Complainant

Respondent

Anonymised Parties

A Retained Firefighter

A Local Authority

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00027750-001

15/04/2019

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

CA-00027750-002

15/04/2019

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

CA-00027750-003

15/04/2019

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

CA-00027750-004

15/04/2019

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

CA-00027750-005

15/04/2019

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

CA-00027750-006

15/04/2019

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

CA-00027750-007

15/04/2019

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

CA-00027750-008

15/04/2019

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

CA-00029441-001

03/07/2019

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

CA-00029441-002

03/07/2019

The complainant is employed by the respondent as a Retained Firefighter since July 2011. The complaint’s relate to the following alleged breaches of the Organisation of Working Time Act, 1997; Section 11 (Daily Rest Breaks), Section 12 (Rest Breaks at work), Section 13 (Weekly Rest), Section 14 (Sunday Work – 46 Sundays in the last year), Section 15 (Excessive Weekly working Hours: 168 hours per week), Section 16 (Excessive Working Hours per day/week), Section 17 ( Notification of Starting Times/Finishing Times/Additional Hours), Section’s 19 and 20 ( Hours of and Payment for Annual Leave) and Section 21 (Hours of work and payment for Public Holidays).

The complaint also referred a complaint concerning an alleged breach of the National Minimum Wage Act, 2000.

The complaints were referred to the Workplace Relations Commission on 15th April 2019. The cognisable period of the complaint is therefore 16th October 2018 to 15th April 2019.

Complaint Applications CA-00029441-001 and CA-00029441-002 were referred to the WRC on 3rd July 2019. The cognisable period for those complaints is 4th January 2019 to 3rd July 2019.

Note: The complainant also submitted separate complaints bearing the Adjudication reference numbers ADJ 000-18318 on 26th November 2018 relating to working hours in excess of the Statutory maximum per week and ADJ-000-22955 on 8th July 2019 relating to Annual Leave and Public Holiday entitlements. The issues raised in those complaints are also addressed in the within decision although the cognisable periods differ between referrals. Separate decisions will issue in respect of ADJ-00018318 and ADJ-00022955.

National Minimum Wage Act complaint

The complainant stated that in case C-518/15 Ville de Nivelles v Rudy Matzak, ECLI:EU:C:2017:619 (hereafter “Matzak”) the CJEU accepted that time spent on call, at a place designated by the employer constituted working time. Applying that decision to the instant case, the complainant contends that he is working 168 hours per week and is therefore being paid less than the national hourly minimum rate of pay.

The complainant contends as follows:

“Here the claimant 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 claimant worked or carried out his work was 168 hours per week”

The complainant is seeking an award of arrears on the basis of the blatant shortfall in the payment of the national minimum wage.

Organisation of Working Time Act complaints

The complainant has been a retained firefighter since July 2011. He is required to reside between 2-2.5km of the Fire Station. He is also a Director of a Locksmith business and is employed from 9am to 5.30pm in that business as well as being called out on emergency calls when required. The complainant stated that it is agreed with his fellow Directors that he can leave work when he receives an alert to attend the Fire Station. The complainant stated that he is married and has some caring responsibilities for his son who is two and a half years old. The complainant stated he also attends the Gym regularly as it is a requirement to remain fit for the role of retained firefighter.

The complainant contends that while he is on-call, he is actually engaged in working time. The complainant quoted the Simap, Jaeger and Grigore cases in support of his position in that regard. The complainant stated that the issue was most recently addressed by the Court of Justice of the European Union in case C-518/15 Ville de Nivelles v Rudy Matzak, ECLI:EU:C:2017:619 (hereafter “Matzak”). The complainant stated that in the Matzak case, a volunteer firefighter, not contractually required to remain at home but had to report to the Fire Station within 8 minutes of receiving an alert was deemed to have been engaged in “working time” while on call on the basis of the restrictions placed on him by the employer. The complainant stated that the restrictions placed on the complainant confirm that he is at the disposal of the employer for the entire period of on-call which gives rise to a clear mutuality of obligation between the parties. The complainant contends that he is subject to disciplinary action if he fails to attend all “call outs”.

The complainant stated that the time he is on standby must also be considered to be working time given that the reality of his conditions of employment with the respondent are on “all fours” with those outlined in the decision in Matzak. Accordingly, the complainant contends that the respondent has committed multiple breaches of the legislation.

