DWT238

1.Appeal of Adjudication Officer Decision No(s) ADJ-00020012 CA-00026502-001

BACKGROUND:

2.The worker appealed the Decision of the Adjudication Officer to the Labour Court 18 September 2019 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 2 March 2023. The following is the Determination of the Court:






DETERMINATION:

This matter comes before the Court as an appeal by Martin Gilbert (the Appellant) of a decision of an Adjudication Officer in his complaint made under the Organisation of Working Time Act, 1997 (the Act) against his employer Dublin City Council (the Respondent).

Mr Gilbert is a retained firefighter and his complaint of a breach of Sections 11, 12, 13, 14, 15, 16, 17, 20 and 21 of the Act will turn initially on his underlying contention that, in his role as a retained firefighter, he is engaged in work within the meaning of the Act for 168 hours per week and 365 days per year.

The Appellant provided the Court with no particulars of the occasions upon which alleged breaches of the Act are contended to have occurred in the cognisable period for his complaint.

It is common case that the Appellant does not provide professional services to the Respondent for 168 hours each week and for 365 days per year but that he is contractually on stand-by to provide such services when called to do so each week and each year except when he is rostered or otherwise permitted to be unavailable to be so called for periods including but not confined to periods of illness or holidays. It is common case also that the Appellant is engaged in business on his own account as a taxi driver for unspecified periods of time while on stand-by and that he is free to otherwise engage in such other activity as he might choose while on stand-by.

The hearing of this matter before the Court involved a series of hearings and a referral by this Court of certain questions to the Court of Justice of the European Union.

It is common case that the initial matter now before the Court is to determine, having regard to the decision of the European Court, whether the time spent by the Appellant on stand-by amounts to “working time” within the meaning of the Article 2 of Directive 2003/88 Directive concerning certain aspects of the organisation of working time (the Directive) and the Act. It is accepted by both parties that it is only if the time spent by the Appellant on stand-by does amount to “working time” that the complaints of breaches of the Act by the Respondent will fall to be determined.

In the event that time spent by him on stand-by does not amount to “working time” it is accepted by both parties that such periods of time must be “rest periods” within the meaning of the Act and of the Directive and consequently no breach of the Act as contended for by the Appellant in his complaint made to the Workplace Relations Commission on 25^thFebruary 2019 could be contended to have occurred at any material time, and consequently that complaint and this appeal must fail.

Relevant law

The Act at Section 2 in relevant part defines “working time” as follows:

“working time” means any time that the employee is—

• (a) at his or her place of work or at his or her employer’s disposal, and

  (b) carrying on or performing the activities or duties of his or her work,

  and “work” shall be construed accordingly.

“rest period” means any time that is not working time;

Article 2 ofDirective 2003/88 of the European Unionprovides:

“For the purpose of this directive the following definitions shall apply:

• • 1) ‘Working time’ means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and practice
  2) ‘rest period’ means any period which is not working time.”

• 38 As regards the classification of periods of on-call duty, the Court has held that the concept of ‘working time’ within the meaning of Directive 2003/88 covers the entirety of periods of stand-by time, including those according to a stand-by system, during which the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests (judgment of 9 March 2021, Stadt Offenbach am Main (A firefighter’s period of stand-by time), C?580/19, EU:C:2021:183, paragraph 38).

  39 Conversely, where the constraints imposed on a worker during a specific period of stand-by time do not reach such a level of intensity and allow him or her to manage his or her own time, and to pursue his or her own interests without major constraints, only the time linked to the provision of work actually carried out during that period constitutes ‘working time’ for the purposes of applying Directive 2003/88 (judgment of 9 March 2021, Stadt Offenbach am Main (A firefighter’s period of stand-by time), C?580/19, EU:C:2021:183, paragraph 39 and the case-law cited).

  40 In order to assess whether stand-by time according to a stand-by system creates, objectively, major constraints having a very significant impact on the management, by the worker concerned, of the time during which his or her professional services are not required, it is necessary, more specifically, to have regard to the time limit for that worker to return to his or her professional activities with the employer for whom he or she is serving that stand-by time starting from the moment at which that employer requests it, coupled, where appropriate, with the average frequency of the activities that the worker is actually called upon to undertake over the course of that period (see, to that effect, judgment of 9 March 2021, Stadt Offenbach am Main (A firefighter’s period of stand-by time), C?580/19, EU:C:2021:183, paragraph 45).

