ADJ-00015512

Complainant

Respondent

Anonymised Parties

Retained Firefighter

Local Authority

Representatives

William Martin Smith, B.L., instructed by  McGarry & Company Solicitors

 Eamonn Hunt, B.L., LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020108-001

29/06/2018

The complainant commenced employment as a retained firefighter with the respondent in March 1999.  It is a part-time position but the complainant is on-call and must respond to calls.  The complainant alleges that the respondent has not adhered to his rights as regards rest periods, breaks or weekly or night-work maximum hours.

The complainant, when not attending a fire or other call-out or drill, is on-call for incidents and must carry an “alerter” with him during on-call time.

Apart from 28 days’ leave and pre-agreed time-off, the complainant is on-call at all times.

While on-call the complainant does not receive rest periods or breaks nor does he have his nightly or weekly on-call hours capped.

The complainant must be sober and in a fit state to attend at work whilst on-call.  He must attend the fire station within 7 minutes of an alert.  This significantly limits the complainant’s social and leisure activities.

This requirement means that the complainant is at his employer’s disposal at all times when he is on call.

The European Court in Ville de Nivelles v Matzak (EJC Case C-518/15) found that such on-call time must be regarded as working time.

Retained firefighters make up about 70% of fire service personnel in Ireland.

Whilst on-call retained firefighters are not required to attend at the fire station but to be within a specified time limit of it.  Those firefighters can engage in other activities or employment.  This stand-by time is not considered working time.

This position is addressed by S.I. No. 21/1998, Organisation of Working Time (General Exemption) Regulations, 1998, and by S.I. No. 52 /1998, Organisation of Working Time (Exemption of Civil Protection Services) Regulations, 1998.

Persons employed in each of the classes of activities specified in the Schedule of the Regulations (which includes the complainant) are exempted from Sections 11,12, 13, 15 and 16 of the Organisation of Working Time Act, 1997.

The Adjudication Officer does not have jurisdiction to consider the ruling in Ville de Nivelles v Matzak in any consideration of this case as the current legal position is that the WRC does not have jurisdiction to disapply national law.

The complainant joined the respondent’s fire service in March 1999.  His position is that of a retained firefighter.  The complainant is remunerated by way of a fixed retainer paid on a quarterly basis plus extra payments which are paid as the result of attendance at incidents to which the service is called or attendance at drill.  Whilst on-call, firefighters must be able to report for duty to their fire station within 7 minutes of receiving the alert.  Failure to attend for a minimum of 75% of alerts in a given quarter of a year leads to forfeiture of half the retainer for that quarter year.

The complainant has an entitlement to 28 days’ annual leave.  In addition, there are arrangements for pre-agreed time-off.  Retained firefighters can engage in other employment or activities whilst contracted as a firefighter as long as they can respond within the criteria set out above.

In the original complaint form as submitted to the WRC the complainant only ticked the box referring a complaint in regard to weekly rest periods but in the submission the complainant claims that the respondent was in breach of the provisions contained in Sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997.  The complaint was filed with the WRC on 29 June 2018 and I note that the complainant commenced sick leave on 18 March 2018.

Section 11 of the Act states:

Daily rest period

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

Section 12 states:

Rest and intervals at work.

(1)    An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him a break of at least 15 minutes.

(2)    An employer shall not require an employee to work for a period of more than 6 hours without allowing him a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3)    The Minister may by regulation provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4)    A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 13 states:

Weekly rest periods.

(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 subsection (4) and (6), the time at which that rest period commences shall be such that the 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, the time at which the first of those periods commences shall be such that each period is immediately preceded by a daily rest period, and

(b)    if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4)    If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not 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.

(6)    The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

Section 15 states:

Weekly working hours.

(1)    An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as the “reference period”) that does not exceed –

(a)    4 months, or

(b)    6 months –

(i)                  in the case of an employee employed in an activity referred to in paragraph (2), point 2.1 of Article 17 of the Council Directive, or

(ii)                where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to an employee) for the employer to comply with this subsection,

            Or

(c)     Such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2)    Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the 24 months beginning on the commencement of that Schedule).

