FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STOBART (IRELAND) DRIVER SERVICES LIMITED (REPRESENTED BY PURDY FITZGERALD, SOLICITORS) - AND - DAVID BURKE, MATTHEW J BOLGER, THOMAS COLE, NIALL CORCORAN, GERARD CUDDEN, SEAN FINNEGAN, CHRISTOPHER KELLY, DOUGGLAS MC LEOD, BRENDAN MURRAY, NOEL O 'REILLY, MICHAEL O ' RIORDAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal against a Rights Commissioner's Decision no r-123655-wt-12/GC.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 10th December 2013 and a Decision was issued on the 21st February 2014.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 5th March 2014, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 17th June 2014.
- The following is the Determination of the Court.
DETERMINATION:
The matter before the Court is an appeal of a Rights Commissioner’s Decision under the Organisation of Working Time Act 1997 (the Act) which found in favour of the eleven-named Complainants’ claim against their employer, Stobart (Ireland) Driver Services Limited (“the Respondent”). The Complainant referred the claim to the Rights Commissioner on 13thJune 2012 alleging breaches of Sections 13, 15, 16 and 17 of the Act. The Rights Commissioner did not find the complaint under Section 15 well-founded, she upheld the complaints under Sections 13, 16 and 17 of the Act and awarded the sum of €5,000 to each of the Complainants.
The Employer appealed the Decision.
Preliminary Issues
In its appeal of the Rights Commissioner’s Decision the Respondent raised two preliminary points (i) it objected to the Rights Commissioner’s Decision to grant an extension of time under Section 27 (5) of the Act and (ii) it submitted that the claims under Sections 13 and 16 relating to the period after 30thJanuary 2012 fall to be considered under the S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (S.I. No. 36 of 2012). Therefore, given that the Complainants’ claims were received by the Rights Commissioner on 13thJune 2012, the only period which falls to be considered under the Act is the period between 14thDecember 2011 and 30thJanuary 2012.
The Union on behalf of the Complainants accepted that the complaints were made in time and accordingly accepted that there was no justification for an extension of time under Section 27(5) of the Act.
The Union did not dispute the Respondent’s contention regarding S.I. No. 36 of 2012.
Therefore, the Court overturns the Rights Commissioner’s Decision to grant an extension of time under Section 27 (5) of the Act. Accordingly, the relevant periods covered by the Complainant’s claim are from 14thDecember 2011 until 30thJanuary 2012 in respect of the claims under Sections 13 and 16 of the Act and from 14thDecember 2011 until 13thJune 2012 in respect of the claim under Section 17 of the Act.
Section 13 Claim
Ms Karan O’Loughlin, SIPTU, on behalf of the Complainants, submitted that the Complainants’ weekly rest periods were broken by having to telephone in to the Company, frequently more than once, to ascertain their shift starting time. Therefore, the Complainants contended that by these interruptions to their rest periods they were not provided with 11 hours' consecutive rest followed by 24 hours’ consecutive rest totalling 36 hours’ consecutive rest as provided by Section 13 of the Act.
Mr Alastair Purdy, Solicitor, Purdy Fitzgerald, Solicitors, on behalf of the Respondent, stated that at all times the Complainants received weekly rest periods well in excess of the statutory amount set down in the Act. He contended that an employee contacting his employer to determine his start time for the next day did not interfere with his rest period and accordingly did not constitute a breach of Section 13 of the Act.
Mr Purdy relied on the Act itself, Directive 2002/l5/EC and subsequent CJEU decisions to substantiate his contention. 'Rest period' is defined in Section 2 of the Act as meaning'any time that is not working time '
Section 2 of the Act defines 'working time' as:-
- '(a) Any time that the employee is at his or her place of work or at his or her employer's disposal,
and
(h) carrying on or performing his or her duties of his or her work, and "work" shall be construed accordingly.
