ADJ-00022885

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00022885

Parties:

	Complainant	Respondent
Anonymised Parties	Retained Firefighter	County Council

Representatives

Alastair Purdy & Co. Solicitors

LGMA

Complaints:

Act	Complaint 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-00028311-001	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-002	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-003	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-004	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-005	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-006	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-007	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-008	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028311-009	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00028311-010	10/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-001	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-002	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-003	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-004	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-005	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-006	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-007	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-008	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028526-009	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00028526-010	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00029526-001	08/07/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00029526-002	08/07/2019

Date of Adjudication Hearing: 07/10/2019

Workplace Relations Commission Adjudication Officer: Marie Flynn

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant is employed by the Respondent as a retained firefighter. The Complainant alleges that, during his employment with the Respondent, he was on-call for 168 hours a week for at least 26 weeks of the year and that this time qualifies as working time for the purpose of the Organisation of Working Time Act, 1997. The Complainant relies on the CJEU decision in Ville de Nivelles v Rudy Matzak (Matzak) in support of his claim.

The following complaints were withdrawn at the hearing: CA-00028526-001, -002, -003, -004, -005, -006, -007, -008, -009, -010.

Summary of Complainant’s Case:

The Complainant submits as follows:

The Complainant is a retained firefighter. He commenced his employment on the 6^th November 1997 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. Unlike fulltime firefighters, retained firefighters are not paid a fulltime 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 26 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, fulltime firefighters are provided with a balanced working week of four days on and three days off rotating. Significantly, the Complainant’s contract provides that the Respondent may terminate the Complainant’s employment if he fails to respond within the requisite time period as set out above.

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 employer’s 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 Simapit 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.

In the case of Jaeger and in Grigorethe 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 Complainant 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 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 6^th May 1971) laying down the types of municipal regulations relating to the organisation of municipal firefighting services, Moniteur Belge of 19^th 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 7^th 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 Complainant’s contract, 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 Complainant 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 Complainant 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.

In line with the above conclusions, the same argument was recently tabled discussed in the European Parliament on the 19^th September 2019, reference number 2019/2806(RSP). The European Federation of Public Service Unions (“EPSU”) have themselves stressed that the working time directive and subsequent case law must apply to all firefighters in France. In France, volunteer firefighters have on-call shifts in emergency centres of up to 24 consecutive hours. It is strongly suggest that despite the “on call” nature of their duties, that same must be considered as working time therein. They perform on-call duties without having sufficient rest time before or after other jobs they may have. Together with its affiliated French trade union organizations, EPSU demands that France applies the provisions of the Working Time Directive and its case-law to all firefighters, professionals and volunteers. We attach hereto a copy of the Article outlining same at Appendix 4.

Mutuality of Obligation: retained firefighters Ireland

Notwithstanding the Contract of Employment between the Complainant and the Respondent, which in itself gives rise to an employee and employer relationship, it is accepted that courts may look beyond the relationship of the parties to determine how the parties operate in reality and whether or not the employee is actually at the employer’s disposal therein.

For the purposes of completeness, it is important to clarify the extent of the obligations placed on firefighters during the “on call” period. Questions have been raised as to whether or not the retained firefighters are actually at the disposal of the their employer during this period casting doubt over the existence of mutuality of obligation between the parties.

It is contended that the Complainant, due to the “on call” nature of his position is at the disposal of his employer for 168 hours a week for at least 26 weeks of the year, thus giving rise to a clear mutuality of obligation between the parties.

As part of the Complainant’s conditions of service, he is required to attend all calls. Firefighters may be rostered for duty in accordance with the station procedures. During a rostered period they will attend all fire calls. The obligation is on the firefighters to ensure that they receive all fire calls during the rostered period. If a firefighter is unable to attend during a rostered period, a substitute must be provided and the Station Officer’s approval received. Substitution will only be allowed once per week unless in exceptional circumstances as agreed under the disciplinary code.

Generally, retained firefighters who do not attend for 75% of all incidents to which they are called, will have 50% of their retainer deducted. However, in this instance, the Complainant is required to attend 100% of his calls. Otherwise he is subject to disciplinary action. Further penalties may also be applied, including up to dismissal. During non-rostered periods firefighters who are not on leave, will be expected to turn out for duty if required to do so. Firefighters are required to carry a fire service alerter which must be switched on at all times and they must ensure said alerter is fully operational.

If a firefighter is in employment, he or she is obliged to inform their employer that they are a retained firefighter. Furthermore, they are required to have a letter from said employer certifying that they will be released to attend fires during their normal working hours.

Firefighters will reside and work within an acceptable distance of the fire station, as deemed by the Chief Fire Officer: 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 availability the firefighter will be required to resign.

