FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MURRAY TIMBER (BALLON) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DAMIAN BALUT (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-1279/54/57/59/65-wt-12/EH, r-128435-wt-12/EH & r-129521-wt-13/EH.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 15th July, 2013. A Labour Court Hearing took place on 25th February, 2014. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Damian Balut (the Claimant) against the Decision of a Rights Commissioner in his claims against Murray Timber (Ballon) (the Respondent) under the Organisation of Working Time Act 1997.
Applicability of Organisation of Working Time (General Exemptions) Regulation 1998 (S.I. 21 of 1998)
The Claimant was employed as a General Operative. The Respondent is engaged in the processing of timber for use in the construction and related industries. The Court was told that the process involved is continuous in nature in that the timber, which arrives in a raw state, must be cut, dried in kilns, removed immediately and then planed. The nature of the work is such that it cannot be interrupted. The Claimant was at all material times wholly or mainly employed in that process and he was required to work through until it was completed.
The Respondent contends that the work of the Claimant came within the ambit of the Regulation 3 of the Organisation of Working Time (General Exemptions) Regulation 1998 (S.I. 21 of 1998). That Regulation provides, in relevant part, as follows: -
- 3.(1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
(2) The exemption shall not, as respects a particular employee, apply in relation to
(a) section 11, 12, 13 or 16 of the Act if the employee—- (i) is not engaged wholly or mainly in carrying on or performing the duties of the activity concerned,
(ii) is exempted from the application of that section by virtue of regulations under section 3(3) of the Act,
- (iii) falls within a class of employee in relation to which a joint labour committee (within the meaning of the Industrial Relations Acts, 1946 to 1990) may perform functions under those Acts,
- (b) section 16 of the Act if the employee is a special category night worker within the meaning of subsection (3) of the said section 16.
- (i) is not engaged wholly or mainly in carrying on or performing the duties of the activity concerned,
- 1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.
2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.
3. An activity falling within a sector of the economy or in the public service—
(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,
or
(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,
and, in particular, any of the following activites—- (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,
(ii) the provision of services at a harbour or airport,
(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,
(iv) the provision of ambulance, fire and civil protection services,
(v) the production, transmission or distribution of gas, water or electricity,
(vi) the collection of household refuse or the operation of an incineration plant,
(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,
(viii) research and development,
(ix) agriculture,
- (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,
In contending that the Regulations are applicable to the work in which the Claimant was engaged the Respondent relied on paragraph 3(b) (vii) and (ix) of the schedule. The Claimant contended that the Regulations do not apply. In advancing that submission Counsel for the Claimant referred the Court to the Decision of the Court of Appeal for England and Wales inGallagher v Alpha Catering Services Limited[2005] IRLR 103. Here the Court pointed out, in interpreting corresponding provisions of UK law, that the “activities” referred to in the Regulation as involving the need for continuity of service or production are those of the worker, not those of the employer. The Court accepts that as being a correct statement of the law.
The Court does not accept that the Claimant was in any sense engaged in an activity involving agriculture. However, on the evidence of the Respondent, the Court is satisfied that the work that the Claimant was employed to perform was industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted. Consequently, it came within the ambit of paragraph 3(b)(vii) of the Schedule and was thus covered by the exemptions provided by the Regulations.
Having so found the Court has reached the following conclusions in relation to the complaints made by the Claimant: -
Section 11 – Breaks between Shifts
The Claimant was exempt from the requirements of s.11. The Court is further satisfied that he received adequate compensatory rest. In these circumstances the Respondent did not contravene s.11 in relation to the Claimant.
Section 13(2) – 24 Hour rest in 7 days
The Claimant was exempt from the requirements of s.13(2). The Court accepts that there was one occasion on which he did not receive adequate compensatory rest. In that respect the Respondent contravened s.13(2) in relation to the Claimant.
The Court award the Complainant compensation in the amount of €200 in respect of this contravention.
Section 13(5) –Weekly rest to include a Sunday
The Claimant was exempt from the requirements of this provision. Consequently the Respondent did not contravene this provision in relation to the Claimant.
Section 14 – Sunday Premium
Section 14(1) of the Act provides: -
- (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
The Claimant was paid double time for working on Sundays. That clearly involved increasing his pay by an amount that was reasonable having regard to all the circumstances. Consequently the Respondent fulfilled its obligation under paragraph (b) of subsection (1) of this section. Consequently there was no contravention of this section of the Act.
Payment for Public Holidays
The Court accepts that while the Respondent did pay the Claimant for public holidays it did not do so at the time that payment became due. The Court affirms the Rights Commissioner’s award of compensation in the amount of €100 in respect of this contravention.
Result
The Court directs the Respondent to pay the Claimant compensation in the amount of €300 for the contravention of the Act which it has found to have occurred.
Determination
The Decision of the Rights Commissioner is varied in terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
27th February, 2014______________________
CCChairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.