ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018224
Parties:
| Complainant | Respondent |
Anonymised Parties | Retained Fire Fighter | County Council |
Complaints:
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-00028245-001 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-002 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-003 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-004 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-005 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-006 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-007 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-008 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028245-009 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00028245-010 | 09/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023458-001 | 23/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023669-001 | 30/11/2018 |
Date of Adjudication Hearing: 24/09/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant is employed as a Retained Firefighter since 23rd November 2015. He has claimed that the Respondent has breached Sec 11,12,13,14,15,16,17,19,21 of the Organisation of Working Time Act. . |
Summary of Complainant’s Case:
1)Organisation of Working Time Act CA 28245-001/002/003/004/005/006/007/008/009
CA 23458-001: CA 23669-001
The Claimant’s complaints before the WRC are as follows:- Various claims under Section 27 of the Organisation of Working Time Act 1997:- i. Section 11 in relation to the Claimant’s entitlement to daily rest breaks; ii. Section 12 in relation to the Claimant’s entitlement to rest and intervals at work; iii. Section 13 in relation to the Claimant’s entitlement to weekly rest breaks; iv. Section 15 in relation to the Claimant working more the prescribed number of weekly working hours; v. Section 16 in relation to the Claimant having to work excessive night hours; vi. Section 19 in relation to the Claimant’s Annual Leave entitlement in respect of hours of work; vii. Section 19 in relation to the Claimant’s Annual Leave entitlement in respect of pay; viii. Section 21 in relation to the Claimant’s Public Holiday entitlement in respect of hours of work; ix. Section 21 in relation to the Claimant’s Public Holiday entitlement in respect of pay; x. Section 17 in relation to the Claimant’s right to information in respect of being notified of start and finishing times; xi. Section 17 in relation to the Claimant’s right to information in respect of not being notified in advance of any additional hours; xii. Section 14 in relation to the Claimant’s right to compensation for working on a Sunday. Background By way of background, the Claimant, as stated is a Retained Firefighter. He commenced his employment on the 23rd November 2015 and has been employed on a “continuous basis” since that date. As a whole, Retained Firefighters are men and women who are “on call to respond to a range of emergencies”. Thus, when a call is received for the fire brigade, the alerters for a particular brigade are activated and the firefighters, who each carry an alerter respond to the fire station immediately. The firefighters are then required to make their way to the station without delay, in the most expedient manner possible. In addition to having to respond to emergency calls and undertaking community fire safety initiatives, Retained Firefighters are mandated to attend regular training, so as maintain competency levels; this can often be weekly, as in this instance. Furthermore, they must undertake routine checks on their equipment as well as testing, cleaning and maintaining said equipment to ensure its functionality when engaging in emergency calls. A firefighter can be called upon to tackle a wide range of emergency situations where problem solving skills and initiatives are vital to resolve issues quickly and calmly. These may include incidents which vary from rescuing people from burning buildings to dealing with chemical incidents and road traffic collisions. To be clear, unlike full time firefighters, retained firefighters are not paid a full time wage However, receive a quarterly retainer for their services. In accordance with the “Composite Retained Firefighters Agreement 1999”, the current practice is that all part time firefighters in Ireland are “on call” 24/7, 168 hours per week for at least 48 weeks in the year. To accommodate such, the Regulations provide that all firefighters live within a 2 - 2.5 km radius of the nearest station and that they must be readily available at all times throughout the day and night. In contrast, full time firefighters are provided with a balanced working week of four days on and three days off rotating. Furthermore, in accordance with the Claimants Contract of Employment, it states under section 8 that Firefighters will reside and work within an acceptable distance of the Fire Station; “Generally this is with a five minute travel time to their designated station, as measured using Google Maps. If at any time change of work or place of residence affect the availability, the fire fighter will be required to resign”. Additionally, the Claimants fire station has proposed and agreed for a new station in Maynooth, which is set to be built in the next few years. The Claimant currently lives within the required distance however, if the foregoing move is to take place, the Claimant will be 9 minutes out from the station. Initial Legal Argument: Working Time In Ireland, “working time” is defined by the Organisation Working time Act 1997 (as amended) [“the 1997 Act”]. This in turn is subject to and derives from the European Working Time Directive 93/104/EC. The 1997 Act itself covers all employees under a contract of employment. The recitals of the Directive expressly states that “the improvement of workers safety… and the health is an objective which should not be subordinated to purely economic considerations”. The original purpose of the Directive was to promote health and safety at work by amongst other means, requiring workers to be given the appropriate rest periods and paid holidays therein. The term “working time” has a varied meaning across a huge range of employment statutes. This can often be a straightforward matter. For many, working time begins when an employee arrives at their place of work at the relevant start time. However, in this instance the issue is more convoluted. As it currently stands, part time retained firefighters work on an “on call” basis and are therefore available for 168 hours a week at their employer’s discretion. Under the European Working Time Directive which was transposed into Irish law by the Organisation of Working Time Act 1997, Working Time is defined as:- “Any time that the employee is at …. his/hers employers disposal”. There have been a number of important decisions in this area which have clarified and built on the definition of working time. In the case of Simap1,it was held that the physical presence and availability of the worker at the place of work during a stand-by period must be regarded as carrying out his duties, even if the activity actually performed varies according to the circumstances. Here the Court concluded on the following:- “Article 2(1) of Directive 93/104 must be interpreted as meaning that the following should be included in working time: (a) time when doctors are at the employer's disposal and are physically present at health centres; (b) periods of time when doctors are contactable, that is to say available to perform their duties, but are not present at the health centres, such periods being limited to time when they are actually engaged in activities. All the periods which fall within working time must be taken into account in calculating the total duration of work for the purposes of Directive 93/104.” In the case of Jaeger2 and in Grigore3 the Court of Justice of the European Union (CJEU) held that the determining factor for