FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 19, EUROPEAN COMMUNITIES (ROAD TRANSPORT) (ORGANISATION OF WORKING TIME OF PERSONS PERFORMING MOBILE ROAD TRANSPORT ACTIVITIES) REGULATIONS, 2012 PARTIES : COSGRAVE TRANSPORT (LIMERICK) LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - MARIUSZ BONCZAK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-142053/142068/142826-mrt-14
BACKGROUND:
2. The Worker referred his case to the Labour Court in accordance with Section 20 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2012-S.I. No.36.2012 on the 16th April, 2015. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mariuzak Bonczak (hereafter the Claimant) against the decision of a Rights Commissioner in his claims under European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) against his former employer, Cosgrave Transport (Limerick) Ltd (hereafter the Respondent). The Respondent has also cross-appealed against the same decision.
The Claimant presented a multiplicity of claims to the Rights Commissioner under various statutes and in respect of various alleged infringements of those statutes, much of which were based on overlapping facts. Many of the claims were presented on different dates. There was also a multiplicity of appeals and cross-appeals.
All of the cases were conjoined by the Court and heard together.
This Determination relates to the Claimant’s claims under the European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) (hereafter the Regulations).
Background
The claims presented to the Rights Commissioner under the Regulations were: -
- 1. That the Claimant was required to work in excess of 60 hours in some weeks and was required to work in excess of 48 hours per week on average in contravention of Regulation 5 of the Regulations.
2. That the Claimant was not afforded adequate breaks in contravention of Regulation 8 of the Regulations .
3. That the Claimant was required to work excessive night work hours in contravention of Regulation 10 of the Regulations.
4. That the Claimant was not provided with notification in relation to the Regulations contrary to Regulation 11 of the Regulations.
5. That the Claimant did not receive records of his hours of work in contravention of Regulation 12(f) of the Regulations.
Conclusions
Having considered the submissions of the parties and the evidence adduced at the hearing of the appeal Court has reached the following conclusions.
Regulation 5 of the Regulations
What is in issue in this aspect of the claim is whether a period during which the truck driven by the Claimant was being loaded or unloaded is reckonable as working time.
On the evidence adduced at the hearing of the material facts, as admitted or as found by the Court on the evidence is as follows: -
- •The Claimant had no regular starting or finishing times. He started work between 4am and 8am, depending on the work to which he was assigned. He finished work between 6pm and 9pm.
•The Claimant received one break of 45 minutes duration in the course of the day and this was taken when his truck was being loaded or unloaded. He did not receive any other regular breaks.
•The truck driven by the Claimant carried goods contained in containers. On arrival at a client’s premises the Claimant opened the seal on the container and the client was responsible for loading or unloading the container. The Claimant did not participate in this work.
•At the commencement of the loading /unloading process the Claimant took a break of 45 minutes duration. One hour after his arrival at the client’s premises he was required to telephone the Respondent’s office to indicate how much longer the process would take. This was required in order to facilitate the allocation of additional work to the Claimant.
•The standard arrangement that the Respondent had with its clients was that a period of two hours was allocated to load / unload the truck. It this operation extended beyond two hours the client incurred a charge.
•The Claimant generally remained with his truck during these periods although he was not required to do so. The tachograph fitted to his truck was turned off during these periods.
•The Claimant’s solicitor sought to obtain records of the Claimant’s working hours from the Respondent. The Respondent did not furnish these records.
The Court is satisfied on the evidence that if these periods are discounted from the Claimant’s working day there was no contravention of Regulation 5(1)(a) of the Regulations.
The Law
Regulation 4 of the Regulations in relevant part, as follows: -
- (1) The reference period for a mobile worker shall be—
- (a) where a collective agreement, an employment regulation order or a registered employment agreement provides for the application of this Regulation in relation to successive periods of 17 consecutive weeks, each such period,
- (b) where a collective agreement provides for the application of this Regulation in relation to successive periods of 26 consecutive weeks, each such period,
(i) neither (a) nor (b) applies, and- (ii) the employer gives written notice to the mobile worker in writing that he or she intends to apply this subparagraph,
- (d) in any other case, each successive period in each year beginning at midnight at the beginning of the Monday which falls on, or is the first Monday after, a date in column (1) and ending at midnight at the beginning of the Monday which falls on, or is the first Monday after, the date on the same line in column (2) in the Table to this paragraph:
- TABLE
- (a) where a collective agreement, an employment regulation order or a registered employment agreement provides for the application of this Regulation in relation to successive periods of 17 consecutive weeks, each such period,
| Beginning | End |
| (1) | (2) |
| 1 January | 1 May |
| 1 May | 1 September |
| 1 September | 1 January |
Regulation 5(1) of the Regulations provides: -
- 5. (1) Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed—
- (a) a working time of more than 60 hours in a week,
(b) an average weekly working time of 48 hours in any reference period.
