Complainant

Respondent

Anonymised Parties

Retained Firefighter

Council

Representatives

Gerry Harris SIPTU

Amanda Kane & Eamonn Hunt LGMA, Richie Holderman

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-00026502-001

25/02/2019

The Complainant was been employed as a Retained Firefighter since 12th September 2005. He has claimed that the Respondent has breached Secs 11, 12, 13, 15, 16, 19, 20 and 21 of this Act.

The Complainant is seeking adjudication under section 27 of the Organisation of Working Time Act 1997 for alleged breaches of sections 11, 12, 13, 14, 15, 16, 17, 20 and 21 of this Act by his employer for the six months preceding the referral of his complaints on 12th February 2019.

Contractual Terms and Conditions of Employment

In accordance with the Complainant’s contract of employment he is an employee of the Respondent as a retained firefighter since 12th September 2005.

In accordance with clause 8 of the Complainant’s contract of employment the Complainant:

“must live and work within a reasonable distance of the fire station in which [he is] employed. A change of residence or place of employment which would take [him] an unreasonable distance from the station will mean automatic termination of [his] employment.”

In accordance with the Candidates Information Leaflet, what is considered a reasonable distance of the fire station is the determined turnout time by the Chief Fire Officer and as stated in clause 8 of the Complainant’s contract of employment:

“The turnout time as determined by the Chief Fire Officer is 5 minutes.”

It is also a condition of the complainant’s employment that he “will be required to provide verification from [his] full time employer that [he] will be released to attend incidents as required’’.

The Complainant’s location of employment with the Respondent is X Fire Station. Therefore, in line with the above requirements of his employment, the Complainant resides at Y and works as a Taxi Driver, both of which allow him to remain available and within the five - minute turnout time to the fire station.

Contractual Working Hours

In accordance with clause 7 and 10 of the Complainant’s contract of employment he is: ‘’required to be available on a twenty – four (24) hour daily basis (excluding periods of annual leave)” and “attend 100 hours of training per annum”.

In addition, the Complainant is required to “attend weekly training sessions at Stations and carry out duties that may be assigned from time to time [with attendance being at] 85% of normal training practices and 75% at fires”.

The Complainant is therefore ‘on-call’ 24 hours per day for 7 days of the week and as a result does not receive a roster of his working time because he is never ‘off-call’.

‘On-Call’

As the Complainant must always be available and ready to respond within the determined turnout time of five – minutes, the Complainant is provided with a pocket alerter. If the Complainant fails to respond when he is alerted, he may “forfeit his right to payment of the retainer fee for a period of 2 weeks and any subsequent failure will result in disciplinary action”.

A previous failure of the Complainant to respond to an alert did lead to disciplinary action in 2015 when the Complainant was sanctioned with a severe reprimand that was recorded on his personnel file for a period of 1 year. The Complainant was informed at the time that another failure to attend could ultimately lead to his dismissal.

This sanction was imposed on the Complainant even though he had attended and complied with his minimum contractual requirement of 75% of fires that year.

In accordance with the “onus of arranging to receive the call - out alarm rests with the members”. This requirement is reiterated in the Composite Agreement between the Respondent and SIPTU which states that ‘in the case of an alert, there is a liability for firefighters to attend [the fire station]. This is the basis on which the retainer is made’.

A ‘Missed Call/Late Turn-In Report’ form must be completed if the Complainant is late or accidently misses an alert. This report form is considered by the Senior Officer that is ‘on-call’ at the time and can result in an investigation.

In accordance with the Brigade Order 01/17 there must be a minimum of 7 firefighters available and ready to receive an alert at any one time. The first 5 firefighters to arrive at the station will attend the incident. Any other firefighters that arrive later but still within a 10-minute turnout time will be sent home and receive remuneration for attendance.Despite this minimum, the Respondent requires all the retained firefighters to be on call 24 hours per day, 7 days a week.

This means in practice that for the Complainant to avail of his annual leave entitlements, he is required to apply for approval from the Station Officer and if the Complainant is required to ever go outside of the five – minute turnout time, he must request to be temporarily removed from the 24-hour schedule.

Restrictions of being ‘on-call’

Due to the above requirements to, at all times, reside, work and remain within the turnout time of five – minutes of the fire station and respond to all calls or alerts, it is the Complainant’s experience that his ability to participate in any social or personal interests or obligations is significantly restricted. Examples of these restrictions are set out below. This is not an exhaustive list.