the classification of “working time”, 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, those 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 within the ambit of the performance of their duties. A more recent decision in Ville de Nivelles v Rudy Matzak pertained to the fire service in the town of Nivelles (Belgium). The volunteer firefighters in this instance were involved in operations and also provided stand-by and on duty services, similar to the retained firefighters in Ireland and the claimant in particular. The case concerned a Mr Rudy Matzak, who acquired the status of a volunteer firefighter in 1981. He was also employed in a private company. In 2009, Mr Matzak brought judicial proceedings against the Town of Nivelles in order to obtain compensation for his stand-by services, which according to Mr Matzak should have been categorised as “working time”. Similar to the above cases, the Court of Justice of the European Union held that, stand-by time which a worker is required to spend at home with the duty to respond to calls from his employer within eight minutes – which very significantly restricts the opportunities to carry out other activities – must be regarded as “working time”. The Court pointed out in that regard that the determining factor for the classification of “working time”, within the meaning of the Directive was the requirement that the worker be physically present at the place determined by the employer and be available to the employer in order to be able to provide the appropriate services immediately in case of need. The Court considered that even if that place, in the present case was Mr Matzak’s home and not his place of work, the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the need to reach his place of work within eight minutes were such as to objectively limit the opportunities which a worker in Mr Matzak’s circumstances had to devote himself to his personal and social interests. The CJEU clearly provided that article 17 (3) (c) (iii) of Working Time Directive 2003/88/EC must be interpreted as meaning that Member States may not derogate, with regard to certain categories of firefighters recruited by public service fire services, from all obligations arising from the provisions, including article 2 thereof, which defines concepts of “working time” and “rest periods”. Furthermore, the Court concluded that article 15 of the Directive must be interpreted as not permitting Member States to maintain or adopt a less restrictive definition of the concept of “working time” than that laid down in article 2 of that Directive. Thus, the Court determined that article 2 of the Directive 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 a specified time period, very significantly restricting the opportunities for other activities, must be regarded as “working time”. Further to the above, Belgian law (the Royal Decree of 6th May 1971) laying down the types of municipal regulations relating to the organisation of municipal firefighting services, Moniteur Belge of 19th June 1971, p.7891, regulates matters relating to the staff in that service. This is set out at point 12 of the Matzak Judgement. It states specifically that that regulation contains provisions specific to the professional staff and volunteer staff of the fire service. Nowhere in that does it state that they must be “home based”. The question of whether the Directive, in regards to working time and resting periods, be interpreted to the effect that it is not applicable to the concept of working time which serves to determine the remuneration owed in the case of home- based on call time was addressed by the Cour du travail de Bruxelles (higher Labour Court, Brussels), to the Court of Justice (CJEU) as per paragraph 22 of the Judgement of the CJEU in the Matzak case. It can only be interpreted as the Cour du travail de Bruxelles, given the very restrictive working conditions set down in the Royal Decree of the 7th May, determined that in effect Mr. Matzak had to remain primarily as they put it “home based”. Equally in regards to paragraph 22 (4) of the decision of the CJEU, as previously stated, nowhere in Mr. Matzak’s contract, as is the Claimant’s contract here today, was he required to remain at home all the time. The decision is therefore on “all fours” with the position of retained firefighters in this jurisdiction and, as previously averred to, the position in this country is indeed arguably more restrictive. Although the above are European based cases, they have what is called “direct effect” in Ireland, in other words, individuals within Ireland can rely upon them. The Labour Court has followed the aforementioned Decisions in a number of cases which have come before them in the past number of years. In addition, in accordance with the recent European preliminary ruling in Minister for Justice of and Equality, Commissioner of An Garda Siochana v Workplace Relations Commission and Ronan Boyle & Ors which clearly states that on the basis of primacy of EU law that the WRC, a statutory body established for the resolution of employment related disputes in Ireland, has the authority to disapply a rule of national law that is contrary to EU law here it is necessary to give full effect to the EU law. In consideration of such, it is submitted that despite the fact that the Claimant herein worked on an “on call” basis, for the purposes of the legislation, he was still at his employer’s disposal during this time frame. In summary, it seems that part time retained firefighters, and the Claimant in this instance, in application of the Nivelles case, due to the restrictive nature of their work, are at the disposal of their employer, meaning the entirety of the time spent “on call” (168 hours weekly) qualifies as “working time” for the purpose of the Organisation of Working Time Act 1997.
Section 15 of the Organisation Working Time Act 1997: Prescribed Weekly Hours Given that the Claimant has been at his employer’s disposal for 168 hours a week, it is clear that his employer has breached Section 15 of the Organisation of Working Time Act, and that he should be compensated accordingly for the breach of the provisions contained herein. Relying on the Von Colson, case we respectfully submit that the compensation should reflect the blatant abuse of the Directive by the Respondent and be seen as a deterrent to others. Section 19 of the Organisation Working Time Act 1997: Annual Leave Annual Leave for Retained Fire Fighters is governed by the Organisation Working time Act 1997 (as amended). There is no formal qualifying period of service with the employer before an employee (full-time, part-time, permanent or temporary) qualifies for paid annual leave. Qualification is on the basis of all time actually worked by an employee. This is inclusive of hours notionally worked, most particularly those hours spent on call. Under the 1997 Act the minimum Annual Leave entitlement for employees who work at least 1,365 hours per year is 4 weeks; this does not necessarily mean 20 days; it refers to 4 of the average weeks worked by the employee. Where employees work less than 1,365 hours per week entitlements should be calculated on a pro-rata basis. Under section 19 (1) of the 1997 Act, there are three different methods of calculating Annual Leave entitlement; if one or more of these methods is applicable the employer must use the one that gives the greater entitlement. a) Allow four of the average weeks worked where an employee has worked at least 1,365 hours in a leave year. (e.g. if the employee works 4 days a week then their entitlement is 16 days. b) Allow 1/3 of a working week for each calendar month in which the employee has worked at least 117 hours. c) Allow 8% of the hours worked in the leave year, subject to a maximum of 4 working weeks. This method is generally used to calculate entitlement for part-time employees. Under section 20 (2) (b) of the 1997 Act, payment for Annual Leave is determined by reference to the normal weekly rate of remuneration. Normal weekly rate of remuneration is defined in two ways: a) Where the rate of pay does not vary in relation to the work done, then pay for annual leave is the rate payable for normal weekly hours last worked by the employee before the commencement of the leave. b) Where the rate of pay does vary in relation to the work done, i.e. where employees do not have normal weekly pay, the weekly rate of pay for annual leave is calculated by reference to the earnings over the 13 week period prior to the annual leave. The intention here is to provide a fair and equitable estimation of ‘normal’ pay where an employee’s income fluctuates over the year. In consideration of the above, we contend the following:-
