DWT2225

1.Appeal of Adjudication Officer Decision No(s) AD00022124 CA-00029109-001.

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 7 July 2021. The following is the Court's Determination:-

DETERMINATION:

Background

This is an appeal by Ivan Wilde Ltd., ‘the Respondent’, under the Organisation of Working Time Act, 1997, ‘the Act’.

Mr. Salandron, ‘the Complainant’, is a Filipino national who worked for the Respondent as a Deckhand/Fisher from September 2017 to March 2019 under the Scheme for Employment of non-EEA crew in parts of the Irish Fishing Fleet.

The Complainant lodged complaints under the Act with the Workplace Relations Commission, ‘WRC’, concerning payments for annual leave, payment for public holidays, failures to provide daily rest periods, failure to provide weekly rest periods, excessive working hours and Sunday working.

An Adjudication Officer upheld all complaints and made awards of; €59.60 for outstanding annual leave, €74.50 for a public holiday, €3000 compensation for breach of daily rest and breaks, €2000 compensation for breach of weekly rest periods, €2000 for excessive hours of work and €2900 in respect of Sunday premium.

The Respondent appealed to this Court.

Preliminary matter.

s. 3(2) of the Act reads as follows;

(2) Subject tosubsection (4), Part II shall not apply to—

(a) a person engaged in—

• (i)sea fishing,(ii)other work at sea, or

• (iii)the activities of a doctor in training,

s.3(4) of the Act reads as follows;

(4) The Minister may, after consultation with any other Minister of the Government who, in the opinion of the Minister, might be concerned with the matter, by order provide that a specified provision or provisions of this Act or, as the case may be, ofPart II shall apply to a specified class or classes of person referred to insubsection (1)or(2)and for so long as such an order remains in force the said provision or provisions shall be construed and have effect in accordance with the order.

The effect of these provisions is that sea fishing is excluded from the scope of Part II of the Act unless the Minister makes an order under s. 3(4) of the Act to have that part of the Act apply to people working in that industry.

The first issue for the Court’s consideration is whether it has the authority to hear an appeal under the Act. To do so the Court has to be satisfied that an order had been made by the Minister under s. 3(4) to include sea fishing within the scope of the Act.

In her Decision, the Adjudication Officer had referred to S.I. 709/2003 which dealsinter aliawith the rights of employees on fishing vessels in respect of working time. For the sake of completeness, it is noted that a later Statutory Instrument, S.I. 672/2019, also dealsinter aliawith these matters.

Having identified that it was necessary for the Court to clarify its jurisdiction in respect of the matters before it, the parties in the instant case were invited to make submissions on the issue.

Summary of Complainant submission on the preliminary matter.

S.3(2) of the Act states that Part ll of the Act does not apply to sea fishing. This relates to rest periods/Sunday work/provision of information regarding working time.

S. 3(4) of the Act gives the Minister power to include sea fishing in the scope of the Act. S.I. 709/2003 comes into play and stands with S.I. 672/2019. S.I. 331/2020 revoked S.I. 709/2003 and was in turn revoked by S.I. 441/2000.

All matters covered by Part lll of the Act are still rightfully before the Court including holidays, and public holidays and Part 1 also regarding compensation for rest periods.

The Regulations implement the provisions of Council Directive 2000/34/EC which bring workers on sea fishing vessels within the scope of the working time regime of Council Directive 93/04/EC. The purpose of these regulations was to allow workers in sea fishing equal access to a civil remedy under the Organisation of Working Time Act 1997.

The Respondent is claiming that there is only a criminal remedy for non-compliance with keeping proper records and that there is no civil remedy in employment law. This would lead to an absurdity.

InGoode Concrete v 58 Workers DWT 34/2009, the Court dealt with this matter and referred to a Council Directive that provided;

‘The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the field covered by this Directive’

These workers are entitled to the same redress as all other workers.

In addition, the Court must look at the case ofMinister for Justice and Equality and theCommissioner of An Garda Siochana v Workplace Relations Commission and Othersin which it was held that all State organs must be able to adopt all measures necessary to ensure the full effectiveness of the law.

Summary of Respondent submission on preliminary point.

S.3(2) of the Act makes clear that sea fishing is excluded from the scope of Part ll of the Act.

S. 3(4) allows the Minister to make a Statutory Instrument to apply the provisions of the Act to categories excluded under s. 3(2). Neither S.I. 709/2003 or 672/2019 provide for exemptions to the provisions of s. 3(2). Therefore, the Court does not have jurisdiction to entertain a complaint under the Act.

