FULL RECOMMENDATION
SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014 PARTIES : BUS EIREANN - AND - MR LIAM MCSHANE (REPRESENTED BY NATIONAL BUS AND RAIL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00028571, CA-00037001-003 On four occasions in 2020, the Complainant believed that in asking him to drive a bus, the Respondent was in breach of the law and he declined to do so. He based his refusal on what he argued was set out in the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2012 -2015 ,S.I. No. 36/2012, ‘the Regulations’. He claims that by seeking to make him drive a bus on the relevant occasions, the Respondent breached the protections afforded to him under the regulations and that by subsequently refusing to pay him for the dates in question, the Respondent had penalised him for raising a safety concern, contrary to s.27 of the Health Safety and Welfare at Work Act, 2005, ‘the Act’. This claim is denied by the Respondent. An Adjudication Officer decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Complainant arguments Regulation 10(1) of the Regulations provides as follows; ‘Subject to any derogations under Article 8 of the Directive, the working time of a person performing mobile road transport activities, who performs night work in any period of 24 hours, shall not exceed 10 hours during that period’. Article 3(g) states ‘Week shall mean the period between 00.00 hours on Monday and 24.00 hours on Sunday’ Article 7 states ‘If night work is performed, the daily working time does not exceed ten hours in each 24 hour period.’ The reference to each 24 hour period means one of the 7 clockface periods described in Article 3(g). The Court is provided with details of the Complainant’s working hours midnight to midnight on 15/1/2020, 25/2/2020, 11/3/2020 and 22/4/2020, which show that the Complainant was being required to work in excess of 10 hours in the periods in question, including periods of night work. The Complainant declined to work the hours concerned in breach of the law. On the first occasion, he was allocated to other duties but was not paid for the hours worked. There is no collective agreement to step outside the 10 hour rule. The Court’s attention is drawn to a publication by the relevant UK authority from 2005, which emphasises the importance of the 24 hour period and stresses that this should not be confused with 10 hours per shift. This has been disregarded by the Respondent. By refusing to pay him for the dates in question, the Respondent penalised the Complainant for having raised a safety concern, contrary to s.27 of the Act. Summary of Respondent arguments Article 10(1) refers to ‘any period of 24 hours’, it does not specify or define such periods as midnight to midnight only. The Regulations define ‘night work’ as between 01.00 hours and 05.00 hours and it is not disputed that the Complainant was working night hours. However, the 24 hour period commences at the end of the previous daily rest period or weekly rest period. Neither the Directive nor Regulations support the argument that all 24 hour periods can only be measured from midnight to midnight. This matter has been addressed by the Court of Justice of the European Union in determining that all time is either ‘working time’ or ‘rest’. Therefore, it is logical to calculate the commencement of working time by reference to the time after which a rest period ends, not by reference to the clock face. The RSA Guidelines provide that ‘working time is the time from the beginning to the end of work’. Two RSA audits in 2019 and 2020 raised no issues about the manner in which the Regulations are implemented by the Respondent. In accordance with Article 22(4) of the Council Regulation, a Guidance Note prepared by a group representing each member state provides that a 24 hour period ‘starts from the end of the qualifying daily or weekly rest period taken’ In the case of ‘Michielson v. Geybels (C-394/92)’ the European Court found that a 24 hour period commenced on the activation of the tachograph following a daily or weekly rest period, (not at 00.00 hours). The Complainant’s argument has no basis in law. The Labour Court is not required to have regard to observations by a UK authority. The Respondent deals with any delays for drivers by facilitating later start times to ensure compliance with the legal requirements. This could have been applied in the case of the Complainant. It is conceded that the Complainant was allocated to other duties on the first occasion that this matter arose, that he was not paid for hours worked and that he is entitled to payment for those particular hours. In respect of the other dates, the law was not breached by the Respondent and the Complainant’s attendance was properly rostered in accordance with rosters agreed with the Union. The Complainant did not work the shifts in question, so is not entitled to be paid for them. He was not penalised for having raised a safety concern. The applicable law Health Safety and Welfare at Work act 2005: Protection against dismissal and penalisation. 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. (3) An employer shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger. Deliberation In another parallel Determination on the facts as set out above, the Court finds that the Respondent was not in breach of the relevant regulations. However, it is not necessary for the Complainant to be correct in his view of alleged safety concerns for him to be protected from penalisation under the Act. Therefore, the Court has to consider if the failure to pay the Complainant for the dates in question is penalisation for having raised safety concerns, whether or not such concerns are supported by the relevant regulations. It is clear to the Court that the Complainant was not penalised for raising safety concerns but, rather, was not paid for shifts which he declined to work. The Court deals with the withholding of payment on the first occasion when, in fact, the Complainant did attend work, in a parallel case under the Payment of Wages Act. As the Complainant declined to work his allocated shifts on all other occasions, the Respondent was entitled not to pay him and no valid complaint arises under the 2005 Act. Accordingly, this appeal must fail. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