a) Annual Leave Hours of Work The fact that the Claimant is “on call” 7 days a week as per the definition of working time in accordance with the 1997 Act, it is our contention that that his annual leave under section 19 should be calculated in accordance with same. As annual leave is reflective of the “working week”, it thus renders the Claimant’s entitlement to four weeks of said working week i.e. 28 days of annual leave. Therefore, it is our contention that that Retained Fire Fighters and the Claimant should be compensated in respect of not receiving the correct hours guaranteed under section 19 and the Respondent’s blatant breach therein. b) Annual Leave Pay Notwithstanding Point 1, we respectively submit that the Claimant has been wrongly paid his annual leave during the course of employment, due to the miscalculation of hours worked. Therefore, it is our contention that in addition to a compensatory breach outlined in Point 1, the Claimant should be awarded the shortfall difference between annual leave received and annual leave not received, during the annual leave year. In that regard, due to the fact the Claimant “works” 168 hours a week, thus in turn he is entitled to 28 days of statutory leave. Without prejudice to the foregoing argument, we draw the Adjudicators attention to the recent decision by the Court of Appeal in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others regarding the relationship between the Working Time Directive and national legislation and the doctrine of equivalence. Here, the Court of Appeal acknowledged that the curtailment of having to submit a complaint within 3 months in respect of the incorrect payment of holiday pay, meant that no pay can be recovered between the period from which the claim was submitted [2015/2016] since the enactment of the Directive itself. As you are well aware in Ireland, the Workplace Relations Act 2015 limits claims to the WRC in respect of holiday claims to be sent 6 months prior to the date the claim is lodged. In the case of holiday pay, which this decision relates to, in Ireland the claim can be lodged within 6 months at the end of the leave year which would end on the 31st March, after which such claims then goes back and includes that leave year. Therefore, if a claim is lodged on the 29th September 2019 that claim goes back to a date effectively before the 31st March and as a result the entire leave year running from 1 April 2018 to 31 March 2019 is included. In Ireland, it appears an employee is thus limited to one year when making a claim in respect of holiday pay owed. However, contrary to the above, the foregoing decision from the Northern Ireland Court of Appeal clearly points out the following:- 1) If the complaint is in respect of a series of deductions; and 2) If the complaint is presented before the end of requisite time period [6/12 months in this instance] since the date of payment which the last deduction was made, Then the UK Industrial Tribunals jurisdiction is not curtailed to a deduction of wages occurring three months [6/12 months in this instance] prior to the presentation of the complaint. Therefore, the tribunal has jurisdictions to deal with the whole series of deductions from its commencement “no matter how far back in time”. The decision from the Northern Ireland Court of Appeal is extremely useful. It points out that in relation to the issue of equivalence that civil proceedings in Northern Ireland, as here, can go back six years. In this case the Northern Ireland Court of Appeal found that it is permissible to limit financial claims in the interest of legal certainty of proper conduct proceedings but that must be done in compliance with the principles of equivalence. As claims in respect of breach of contracts in Ireland are curtailed by a six year limitation period, it is therefore our contention that said claims for Annual Leave should be allowed to revert back, at the very least, as far as six years when there has been a series of deductions, rather than the assumed 1 year time frame. Therefore it is our contention that the WRC has jurisdiction to make such an award, as per the compensatory element of the 1997 Act.
Section 21 of the Organisation Working Time Act: Public Holiday entitlement in respect of hours of work and pay. In accordance with section 21 of the 1997 Act, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely:- a) a paid day off on that day; b) a paid day off within a month of that day; c) an additional day of annual leave; d) an additional day's pay. To be clear, all Retained Fire Fighters only receive a Public Holiday benefit in line with this provision, on the basis they are called out on one of the 9 listed public holidays, despite being on call for the entirety of that period. Based on such, we submit the following:- a) Hours of Work Given that Retained Fire Fighters working time amounts to 168 hours weekly, for the purposes of the 1997 Act, all fire fighters are ultimately working during any/or all public holidays throughout the year, thus entitling them to the benefit contained under section 21 of the 1997 Act. Therefore, it is our contention that the Claimant should be compensated for the County Council’s failure to provide such. b) Pay Notwithstanding the Point A, and in addition to compensation, we submit that the Claimant should be awarded the shortfall difference of the public holiday entitlement received and public holiday entitlement not received in accordance with the Claimant’s annual leave year. For the avoidance of doubt, in accordance we submit that the Claimant has worked every public holiday in the last 12 months and not been provided with any of the entitlements set out under section 21 of the 1997 Act. Without prejudice to the foregoing, as outlined above, in accordance with the decision in Agnew, the Claimant’s complaint in respect of Public Holiday entitlement, should be allowed to go back, at the very least, 6 years when assessing compensation for same.
Technical Breaches of the Organisation Working Time Act: 1. Section 11 in relation to the Claimant’s entitlement to daily rest breaks; In accordance with our initial legal argument outlined above and in line with the definition of “working time” for the purposes of the Organisation Working Time Act 1997, it is our contention the Claimant works a total of 168 hours weekly. As a result, the Claimant does not receive his requisite rest breaks in accordance with section 11 of the 1997 Act. We submit that the Claimant should be compensated in respect of the blatant breach by the Respondent in that regard.
2. Section 12 in relation to the Claimant’s entitlement to breaks; In accordance with our initial legal argument outlined above and in line with the definition of “working time” for the purposes of the Organisation Working Time Act 1997, it is our contention the Claimant works a total of 168 hours weekly. As a result, the Claimant does not receive his requisite rest breaks in accordance with section 12 of the 1997 Act. We submit that the Claimant should be compensated in respect of the blatant breach by the Respondent in that regard.
