FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STOBART (IRELAND) DRIVER SERVICES LIMITED (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - FOURTEEN WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-118336/46/58/59/61/64/74/81/83/85/03/05/06/08/12-wt-11.
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 3rd December, 2013. The Court heard the appeal on the 5th February, 2014, the earliest date suitable to the parties.
DETERMINATION:
The case comes before the Court by way of an appeal by Stobart (Ireland) Driver Services Ltd (the Respondent) under Section 28(1) of the Organisation of Working Time Act 1997 (the Act) against 22 decisions of the Rights Commissioner, listed above, in which she decided as follows
- For the reasons outlined, with the exception of Mr Les Byrne who was not at work during the congnisable period, I find 14 claimants’ complaints that the Respondent acted in breach of Sections 13,16 and 17 to be well founded and I require the Respondent to pay to each of the Claimants listed below the sum of €5,000 compensation.
Those complaints were filed with the Rights Commissioner on 30thNovember 2011 and the decisions were issued on 29 October 2013.
The Respondent appealed to this Court against those decisions on the 3rdDecember 2013.
The Rights Commissioner considered seven other cases in which seven named workers complained that the Respondent infringed sections 13,16 and 17 of the Act in the relevant period in the course of their employment. The Rights Commissioner decided as follows
- I find the Claimants’ complaints that the Respondent acted in breach of Sections 13,16 and 17 to be well founded and I require the respondent to pay to each of the Claimants the sum of €5,000 compensation.
The Respondent appealed against those decisions on 3rdDecember 2013.
The appeals came before this Court on 5 February 2014. The Court allowed additional time for the parties to make and comment on supplementary submissions. The Respondent made a submission by letter dated 17 February and the Claimants’ representatives replied on the 3rdMarch 2014.
Background
The Respondent operates a haulage company providing services principally to a large multinational retail company operating in Ireland. The Complainants are employed as drivers by the respondent. 15 of the complainants work under a collective agreement. The collective agreement does not govern the terms and conditions of employment of the other seven complainants in this case.
Preliminary Issue
The Respondent argues that the Labour Court decision inLucey Transport v Marius Serenas (Determination no. DWT 13141)errs in law and should be disregarded by the Court. In summary the Respondent argues
- “In essence, it is our position that Directive 2002/15/EC takes precedence over Directive 2003/88/EC and that thus the Statutory Instruments implementing each of those Directives and particularly the Statutory Instrument which implemented Directive 2002/15/EC (SI No 2 Of 2005) – which has since been revoked by virtue of SI No 36 of 2012) should take precedence over Statutory Instrument No 817 of 2004.”
The Respondent then went on to outline the basis upon which it has arrived at this conclusion.
The Complainants argue that the matter has been addressed by the Labour Court in considerable detail in in Lucey Transport v Marius Serenas (Determination no. DWT 13141) and that having decided the matter the Court should not create legal uncertainty by making an inconsistent decision in this case.
Findings of the Court
The Court gave its Determination on questions of law arising in this case in Determination DWT1389. In it the Court held that claims under s.15 of the Act could be pursued under the Act in relation to the period ending on 30thJanuary 2012, but not thereafter.
This Court is fortified by that determination in its view of the issues raised in this case.
For the reasons outlined there the Court holds that the complaints under s.17 of the Act were fully maintainable. This Court concurs with the legal analysis set out in that case.
The Court therefore determines that the complaints under section 15 in respect of the period and including 30 January 2012 are properly before it. The Court’s jurisdiction to hear the complaint under section 13 of the Act was not in issue. The Court holds that the complaint under section 17 of the Act is fully maintainable before this Court.
Complaints
Complainants’ Position
The Complainants argue that they are not being provided with a break within the meaning of section 13 of the Act. They say that they are required to phone the Respondent during the relevant weekly rest period to establish the time at which their next shift will commence. They say that the Respondent is not always in a position to so advise them when they first telephone the depot and on occasions they are required to phone the company a number of times during the rest period to establish their shift start time. They argue that this amounts to an interruption of their break by the respondent and by definition cannot therefore be considered an uninterrupted or unbroken period of rest.