  41 In that regard, the Court has specified that, where that time limit is, during a period of stand-by time, limited to a few minutes, that period must, in principle, be regarded, in its entirety, as ‘working time’. It is nevertheless necessary, as the Court has also specified, to evaluate the impact of such a time limit within which the worker has to react following a concrete assessment that takes into account, as appropriate, the other constraints imposed on the worker, just as in the case of the facilities granted to him or her during that same period (judgment of 9 March 2021, Stadt Offenbach am Main (A firefighter’s period of stand-by time), C?580/19, EU:C:2021:183, paragraphs 47 and 48 and the case-law cited).

  42 It is for the referring court to assess, in the light of all the circumstances of the case and relying on the information set out in paragraphs 38 to 41 of the present judgment, whether, during his periods of stand-by time according to a stand-by system, MG is subject to constraints of such intensity such as to constrain, objectively and very significantly, the ability that he has freely to manage, during those periods, the time during which his professional services as a retained firefighter are not required.

  43 In that regard, the possibility offered to MG to carry out another professional activity during his periods of stand-by time is an important indication that the terms of the stand-by system do not place that worker under major constraints having a very significant impact on the management of his time, provided that it is established that his rights and obligations arising from his employment contract, from collective agreements and from the legislation of the Member State concerned are structured in such a way as to permit the effective pursuit of such an activity for a significant portion of those periods.

  44 The fact that MG at no time has to be in a specific place during his periods of stand-by time according to a stand-by system, that he is not obliged to participate in the entirety of the interventions effected from his assigned fire station, since a quarter of them may in this case take place in his absence, and that he is permitted to carry out another professional activity not exceeding 48 hours per week on average, could constitute objective factors from which it may be concluded that he is in a position to develop, according to his own interests, that other professional activity during those periods and to devote a considerable part of the time of those periods to them, unless the average frequency of the emergency calls and the average duration of the interventions prevent the effective pursuit of a professional activity capable of being combined with the post of retained firefighter, which it is for the referring court to assess.

  45 It is also important to state that organisational difficulties that a period of stand-by time may generate for the worker concerned, such as the choice of residence or places for the pursuit of another professional activity which are more or less distant from the place that he must be able to reach within the time limit set in the context of his post as a retained firefighter, may not be taken into account (see, by analogy, judgment of 9 March 2021, Stadt Offenbach am Main (A firefighter’s period of stand-by time), C?580/19, EU:C:2021:183, paragraphs 41 and 42 and the case-law cited).

  46 Were it to transpire, in the light of all the relevant circumstances in the case in the main proceedings, that the said periods of stand-by time do not satisfy the conditions to be classified as ‘working time’ within the meaning of Article 2(1) of Directive 2003/88, it would follow, as is apparent from paragraph 35 of the present judgment, that those same periods should be regarded, with the exception of the time linked to the provision of work actually carried out, as ‘rest periods’ within the meaning of Article 2(2) of that directive.

  47 However, the classification of a period of stand-by time as a ‘rest period’ for the purposes of applying Directive 2003/88 is without prejudice to the duty of employers to comply with their specific obligations under Articles 5 and 6 of Directive 89/391 to protect the safety and health of their workers. It follows that employers cannot establish stand-by periods that are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of those periods being classified as ‘rest periods’ within the meaning of Article 2(2) of Directive 2003/88. It is for the Member States to define, in their national law, the detailed arrangements for the application of that obligation (judgment of 9 March 2021, Stadt Offenbach am Main (A firefighter’s period of stand-by time), C?580/19, EU:C:2021:183, paragraph 60 and the case-law cited).