§  At all times, the Complainant is unable to commit to any family or social arrangements that are outside of the turnout time or that could impact on his ability to be available if alerted;

§  At all times, the Complainant cannot engage in his own interests or hobbies as they are further than five - minutes away from his house and he would be unable to travel with these groups at weekends;

§  At all times, the Complainant is unable to visit his mother in a nearby nursing home as it would take him outside the turnout response time;

§  At all times, as a taxi driver he must refuse work which may take him outside the five – minute turnout time; and

§  At all times, the Complainant must turn down invitations to family or friends’ celebrations that are outside of the turnout time.

Remuneration for being ‘on-call’

As can be seen the Complainant does not receive any pay for being ‘on-call’ however the Complainant receives an annual retainer fee for his employment with the Respondent of €10,383 and he receives the following hourly rates of remuneration if he is called into the fire station: Drill - €19.86, Day: 1st Hour - €39.72, Subsequent Hours - €19.86; Night and Weekends: 1st Hour - €79.43, Subsequent Hours - €39.72

The Complainant is paid his remuneration monthly.

LEGAL ARGUMENTS

It is clear from the above facts that while the Complainant is ‘on-call’ he is in fact engaged in ‘working time’.

This question was most recently addressed in Ville de Nivelles v Rudy Matzak [2018] CJEU C-518/15 which involved a volunteer fire fighter who was predominantly on stand – by or called into the fire station with an eight-minute response time. He also worked in another job with a private company. He argued that his time on stand - by must be categorised as ‘working time’ as it significantly restricted his opportunity to undertake other activities.

The CJEU first held in line with Union syndicale Solidaires Isère, C‑428/09 and Fenoll, C‑316/13that the volunteer fire fighter was in fact a ‘worker’ with the local fire service as despite the individual law in each Member State, for the purpose of the Directive concerned, “any person who pursues real, genuine activities…..must be regarded as a worker” and “The defining feature of an employment relationship resides in the fact that for a certain period of time a person performs for and under the direction of another person services in return for which he receives remuneration.”

The CJEU also held the following: “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 Matzak’s circumstances has to devote himself to his personal and social interests. In the 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 inasmuch as it must be possible to contact him. 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.

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

This definition of ‘working time’ therefore applies to the Complainant’s current working relationship with the Respondent as he is required to reach his place of work within a five-minute turnout time and must always remain physically present within that parameter. This is evidenced in his contract of employment which requires him to reside and work within those parameters and has the effect of objectively limiting his opportunity to devote himself to his personal and social interests as set out in paragraph 16 of this submission.

As a result of the above case law, the Complainant submits that the Respondent is in breach of the following:

§  S.11 of the 1997 Act by not providing the Complainant with a 11 hours rest break or an equivalent compensatory rest period

§  S.12 of the 1997 Act by not providing the Complainant with a 15 minutes or 30 minutes or equivalent compensatory rest intervals while carrying out his 24-hour shifts;

§  S.13 of the 1997 Act by not providing the Complainant with a weekly rest period of 24 consecutive hours immediately preceded by a daily rest period of 11 hours or an equivalent compensatory weekly rest period;

§  S.14 of the 1997 Act by not providing the Complainant with a Sunday premium or paid time off as a result of working on a Sunday;

§  S.15 of the 1997 Act by requiring the Complainant to work in excess of an average of 48 hours per week over the necessary reference period of four months;

§  S. 16 of the 1997 Act by requiring the Complainant to work more than an average of 8 hours per night and / or 48 hours per week in the necessary reference period of two months;

§  S.17 of the 1997 Act by not providing the Complainant with his normal or regular starting and finishing times or information in relation to any additional hours;

§  S.20 of the 1997 Act by not providing the Complainant with pay for his annual leave based on his actual working time; and

§  S.21 of the 1997 Act by not providing the Complainant with additional pay or time in lieu as a result of working a Public Holiday.

While it is open to the Respondent to rely on SI 52 / 1998 and/ or SI 21 / 1998 to derogate from the relevant sections of the 1997 Act, it is not open to the Respondent to rely on these Statutory Instruments to redefine ‘working time’ as ‘rest periods’ and thereby derogate from their obligations under the Act. This was clearly stated in the Matzak case wherethe CJEU stated the following: “[It]….must be interpreted as meaning that the Member States may not derogate, with regard to certain categories of firefighters recruited by the public fire services, from all the obligations arising from the provisions of that directive, including Article 2 therefore, which defines, in particular, the concepts of ‘working time’ and ‘rest periods’.