Respondent’s Position
The Respondent argues that the requirement to contact the depot to establish the commencement time of the next shift does not compromise the rest period afforded the complainants. It refers to the definition of Rest Period in Section 2 of the Act which defines it as “… any time that is not working time”. It refers the Court to the definition of rest and working time set out in the The Law Society of Ireland “Employment Law” 2ndEdition (Oxford University Press 2006) at page 78that “…working time is placed in opposition to rest periods, the two being mutually exclusive. To define one would be to define the other”
It further argues that 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
(b) carrying on or performing his or her duties of his or her work, and “work” shall be construed accordingly.
It argues that the Directive specifies that an employer contacting an employee during his rest period would be an interference with that period but that there is no mention of whether an employee contacting his employer would constitute working time. It argues that the decision by the legislature to provide that an employer contacting an employee constitutes an interruption of the period of rest but not the reverse in the legislation must be taken into consideration by this Court.
The Respondent drew the Court’s attention to a number of decisions of the CJEU regarding the meaning of working time. In particular it referred the following cases
Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sandidad Y Consumo de la Generalidad Valenciana [2000] ILRL 845;Landeshaptstadt Keil v Jaeger [2003] ILRL 804and Della and Others v Premier Ministre and Another [2006] ILRL 225in which the CJEU defined working time as requiring a person to be physically present at his place of employment and available to undertake his or her duties. Periods spent on call are not to be considered working time.
It argues that in this case the Complainants are not required to attend at their place of employment. They are allowed their full rest period. They are required to make a phone call to the depot on the second day of their weekly rest period to establish their shift commencement time for the following day. They are then aware of their starting times for the following week. It submits that this does not amount to an interruption in the rest period afforded the complainants and the period spent making a phone call cannot be classified as working time within the meaning of the Act.
The Law
The purpose of the Act is [in relevant part]
“.. to provide for the implementation of Directive 93/104/EC of 23 November 1993 of the Council of the European Communities concerning certain aspects of the organisation of working time”
Section 2 defines a rest period in the following terms
- “rest period” means anytimethat is notworkingtime;
- “workingtime” means anytimethat 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,
- “work” shall be construed accordingly.
- (a) at his or her place of work or at his or her employer's disposal, and
- (1) In this section “daily rest period” means a rest period referred to in section 11 .
(2) Subject to subsection (3) , an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6) , thetimeat which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2) , grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6) -
- (a) if the rest periods so granted are consecutive, thetimeat which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
(b) if the rest periods so granted are not consecutive, thetimeat which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.
(5) Save as may be otherwise provided in the employee's contract of employment—
- (a) the rest period granted to an employee under subsection (2) , or
(b) one of the rest periods granted to an employee under subsection (3) , shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
- (a) if the rest periods so granted are consecutive, thetimeat which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
- Weekly rest period
Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.
The Court is required to interpret Irish legislation in conformity with European Legislation as far as possible in order to achieve the result envisaged by the Directive. (Marleasing C106/89 para 8)
Discussion
It is common case that the Complainants are entitled to the weekly rest periods set out in the Act. It is also common case that they are required to telephone the company while on a weekly rest period to establish the time at which they are required to take up duties at the end of that period. It is also common case that occasionally the complainants may be required to make a number of calls to establish the time as the shift start time may not be immediately available when they first call. There is a dispute regarding the extent to which this eventuality occurs. The Complainants argue it is quite a common occurrence, the respondent argues it is an occasional occurrence.
The net question for the Court to decide is whether the requirement to make one or more phone calls to an employer while on a break constitutes an interruption to that rest period.
Section 2 of the Act defines a rest period as any period that is not working time. It defines working time as any time in which 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,
The Question may be more precisely rephrased in the following terms
“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?”
In order to bring an employee within the definition of working time the employeemust “be at his or her place of work or at his employer’s disposal and be carrying on or performing the activities or duties of his or her work.”
It is common case that the claimants are under an obligation to make the phone call to the employer while on a weekly rest period. Failure to do so we were told by the respondent could and most likely would result in disciplinary action against them by the employer. It is clear therefore that the complainants are performing the activities or duties of his or her work as failure to do so could result in disciplinary action for failing to so do. The Court finds therefore that that leg of the statutory requirement to qualify as working time is met.