(3)    The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4)    A reference period shall not include –

(a)    any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(aa) any period during which the employee was absent from work while on parental leave, force majeure leave or carer’s leave within the meaning of the Carer’s Leave Act, 2001’

(b)    any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(c)     any sick leave taken by the employee concerned.

(5)    Where an employee is employed in an activity (including an activity referred to in subsection (1)(b)(i) –

(a)    the weekly hours of which vary on a seasonal basis, or

(b)    as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

    then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1)(c), a length of time in relation to an employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

Section 16 states:

Nightly working hours.

(1)    In this section –

“night time” means the period between midnight and 7 a.m. the following day;

“night work” means work carried out during night time;

“night worker” means an employee –

(a)    who normally works at least 3 hours of his or her daily working time during night time,

        and

(b)    the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year.

(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 of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved by the Labour Court under section 24.

(3)    In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under section 28(1) of the Safety, Health and Welfare at Work Act, 1989, in relation to the risks attaching to the work that the night worker is required to do indicates that the work involves special hazards or a heavy physical or mental strain.

(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 parental leave, force majeure leave or carer’s leave within the meaning of the Carer’s Leave Act, 2001

(d)    any absence from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(e)    any sick leave taken by the employee concerned.

In 1997 the Oireachtas enacted the Organisation of Working Time Act which gave effect to EC Directive 104 0f 1993.  This Directive was subsequently replaced by Directive 2003/88/EC.  The complainant is alleging breaches of Sections 11, 12, 13, 15 and 16 of that Act.  In 1998 two Statutory Instruments arising from provisions of the Act were brought into operation.  These were SI No. 21 0f 1998, The Organisation of Working Time (General Exemptions) Regulations 1998 and SI No. 52 of 1998, The Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998.  Amongst the provisions of these regulations was the exemption of the application of Sections 11, 12, 13, 15 and 16 of the Act to certain categories of worker including firefighters.  These derogations were enacted pursuant to Article 17 of Directive 2003/88/EC which permits Member States to derogate from specified Articles of the Directive.  Article 17(3)(c)(iii) specifically mentions “ambulance, fire and civil protection services” as amongst those activities to which the derogation may apply.

Statutory Instrument No. 52/1998 in Regulation 3 states:

The persons employed in each of the classes of activity specified in the Schedule to these Regulations are, as respects the carrying out of the duties involved in that activity, hereby exempted from the application of sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997.

Paragraph 2 of the Schedule which lists the classes of activities to be excluded states:

The activity of a person employed by a fire authority in the position commonly known as retained fire fighter.

The legal position therefore is that S.I. No. 52/1998 applies a derogation from Sections 11,12,13, 15 and 16 of the Organisation of Working Time Act, 1997, for persons who are engaged as retained firefighters.

  The argument on behalf of the complainant is that the interpretation of the law as set out by the European Court of Justice in their ruling in the case of Ville de Nivelle v Matzak (ECJ Case No. C-518/15, dated 21 February 2018) has established that the stand-by time of a retained fire fighter must be considered as working time.  The respondent’ representative argued that an adjudication officer does not have jurisdiction to consider the Matzak decision and referenced the Decision of the High Court in Minister for Justice, Equality and Law Reform v The Equality Tribunal (2009) 20 E.L.R.116 and the subsequent Supreme Court decisionin this regard.  The respondent’s position was that arising from these decisions an adjudication officer of the WRC does not have jurisdiction to disapply national law.  The Matzak decision, however, is a judgement of the European Court of Justice which deals with the interpretation of the Directive on Working Time which was implemented into Irish law by the Organisation of Working Time Act, 1997.  As such, it is a matter that can be properly considered by an adjudication officer.  The other counter-argument advanced by the respondent is that there are important differences between the position of the firefighter in the ECJ case and that of the respondent in the complaint before me.  In the former case the firefighter is a volunteer whilst the complainant works under a contract as a retained firefighter earning a fixed retainer plus call-out payments.  In addition, the respondent emphasised that the complainant like all other retained firefighters is free to engage in other activities and employment.

