DWT2236

1.Appeal Of Adjudication Officer Decision No. ADJ-00022124 CA-00029109-004

BACKGROUND:

2.An Adjudication Officer hearing took place on 10 March 2020 and a Decision was issued on 9 July 2020. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 23 July 2020 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 12 September 2022. The following is the Determination of the Court:-




DETERMINATION:

This is an appeal under the Organisation of Working Time Act, 1997, ‘the Act’, by Ivan Wilde Limited, ‘the Respondent’, of an Adjudication Officer’s Decision that a complaint by Mr. Jose Pame Salandron, ‘the Complainant’, under the Act was well founded. The Respondent is a company engaged in sea fishing.

In DWT2225, this Court dealt with appeals under the Act involving the same two parties and upheld some appeals by the Respondent on the grounds that s.3(2) of the Act excludes Part II of the Act from application to the fishing industry unless the Minister makes an order under s.3(4) to include it and that no such order has been made. In doing so, the Court noted that the within appeal, regarding statutory entitlements to breaks, relates to a section that is in Part II of the Act but that Part I of the Act, which is not excluded from application to the sea fishing industry, deals with the matter of compensatory breaks. Therefore, the Court provided the Complainant’s representative with the opportunity to make argument to the Court on the issue of the Court’s jurisdiction on the subject matter of the appeal.

The Complainant’s representative confirmed to the Court that it was accepted that Part I of the Act does not cover the issues that were the subject of the appeal. That being so, it is common case between the parties that the matter under appeal is covered by Part II of the Act. This Part of the Act is not applicable to the fishing industry. In accordance with the Determination in DWT 2225, the Court is obliged to conclude that the Adjudication Officer does not have jurisdiction in respect of the complaint made and that the Respondent’s appeal must succeed. For ease of reference, s.3(2) and the related s.3(4) of the Act are set out below.

Non-application of Act or provisions thereof

3.—(1) Subject to subsection (4), this Act shall not apply to a member of the Garda Síochána or the Defence Forces.

(2) Subject to subsection (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,

(b) a person—

(i) who is employed by a relative and is a member of that relative’s household or is employed by the person’s civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and

(ii) whose place of employment is a private dwelling house or a farm in or on which he or she and the relative or civil partner reside, or

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

(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, of Part II shall apply to a specified class or classes of person referred to in subsection (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.

Determination

The Decision of the Adjudication Officer is overturned.

	Signed on behalf of the Labour Court
	Tom Geraghty
OC	______________________
19 September 2022	Deputy Chairman