A/W/R (Absent without reason) is an option on the fireighters’ turnout report. This report specifies who was on a call and is used for both attendance, pay and disciplinary procedures (possible other items also including statistical purposes). firefighters sign this after every attendance and the onus is on the Station Officer to put in the term associated with the firefighter.

The Complainant submits that by disciplining firefighters for not attending a call, it can only be determined that firefighters are at the disposal of the Respondent and thus in turn establishing an undisputed element of mutuality of obligation, as they are required to accept all work. Furthermore, firefighter alerters only work within a certain range so if they are not in the immediate area of 2.5km, they will be unaware said calls, and then will be subject to disciplinary action on foot of same.

In determining the nature of the parties' relationship, the courts will take a holistic approach not confined to the written terms of the agreement between the parties. In conducting such an evaluation, the courts will look to the respective bargaining power of the parties and whether the written terms accurately record what was agreed (or whether one party effectively imposed a set of terms on the other). Although parties cannot themselves fix the status of their relationship in writing, the courts can look to the written categorisation of the relationship and decide that same is an accurate reflection of the relationship in reality. In application of such, the Complaiant submits the following:-

The Complainant, when on-call is required to operate within 2.5km radius;
The Complainant is obliged to respond to the alerts that occur during the on-call period;
Although the Complainant may not be called in that period, they are still required to be within the radius, irrespective of workload;
If the Complainant fails to attend an alert when on-call they are subject to disciplinary action, which includes deduction of their retainer and/or dismissal;

Therefore, in consideration of such, there is an obligation on the Complainant to respond to all work provided in this period. It is not a case that the firefighters are free to select the work they wish to carry out whilst on-call, rather they are obliged to accept same at all times. This in turns, means the Complainant and all retained firefighters are at the disposal of their respective employer, thus creating a clear element of mutuality of obligation therein.

Minimum Wage Act 2000

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 standby 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 Complainant 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 standby time was in fact working time. As such the same applies in this instance. The Complainant is not actually on standby, he is actually working fulltime. Here the Complainant has to reside very closely to the fire station 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 Complainant worked or carried out his work was 168 hours per week.

As per the English case of Royal Mencap Society v Tomilson- Blake 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 employer’s 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 the Complainant’s representatives wrote to the Respondent on the 3^rd December 2018 in accordance with Section 23 of the Minimum Wage Act seeking the Complainant’s pay reference period – and a written statement of our his average hourly rate. They received a response from the Respondent on the 17^th January 2019 which failed to answer or set out a pay reference period, the HR Manager on behalf of the 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 Complainant’s working time is 168 hours weekly, it is submitted that over 26 working weeks this amounts to €42,806.40 annually, meaning that the Complainant has been significantly underpaid for the period.

In accordance with section 26 of the 2000 Act, the Complainant submits that the amount of arrears in relation to the shortfall in minimum wage is the difference of the amount paid and the amount received by the Complainant since the commencement of employment in 1997 in line with the fact he works 168 hours weekly.

Furthermore, as per the Complainant’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 Kazdalis. Therefore, he asks that an award be granted to cover his expenses to date.

Section 15 of the Organisation Working Time Act 1997: Prescribed Weekly Hours

Given that the Complainant 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 1998, and that he should be compensated accordingly for the breach of the provisions contained herein.

Although it is accepted under Article 17 of the Working Time Directive 2003/88/EC, that member states may derogate from Articles 3,4,5,6,8 and 16; it is prescribed under Recital 16 that said category of workers subject to derogation must be given compensatory rest periods. For the avoidance of doubt, it states the following:-

“It is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods.”

It is the Complainant’s contention that, based on the above, the Working Time Directive has been incorrectly transposed into Irish Law under 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) and ineffectively applied by the State therein.

SI 21/1998 provides for a general exemption for sections 11, 12, 13, 14, and 16 of the Organisation Working Time Act 1998, as permitted under Article 17 of the Directive. More specifically under section 4 of SI 21/1998, the following is stated:-

“If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.”

Under SI 21/1998, no reference is expressly made to section 15 of the 1998 Act in relation to a workers prescribed weekly hours. It is only under SI 52/1998 that an exemption is provided for the fire service regrading section 15 of the 1998 Act. However, no provision is made for compensatory rest therein as required for under Recital 16 of the Directive.

In consideration of such, given that the Complainant’s working time amounts to a 168 hours weekly, the Respondent is therefore in breach of section 15. Although an exemption is permitted under the aforementioned Statutory Instruments, no such compensatory rest, as guaranteed under the Directive, is provided to the Complainant in this instance. Relying on the Von Colson, case the Complainant submits that the compensation awarded to the Complainant 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 firefightersis 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.

Under section 20 (2) (b) of the 1997 Act, payment for Annual Leave is determined by reference to the normal weekly rate of remuneration.