3. Section 13 in relation to the Claimant’s entitlement to weekly rest breaks; In accordance with our initial legal argument outlined above and in line with the definition of “working time” for the purposes of the Organisation Working Time Act 1997, it is our contention the Claimant works a total of 168 hours weekly. As a result, the Claimant does not receive his requisite rest breaks in accordance with section 13 of the 1997 Act. We submit that the Claimant should be compensated in respect of the blatant breach by the Respondent in that regard. 4. Section 16 in relation to the Claimant having to work excessive night hours; In accordance with our initial legal argument outlined above and in line with the definition of “working time” for the purposes of the Organisation Working Time Act 1997, it is our contention the Claimant works a total of 168 hours weekly. As a result, the Claimant works excessive night hours in accordance with section 16 of the 1997 Act. We submit that the Claimant should be compensated in respect of the blatant breach by the Respondent in that regard.
5. Section 17 of the Organisation Working Time Act 1997 regarding the Claimant’s right to information in respect of being notified of start and finishing times; not being notified in advance of any additional hours; In accordance with our initial legal argument outlined above and in line with the definition of “working time” for the purposes of the Organisation Working Time Act 1997, it is our contention the Claimant works a total of 168 hours weekly. This in turn results in an automatic breach of section 17 of the 1997 Act as the County Council’s fail to provide the adequate information guaranteed therein; more specifically right to notification of start and finish times within 24 hours of the next working day and notification of additional hour therein. We submit that the Claimant should be compensated in respect of both blatant breaches by the Respondent in that regard.
6. Section 14 of the Organisation Working Time Act 1997: Right to compensation for working on a Sunday. As per section 14 of the 1997 Act, an employee who is required to work on a Sunday shall be compensated by his or her employer for being required so to work by the following means, namely:- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs. Notwithstanding the argument that Retained Fire Fighters working time amounts to 168 hours weekly, the fact remains, whether on call or on active duty, fire fighters are not compensated for work carried out on Sundays. Therefore, it is our contention that in line with section 14 of the 1997 Act, the Claimant should be compensated for the County Councils deliberate breach therein. Furthermore, for the avoidance of doubt, in line with the foregoing argument, we submit that the Claimant has worked 46 Sundays in the last 12 months. Without prejudice to the foregoing, as outlined above, in accordance with the decision in Agnew, the Claimant’s complaint in respect of his Sunday premium entitlement, should be allowed to go back, at the very least, 6 years when assessing compensation for same.
2)Minimum Wage Act 2000: CA-00028245-010 In contrast to the Organisation of Working Time Act, Section 8 (1) of the National Minimum Wage Act 2000 does not define working time, rather it defines “working hours” as “the total hours during which the employee carries out or performs the activities of his/her work at the employees place of employment or is required by his employer to be available for work there and is paid if the employee is carrying out or performing the activities of his work”. It is admitted however that the Act does go on to state that time is spent on stand by or on call at a place other than a place of work does not constitute working hours. However, the Act fails to detail specific restrictions, as in this instance whereby the Claimant is actually on call at his place of work, albeit that that is his home, given the fact that his employer contractually insists that he reside no greater than 2km or 5 minutes on Google Maps from the fire station. In Nivelles (wherein in fact the fireman in question was required to live within eight minutes of his employer) the Court noted that “the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within eight minutes are such to objectively limit the opportunity to which a worker in Mr. Matzak’s circumstances has to devote himself to his personal and social interests. The Court further noted, “in light of those constraints Mr. Matzak’s situation differs from that of a worker who during his stand by duty must simply be at his employer’s disposal in as much as it must be possible to contact him”. In that regard, therefore the CJEU went on further to note that the stand by time was in fact working time. As such the same applies in this instance in other words the Claimant is not actually on standby, he is actually working full time. Here the Claimant has to reside very closely to the firestation such that even whilst at home, that in fact his home is his place of work and thus we submit that the Act applies and that the total hours for which the Claimant worked or carried out his work was 168 hours per week. As per the English case of Royal Mencap Society v Tomilson- Blake6 where two appeals were heard together by the Court of Appeal, each involving the broad issue of whether the entirety of the period spent on the premises had to be taken into account when calculating an employers obligations under the National Minimum Wage Regulations 1999-2015 in the UK when a worker agreed to be “on call” on the employers premises in the care sector on the basis that they could assist if required during the night, but otherwise no duties. Employment Appeal Tribunal (EAT) which had held that carers working sleep-in shifts were entitled to the National Minimum Wage (NMW) for every hour of their shift, regardless of whether they were awake and carrying out relevant duties. In overturning this decision, and a significant body of case law. As has been typical in the care sector, Mrs Tomlinson-Blake received a flat rate payment of £22.35 plus one hour's pay of £6.70 for a nine-hour-long sleep-in shift. She contended that this pay fell below the NMW as, when accounting for every hour spent at work, her wage equated to around just £3.23 per hour. The EAT rejected Mencap's argument that Mrs Tomlinson-Blake was not awake and carrying out her duties for the majority of her shift and was therefore not entitled to remuneration for those hours. In doing so, they took the following factors into account: Mencap's statutory obligation to have someone on the premises; Mencap's requirement to have someone present to fulfil their obligations to the council; Mrs Tomlinson-Blake's responsibility to be present and use her professional judgement as to whether attention was required through the night. The Employment Tribunal found that the worker was not allocated any specific task during the sleep in shift but was required to remain at the patients house during the shift and keep a listening ear out during the night in case her support was needed. An employee is expected to intervene where necessary to deal with incidents that might require her intervention. The Tribunal was of the opinion that the need for intervention was “real but infrequent”. Ms. Tomlinson- Blake’s case was that she was entitled to have the totality of the hours spent “sleeping in” counted for NMW purposes. The Industrial Tribunal and UK EAT on appeal both upheld that claim. However was subsequently overturned by the Court of Appeal. In overturning this decision the Court of Appeal ruled that only time spent awake and "actually working" should be included in the calculation of NMW payments and referenced the exclusion under Regulation 32 of the NMW Regulations 2015. This Regulation specifies that the NMW is only payable during hours "when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping". A plain reading of this regulation was favoured over the EAT's multifactorial test above. The Court of Appeal stated that this approach is limited to the facts of sleep-in workers who are "contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity". This matter has yet to be determined in this jurisdiction. In this regard we wrote to the Respondent on the 30th November 2018 in accordance with Section 23 of the Minimum Wage Act seeking our client’s pay reference period and a written statement of our client’s average hourly rate. We received a response from the County Council on the 11th December 2018 this failed to answer or set out a pay reference period, merely the HR Manager on behalf of Respondent) stated that under section 23 (2) of the Act, an employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was an average not less 150% calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious. As such given that the minimum wage is €9.80 per hour and the Claimants working time is 168 hours weekly, we calculate over a 48 working week that this amounts to €73,802.40 annually, meaning that our client has been significantly underpaid for the period. In accordance with section 26 of the 2000 Act, we respectively request that the Adjudicator provide an award of arrears in relation to the blatant shortfall in minimum wage being the difference of the amount paid and the amount received by the Claimant since the commencement of employment in 2015 in line with the fact he works 168 hours weekly. Furthermore, as per the Claimant’s entitlement under section 26 (1) (ii), he is entitled to submit a claim in respect of “reasonable” expenses incurred in pursuit of his claim under the 2000 Act as affirmed by the Labour Court in the decision of Ballinalard Transport Ltd v Kazdalis7. Therefore, we ask that an award be granted to cover the Claimant’s expenses to date.
