations. In the case of S.I. 2/2005, which was in force during part of the period covered by the within claims, there was no provision for a civil remedy. Consequently neither a Rights Commissioner nor this Court had jurisdiction in relation to those Regulations. S.I.36/2012, which came into effect on 30^thJanuary 2012, does provide for a civil remedy but the procedure for obtaining redress under those Regulations has not been invoked by the Claimant.

There are two principles of law that come into play in considering the Respondent’s submissions. Firstly, the applicability of the doctrine of conforming interpretation must be considered in light of the contention that since Directive 2002/15/EC takes precedence over Directive 2003/88/EC the domestic provisions must be construed as having a similar effect. There is, however, a second principle of law that potentially arises, namely, that where there is a conflict in statutory provisions the later provision takes precedence over an earlier inconsistent provision. This principle, referred to as the doctrine of implied repeal or amendment, assumes that in enacting the second provision it was intended to repeal or amend the earlier inconsistent provision. Both parties were asked to engage with this principle in supplemental submissions but neither thought it necessary to do so although for different reasons. Nevertheless, the application of that principle of law is a relevant consideration in this case.

Doctrine of implied repeal or amendment

This doctrine is described by Bennion on Statutory Interpretation thus: -

• “Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them”

• • “The test of whether there has been a repeal by implication by subsequent legislation is this: Are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together”
  
  

Conforming Interpretation

The analysis of the legal position of mobile workers formulated inGoode Concrete,and set out earlier in this Determination, is based on the literal interpretation of the various statutory instruments relating to the organisation of working time in the road transport sector. The Respondent contends that the Court’s analysis is erroneous because it does not conform to the result envisaged by Directive 2002/15/EC. Those submissions need to be considered in the context of what that Directive actually provides and the extent to which they are reflected in the relevant domestic statutory instruments

Article 1 of the Directive sets out it purpose as follows: -

• The purpose of this Directive shall be to establish minimum requirements in relation to the organisation of working time in order to improve the health and safety protection of persons performing mobile road transport activities and to improve road safety and align conditions of competition.

• This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the health and safety of persons performing mobile road transport activities, or their right to facilitate or permit the application of collective agreements or other agreements concluded between the two sides of industry which are more favourable to the protection of the health and safety of mobile workers. Implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers referred to in Article 2(1).

On the revocation of S.I. 20 1998 by Regulation 5 of S.I. No. 817 2004 the exclusion ceased to have effect and the activities previously excluded by S.I. 20 of 1998 were brought fully within the ambit of the Act with effect from 13^thDecember 2004.

Statutory Instrument 2/2005 was expressed on its face as being for the purpose of giving effect to Directive 2002/15/EC. It was made by the Minister for Transport pursuant to s.3 of the European Communities Act 1972. It made specific provision for the regulation of working time for those engaged in activity to which it related. Its principle provisions were in line with the requirements of the Act of 1997 although it did make more particular provision in relation to the definition of working time and in respect to the reference periods over which average working time was to be measured, including the fixing of a maximum working hours at 60 in any week during the averaging period.

Significantly, these Regulations provided that a contravention of their terms amounted to a criminal offence triable summarily. They did not confer rights on individuals to obtain redress through civil proceedings. It is of further significance that regulation 16 of these Regulations provided: -

• “These Regulations shall apply without prejudice to any legislation that offers a greater level of protection to workers”

The result

With effect from 13th December 2004 (on the revocation of S.I. 20 1998) workers performing road transport activities of the type in issue in this case were covered by all the provision of the Act of 1997 and could bring proceeding before a Rights Commissioner alleging a contravention of their rights under that Act. Separately, with effect from 13^thDecember 2005, Statutory Instrument 2/2005 made more particular provision for the organisation of the working time of such workers, the contravention of which amounted to a criminal offence but did not provide for any form of civil redress. For the reasons referred to above, that result was not inconsistent with Directive 2002/15/EC nor with Directive 2003/88/EC, both of which allow Member States to make more favourable provisions than those provided therein. Consequently, the question of whether the doctrine of conforming interpretation came into play does not arise. Neither could it be held that the Act and S.I. 2/2005 were so inconsistent with each other that the latter impliedly amended the former.

Having regard to the forgoing the Court is satisfied that its Determination in Goode Concrete was not erroneous in relation to the effect of S.I.2/2005 vis-�-vis the Act.

