Complainant

Respondent

Anonymised Parties

A retained firefighter

A local authority

Representatives

Anthony Mc Cormack SIPTU

 Local Government Management Agency

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-00026349-001

18/02/2019

The complainant is a retained firefighter.  For this he is paid an allowance and gets paid additionally when he is called out to an emergency.  The complainant believes that all of the time spent on stand-by should be considered working time.

The complainant commenced employment as a retained firefighter in 1st October 2001. He is on call 24/7 to respond to emergencies. He is also required to attend training sessions twice a month. The rostering arrangements mean that he works for 337 days per year (365 minus 28 days annual leave). Each week he is on call for 168 hours. When on call he is alerted for every call that comes in.  He is required to live within 2 miles of the station and to respond to calls within 7 minutes.

Unlike his full time counterparts, he is paid a retainer and hourly rates when he attends an incident or for training. His annual leave is calculated at 8% of the paid hours.

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

The complainant’s working arrangements mirror those of Mr Matzak with the exception that the complainant is rostered on call every week unlike Mr Matzak who was only on call one week out of four.  The complainant is required to be on standby duty 24 hours a day, every day unless he is on annual leave.  While on standby he is obliged to respond and arrive at the fire station within 7 minutes.  It is evident that this worker is required to be physically present at the place determined by the employer and be available to the employer in case of need.  He is obliged to remain physically present at the place determined by the employer. The time constraints on him are such as to limit the opportunities he has to devote to his personal interests.  This can only constitute working time for the purpose of the Act.

Complaint 1.  Section 15

Section 15 states:

Weekly working hours.

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

(a)    4 months, or

(b)    6 months –

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

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

            Or

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

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

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

(4)    A reference period shall not include –

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

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

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

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

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

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

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

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

The complainant’s reference period is 6 months commencing before the date of his complaint – from 18th August 2018 to 18th February 2019 and he was working 168 hours per week for this time. He cannot engage in his own interests or hobbies e.g football or any activities that are more than 7 minutes away.  The CJEU has deemed that the standby time of a retained firefighter with the same employment features constitutes working time. The respondent has been aware of this for a number of years and taken no action and therefore the compensation should reflect this.

Complaint 2 – Section 11 Section 11 of the Act states:

Daily rest period

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

The complainant does not receive 11 hours rest as he is on call 24 hours per day.

Complaint 3 – Section 13

Section 13 states:

Weekly rest periods.

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

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

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

The complainant does not receive the 24 consecutive hours as provided for under the Act

Complaint 4 – Section 12

Section 12 states:

Rest and intervals at work.

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

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

The rest provisions of the Act are matters of health and safety and there is an obligation on the employer to ensure that the employee receives these breaks. The complainant does not receive these breaks.

Complaint 5 – Section 16

Section 16 provides that an employer shall not allow an employee to exceed working over 8 hours at night over an average period of two months.  The complainant works every night over 8 hours.

Complaint 6 – Section 19

Section 19 sets out minimum entitlement to paid annual leave. The complainant works 168 hours per week and has been deprived of his correct annual leave entitlements for over twenty years.

Complaint 7 – section 21

Section 21 sets out entitlements to Public holidays;

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

 (d) an additional day's pay:

The complainant does not get a paid day off. Such payment as he receives is calculated incorrectly.

Complaint 8 – Section 17

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week

The complainant has no start and finish time.

Complaint 9 – Section 17

Subsection 2 requires;

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

The complainant is on a continuous shift which is only broken with annual leave which was never intended by the Act.

Complaint 10 – Section 14

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.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV  before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

The complainant does not receive a specific allowance for Sunday when he is on standby. When he responds to an alert on Sunday he gets the weekend allowance.

Conclusion

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 instruments to redefine working time as rest periods and to avoid their obligations under the Act. In the Matzak case the CJEU ruled that his standby time constituted work time.  In this case the complainants’ work conditions are identical with the exception that Mr Matzak was only required to work 1 week in 4. The court also ruled that a member state could not exclude those workers from the provisions of the directive nor can a member state vary the definitions of working time or rest time. 

The complainant is seeking;

a)      A declaration that the complaints are well founded

b)     A declaration that Direct Effect must apply

c)      That the employer be required to comply with the Directive

d)     An award of significant compensation for the breaches.

The respondent rejects that any breach of the Act has taken place.

Retained firefighters make up 70% of the Fire Service in Ireland with full time fighters in the major cities.  When not attending incidents, the retained firefighter is not required to be in attendance at the station.  They are required to be within a specified distance so that they can respond within a specific period of time.  This availability is not considered to be working time.  During the period they are required to be available they can engage in other activities and be employed by other parties.

Preliminary Issue;

Section 41, subsection 6 of the Workplace Relations Act 2015 states;

(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.

Similar provisions exist under the Organisation of Working Time Act.

The referral was not made to the WRC until 19th February 2019.  Therefore, it must relate to an event or breach of the Act which should have occurred in the period between 19th August 2018 and 19th February 2019.  It is for the complainant to refer to the specific breaches as they relate to the complaint submitted.

Substantive case.

Article 17 of the Directive identifies a number of areas where derogation from the rights conferred by the Directive is permitted from Articles 3,4,5,8 and 16 for certain cohorts of employments including the fire service. 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.  Retained fire fighters are specifically mentioned in the schedule to the regulations.