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Summary of Respondent’s Case:
1)Organisation of Working Time Act CA 28245-001/002/003/004/005/006/007/008/009
CA 23458-001: CA 23669-001
This submission is made on behalf of the Respondent on foot of a claim by the Complainant under the Organisation of Working Time Act.
1.2 It appears the Complainant, a retained firefighter has made separate complaints under the
Organisation of Working Time Act 1997. This complaint as set out appears to relate to
Sections 13, 14, 15, 16, 17, 19, 20 & 21.
1.3 The Council rejects that any breach of the Act has taken place
2.0 Background
2.1 The claimant is employed as a retained firefighter. Retained Firefighters make up about
70% of the Fire Service in Ireland, with Full-time Firefighters in major Cities. Retained
firefighters of which there are approximately 2060 employed across the Country in 202
fire stations. The delivery of fire services by way of retained fire services is common not
just in Ireland but across the EU.
2.2 Whilst not attending at incidents the availability of retained firefighters does not require
them to be in attendance at the fire station, they operate on the basis which requires
them to be available within a specified distance of the Fire station so that they can
respond to an alerter and mobilise within a specified period of time. This availability is
not considered to be working time. It is important to note that at this period of time
where they are required to be available, retained firefighters can engage in other
activities and be employed by other parties.
4.0 Council’s Position – OWT Complaints
4.2 It is the position of the Council that Article 17 of the Directive identifies a number of areas
where derogation from the rights conferred by the Directive is permitted. In accordance with
paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16 for certain
cohorts of employments including:
(iii) press, radio, television, cinematographic production, postal and telecommunications
services, ambulance, fire and civil protection services;
These derogations as they apply to the role of retained firefighter are provided in this
Jurisdiction by S.I. No. 21/1998 - Organisation of Working Time (General Exemptions)
Regulations, 1998 (Appendix 1) and by the Organisation of Working Time (Exemption of Civil
Protection Services) Regulations 1998 (S.I. No. 52 of 1998), (Appendix 2).
These provide as follows;
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 (No. 20 of 1997).
The schedule specifically provides as follows: The activity of a person employed by a fire
authority in the position commonly known as retained fire fighter.
4.3 With regard to the complaint made by the complainant as they relate to sections of the Act
which are not directly covered by S.I. No. 21/1998 - Organisation of Working Time (General
Exemptions) Regulations, 1998 and by the Organisation of Working Time (Exemption of Civil
Protection Services) Regulations 1998 (S.I. No. 52 of 1998) the following is the position.
4.4 With regard to the complaint under section 14 of the Act as it relates to additional payment
in respect of attendance on Sundays. The Council are satisfied that the complainant receives
his appropriate entitlement. Retained firefighters receive a premium payment in respect of
attendance at weekends this payment encompasses the premium for Sundays.
4.5 With regard to the complaint under section 17 of the Act as it relates required attendance
at incidents the Council are satisfied that both the contract of employment and collective
agreement specifies the normal weekly attendance of the complainant In addition in each
week that he is required to work, he can advised with regard to his non availability.
4.6 With regard to the complaint under section 19 & 20 of the Act, the Council are satisfied that
the complainant receives his appropriate entitlement. The basis of the calculation of holiday
pay is set out in legislation as follows. Section 20 of the Act provides that pay in respect of
holidays shall be at the employee’s “normal weekly rate”. Section 20(4) of the Act provides:
“In this section ‘normal weekly rate’ means the normal weekly rate of the employee
concerned pay determined in accordance with regulations made by the Minister for the
purpose of this section.” Regulations pursuant to this provision were made by S.I. No.475 of
1997 and entitled Organisation of Working Time (Determination of Pay for Holidays)
Regulations 1997. The Council is satisfied that payment for annual leave is in accordance
with these regulations
4.6.1 The nature of the calculation of holiday pay for retained firefighters because of the
atypical nature of their employment is as follows; they receive the retainer
continuously in full across the year including periods whilst on annual leave i.e. 52
weeks paid on a four-quarterly basis. Separately they then receive 8% annual leave
entitlement based on other earnings which they are paid for i.e. attendance at drills
and incidents. as the nature of their required attendance at incidents does not form
a defined pattern and, therefore, could affect the level of payment based on the
time of the year that the individual takes their holidays, on that basis it is necessary
to calculate the 8% of those earnings in arrears. In accordance with the national
agreement between Management and SIPTU (Appendix 3), it has been the practice
that at the end of every calendar year a calculation is undertaken on their earnings
outside that of the retainer (which as set out above is already paid to them whilst
on holidays). A payment is then made to the firefighter of 8% of these earnings.