CONCLUSION

In relation to the Respondent’s concluding paragraph of their submission, the Complainant respectfully disagrees that his position is effectively reflected in paragraph 60 of the preliminary ruling in Ville de Nivelles v Rudy Matzak Case C-518/15. The Complainant has previously submitted that his position is in fact effectively the same as the Claimant’s position in Ville de Nivelles v Rudy Matzak Case C-518/15. In essence, both individuals are not just at the disposal of their employer under a stand – by system but are subject to severe geographical and temporal restraints that objectively limit the opportunities they have to devote themselves to personal or social interests. It is these restraints that distinguish the Complainant’s position to that set out in paragraph 60 of the preliminary ruling and align the Complainant’s position with the decision of Ville de Nivelles v Rudy Matzak Case C-518/15. This argument and the comparisons contained within is set out in detail from paragraphs 17 – 21 of the Complainant’s submission.

Therefore, in accordance with the Organisation of Working Time Act 1997, we respectfully request that the Adjudicator Officer:

a)       Declares that the Complainant’s complaints are well founded;

b)      Require the Respondent to comply with the provisions of the 1997 Act; and

c)      Award compensation for the above-mentioned breaches of the 1997 Act.

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.

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

Preliminary issue Organisation of Working Time Act;

The question arises as to whether the complaint or elements of the complaint is, by operation of the Workplace Relations Act, 2016 (the Act of 2016) at Section 41(6), statute barred.

Section 41 (6) of the Work Place Relations Act 2015 states: - “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”

Section 27 (4) of the Organisation of Working Time Act states: - “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

The referral was not made to the WRC until 25th February 2019. Therefore, the complaint has to be relevant to an event or breach of the Act which would have or should have occurred in the period between the 25th August 2018 and the 25th February 2019. Because no specifics have been provided to the detail of the complaints, the Respondent must raise this preliminary issue and it is for the Complainant to refer specific breaches as they relate to the complaint submitted.

Council’s Position – OWT Complaints

With regard to the alleged breaches of sections 11, 12, 13, 14, 15, 16, 19, 20 & 21. of the Organisation of Working Time Act the relevant elements of the act are as follows;

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

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

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

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

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

13.— (1) In this section “ daily rest period” means a rest period referred in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

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

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

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3), shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

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

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) 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. rights commissioner or the Labour Court for the purpose of the proceedings).

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

20.— The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

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).

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 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.

4.3          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  

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 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 the next annual first quarter payment to firefighters.

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 complaint although not specifically stated may also seek to rely 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.

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":

"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;

2. '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 definition of working time has been set out based on three criteria;

·    The worker is at “work”

·    At the employer’s disposal and

·    Carrying out his activity

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, 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.

Turnouts – when answering a call to attend an incident

Drill nights – when attending weekly “drill nights” for the purposes of training, development and maintenance

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.

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 position of the Respondents is that work in employment is performed in a relationship characterised by direction or more appropriately control.  Indeed, without control, there can be no employment relationship.  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 who were at rest and those who were at work 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.

It is accepted that one of the key elements as it relates to employment contracts is that of mutuality of obligation between an employee and their employer this cannot exist on a simultaneous basis between an individual and different employer. At any given time that mutuality can only exist on a singular basis, therefore where the Respondents have accepted that the claimant can have a separate mutual obligation to another employer that of itself cannot constitute working time with the respondents. There is no qualitative requirement to be found in the wording of the Working Time Directive with regard minimum periods of rest, other than to make it clear in the definition of "rest period" that it means a period which is not working time with the employer. 

The proposition that an individual can be employed by two different employers for the exact same time period cannot be sustained as they are mutually exclusive.

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.

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.

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 30% 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.

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)

The Complainant at the time of his commencement of employment identified himself as self-employed as a taxi driver and it was open to him to continue in such employment. It is understood that he continues to be self employed. The Council would again advise that the definition of working time has been set out by the ECJ based on three criteria;

·                     The worker is at “work”

·                     At the employer’s disposal and

·                     Carrying out his activity

The Council do not accept that the complainant can claim to be employed by the Council 168 hours per week whilst clearly engaged in separate employment.

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.

Conclusion

Regarding paragraph 60 of the preliminary ruling in Ville de Nivelles v Rudy Matzak Case C-518/15, the Complainant has responded effectively confirming that this was addressed in his submission and no further submission was necessary therefore there is a limited basis for the Respondent to address.

The Respondent would simply reiterate that the Complainant is by his own admission engaged in other employment and therefore: “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”

Clearly this is the case otherwise the Complainant could not operate as a taxi driver

“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”.

Clearly this is the case otherwise the Complainant could not operate as a taxi driver

For the reasons as set out above the Council would ask the Adjudicator to dismiss the complaints under the Organisation of Working Time Act

Working time Vs rest time