In consideration of the above, the Complainant contends the following:-

Annual Leave Hours of Work - The fact that the Complainant is on call 7 days a week as per the definition of working time in accordance with the 1997 Act, it is his 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 Complainant’s entitlement to four weeks of said working week i.e. 28 days of annual leave. Therefore, it is his contention that that retained firefighters and the Complainant should be compensated in respect of not receiving the correct hours guaranteed under section 19 and the Respondent’s blatant breach therein.

Annual Leave Pay - Notwithstanding the above point, the Complainant submits that he has been wrongly paid his annual leave during the course of employment, due to the miscalculation of hours worked. Therefore, it is his contention that in addition to a compensatory breach outlined in Point 1, the Complainant 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 Complainant works 168 hours a week, he is entitled to 28 days of statutory leave.

Without prejudice to the foregoing argument, the Complainant refers 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.

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 that if the complaint is in respect of a series of deductions and 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 Tribunal’s 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 a benefit as determined by their employer.

All retained firefighters 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, the Complainant submits the following:-

Hours of Work - Given that retained firefighters working time amounts to 168 hours weekly, for the purposes of the 1997 Act, all firefighters 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 the Complainant’s contention that he should be compensated for the Respondent’s failure to provide such.

Pay - Notwithstanding the above, and in addition to compensation, the Complainant submits that he should be awarded the shortfall difference of the public holiday entitlement received and public holiday entitlement not received in accordance with the Complainant’s annual leave year. For the avoidance of doubt, in accordance the Complainant submits that he 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 Complainant’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

It is the Complainant’s contention that he works a total of 168 hours weekly. As a result, the Complainant does not receive his requisite rest breaks in accordance with sections 11, 12 and 13of the 1997 Act. It is also his contention that he works excessive night hours, is not notified in advance of start and finishing times or any additional hours and is not compensated for working on a Sunday. The Complainant submits that he should be compensated in respect of the blatant breaches by the Respondent.

In accordance with the decision in Agnew, the Complainant submits that his 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.

Summary of Respondent’s Case:

The Respondent submits as follows:

Background

The Complainant 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.

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.

Respondent’s Position – OWT Complaints

It is the position of the Respondent 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.

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.

With regard to the complaint under section 14 of the Act as it relates to additional payment in respect of attendance on Sundays. The Respondent is 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.

With regardto the complaint under section 17 of the Act as it relates required attendance at incidents the Respondent is 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.

With regard to the complaint under section 19 & 20 of the Act, the Respondent is 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 Respondent is satisfied that payment for annual leave is in accordance with these regulations

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.

The Respondent pays in full for the Complainant’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 the next annual first quarter payment to firefighters.

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 Respondent is satisfied that this requirement is met

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

The Complainant is seeking to rely on a preliminary ruling of the Court of Justice of the EU in Ville de Nivelles v Rudy Matzak. 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 Respondent 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.

Mr. 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, and it is believed that he does so.

The purpose and scope of the Directive is defined at Article 2 which provides the following definitions of the expressions "working time" and "rest period": " '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; and 'rest period' means any period which is not working time."

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.

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.

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.

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.

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. This would appear to contradict the Complainants claim as predicated on the decision in Matzak.

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.

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.

It is the position of the Respondent 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.

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.

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

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.

The contractual relationship between the parties is clear, the Complainant 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.

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 clearly reflects the position that a firefighter can seek to be marked as unavailable.

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 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 Respondent 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.

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 15 minutes after being alerted, he is still entitled to payment for one hour.

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)

Summary

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.

Without prejudice to the above the Complainant is placing significant reliance on the decision in Matzak which issued on the 21^st 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.

Conclusion

The distinction between the Matzak case and the Complainant’s position is reflected in questions 3 & 4 referred to the Court of Justice which were very specific to the issue of being required to be physically at home;

3. 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?

4. Does Directive 2003/88 of 4 November 2003 concerning certain aspects of the organisation of working time prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?

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 Respondent 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 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 Respondent would ask the Adjudicator to dismiss the complaints under the Organisation of Working Time Act

National Minimum Wage

It is the position of the Respondent that the claim as submitted by the Complainant is specifically excluded by section 8.2 of the National Minimum Wages Act which provides at section 8(2)(i) that “working hours” shall not include “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”.

It is the position of the Respondent that the WRC 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 High Court in Minister for Justice, Equality and Law Reform v The Equality Tribunal[2009] 20 E.L.R. 116, the Ratio Decidendiof which 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”.

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 legislation, 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.

The Respondent 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”.

Without prejudice to the above it is the position of the Respondent that the ECJ specifically addressed the issue of remuneration at paragraph 52 of their judgment on Ville de Nivelles v Rudy Matzak at Paragraph 52 as follows:

“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 the Respondent hat 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.