This completes the payment of holiday pay.
4.6.2 The Council pays in full for the claimant’s holiday pay. He is entitled to take his
leave during the course of the year. He is paid his full retainer during his leave
because earnings need to be assessed for a full annual period in order to determine
the amount of the 8%, payment cannot be made until the next year. This payment
is provided for in each quarter payment to firefighters.
4.7 It has been accepted in all jurisdictions that the clear purpose of the Act as it relates to
annual leave is to ensure that for either annual leave or public holidays an employee receives
no less (or no more) than he or she would have received if he or she was working during the
period in question. The Council is satisfied that this requirement is met
4.8 With regard to complaint under section 21 of the Act in respect of payment for attendance at
incidents on Public Holidays the complainant receives additional remuneration in accordance
with the provisions of section 21 the Organisation of Working Time Act
4.9 The complaint specifically states that it relies on a preliminary ruling of the Court of Justice of
the EU in Ville de Nivelles v Rudy Matzak. (Appendix 4); EU law does not have a doctrine of
binding precedent such as that entertained in common law countries. Therefore, a judgment
of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the
national court that submitted the question, as well as on other courts in the same domestic
procedure in this instance Belgium. However, it is accepted that national courts interpreting
EU law can take them into account. However, it is done so with regards to facts of the
respective cases. It is the position of the Council that the case of Ville de Nivelles v Rudy
Matzak is not on all fours with the facts of this case and can be distinguished in that Mr.
Matzak was a volunteer firefighter whilst the complainant is a retained firefighter, they are
two totally different types of employees.
4.10Mr. Matzak’s primary complaint was that he was not compensated to be available, while
restricted to remaining at his home and prevented in undertaking work elsewhere, the
complainant in this case was compensated, was not restricted to remain at home, and was
free to commit to and undertake work elsewhere. The key element is that the Complainant
like all other retained firefighters is free to engage in other employments or other activities
as he so wishes.
4.11The purpose and scope of the Directive is defined at Article 2 which provides the following
definitions of the expressions "working time" and "rest period":
"1. 'working time' means any period during which the worker is working, at the
employer's disposal and carrying out his activity or duties, in accordance with
national laws and/or practice;
- 'rest period' means any period which is not working time."
4.12 With regards to working time the CJEU has given specific definition in relation to this in
particular, the ECJ cases of Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria
de Sandidad eY Consumo de la Generalidad Valenciana [2000] IRLR 845
and Landesshauptstadt Keil v Jaeger [2003] IRLR 804 ("the SIMAP and Jaeger cases"). The
CJEU held that the time spent ‘on-call’ by workers is to be regarded in its entirety as working
time within the meaning of the Directive if they are required to be present at the workplace
and that by contrast, where workers must be reachable at all times but are not required to
remain at a place determined by the employer, also called ‘standby time’, only the time
linked to the actual provision of services must be regarded as working time.
4.13 The Court has repeatedly held that the concept of ‘working time’ under Directive 2003/88
is an autonomous concept of EU law, which must be defined in accordance with objective
considerations by reference to the scheme and purpose of that directive, intended to
improve workers’ living and working conditions. It requires that three conditions be
satisfied. First, the worker must be ‘at work’; second, he must be at the employer’s disposal;
and, third, he must be carrying out his activity or duties.
4.14 The onus is therefore on the Complainant to prove that for the periods in question he met
these criteria. If he was engaged in other activities for this time period which are the subject
of his complaint, he cannot de facto meet the criteria and his complaint is moot.
4.15 The conditions of employment for all retained firefighters provide that a firefighter can be in
employment with another employer however the firefighter must ensure that an employer is
willing for the firefighter to be released from the working hours of that employer once alerted.
4.16 Individuals employed as a retained firefighter if not employed, may qualify for a jobseeker’s
payment from the Department of Employment Affairs and Social Protection. People who
are working as retained fire fighters do not have to sign off for the days they are on call,
firefighting or training. This means that they can be paid a jobseeker’s payment for days
that they are on call, firefighting or training. This requirement is not considered by the
Department of Employment Affairs and Social Protection as a restriction on the availability
for work, so long as the individuals are satisfying the conditions of the scheme. In order to
qualify for payments from the Department of Social Protection claimants must confirm that
they are available to actively pursue employment however this would directly conflict with
the complainants claim as predicated on the decision in Matzak.
4.17 A retained firefighter is paid a retainer, this payment is by definition an amount that is paid to
someone so as to be sure that that person can work for the person paying the retainer when
needed. This cannot in itself constitute working time. Separately when this work is
undertaken the person to whom the payment is made is entitled to remuneration for this
specific work. The payment of a retainer and payment for work undertaken are entirely
separate. Therefore, the availability that is provided for under a retainer could not be
considered working time.
4.18 It should be noted that the annual retainer allowance is a set figure and is not related to
activity. In contrast, the other payments made to retained firefighters are calculated as and
when the corresponding tasks are completed.
Turnouts – when answering a call to attend an incident
Drill nights – when attending weekly “drill nights” for the purposes of training, development
and maintenance
4.19 It is the position of the Council that for retained firefighters there is a clear distinction
between being required to be available for work and actually carrying out their contractual
duties. There is no obligation on the complainant to carry out their contractual duties in the
period for which the retainer applies unless alerted to do so. Once they are alerted and attend
the fire station it is accepted that this period of time will be considered as carrying out their
contractual duties and therefore working hours. On this basis there is no employment
relationship existing for this availability/retainer period.
4.20 In its decision the Court advised that a worker being required to be physically present at a
place determined by the employer and to be available to the employer to provide services
immediately, where it is impossible for the worker concerned to choose the place where they
stay during stand-by periods, must still be regarded as coming within working time. However
the situation is different where the worker performs a stand-by duty which requires that the
worker be permanently accessible without being required to be present at the place of work
or remain permanently at another location. 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, and accordingly only the time linked to the
actual provision of services must be regarded as working time.
