FULL RECOMMENDATION
SECTION 19, EUROPEAN COMMUNITIES (ROAD TRANSPORT) (ORGANISATION OF WORKING TIME OF PERSONS PERFORMING MOBILE ROAD TRANSPORT ACTIVITIES) REGULATIONS, 2012 - 2015 PARTIES : LIMERICK EXPRESS COURIERS LIMITED (REPRESENTED BY LEAHY REIDY SOLICITORS) - AND - MR MALCOLM DICK (REPRESENTED BY DUNDON CALLANAN SOLICITORS) DIVISION :
SUBJECT: 1.An appeal of Adjudication Officer's Decision No. ADJ-00020971 He would assist with loading the vehicle and depart for Dublin anytime between 7.00pm and 11.00pm, depending on whether there were delays in the goods arriving. When he got to Freight Company X in Dublin he would assist with unloading/loading which would normally take between one and two hours, but sometimes up to 5 or 6 hours if there were delays in the depot. Arrival times back in Limerick was variable, anytime between 2.00am and 6.30am. The Complainant almost never had a proper break, he would have a sandwich and tea while filling up at a petrol station. The “start” times shown were when the truck left the depot and not when the Complainant commenced work, which was much earlier. Therefore, he submitted that it was impossible to calculate the precise working hours. He said that in any event the records produced indicate that there were 10 occasions when he started work at 5.30pm and finished after 3.30am. He disputed the Complainant’s contention that he assisted with the unloading/loading of goods at the depot in Dublin. Mr Leahy submitted an email from Management at that depot which stated that only Freight Company X staff were permitted to operate mobile equipment on its site. The email stated that only those who had“completed FLT Training on site c/w licence and have full sign off with our Compliance Department are allowed the use of Machinery whilst on site.”Mr Leahy furnished the Court with a spread sheet detailing the working hours and break times which were never less than the regulated 45 minutes. He said that when he arrived at the depot around 5pm or 6pm, he would assist with the loading of goods (doors) and when the truck was loaded, he would at that point insert his tachograph card into his truck which would record his activities from then on until he returned to the depot in Limerick the next morning. He said that he had been asked by management not to insert the card until he was leaving the depot in his truck as otherwise, he would not be permitted to drive continuously to Dublin without a break, which would leave him late for the drivers who arrived into work in the mornings. He described it as a mutual arrangement between himself and management. When Freight Company X imposed an obligation on the necessity to have a Licence, a Fork Lift Truck Driving Ticket had been acquired for him by the Respondent. He said that he acquired the Ticket in 2016. Therefore, he contended that he was working at times described by the Respondent in the tachograph records as ‘Break’ times, when he was at the depot in Dublin. Obligation on Employer Regulation 12 prescribes the obligation of an employer in relation to record keeping for the purposes of the Regulations, it provides as follows:- “12. An employer shall do each of the following in relation to each mobile worker employed by him or her:(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability; (b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation; (c) include time worked for another employer in the calculation of the mobile worker’s working time; (d) keep records which are adequate to show that these Regulations are being complied with; (e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records; (f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker; (g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require; (h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).” Conclusions of the Court The Court is of the view that there is no reason in principle why tachograph records, properly maintained which record periods of availability, break times and rest times, cannot meet an employer’s obligation under Regulation 12 of the Regulations. The difficulty the Court has in this case is that there is a dispute that such records accurately recorded such periods. In the absence of ‘sign in and sign out’ records, the tachograph records furnished to the Court cannot be relied upon as an accurate record of working time, discounting periods of availability, break times, and rest times.The Respondent based his contention that there were no breaches of Regulations 5, 8 and 10, on the tachograph records produced, without any further data or evidence to support its contention. Having considered the position of both parties the Court accepts as persuasive, the evidence given by the Complainant. On that basis and in the absence of any corroboration of the hours actually worked by the Complainant, the Court must find that the Respondent was in breach of Regulations 5, 8 and 10 of the Regulations.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
