DWT15111

The Claimant referred claims to the Rights Commissioner alleging contravention of s11 of the Act and contraventions of sections 20 and 22 of the Act. The Rights Commissioner found that the Respondent had contravened s. 11 of the Act and awarded the Claimant compensation in the amount of €500.

The Rights Commissioner made no definitive decision in relation to sections 20 and 22 of the Act.

The only matter pursued in the appeal was the finding in relation to section 11 of the Act.

The Claimant is a mobile worker within the meaning of European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) (hereafter the Regulations). The Claimant has brought separate proceedings alleging various contraventions of the Regulations.

In Determination DWT1398,Lucey Transport Limited and Marius Serenasthis Court extensively considered the applicability of provisions of the Act to mobile workers which 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 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.

• 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.

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.

Section 11 of the Act overlap with Regulation 9 of the Regulations. Consequently the Court must hold that this 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. 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 decision of the Rights Commissioner in respect of the complaint under s.11 of the Act is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
CO'R
23rd October, 2015______________________
Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.