FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TANSEY TRANSPORT LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES IRELAND LTD) - AND - MAREK ROG (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. A joint appeal against a Rights Commissioner's Decision no: r128551/128552/128980/128990/128974/129548-wt-12/DI.
BACKGROUND:
2. The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 23rd July 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 19th August 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 30th September 2015. The following is the Decision of the Court.
DETERMINATION:
This is an appeal brought by the Respondent from a decision of the Rights Commissioner under the Organisation of Working Time Act 1997. The Respondent has appealed the Rights Commissioner’s decision in relation to claims brought under sections 11, 13 and 14 of the Act. The Claimant has cross-appealed the Rights Commissioner’s decision in relation to sections 12, 15 and 16 of the Act.
Background
- 1. The Claimant commenced employment with the Respondent as an international driver on 4 July 2008.
2. The Claimant was issued with a contract of employment that provided that his working week would be over 7 days, Saturday to Friday. It further provided that he could be required to work up to 90 hours a fortnight. His pay was €850.00 per fortnight or €9.44 per hour. He was also paid a subsistence allowance of €250.00 per week that was agreed with Revenue.
3. It is common case that the Claimant terminated his own employment with immediate effect in the course of a telephone call to the Respondent on 28 September 2012, at which time he was on a week’s paid annual leave from his employment.
4. It is not disputed that the Claimant is a mobile worker within the meaning of the European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) (hereafter “the Regulations”).
The Rights Commissioner upheld the claim under section 11 of the Act on the basis that the tachograph records submitted by the employer in respect of the period 11 June 2012 to 31 August 2012 disclosed 15 separate breaches in respect of the Claimant’s entitlement to daily rest breaks. The Claimant accepts the Rights Commissioner’s finding in this regard and is not appealing it.
Likewise, the , the Rights Commissioner found that the Claimant had only received 8 weekly rest periods and 2 compensatory rest breaks during the course of the 12 week period to which the aforementioned tachographs applied. On that basis, he upheld the claim under section 13 of the Act and made an award of compensation.
The Respondent submits that the Rights Commissioner lacked jurisdiction to decide the Claimant’s complaints under section 11 and 13 of the Act by virtue of the application of the Regulations.
The Rights Commissioner refused to uphold the claims under section 12 and 15of the Act as he found he had no jurisdiction to determine such complaints in the case of the Complainant. The Complainant disputes this aspect of the Rights Commissioner’s decision.
In Determination DWT1398,Lucey Transport Limited and Marius Serenasthis Court extensively considered the applicability to mobile workers of provisions of the Act that overlap with provisions of the Regulations.
Having considered the applicable legal principles the Court concluded in that case as follows: -
- 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 inconsistency 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.
- 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.
It was submitted by the representative of the Claimant that in light of the making of these Regulations the decision inLucey Transport Limited and Marius Serenasshould not be followed in respect of a period prior to the making of the Regulations.
The Court does not accept that submission.
In is clear from the decision inLucey Transport Limited and Marius Serenas, and for the reasons stated therein, that the Regulations are intended to definitively and exclusively regulate the organisation of working time of persons performing road transport activities. Consequently provisions of the Act that overlap with provisions of the Regulations are inapplicable to persons to whom the Regulations relate. That Determination was followed by the Court in Determination DWT1577,Stan O’Reilly t/a C&D Recycling and Aigars Plauka. The making of Regulations under the Act by the Minister for Jobs, Enterprise and Innovation in 2015 merely codified the law in that regard and does not invalidate or offset the conclusions reached by the Court inLucey Transport Limited and Marius Serenas.
Determination
Sections 11, 12,13, 15 and 16 of the Act overlap with provisions of the Regulations. Consequently the Court must hold that those provisions of the Act are inapplicable in the instant case. In reaching this conclusion, the Court notes that at the time material to this aspect of the claim there was no provision for the making of a complaint to a Rights Commissioner concerning a contravention of Regulation 9 of the Regulations, which overlaps with s.11 of the Act. The only sanction for a breach of that Regulation lay at the material time within the criminal law. That omission has since been rectified. Nevertheless, the Court is satisfied that the clear intention of the lawmaker in promulgating the Regulations was that the entitlements of mobile workers to daily rest periods should be governed by the Regulations and not by the Act. In so far as the Regulations as originally drafted may have contained an omission, that omission cannot be rectified by this Court.
Accordingly, the claims under sections 11, 12, 13, 15 and 16 of the Act are dismissed.
The Court so determines.
B:Section 14
This section of the Act provides that an employer must compensate an employee who is required to work on a Sunday “when 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”.
The Claimant’s case is that he was required to work on 2 out every 3 Sundays. However, his payslips do not show a separate amount in respect of Sunday premium. He contends he received no such premium. This aspect of his claim was upheld by the Rights Commissioner. The Respondent submits that the Claimant’s hourly rate of pay of €9.44 is inclusive of a Sunday premium, notwithstanding the fact that the Claimant’s contract is completely silent on the issue of Sunday premium.
This Court determined as follows inTansey Transport v Robert SauterDWT1417, in which case the worker’s circumstances were materially similar to those of the Claimant herein:
- It is common case that the Complainant worked an average of one Sunday in four /five. The Respondent relies of section 14(1) (b) of the Act. It states that the Complainants pay was otherwise increased by such an amount as is reasonable having regard to all the circumstances. In this regard it refers to the difference between the statutory minimum rate of pay and the actual rate of pay paid to the Complainant. It submits that the difference includes the premium for working on Sunday.
The Court does not accept this argument. The Respondent has not identified the proportion of that difference that constitutes the premium for working on Sunday. In essence its defence is that any payment over and above statutory minimum pay discharges its obligations under this section. However the Court, as a specialist tribunal, is aware that heavy goods vehicle drivers are normally paid a premium over and above the statutory minimum pay rate for the skills they possess and the responsibilities of the job. The Court is equally aware that drivers that work shift work receive premiums over and above the statutory minimum pay rate even where they are not required to work on Sunday. Accordingly the Court does not accept that any payment over and above the statutory minimum pay rate necessarily contains a premium for working on Sunday.
Accordingly, the Court finds that the Respondent has not demonstrated that the rate of pay of the Complainant includes a premium for working on Sundays.
The Court can find no reason to upset the Rights Commissioner’s finding in relation to the claim in respect of section 14 of the Act. The Court upholds the award of €1,500.00 in compensation made by the Rights Commissioner under this head.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
23rd October, 2015______________________
CRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.