Under the provision of Council Directive EU 2017/159 following the jurisprudence of the European Court of Justice, there is a question as to whether the Adjudication Officer could have entertained a complaint under that Directive on the basis of direct effect. However, no complaint was made under that Directive and no reference was made to it. Further while Article 11 of the Directive sets out provisions relating to hours of work and rest, the Minister provided a method to comply with the requirements of the Directive, including a system of fines for breaches of Regulation 7 of S.I. 672/2019.

No provision was made for exemptions to s.3(2) of the Act and the provisions of S.I. 672/2019 do not implement s. 3(4) of the Act. The Adjudication Officer did not have jurisdiction to make an award.

Even if the Adjudication Officer had jurisdiction, an award was made under S.I. 709/2003 , which was revoked by S.I. 672/2019.

The Adjudication Officer actedultra viresand the finding should be set aside.

Note—the Complainant’s representative disputed the assertion that S.I. 709/2003 had been revoked by S.I. 672/2019.

Deliberation and Determination.

This issue has been dealt with extensively in the cases of Galopin Trawlers Ltd. v. Ahmed Elganagy DWT 2222 and DWT 2223, in which cases the Court observed that it did not have jurisdiction to deal with complaints in the fishing industry under Part II of the Act because ‘..the Court is a creature of statute and cannot assume a jurisdiction which has not been conferred on it either in primary legislation (i.e. the 1997 Act) by the Oireachtas or by a Minister delegated by the Oireachtas under the 1997 Act (i.e. in S.I. No 709 of 2003 or S.I. No 672 of 2019).

It is of note that in neither Statutory Instrument, 709/2003 or 672/2019, or, indeed, in any of the other Statutory Instruments to which the parties refer in the course of their submissions, is there any reference to the Minister exercising his power under s. 3(4) of the Act to include sea fishing within the scope of Part ll of the Act. Nothing in any of those Orders suggest that they emanate from the Act.

What is equally clear is that there are legally enforceable regulations set out in these Orders regarding the matters covered in Part ll of the Act, with a mechanism to ensure compliance by an Inspectorate rather than by means of claims under the Act to the WRC and/or appeals to this Court.

It follows, therefore, that, as determined in ‘Galopin Trawlers’, neither the WRC nor the Court has jurisdiction to hear any matters provided for in Part ll of the Act and that those aspects of the Adjudication Officer’s Decision in respect of matters covered by Part ll of the Act are invalid and must be set aside.

Whether this is an unintentional lacuna in the Act or a deliberate intention to provide for an alternative means of enforcement is not a matter on which the Court can comment but it is clearly the case that the Court cannot assume to itself powers that have not been given to it by the Oireachtas. Furthermore, in‘Galopin Trawlers’, the Court considered arguments regarding the direct application of an EU Directive and was clear that the question of disapplying domestic legislation did not arise in the circumstances of that case, which are similar in respect of the matter in the instant case. In doing so, the Court took account of arguments made in respect of the CJEU ruling inMinister for Justice and Equality, Commissioner of An Garda Siochana v. Workplace Relations Commission Case. 378/17,that are identical to arguments put forward for the Complainant in the instant case.

The Complainant’s representative has, quite correctly, drawn attention to the fact that the exemption in. 3(2) applies only to Part ll of the Act and that other matters under the Act are within the Court’s jurisdiction. It is necessary, therefore, to distinguish the different elements of the appeal before the Court.

The matters in respect of which the Court does not have jurisdiction and in respect of which the Decision of the Adjudication Officer isultra viresare as follows;

Complaint ref. no. CA-00029109-006. This complaint relates to s.15 in Part ll of the Act. The Decision of the Adjudication Officer is set aside.

Complaint ref. no CA-00029109-007. This complaint relates to s. 14 in Part ll of the Act. The Decision of the Adjudication Officer is set aside.

With regard to Complaints ref. nos. CA-00029109-003, CA-00029109-004 and CA-0002919-005, it appearsprima faciethat these are alleged breaches of sections 11, 12 and 13, which are in Part ll of the Act.

However, the matter of compensatory breaks is covered by s. 6 in Part l of the Act and the Court is willing to hear the arguments of both parties on the applicability of the Act to these complaints before determining if it has jurisdiction to deal with them.

Complaints nos. CA-00029109-001, regarding annual leave and CA-00029109-002 regarding public holidays are covered by Part lll of the Act and the Court proposes to hear the appeals. A date for a hearing on these complaints and those referred to above, in respect of which the Court proposes to hear arguments, plus appeals under the Payment of Wages Act 1991 and the Terms of Employment (Information) Act 1994, will be arranged.

	Signed on behalf of the Labour Court
	Tom Geraghty
TH	______________________
16 May 2022	Deputy Chairman