In relation to the Matzak case, EU does not have a doctrine of binding precedent.  Therefore the judgement is strictly speaking binding only on the national court that submitted the question.  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 respondent’s position that the Matzak case is not on all fours with the facts of this case and Mr Matzak was a volunteer firefighter while the complainant is a retained firefighter.

Mr Matzak’s 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 undertake work  or activities elsewhere  and it is believed he does so.

The CJEU has given specific definition in relation to working time (the SIMAP and Jaeger cases).  The court held that the time spent on call is to be regarded as working time if they are required to be present at the working place 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, - 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;

- the worker is at work

- at the employer’s disposal and

- carrying out his activity.

The onus is on the complainant to prove that he met these criteria for the periods in question.  If he was engaged in other activities for the time period he cannot meet the criteria.

The conditions of employment for retained firefighters provide that a firefighter can be in employment with another employer but must ensure that the employer is willing to release the firefighter once alerted. Retained firefighters may qualify for a jobseeker’s payment and do not have to sign off for the days they are on call, firefighting or training.

The complainant is paid both a retainer and separately he is remunerated for when he is called out. There is no employment relationship for the availability/retainer period. Work in ‘employment’ is performed in a relationship characterised by direction or control.  Without control there can be no employment relationship.  The relationship between the respondent and the complainant outside of the contracted hours relating to an incident or training, is characterised by the exercise of free choice, free from the direction of the employer and free to undertake other employment or activities.

The respondent also believes that the position of the complainant differs from the Matzak case in that there is no absolute requirement to attend to calls and 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 decide whether to report for work or not being in full time education or engaging in other sporting or social activities. Similarly, in relation to weekly training there is no absolute requirement to attend all such sessions. 

At the time of commencement the complainant identified himself as self-employed and it is understood that this situation continues.

The respondent at all times applied the required statutory obligations under the Organisation of Working Time Act and does not refuse minimum rest periods during what it considers to be working periods.

The respondent believes that the position of the complainant is more effectively reflected in the preliminary ruling in Ville de Nivelles v Rudy Matzak Case where the cout stated that;

Finally, it must be observed that the situation is different where the worker performs a standby duty according to a standby 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.

Preliminary Point - Time Limit

The complaint was presented to the Commission on 19th February 2019 therefore the period that may be investigated is 19th August 2018 to 25th February 2019 as per the provisions of Sec 41 (6) of the Workplace Relations Act 20158 and Sec 27 (4) of the Organisation of Working Time Act 1997.

I accept that the Complainant’s case lacks particularity, however I conclude that if it were decided that all the Complainant’s time was to be found working time then there would be ongoing contraventions of the Act during the allowable six-month period. If the substantive case is made then these will be considered further.

Substantive Issue

The Complainant’s position is that the interpretation of the law as set out by the European Court of Justice in their ruling in the case of Ville de Nivelle v Matzak (ECJ Case No. C-518/15, has established that the stand-by time of a retained fire fighter must be considered as working time. 

The Respondent argued that there are important differences between the position of the firefighter in the ECJ case and that of the Complainant, in that in the Matzak case the Firefighter was a volunteer while the Complainant works under a contract as a Retained Firefighter earning a fixed retainer plus call-out payments. The Retained Firefighter is free to engage in other activities and employment. I accept these arguments and that there are significant differences in the two cases.

In the Matzak case the complainant was seeking compensation for being available. In this case the Complainant is paid a retainer fee per annum in addition to call out payments and allowances.

In the Matzak decision emphasis was placed on the fact that the complainant in that case was obliged to remain at home during stand-by periods. As stated in Paragraph 59 “it is apparent from the case-law of the Court that the determining factor for the classification of “working time”, within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and be available to the employer…”.  This restriction does not apply to the complainant in the current case.

Therefore, I do not accept that the restrictive elements pertaining to the decision in Matzak in regard to the classification of working time (i.e. being physically present at a place determined by their employer during stand-by periods thus making it impossible for them to choose the place where they stay during those periods) can be applied to the Complainant’s position.    I therefore conclude that facts in this case are not on all fours with the Matzak case and this argument is not upheld

Working Time and Rest

I find that in the Organisation of Working Time Act there are two types to consider:     working time and rest.

The Complainant’s case is that he is in working time 24 hours a day, 7 days a week and 52 weeks of the year.

I find that that is not a sustainable argument.

The Retained Firefighter may be employed elsewhere. In this case the Complainant declared himself to be self-employed when initially offered the role of retained firefighter. 

I find that one has to differentiate between “present at work” and being “reachable”.

The Complainant is paid a retainer fee and is also paid for actual hours worked, so these times are differentiated. The retainer fee is a set amount and so it is not related to activity. Therefore, I find that it is clear that this contract does not treat all time, 24 hours a day, 7 days a week and 52 weeks of the year the same.

Therefore, I find that all time cannot be treated as working time.

I find that for the Complainant to say they work 24 hours a day, 7 days a week and 52 weeks of the year is absurd and that no legislation was ever enacted to bring about an absurdity. I also note that you cannot contract for an illegal purpose.  Neither can there be an implied term which would conflict with statute. I do not believe that any stage it was the intention of either party to create such a contract.

Sunday Work

I note that when called out at the weekend the complainant is paid an enhanced weekend allowance which fulfils the obligation to pay a premium for Sunday work and therefore this part of the complaint is not well founded.

I find that the complaints are not well founded.

Organisation of Working Time Act.  Whether standby time constitutes working time for the purpose of the Act