4.21 The essential feature of an employment relationship is, according to the CJEU case-law, that
for a certain period of time a person performs services for and under the direction of another
person in return for which he receives remuneration (see, in particular, Case
66/85 Lawrie-Blum [1986] ECR 2121, and Kurz v Land Baden-Wurttemberg [2002] EC 1-10691
The ECJ decision in Lawrie-Blum v Land Baden-Wurttemberg [1987] ICR 483, stated at
paragraph 17 of its judgment that;
"That concept (ie of "worker") must be defined with objective criteria which distinguish the
employment relationship by reference to the rights and duties of the persons concerned. The
essential feature of an employment relationship, however, is that for a certain period of time
a person performs services for and under the direction of another person in return for which
he receives remuneration."
In Kurz v Land Baden-Wurttemberg [2002] EC 1-10691, the Court stated at paragraph 32 of its
judgment that;
"32. - In order to be treated as a worker, the person must pursue an activity which is genuine
and effective, to the exclusion of activities on such a small scale as to be regarded as purely
marginal or ancillary. The essential feature of an employment relationship is that for a certain
period of time a person performs services for and under the directions of another person in
return for which he receives remuneration
4.22 The Court in making its decision in Matzak stated that a contractual relationship “very
significantly restricting the opportunities for other activities, must be regarded as ‘working
time’”. The nature of the relationship between the Respondent and the Claimant outside of
what is considered to be contractual hours once alerted to an incident, is characterised by the
exercise of free choice, free from the direction of the employer, and free to undertake other
employment or activities. This differentiates the Complainant from other CJEU cases for
instance the constraints upon the doctors in SIMAP and Jaeger were different. Both had
obligations. Both were not free of their employer’s control. The degree of control over the
place in which the work was to be performed, and where the employee was to remain whilst
on call, was plainly of a different dimension from that of a retained fire fighter, who has
freedom of choice in relation to their location, availability and activity e.g. working elsewhere
or otherwise.
4.23 The contractual relationship between the parties is clear, the claimant receives a retainer to
be available, however the payment of a retainer does not preclude a firefighter from taking
up other employment or being available to take up other employment or to undertake
education courses, or to engage in sporting or social activities etc that the time is their own
and they are free to pursue activities as they see fit. Retained Personnel are not confined to
their homes and have a choice of what to do with their time and engage in other activities
when they are required to be available and not required to work.
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4.24 The Respondents believe that the position of the Complainant from that of Matzak case can
be distinguished in that options were available to him to stand down and that there were
active arrangements available to him within the fire station to mark himself as being
unavailable if he so wished. In addition to annual leave there are also provisions in place for
casual leave aspects of the job which allow for all personnel to avail of structured time off.
The provisions of the 1999 Composite agreement (Appendix 3) which is set out below clearly
reflects the position that a firefighter can seek to be marked as unavailable.
Staff Arrangements:
Both sides agree that staffing arrangements must guarantee the twin objectives of adequate
availability of firefighters to respond to emergencies and structured time off to meet the social
and family needs of the firefighters.
To meet these objectives, the following guidelines will be used in association with the
Labour Court Settlement of 1973:
One Pump Station: Optimum recommended staffing level of nine. (it is recognised that there
are currently higher staffing levels in some locations.) All nine staff may be alerted in the event
of an incident. Alternatively, members, by arrangement with the Station Officer, may register
unavailable for call-out; subject to the number available at all times to respond to a call not
going below seven.
Two Pump Station: (For Stations with more than 100 calls per annum). Optimum
recommended staffing level of 15. These may be utilised in a number of ways: Two crews may
be available at any time. In any event, both sides are committed to crewing arrangements,
which ensure that there are sufficient staff to provide a necessary service.
4.25 The Respondents also believe that the position of the Complainant from that of Matzak case
can be distinguished in that there is no absolute requirement to attend to calls when
contacted and that the firefighter can make the decision as to attend or not. They have
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discretion to not attend up to 25% of the alerts, meaning that the time is their own and they
can indeed decide whether to report to the Council for work or not or being in full time
education or engaging in other sporting or social activities. So, the retainer does not place an
absolute requirement on attendance where in general, contracts of employment do place an
absolute requirement on attendance for contractual hours unless otherwise excused such as
by reason of illness.
4.26 Whilst there is a requirement on the respondent to attend at the station as soon as possible
when alerted if a firefighter attends up to 10 minutes after being alerted, he is still entitled to
payment for one hour.
4.27 In relation to drills/training while there is weekly training, there is no absolute requirement
for retained firefighters to attend all such sessions (85% attendance rate)
5 Summary
5.1 Without prejudice to the above it is the position of the Respondents that it did at all times
apply what it believed were the required statutory obligations under the Organisation of
Working Time Act with regard to the working time of retained firefighters. It does not at any
time refuse minimum rest periods during what it considers to be working periods. In the
event of protracted fire incidents staff were provided with break periods and minimum rest
periods in accordance with the legislation.
5.2 Without prejudice to the above the complainant is placing significant reliance on the decision
in Matzak which issued on the 21st February 2018. The complainant may also reference the
judgment of the European Court of Justice in Von Colson and Kamann v. Land Nordrhein-
Westfalen. Whilst some cases may involve breaches that are major and deliberate with
serious consequences for the employees involved at all times the fire service are cogniscent
of the health and safety of firefighters and will stand down firefighters if there are concerns.
