RTD163

Background

The Respondent Company operates an international transport business. It employed the Complainant as an international truck driver.

Complaints

Regulation 5

The Complainant submits that the Respondent infringed article 5 of the Regulations. It states

• 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.

  (2) The average weekly working time of a person during a reference period shall be determined according to the formula—

  (A+B)/C

  where—

  A is the aggregate number of hours comprised in that person’s working time during the course of the reference period;

  B is the number of excluded hours during the reference period; and

  C is the number of weeks in the reference period.

  (3) In this Regulation “excluded hours” means hours comprised in—

  (a) any period of annual leave taken by the person in accordance with the Organisation of Working Time Act 1997 (No. 20 of 1997) (save so much of it as exceeds the minimum period of annual leave required by that Act to be granted to the mobile worker),

  (b) any absences from work by the person authorised under the Maternity Protection Act 1994 (No. 34 of 1994), the Adoptive Leave Act 1995 (No. 2 of 1995), the Parental Leave Act 1998 (No. 30 of 1998), or the Carer’s Leave Act 2001 (No. 19 of 2001), and

  (c) any period of sick leave taken by the person.

  (4) For the purposes of paragraph (2), the number of

  hours in a whole day shall be 8 and the number of hours in a whole week shall be 48.

  (5) An employer shall ensure that the limits specified in paragraph (1) are complied with in the case of each mobile worker employed by him or her.

  Periods of availability, break times and rest times

  6. Periods of availability, break times and rest times shall not be included in the calculation of working time.

  The Complainant submits that the Respondent infringed section 5 of the Regulations. He submits in particular that he did not receive his entitlement to daily rest, weekly rest and break periods.

  He submits that he requested details of his hours from his employer. He states that he did not receive the requested details. He submits that as the Regulations places a statutory obligation on the employer to provide him with a copy of his hours the onus of proving compliance with the Regulations must rest with the Respondent.

  The Respondent submits that it complied with the requirements of section 5 of the Regulations and submitted copies of his working hours as recorded on his tacograph in support of its submission.

  Findings of the Court

  The Court finds that the Regulations place on an employer an obligation to ensure that the limits specified in paragraph (1) are complied with. The Respondent has, in respect of the Complainant, produced records that show it in substantive compliance with the limits set out in Regulaton No 5. However some infringements of the Regulation were disclosed in those documents.

  Regulaiton 18(3) provides

  • (3) A decision of a rights commissioner under paragraph (2) shall do one or more of the following:

    (a) declare that the complaint was or was not well founded;

    (b) require the employer to comply with the provisions of these Regulations that have been contravened;

    (c) require the employer to pay the mobile worker compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 104 weeks’ remuneration in respect of the mobile worker’s employment (calculated in accordance with requirements under section 17 of the Unfair Dismissals Act 1977 );

    and the references in clause (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

  Determination

  Taking all of the evidence into account the Court finds that the Complaint is well founded and in the circumstances of this case requires the Respondent to put in place mechanisms to ensure that it complies fully with the provisions of this regulation.

  Regulation 8

  The Complainant submits that he did not receive his statutory daily rest period in accordance with Regulation No 8.

  Regulation No 8 in relevant part states

  • 8. (1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

    (2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

    (3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

    (4) Each break may be made up of separate periods of not less than 15 minutes each.

    (5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

  The Complainant submits that he did not receive his entitlements under this section.

  The Respondent submits that it complied fully with the Regulations and produced tacograph evidence in support of its submissions. It submits that any infringements, which it denies, were minor and unintended and submits that it takes all reasonable steps to ensure that it complies with its obligations under the Regulations.

  Findings of the Court

  The Court finds that the records supplied by the Respondent show substantive compliance with section 8. The Court finds that the Regulations place on an employer an obligation to ensure that the provisions of regulation 8 are fully complied with. The Respondent has, in respect of the Complainant, produced records that show it is in substantive compliance with the Regulation (8). However some infringements of the Regulation were disclosed in those documents.

  Regulation 18(3) provides

  • (3) A decision of a rights commissioner under paragraph (2) shall do one or more of the following:

    (a) declare that the complaint was or was not well founded;

    (b) require the employer to comply with the provisions of these Regulations that have been contravened;

    (c) require the employer to pay the mobile worker compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 104 weeks’ remuneration in respect of the mobile worker’s employment (calculated in accordance with requirements under section 17 of the Unfair Dismissals Act 1977 );

    and the references in clause (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

  Determination

  Taking all of the evidence into account the Court finds that the Complaint is well founded and in the circumstances of this case requires the Respondent to put in place mechanisms to ensure that it complies fully with the provisions of this regulation.

  Section 11

  Section 11 of the Regulations states

  Obligation to notify mobile worker

  11. An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.

  The Complainant submits that the Respondent, contrary to regulations 11, did not notify him of the provisions of these Regulations.

  The Respondent submits that it did notify the Complainant in his induction training into the Company of these regulations and of his obligations thereunder.

  Findings of the Court

  The Court has considered the submissions of both parties to this complaint. Having given those submissions due consideration the Court, on balance, finds that the Respondent did notify the Complainant of these regulations.

  The Court accordingly decides that the Complaint is not well founded and determines accordingly.