The second question that arises under the Act is whether they are at their place of work. The answer to this question is more difficult as their place of work is not easily identified. It may be the company depot or the truck to which they are assigned or any place they are required to deliver to or collect from by their employer in the course of their employment.
However the requirement is to be at one’s place of work is not mandatory. It is one of two alternative requirements in the statute. It appears from a plain reading of the section that it is sufficient that one be either at ones place of work or atones employer’s disposal. It appears to the Court that these must be read as alternatives either of which meets the statutory requirement to comply with that leg of the test of working time.
In considering this second leg of the test i.e. that an employee be “at his or her employer’s disposal” the Court takes the view that the meaning to be ascribed to this phrase is that the employee’s time is not at his own disposal but rather at his employer’s disposal. The requirement to make one or more phone 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. Accordingly the Court takes the view that for so long as there is a contractual obligation to make a phone call during the rest period there is a period of time that is not absolutely at the employee’s disposal.
In this case therefore the Court finds that the requirement, on pain of disciplinary sanction, to phone the employer during the weekly rest period means that the complainant was at his employer’s disposal for that period of time.
The second mandatory test that must be met together with one or other leg of the first test outlined above is that the employee “be carrying on or performing the activities or duties of his or her work.”
In this case the Respondent acknowledges that the complainants are contractually or duty bound to phone to establish the commencement time of their next shift. Indeed the Respondent confirmed it would take disciplinary sanctions against any employee that failed to make such a call while on their weekly rest period and thereby failed to commence work at the scheduled recommencement time.
Accordingly the Court finds that it is self- evident that the complainants when making the mandatory phone calls are carrying on or performing the duties of their work.
This brings that time into the category of working time.
The Act requires that the weekly rest period comprise a period of 24 hours immediately preceded or followed by a period of 11 hours rest. The Directive requires that it be a period of uninterrupted rest. The requirement to read the Act in conformity with the Directive is well settled law and the Court sees no contradiction between the two particularly as the purpose of the Act is to give effect to the Directive. Accordingly the Court takes the view that the Claimants are entitled to a weekly uninterrupted break that they are being denied by the requirement to make a phone call on pain of disciplinary act for failure to do so.
Accordingly the Court finds that the complaint is well founded.
Determination
The Court orders the respondent to pay the complainant compensation in the sum of €1,000 to the 14 named complainants that are encompassed by wtc/13/197 and €750 to each of the complainants encompassed by case no wtc/13/198.
Section 16 Complaint
Complainants’ Position
The Complainant’s state that they are night workers and that they were required to work in excess of an average of 8 hours per night in the relevant reference period. In support of their position the Complainants submit the shift roster that applies to all drivers that work for the respondent. They state that it discloses that the % of annual hours worked between midnight and 7.00 am ranges between a minimum of 46 and a maximum of 66 and averages at 56%. They submit that the roster discloses that the workers concerned work during night time in excess of 50% of the total number of hours worked by each of them, with the exception of Mr Les Byrne who acknowledges that he is not a night worker for the purposes of the Act.
Respondent’s Position
The Respondent submits that the provisions of Section 16 do not apply to any of the complainants in this case.
The Law
Section 16 of the Act governs the arrangements that apply to night workers. It states
(1) In this section—
- “nighttime” means the period between midnight and 7 a.m. on the following day;
- “night work” means work carried out during nighttime;
- “night worker” means an employee—
- (a) who normally works at least 3 hours of his or her dailyworkingtimeduring nighttime, and
(b) the number of hours worked by whom during nighttime, in each year, equals or exceeds 50 per cent of the total number of hours worked by him or her during that year.
- (a) who normally works at least 3 hours of his or her dailyworkingtimeduring nighttime, and
- “night worker” means an employee—
(2) Without prejudice to section 15 , an employer shall not permit a night worker, in each period of 24 hours, to work—- (a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,
(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—
- (i) 2 months, or
(ii) such greater length oftimeas is specified in a collective agreement that for thetimebeing has effect in relation to that night worker and which stands approved of by the Labour Court under section 24 .