The system of retained firefighters has existed in this State in excess of fifty years. There has
been no intentional breach of the Act if Local Authorities are required to apply the provisions
of Matzak it will effectively require the cessation of the retained fire service and implement a
new and radically different model for the delivery of fire services which will require significant
infrastructural change which cannot be implemented in the short term and in any intervening
period fire services must continue to be provided. If there was a breach the respondents submit
that the breach was technical and non-culpable in nature
6.0 Conclusion
The distinction between the Matzak case and the Complainant’s position is reflected in question 3
referred to the Court of Justice which were very specific to the issue of being required to be
physically at home;
- Taking account of Article 153(5) TFEU and of the objectives of Directive 2003/88
concerning certain aspects of the organisation of working time, must Article 2 of that
Directive, in so far as it defines the principal concepts used in the Directive, in particular
those of working time and rest periods, be interpreted to the effect that it is not
applicable to the concept of working time which serves to determine the remuneration
owed in the case of home-based on-call time?
Within the ruling itself the Court determined that its decision making was based on the facts
as presented which were “In those circumstances, it is necessary to interpret 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.” No similar requirement to remain
at home applied to the complainant. This therefore differentiated the complainant’s position
from that of Mr. Matzak in that for the time that the complainant was required to be available
he enjoyed a much wider range of options to utilise this time
The Council believe that the position of the complainant is more effectively reflected by the
Court in paragraph 60 of its judgment in Ville de Nivelles v Rudy Matzak Case C-518/15 where
it stated that;
“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 that the worker be permanently accessible
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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 (see, to that effect, judgment of 9 September 2003,
Jaeger, C-151/02, EU:C:2003:437, paragraph 65 and the case-law cited).”
For the reasons as set out above the Council would ask the Adjudicator to dismiss the
complaints under the Organisation of Working Time Act
S
2)Minimum Wage Act 2000: CA-00028245-010
24.—(1) Without prejudice to any other action that might be brought against an employer under this Act or otherwise, but subject to subsection (2), if an employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged under-payment to the employee, the employee or the employer, or the representative of either of them with their respective consent, may, by notice in writing containing such particulars, if any, as may be prescribed, refer the dispute to a rights commissioner for the rights commissioner's decision.
2.0 Preliminary Position – 2.1 It is the position of the Council that claim as submitted by the complainant is specifically excluded by section 8.2 of the National Minimum Wages Act as follows; the provisions of the Act at Section 8(2)(c)(i) as follows 8 (2) “Working hours” under this section shall include— (a) overtime, (b) time spent travelling on official business, and o (c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours, but shall not include— o (i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call, (ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer’s leave under the Carer’s Leave Act,2001, while laid-off, on strike or on ‘ lock-out ’ , or time for which the employee is paid in lieu of notice, or 3 (iii) time spent on travelling between an employee’s place of residence and place of work and back. 3.2 It is the position of the Council that the Adjudicator does not have jurisdiction to consider this ruling in any consideration of the case. In making this assertion the Council rely on the decision of the Decision of the High Court in Minister for Justice, Equality and Law Reform v The Equality Tribunal [2009] 20 E.L.R. 116 The Ratio Decidendi of that Decision is set out as follows; There is no principle of European law which allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to achieve a result, whereby it is of the view that European legislation has not been properly implemented at national level and that this situation is to be remedied by the re-ordering in ideal form of national legislation. The limit of jurisdiction is of primary importance to the exercise of authority, whether the court be one established as an administrative body, or is one of the courts under the Constitution. In the event that a view emerges that national legislation has not properly implemented European legislation, this is no more than an opinion. The respondent does not have the authority to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. The High Court has that power as this has been expressly reserved to it by Article 34 of the Constitution. The respondent is bound by S.I. No. 749 of 2004 fixing the upper age for admission to training as a member of An Garda Síochána at 35 years”. 3.3 The Tribunal/WRC appealed to the Supreme Court which delivered a judgment on June 15, 2017. The Supreme Court confirmed the finding of the High Court, that the WRC does not have jurisdiction to disapply national law. The specific case was referred to the CJEU which ruled that the WRC did have jurisdiction as it relates specifically to EU leglislation, however this ruling is not relevant in this instance to a claim under the National Minimum Wages Act as this legislation does not derive from EU legislation. There is no EU legislation to implement as it relates to national minimum wages, it is a matter of fact that a number of EU states do not have minimum wage legislation. 3.4 The Council believes that based on the above that the WRC is not empowered, under national law, to proceed with a hearing, “which implicitly assumed competence to overrule or disapply national legislation”.
4.0 Council Position: 4.1 Without prejudice to the above the claimant may seek to rely on the decision of the ECJ in Ville de Nivelles v Rudy Matzak it is the position of the Council that the ECJ specifically addressed the issue of remuneration in their judgment at Paragraph 52 of the Judgment “Having regard to the foregoing, the answer to the third question is that Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time such as those at issue in the main proceedings according to the classification of those periods as ‘working time’ or ‘rest period’. Therefore, it is the position of Management that the provisions in place in respect of the payment of the retainer are in accordance with the provisions of judgement of the ECJ and no underpayment arises.
Conclusion: For the reasons as set out above the Council would ask the Adjudicator to dismiss the complaint under the National Minimum Wage Act |
Findings and Conclusions: 1)Organisation of Working Time Act CA 28245-001/002/003/004/005/006/007/008/009 CA 23458-001: CA 23669-001 I find that the Complainant’s case lacks particularity. I find that if it were decided that all the Complainant’s time was to be found working time then there would be a series of contraventions during the allowable six-month period for investigation. Therefore it is necessary to address the issue of what was ‘working time’ in this case.
Decision: Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. 1)Organisation of Working Time Act CA 28245-001/002/003/004/005/006/007/008/009 CA 23458-001: CA 23669-001 For the above stated reasons, I have decided that the Complainant is on a contract to be available and is not in continuous employment. I have decided to reject, in particular, the Matzak case argument made on behalf of the Complainant. I have decided that the on-call periods cannot be classified as “working time” for the purposes of the Organisation of Working Time Act, 1997. I have decided that as the Complainant was not working 24 hours a day, 7 days a week and 52 weeks of the year, then no contraventions of the Act has taken place I have decided that this complaint is not well founded and so it fails. 2)Minimum Wage Act 2000: CA-00028245-010 For the above stated reasons, I have decided that this complaint is not well founded and so it fails.
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Dated: 17/12/19
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Retained firefighters |