- (a) a working time of more than 60 hours in a week,
Where an employee works more than an average of 48 hours per week in a reference period a contravention of Regulation 5(1)(b) crystallises at the end of the reference period. Consequently a cause of action arising from that contravention accrues at that time. It follows that for the purpose of applying the six month time limit at Regulation 18(4) of the Regulations time starts to run from the end of the reference period to which the complaint relates.
Paragraph (b) of Regulation 4(1) is relevant in the instant case. The within complaint was presented to the Rights Commissioner on 13thFebruary 2013. Hence, the cognisable reference periods for the purpose of the claim relating to Regulation 5(1)(b) are those ending on 1stSeptember 2012 and on 1stJanuary 2013.
Regulation 6 provides: -
- Periods of availability, break times and rest times shall not be included in the calculation of working time.
- A period shall not be treated as a period of availability unless the person performing mobile road transport activities knows before the start of the relevant period about that period of availability and its reasonably foreseeable duration.
- (b) "periods of availability" shall mean:
- periods other than those relating to break times and rest times during which the mobile worker is not required to remain at his workstation, but must be available to answer any calls to start or resume driving or to carry out other work. In particular such periods of availability shall include periods during which the mobile worker is accompanying a vehicle being transported by ferryboat or by train as well as periods of waiting at frontiers and those due to traffic prohibitions.
These periods and their foreseeable duration shall be known in advance by the mobile worker, that is to say either before departure or just before the actual start of the period in question, or under the general conditions negotiated between the social partners and/or under the terms of the legislation of the Member States.
It is well settled that a provision of domestic law must be interpreted and applied in light of the wording and purpose of a relevant Directive of the European Union so as to achieve the result envisaged by the Directive (Case C-106/89,Marleasing SA v La Comercial Internacionale de Alimentacion SA[1990] ECR 1-4135). Moreover, Regulation 2(2) of the Regulations expressly provides that a word or expression used in the Regulations which is also used in the Directive has, unless the contrary intention appears, the same meaning in the Regulations that it has in the Directive.
In considering the definition of a period of availability contained in the Directive it appears to the Court that a period during which a mobile worker is ready and available to work but is not called upon to work can constitute such a period within the statutory meaning of that term. The period and its duration must be reasonably foreseeable in advance of the commencement of the period. It is also clear that a worker cannot be required to remain at his or her workstation during the period in order for it to constitute one of availability, although he or she may choose to do so. A period during which a break is taken is to be distinguished from a period of availability. A break is an uninterrupted period during which a worker cannot be called upon to work whereas, by its nature, a period of availability is one during which the worker must be ready to commence working if called upon.
Findings
On the evidence the Court is satisfied that the Claimant knew in advance that the loading or unloading of his truck would continue for a period of approximately two hours after he arrived at the premises in which that operation occurred. He first took a break of 45 minutes. This period of 45 minutes was not a period of availability but it is not reckonable as working time as is clear from Regulation 6 of the Regulations. For the remaining period of one hour and fifteen minutes he remained available to commence work if required to do so. He sometimes remained in the cabin of his truck (which was his workstation) although he was free to go elsewhere. He was required to make or receive one telephone call during this period for the purpose of monitoring the progress of the loading or unloading process. He was not required to participate or assist in the process of loading or unloading of the container.
On these facts the Court is satisfied that the times from the ending of his 45 minute break until he recommenced driving are properly classifiable as period of availability within the meaning of the Regulations. Moreover, in the period immediately before the commencement of the period of availability the Claimant took a 45 minute break, and, as previously observed, that period must also be discounted for the purpose of measuring his working time.
The Court is satisfied on the evidence that when the combined period during the Claimant’s working day accounted for by his break and the period of availability are discounted from the period between his starting and finishing times, he did not work in excess of the period specified in Regulation 5 of the regulations.
Accordingly, the decision of the Rights Commissioner on this point is set aside.
Regulation 8
The Court is satisfied on the evidence, and as a matter of probability, that there were occasions on which the Claimant did not receive the breaks to which he was entitled, The decision of the Rights Commissioner on this point is affirmed. The Court does not see any basis upon which it could interfere with the award of compensation in the amount of €1,000 made by the Rights Commissioner.
Regulation 10
The Court is satisfied that Regulation 10 was contravened in relation to the Claimant on two occasions during the period to which his complaint relates.
The decision of the Rights Commissioner on this point is affirmed. The Court does not see any basis upon which it could interfere with the award of compensation in the amount of €1,250 made by the Rights Commissioner.
Regulation 11
The Rights Commissioner found that the complaint in relation to Regulation 11 of the regulations was presented outside the time limit specified at Regulation 18(4) of the Regulations. There was no evidence adduced upon which the Court could grant an extension of the time limit under Regulation 18(5).
Accordingly the decision of the Rights Commissioner on this point is affirmed.
Regulation 12(f)
It is clear on the evidence that this regulation was contravened in relation to the Claimant.
The decision of the Rights Commissioner on this point is affirmed. The Court does not see any basis upon which it could interfere with the award of compensation in the amount of €1,500 made by the Rights Commissioner.
Disposal
The decision of the Rights Commissioner is varied in the terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
2nd October, 2015______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.