- (i) 2 months, or
- (a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,
(4) The days or months comprising a reference period shall, subject to subsection (5) , be consecutive days or months.
(5) A reference period shall not include—
- (a) any rest period granted to the employee concerned under section 13(2) (save so much of it as exceeds 24 hours),
(b) any rest periods granted to the employee concerned under section 13(3) (save so much of each of those periods as exceeds 24 hours),
(c) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),
[(cc) any period during which the employee was absent from work while on parentalleave, force majeureleave or carer's leave within the meaning of the Carer's Leave Act 2001 ,]
(d) any absences from work by the employee concerned authorised under the Maternity Protection [Acts 1994 and 2004] , or the Adoptive Leave [Acts 1995 and 2005] , or
(e) any sick leave taken by the employee concerned.
- (a) any rest period granted to the employee concerned under section 13(2) (save so much of it as exceeds 24 hours),
- “nighttime” means the period between midnight and 7 a.m. on the following day;
Findings of the Court
Having examined the submissions of both parties the Court finds that the complainants, with the exception of Mr Les Byrne, are night workers within the meaning of the Act. It further finds that provisions of section 16(2)(2) do not apply in this case. Accordingly the Court finds that to require the complainants to work more than an average of 8 hours per day calculated over a 2 month period is an infringement of section 16 of the Act. On the evidence presented the Court finds, as a matter of fact that, the complainants were rostered to work a minimum of 9 hours per day and in fact worked at an average of in excess of 8 hours per day in the relevant period.
Accordingly the court finds that the complaint is well founded.
Determination
The Complaint is well founded. The decision of the Rights Commissioner is affirmed. The Court orders the Respondent to pay the sum of €3000 to each of the complainants other than Mr Byrne, encompassed by case no wtc/13/197 and €2,000 to each of the Complainants, encompassed by case no wtc/13/198
Section 17
Complainants’ Case
The Complainants’ state that they are entitled by virtue of section 17 of the Act to 24 hours advance notice of their shift starting times. They submit that they have a contract of employment with the Company but that it does not set out the start and finish times of their work. They submit that they have a three hour window within which they may be required to start and finish work. They submit that this does not comply with the provisions of the Act. They further argue that prior to the first day of work each week they are required to phone 12 hours before the end of their weekly rest period at which time they are given their commencement time for the following day. They submit that this is self-evidently a breach of the Act as it is less than 24 hours’ notice of the commencement time of their daily work.
Respondent’s Position
The Respondent states that the complainants 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 once a week. It argues that there is therefore no breach of section 17 of the Act. It further submits that the Act allows for variations to the Complainant’s start and finish times as the Company is subject to unforeseen changes to the delivery schedules imposed on it by its customers, by driver absenteeism and by other events. It finally submits 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.
The Law
Section 17 of the Act deals with the provision of information in relation to working time. It states
17 (1) 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 finishingtimes 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 thetimes 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.(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may fromtimetotimedecide (in this subsection referred to as “additional hours”), the 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 that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of thetimes at which the employee will be required to start and finishworkingthe additional hours on each day, or, as the case may be, the day or days concerned, of that week.
(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2) , the employee has not been required to do work for the employer, thetimeat which the employee shall be notified of the matters referred to in subsection (1) or (2) , as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.
(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2) , as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) attimes other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at thosetimes.
(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.
Findings of the Court
The Court finds that the contract of employment does not make provision for a “regular” or “normal” starting and finishing times of work for the complainants. It does not accept the argument advanced by the respondent that there is an implied term in the contract of employment to that effect. The Court takes 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 is no such provision in the contract of employment and it is conceded that neither a collective agreement nor an employment regulation order or registered employment agreement applies in this case, the respondent is required to give the claimants 24 hours’ notice of their shift commencement times. It is clear from the respondent’s own submissions that it does not meet this requirement of the Act.
Determination
The Court determines that the complaint is well founded. The Court upholds the decision of the Rights Commissioner. The Court orders the respondent to pay the complainants compensation in the sum of €1,000 to each of the complainants before the Court.
The Court further orders the Respondent to comply with the provisions of the section 17 of the Act.
Signed on behalf of the Labour Court
Brendan Hayes
9th May, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.