National Minimum Wage Complaint

The respondent stated as a preliminary point that the definition of “working hours” as provided in Section 8(2) of the National Minimum Wage Act, 2000 excludes:

“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.”

Accordingly, the respondent contends that as the legislation states that the definition of working hours does not include periods of on call/standby, the WRC does not have jurisdiction to proceed with a hearing of this complaint.

Notwithstanding its preliminary point, the respondent contends that there is no breach of the legislation as the payment of the retainer is in accordance with the CJEU decision in “Matzak” which, at paragraph 52, states 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.’

Organisation of Working Time Act complaints

In relation to the working time complaints, the respondent contends that it is exempt from applying the provisions of Sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997 by virtue of Paragraph 2 of Article 17 of Directive 2003/88 which identifies a number of areas where derogations from the rights conferred by the Directive are permitted which include “fire and civil protection services”. The respondent outlined that these derogations are provided in this jurisdiction by S.I. No 21/1998 – Organisation of Working Time (General Exemptions) Regulations, 1998 and by S.I. 52 of 1998 - Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 and specifically refer to “the activity of a person employed by a fire authority in the position commonly known as a retained firefighter.”

The respondent stated that in relation to the alleged breaches of Sections 14 of the Act, there is a collective agreement in place which provides for the payment of a premium for attendance at weekends. In relation to the complainant’s attendance pattern and alleged breach of Section 17 of the Act, the respondent stated that the complainant’s contract of employment and the collective agreement set out the basis for the complainant’s attendance. The Respondent also outlined that the collective agreement also provides the basis upon which payments for annual leave are made and therefore it contends that no breach of Section 20 of the Act has occurred.

Working Time

The respondent stated that Article 2(1) and (2) of Directive 2003/88 define working time as being “any period during which the worker is working, at the employer’s disposal and carrying out his activities or duties”. Rest periods are defined as “any period which is not working”.

The respondent cited the CJEU in cases C‑303/98 Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria de Sandidad eY Consumo de la Generalidad Valenciana [2000] IRLR 845 and CaseC‑151/02 Landesshauptstadt Keil v Jaeger [2003] IRLR 804 ("the SIMAP and Jaeger cases") which provide that that time spent on standby can only be regarded as working time if the workers are required to be present at the workplace whereas workers who are not required to remain at a place determined by the employer, but who must be reachable if required, are only engaged in working time while actually involved in the provision of services.

The respondent stated that in the instant case, the complainant, while on call is not required to remain at a place determined by the employer and is not involved in the provision of services.

The respondent also stated that whilst the complainant is paid a retainer to be available, he is also paid additional fees for attending at fires and training events that are calculated separately and on the basis of attendance. Accordingly, the respondent contends that the time spent on-call cannot be regarded as working time.

Employment Relationship

The respondent outlined that the complainant is also employed under a contract of employment with another employer. In those circumstances, a mutuality of obligation exists between the complainant and his substantive employer; the obligation on the employer to provide work for the complainant and on the complainant to carry out the work under the direction and control of the employer.

The respondent contends that mutuality of obligation cannot exist simultaneously between two employers. The respondent stated that, the nature of the relationship between the respondent and the complainant outside of what is considered to be contractual hours once alerted to an incident, is characterised by the exercise of choice, free from the direction of the respondent and free to undertake other employment and activities.

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

The respondent stated that the specifics of the complainant’s engagement are not on all fours with the decision in Matzak. The respondent contends that the complainant’s position is more effectively reflected in the Matzak at Paragraph 60 which states as follows:

“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, judgement of 9 September 2003, Jaeger, C-151/02, eu:c:2003:437, paragraph 65 and the case law cited).”

In conclusion the respondent submits that the complaints are not well founded.

Organisation of Working Time Act complaints

The complainant has stated that the respondent has committed multiple breaches of the Organisation of Working Time Act, 1997 in respect of his employment as a Retained Firefighter. The alleged breaches lack specifics but are based on the complainant’s assertions that by virtue of the CJEU Decision in Matzak that all time spent on standby/on-call is regarded as working time. On that basis, the complainant contends that he is actually working 168 hours per week and the breaches of the legislation occur as a result of the level of hours worked.

The complainant also asserts as breach of the National Minimum Wage Act, 2000 resulting from his employment with the respondent.