The complainant submits that all of the time that he is on call consists of working time for the purposes of the Act and references Matzak in support of that proposition.  The complainant’s submission goes on to state that when he is on call the complainant is effectively working 24 hours per day with no rest periods or breaks from work nor with any maximum limits regarding weekly working time or night work.  This is the basis of the complaints that have been filed under the Organisation of Working Time Act, 1997.  Prior to Matzak, the most cited authority for employees like the complainant were the ECJ Decisions contained in Jaeger(C151/02) and Simap (C-303/98).  Simap held that the availability of a worker at their place of work during a stand-by period with a view to providing their professional services must be regarded as carrying out his duties.  The ECJ in Paragraph 59 of Matzak states:

Furthermore, it is apparent from the case-law of the Court that the determining factor for the classification of “working time” within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need.  In fact, these obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming under the ambit of the performance of their duties…

The Court also considered the Jaeger judgement.  That case involved a hospital doctor who was obliged to stay at his place of work while on call but could sleep there if not required to work.  The Court found that the requirement to stay at his place of work and provide his services immediately when required meant that the doctor was subject to significant constraints and therefore decided that such on call duty in its entirety constituted working time.  Having considered the Jaeger judgement the Court in Paragraph 60 stated:

Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires the worker to be permanently accessible without being required to be present at the place of work.  Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests.  In those circumstances, only time linked to the actual provision of services must be regarded as “working time” within the meaning of Directive 2003/88.

Paragraph 61 of Matzak went on to deal with the particulars of that case.

In the case in the main proceedings, according to the information available to the Court, which it is for the referring court to verify, Mr. Matzak was not only to be contactable during his stand-by time.  He was, on the one hand, obliged to respond to calls from his employer within 8 minutes and, on the other hand, required to be physically present at the place determined by his employer.  However, that place was Mr. Matzak’s home and not, as in the case law cited in paragraphs 57 – 59 of the present judgement, his place of work.

The Judgment concludes as follows:

Paragraph 65

In those circumstances, it is necessary to apply the concept of “working time” provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.

Paragraph 66

It follows from all of the foregoing that the answer to the fourth question is that Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as “working time”.

 Returning to the case before me and as noted above, the complainant submits that all the time that he was on call consists of “working time” and cites Matzak in support of that proposition.  That is the basis of the complaints filed under the Organisation of Working Time Act, 1997.  I note that the respondent states their belief that the complainant engaged in other activities / employment when not present in the workplace and that the complainant’s response was to the effect that he was not employed during the period in question.

 In examining the Matzak Decision it appears to me that strong emphasis is accorded to the fact that the complainant in that case was obliged to remain at home during stand-by periods.  As stated in Paragraph 59 above “it is apparent from the case-law of the Court that the determining factor for the classification of “working time”, within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and be available to the employer…”.

 It is the fact that the employee cannot choose the place where they stay during stand-by periods that provides the constraint that led the Court to decide that such periods must be classified as “working time”.  As noted in Paragraph 60 which deals with the situation where workers are required to be permanently accessible without being required to be present at the place of work, the Court notes that “even if he is at the disposal of his employer…in that situation the worker may manage his time with fewer constraints and pursue his own interests”.  It appears to me that the Court is differentiating between that situation and the position of the complainant in Matzak.  Equally, I must also note that that difference also exists as regards the case before me and the facts in the Matzak case.   In summary, therefore, I do not accept that the restrictive elements pertaining to the decision in Matzak in regard tothe classification of working time (i.e. being physically present at a place determined by their employer during stand-by periods thus making it impossible for them to choose the place where they stay during those periods)can be applied to the complainant’s position.  It follows therefore that I do not find that the on-call periods can be classified as “working time” for the purposes of the Organisation of Working Time Act, 1997.

Complaint No. CA-00020108-001:  This complaint under the Organisation of Working Time Act, 1997, alleges that the respondent breached Sections 11, 12, 13, 15 and 16 of that Act.  I find that the on-call periods which form the basis of these complaints cannot be classified as “working time” under the Act and accordingly I find the complaints to be unfounded.

Working time  Retained firefighter  Derogation  On call