For the reasons as set out above the Respondent would ask the Adjudicator to dismiss the complaint under the National Minimum Wage Act.

Findings and Conclusions:

I note the Complainant’s contention that he was at the Respondent’s disposal for all the time that he was on-call as a retained firefighter and, that due to the geographical and temporal constraints placed upon him whilst on-call, the entirety of the time spent on-call qualifies as working time for the purpose of the Organisation of Working Time Act, 1997.

The Complainant’s claim is grounded on the decision of the Court of Justice of the European Union (CJEU) in Case C-518/15 Ville de Nivelles v Rudy Matzak (Matzak).

The matter for me to decide, therefore, is if the factual matrix giving rise to the herein case is at one with the factual matrix in the Matzak case.

Definitions of Working Time

Article 2(1) of Directive 2003/88/EC defines working time as follows:

“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.

Working time is defined by section 2(1) of the Organisation of Working Time Act, 1997 as follows:

““working time” means any time that the employee is—

( a) at his or her place of work or at his or her employer’s disposal, and

( b) carrying on or performing the activities or duties of his or her work,”

Case C-518/15 Ville de Nivelles v Rudy Matzak ECLI:EU:C: 2017: 619(Matzak)

The facts giving rise to Matzak are set out at paragraph 10 of the opinion of Advocate General Sharpston as follows:

“Mr Rudy Matzak is a retained firefighter for the Ville de Nivelles (Town of Nivelles), Belgium. Under the arrangements which apply to his engagement, he is required to be available on call for work, for one week out of every four, during the evenings and at the weekend. He is paid only in respect of time when he is on active service. Time spent on call without the firefighter being required to carry out any professional duties (so-called ‘stand-by time’) is unpaid.”

As is clear from the above passage, that Mr Matzak was rostered as being on-call for a defined period for one week in every four. However, one of the central elements of the herein claim is that, due to the on-call nature of his position, the Complainant was on-call for 168 hours a week for at least 26 weeks a year. I find that this represents a significant material difference in the factual matrix of the herein case and that of Matzak.

The Matzak decision was issued by the CJEU in response to a request for a preliminary ruling from the cour de travail de Bruxelles (Higher Labour Court, Brussels) in the proceedings Ville de Nivelles v Rudy Matzak. The cour de travail referred a number of questions to the CJEU including question 4 which related to home-based on-call time and read as follows:

“Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within 8 minutes) very significantly restrict the opportunities to undertake other activities?”

The CJEU responded to the above question at paragraph 66 of the judgement in the following manner:

“… the answer to the fourth question is that Article 2 of the 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’.”

It is clear from the above that the CJEU considered the fact that Mr Matzak was required to be physically located at home during the period of standby was determinative in their finding that such periods must be regarded as working time.

Moreover, I note that at paragraphs 59 and 60 in Matzak, the CJEU found as follows:

59. 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, 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 (see, to that effect, judgment of 9 September 2003, Jaeger, C-15//02, EU:C:2003:437, paragraph 63, and order of4 March 2011, Grigore, C-258 10, not published, EU:C:2011: 122, paragraph 53 and the case-law cited).

60. 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 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). [Emphasis added]

I also note in Matzak at pars 63, 64 and 65 the CJEU found as follows:

63. 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 8 minutes are such as to objectively limit the opportunities which a worker in Mr. Maztak’s circumstances has to devote himself to his personal and social interests.

64. In the light of those constraints, Mr. Matzak’s situation differs from that of a worker who, during his standby duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.

65. 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.

Unlike Mr Matzak, the Complainant was not required to remain at a location determined by his employer for the period that he was on-call. Even though there were temporal and geographic constraints placed on the Complainant whilst he was on-call, he was free to take up employment during that period. In fact, the Complainant worked as a electrician whilst he was employed as a retained firefighter. Accordingly, I find that this represents another significant material difference between the two cases.

Based on the totality of the evidence adduced, I find that contrary to the Complainant’s contention, the herein case is not on all fours with Matzak and that there are significant material differences in the factual matrix of the Matzak case and that of the herein case. Accordingly, I find that the Complainant cannot ground his case on the Matzak decision.

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.

Given my finding that the Complainant cannot avail of the Matzak decision, I find accordingly that the Complainant’s periods of on-call do not fall with the definition of working time as provided for under the Organisation of Working Time Act, 1997. I find, therefore, that complaint application numbers CA-00028311-001, -002, -003, -004, -005, -006, -007, -008, -009, -010 and CA-00029526-001, -002 contained within are not well founded.

Dated: December 17^th 2019

Workplace Relations Commission Adjudication Officer: Marie Flynn

Key Words:

Retained firefighters, working time; on-call; Matzak