Time Limits

The within complaints have a six-month cognisable period in line with the provisions of Section 41(6) of the Workplace Relations Act, 2015 which states as follows:

“(6) 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.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complainant cited the Court of Appeal Decision in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others [2019] NICA 32 in support of its contention that the complainant should be compensated for the breaches of the legislation in relation to annual leave entitlements for the duration of his employment. On this issue I note that Section 41(6) of the Workplace Relations Act, 2015 sets out the time limits in relation to referring complaints to the WRC. The Act provides for a six-month time limit which can be extended to twelve months if reasonable cause can be shown for the delay in submitting a complaint. Any complaint relating to earlier years of annual leave entitlements is clearly statute barred by operation of the six-month time limit prescribed by the Act. This issue was definitively decided by the High Court in Royal Liver Assurance v Macken, High Court, Unreported, Lavan J, 15th November 2002.

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.

Section 2(1) of the Organisation of Working Time Act, 1997 defines working time as follows:

"working lime " 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,

and

"work" shall be construed accordingly.

Article 2(2) of Directive 2003/88/EC defines rest periods as follows:

“rest period” means any period which is not working time.

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

The complainant’s case is grounded on the decision of the CJEU in Matzak. Consequently, it is first necessary to consider if the factual matrix of the instant case are congruent with those giving rise to the decision relied upon. In her Opinion in Matzak Advocate General Sharpston, at par 10, recited the following facts set out in the order for reference by the referring court: -

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.

Consequently, as is clear from this passage, reliance was placed in that case on a clearly discernible period of putative working time. In the instant case the complainant is contending that every hour of every day during which there is the possibility of him being called in to perform firefighting duties is to be regarded as working time. That is a significant and material difference in the factual matrix of the instant case and that in Matzak. Moreover, as is clear from the judgment of the CJEU Mr Matzak was obligated to remain at home during the period of stand-by. That is clear from question 4 in the order of reference, which was: -

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?’

That question was answered by the court, at par 67 of the judgment, in the following terms: -

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’.

It is, accordingly, clear that a key factor in that decision was the fact that Mr Matzak was required to spend the identified period of stand-by at his home. Despite assertions of the complainant’s representative to the contrary, the Decision of the CJEU is clear that the complainant in that case was required to remain at home.

In the instant case, there is no suggestion that the complainant spends the totality of the time contended for as working time at his home. That is manifestly not the case as during substantial portions of that time he in fact pursues other employment.

I note that in Matzak at pars 59 and 60 the CJEU pointed out as follows:

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).

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 stated 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.

In the instant case, the complainant contends that he is working 168 hours every week by virtue of the fact that he is on call for 24 hours per day seven days per week. The complainant is not required to remain at a physical place determined by the employer for the period of on-call. The complainant, although he must respond to an alert within five minutes, is also employed in another employment and can also be engaged in that activity while on call with the respondent. Once alerted the complainant can leave his other employment and attend the Fire Station.

Having regard to the material factual difference between the instant case and the Matzak case, I am satisfied that the latter decision is clearly distinguishable and, accordingly, cannot avail the complainant in advancing his claims.

Conclusion

In all of the circumstances of this compliant and having considered the considerable differences between the complainant’s engagement with the respondent and the facts of the CJEU decision in Matzak, I find that the complainant’s period of on-call, does not meet the definition of working time. Accordingly, the complaints as submitted cannot succeed.

In considering the complaint under the National Minimum Wage Act, 2000, and for the reasons stated above in relation to the Organisation of Working Time Act complaints, I find that as the complainant was not “working” for the respondent for the period of on call, his complaint is not well founded.

For the reasons stated above, I have not accepted the complainant’s arguments that the specifics of his employment are comparable to those described in the CJEU Decision in “Matzak”. As the time the complainant spends on call is not regarded as “working time”, I find that complaint application numbers CA-00027750-002, CA-00027750-003, CA-00027750-004, CA-00027750-005, CA-00027750-006, CA-00027750-006, CA-00027750-007, CA-00027750-008, CA-00029441-001 and CA-00029441-002, contained within are not well founded.

In relation to complaint CA-00027750-001 concerning a breach of the National Minimum Wage Act 2000, I find that this complaint is not well founded.

“Retained Firefighter” “Working Time” “Matzak”