Mr Purdy submitted that in the first instance it is clear that Complainants were not required to be present at their"place of work"during their weekly rest period. He said that the next question which then falls to be considered is whether or not in making telephone calls, the Complainants were at the Company's"disposal".He referred to the Court’s Determinations in the related cases which came before the Court in February 2014,Stobart (Ireland) Driver Services Ltd and Fourteen Workers DWT1438 & Stobart (Ireland) Driver Services Limited andSevenWorkersDWT1437,in which he disputed the Court’s interpretation of the wording of the Act where itdeemed that employees being required to make telephone calls during their weekly rest period meant that they were at their employer’s"disposal".Mr Purdy submitted that the Complainants when making the telephone calls in question were not at the disposal of the Company as in fact they had the freedom to do as they wished during their weekly rest period.
He submitted that the provisions ofDirective 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the Organisation of the Working Time of Persons Performing Mobile Road Transport Activitiesstrengthen the Respondent’s contention in this regard. Section 6 of the Directive excludes the times of breaks, rests and periods or availability in the calculation of working time. Periods or availability are described as:-
- "a period during which the mobile worker is not required to remain at his or her workstation. but is required to be available to answer any calls to start or resume driving or to carry out other work, including but not limited to periods during which the mobile worker is accompanying a vehicle being transported by a ferry or by a train as well as periods of waiting at frontiers and thosedue to traffic prohibitions.”
Mr Purdy made a number of arguments in support of his contention and cited a number of CJEU case all of which were cited and considered by the Labour Court inStobart (Ireland) Driver Services Ltd and Fourteen Workers DWT1438 & Stobart (Ireland) Driver Services Limited andSevenWorkersDWT1437.The Court’s Determinations were not appealed by the Respondent to the High Court. Therefore, as the Respondent fully articulated its arguments in those cases the Court does not propose to do so again.
In the latter Determinations the Court examined the question“Does a requirement to telephone the employer during a rest period bring an employee within the statutory definition of “working time” and/ or does it amount to an interruption in the weekly rest period?”
The Court held the view that there were two aspects to this statutory requirement:- (i) the employee must “be at his or her place of work or at his employer’s disposal and (ii) be carrying on or performing the activities or duties of his or her work.” The Court formed the view that the requirement to make one or more telephone calls on pain of disciplinary action for failure to do so while on a break means an employee’s time is not at his own disposal. It held that so long as there is a contractual obligation to make a telephone call during the rest period there is a period of time that is not absolutely at the employee’s disposal and therefore the Court found that the requirement, on pain of disciplinary sanction, to telephone the employer during the weekly rest period means that the Complainant was at his employer’s disposal for that period of time.
Secondly, it noted the Respondent’s confirmation that disciplinary sanctions would be taken against any employee who failed to make such a telephone call while on their weekly rest period as they would be deemed to have failed to commence work at the scheduled starting time. Therefore, the Court held that, as the Complainants were contractually or duty bound to telephone to establish the starting time of their next shift, it was self- evident that the Complainants, when making the mandatory telephone calls, were carrying on or performing the duties of their work.
Accordingly, the Court determined that the complaint was well-founded as the complainants were not in receipt of a weekly uninterrupted break under the provisions of Section 13 of the Act.
In the instance case Mr Purdy stated that no disciplinary action would ensue if the Complainant failed to telephone in and instead the Complainant would simply not be rostered (and not paid) for the day.
Having considered the arguments made in this case, the Court see no grounds to overturn the findings arrived at in the above Determinations. Therefore, the Court finds the complaint made under Section 13 of the Act well-founded and awards the sum of €750 in compensation to each of the eleven-named Complainants for breach of Section 13 of the Act.
Section 16 Claim
Ms. O’Loughlin submitted that as the Respondent required the Complainants to cover a 24 hours/7 days a week operation with shifts of between 9 and 15 hours, which included working at “night time” as defined by Section 16 of the Act, therefore, she contended that it was in breach of Section 16 of the Act. Section 16(2) provides that an employer cannot allow an employee who is a night worker to work more than an average of 8 hours per 24-hour period calculated over a reference period of 2 months.