  48 In the light of all the foregoing considerations, the answer to the first and second questions is that Article 2(1) of Directive 2003/88 must be interpreted as meaning that a period of stand-by time according to a stand-by system served by a retained firefighter, during which that worker, with the permission of his or her employer, carries out a professional activity on his or her own account but must, in the event of an emergency call, reach his or her assigned fire station within 10 minutes, does not constitute ‘working time’ within the meaning of that provision if it follows from an overall assessment of all the facts of the case, in particular from the scope and terms of that ability to carry out another professional activity and from the absence of obligation to participate in the entirety of the interventions effected from that fire station, that the constraints imposed on the said worker during that period are not of such a nature as to constrain objectively and very significantly the ability that he or she has freely to manage, during the said period, the time during which his or her services as a retained firefighter are not required.

Discussion and decision

The Appellant is self employed as a taxi driver and engages in that activity or any other activity of his choosing at any place of his choosing when on stand-by. The Court has no specificity as regards the detail of the Appellant’s time spent in business on his own account as a taxi driver while on stand-by and similarly has no detail of any other activity in which he might be engaged when on stand-by and not providing fire-fighting services to the Respondent. No submission has been made to the Court however to the effect that the freedom which the Appellant has to choose to engage in professional activity as a taxi driver or any activity of his choosing while on stand-by is governed by or affected by the fact of his being on stand-by.

The Appellant has submitted, without evidence being proffered to that effect, that when engaged in business on his own account he must confine himself to accepting fares to the value of €10.00 in order to be in a position to meet his obligations to the Respondent when he receives an alert. In considering the relevance of this submission to the within matter, the Court has noted the Judgement of the European Court at paragraph 45 where it was clarified that organisational difficulties that a period of stand-by time may generate for the worker concerned, such as places for the pursuit of another professional activity which are more or less distant from the place that he must be able to reach within the time limit set in the context of his post as a retained firefighter, may not be taken into account by this Court in determining whether the constraints imposed on the Appellant are of such a nature as to constrain objectively and very significantly the ability that he has freely to manage his time spent on stand-by

It is undisputed that the Appellant must respond to attend at the fire station within a maximum 10 minutes when alerted but should he attend within 15 minutes of the alert, he receives payment for the full duration of the call-out provided he remains in the fire station for that period of time.

Neither was it substantially in dispute that in the full year of 2019 the Appellant had responded to 339 alerts and that he had actually attended an incident in less than 50% of the occasions when he had responded to an alert. The parties were similarly largely in agreement that, in general, in those months in 2019 when he had not been on sick leave or annual leave for all or part of the month, the Appellant’s attendance in the provision of fire services ranged from 15 to 26 hours per month. Finally, it was not substantially in dispute that the Appellant was required to respond to 75% of alerts when he was not otherwise authorised to be unavailable.

The Court notes that the Appellant is not obliged to remain at a place determined by his employer while on stand-by.

At paragraph 24 of the Judgment of the CJEU inC-214/20,given following the referral made by this Court of questions in the within proceedings, that Court distinguished the within matter from the circumstances which underpinned the CJEU Judgement inMatzak (C?518/15, EU:C:2018:82),when it was stated:

• “The situation which led to that judgment should, however, be distinguished from that at issue in the main proceedings, since Dublin City Council does not require MG to be at a particular location when on stand-by and, in addition, permits him to work on his own account- which he does as a taxi driver- or to work for another employer”.

Taking all of the above into consideration it is the conclusion of this Court, based on its overall assessment of all the facts of the case, in particular from the scope and terms of his ability to carry out another professional activity while on stand-by and from the absence of obligation to participate in the entirety of the interventions effected from the fire station, that the constraints imposed on the Appellant during periods of stand-by are not of such a nature as to constrain objectively and very significantly the ability that he has freely to manage, during the period of stand-by, the time during which his services as a retained firefighter are not required.

The Court consequently concludes that the time spent on standby by the Appellant is not “working time” for the purpose of the Directive and the Act. Such periods must therefore be regarded as “rest periods” within the meaning of the Act and the Directive.

Having reached that conclusion it is axiomatic that no complaint of a breach of the Act at Sections 11, 12, 13, 14, 15, 16, 17, 20 and 21 as contended for by the Appellant can be upheld.

Decision

For the reasons set out above, the within appeal fails. The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
9 March 2023	Chairman