Statutory Instrument 36/2012

The Regulations contained in this Statutory Instrument were made by the Minister for Transport, Tourism and Sport on 30^thJanuary 2012. Like S.I.2/2005, they were made pursuant to s.3 of the European Communities Act 1972 and were for the express purpose of giving effect to Directive 2002/15/EC, as was S.I. 2/2005. These Regulations replace (rather than amend) S.1.2/2005, which is revoked by regulation 24 thereof. These Regulations, unlike S.I. 2/2005, and bring self-employed drivers within their scope.

These Regulations go further than the earlier Regulations which they replaced. A person who fails to comply with these Regulations continues to be guilty of a criminal offence, which is now triable on indictment, and liable to a fine of up to €250,000. Of particular significance in the context of the instant case, a contravention of the Regulations renders an employer liable to an aggrieved employee in civil law through a complaints procedure which is identical in all material respects to that provided by s.27 of the Act. The Regulations provide for the same mode of redress as that provided by the Act and for the same avenue of appeal to this Court from the decision of a Rights Commissioner. They also provide for the same enforcement procedure, through the Circuit Court, of decisions of a Rights Commissioner and determinations of this Court and for the same right of appeal on a point of law to the High Court, as those provided in the Act.

In short, these Regulations replicate in all material respect the complaints and enforcement provisions of the Act. They also provide more detailed provisions for the regulation of working time in the road transport sector than those provided for the generality of workers by the Act. Significantly, the provision previously contained at regulation 16 of S.I. 2/2005, to the effect that those Regulations were without prejudice to“any legislation that offers a greater level of protection to workers”is not replicated or carried over. The Regulations do not expressly purport to override or supplant the corresponding provisions of the Act. But the question must arise as to whether they do so impliedly.

It seems to the Court that there are clear difficulties with the provisions of the Act and those of the Regulations in their current form standing side by side and a Rights Commissioner, and this Court on appeal, having concurrent jurisdiction to entertain a complaint arising from the same set of facts under both the Act and the Regulations. Such a result could not have been intended. Moreover, a consideration of considerable relevance in theGoode Concretecase was that the Regulations then in force operated in the field of criminal law only whereas the Act provided for civil redress in disputes between individual workers and their employer. That is no longer the case. In these circumstances, there is force in the argument that since Directive 2002/15/EC takes precedence over Directive 2003/88/EC, (as is clear from Recital 2 in the preamble to Directive 2002/15/EC) any conflict or inconsistence between the Act, which gives effect to the latter, and the Regulations, which give effect to the former, should be resolved in favour of the Regulations.

Outcome

It seems that any ambiguity concerning the applicability of the Act to workers engaged in activity now covered by S.I. 36/2012 could easily be resolved by the making of regulations pursuant to s.3(3) of the Act exempting such workers from the relevant provision of the Act. Regrettably, no such regulations have been made. Nevertheless, the Court has come to the conclusion that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. Moreover, when read as whole, it could not be said that the Regulations now provide a lesser level of protection to workers to whom they relate than that provided by the Act. It follows that the Regulations, rather than the Act, should now be relied upon in pursuing complaints concerning any infringement of the rights of such workers concerning their working time.

The Regulations do not have retrospective effect. Consequently, this position only pertains in relation to complaints in respect of a period after they took effect. In relation to the instant case, while the within complaint was initiated under the Act after S.I 36/2012 took effect, the events to which the complaint relates occurred in part during a period before the commencement of the Regulations. It seems to the Court that the complaints are maintainable under the Act in so far only as they relate to that period. Accordingly, the Respondent’s appeal must succeed in relation to so much of the Rights Commissioner’s decision as related to events that occurred after S.I. 36/2012 took effect, namely, 30^thJanuary 2012. It is clear, however, that the complaint in relation to s.17 of the Act is fully maintainable under the Act.

Determination

There is no indication in the decision of the Rights Commissioner as to how he computed the monetary award made in favour of the Claimant or of the periods of time in which the contravention found to have occurred took place. Nor was any evidence adduced, or information furnished to the Court, on that point. Accordingly the Court will reconvene the hearing so as to hear the parties on the form of final determination that it should make in this case.

Signed on behalf of the Labour Court



Kevin Duffy
5th July 2013______________________
AHChairman



NOTE

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