Mr Purdy conceded that the Respondent was in breach of Section 16 of the Act although he submitted that one of the Complainants, Mr Michael O’Riordan, by virtue of a Transfer of Undertakings Regulations transfer from a previous company, was covered by a derogation and accordingly held that he was not protected by the terms of Section 16 of the Act. The Respondent supplied with Court with evidence of this contention.
Having examined the document the Court is not satisfied that it has been furnished with evidence to substantiate the contention that a derogation in compliance with Section 16(2) of the Act has been furnished in respect of Mr. O’Riordan.
Therefore, the Court finds the Union’s complaint well-founded and accordingly awards the sum of €2,000 in compensation to each of the eleven-named Complainants for breach of Section 16 of the Act.
Section 17 Claim
Ms. O’Loughlin submitted that the Respondent was in breach of Section 17 of the Act as the Complainants’ contracts of employment do not set out the start and finish times of their work and that they are accordingly entitled to 24 hours’ advance notice of their shift starting times. She told the Court that the Complainants have a three-hour window within which they may be required to start and finish work and submitted that this does not comply with the provisions of the Act. Prior to the first day of work each week the Complainants are required to telephone the Company 12 hours before the end of their weekly rest period at which time they are given their starting time for the following day.
Mr Purdy contended that the Complainants have no normal or regular starting time due to the nature of the haulage business. He submitted that they have an implied term in their contract of employment by which they are in fact given a “regular” start time for each day of the week following the telephone call made to the Company. He further submitted that the Act allows for variations to the Complainants’ start and finish times as the Company is subject to unforeseen changes to the delivery schedules imposed on it by its customers, driver absenteeism and other events. It finally submitted that as it complies with the rest and break provisions of the Act there can be no fatigue implications if a technical breach of the Section were to occur.
Mr Purdy stated that the Respondent, similar to the majority of haulage companies, operates a "task-and-finish" policy. In support of his arguments he cited the recent Determination of the Labour Court inDMR Transport Ltd v Mr Jacek MajchrzakDWT 1416 where in that case the complainant’s finishing time varied by virtue of the "task-and-finish" nature of his employment. The Labour Court held as follows:-
- "Consequently, the finishing time was not determined by the Respondent per se. Rather, the finishing time was determined solely by the volume of the work to be undertaken and the pace at which the work was performed. Consequently, finishing limes were not capable of ascertainment in advance. It follows that the Respondent could not have provided the Claimant a statement specifying his finishing time. In these circumstances the Court cannot see how s. 17 could apply to the type of work arrangement under which the Claimant was employed. Consequently the Court finds that the Respondent did not infringe s. 17of the Act in relation to the Claimant."
In DWT1437 and DWT1438 the Court found that the contract of employment does not make provision for a “regular” or “normal” starting and finishing times of work for the Complainants. It did not accept the argument advanced by the Respondent that there was an implied term in the contract of employment to those effects. The Court took the view that the Act clearly requires a written term expressly stated in the contract in order to come within the scope of Section 17(1) of the Act. As there was no such provision in the contract of employment and it was conceded that neither a collective agreement nor an employment regulation order nor a registered employment agreement applies in these cases, the Respondent is required to give the Complainants 24 hours’ notice of their shift starting times. This Court concurs with the findings and conclusions of those Determinations.
The Court cannot accept that the argument advanced concerning “task-and-finish” operations can have the same relevance when examining the Respondent’s statutory obligations under Section 17 of the Act regarding starting times. Therefore, in all the circumstances of this case the Court finds that the Respondent does not meet the requirements under Section 17 of the Act.
The Court notes that since this claim was submitted under the Act the Respondent has revised the rostering arrangements.
The Court finds the Union’s complaint well-founded and accordingly awards the sum of €1,000 in compensation to each of the eleven-named Complainants for breach of Section 17 of the Act.
Determination
The Court awards a total sum of €3,750 in compensation to each of the eleven-named Complainants in respect of the breaches of Sections 13, 16 and 17 of the Act. Therefore, the Court varies the Rights Commissioner’s Decision accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
25th June, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.