DWT2415

FULL DECISION

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00041108 (CA-00052332-001)

BACKGROUND:

An Adjudication Officer hearing took place on 26 July 2023 and a Decision was issued on 5 September 2023. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 11 October 2023 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 30 January 2024. The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Mater Misericordiae University Hospital (the Appellant) of a decision of an Adjudication Officer given in a complaint by Adrian Stefan (the Complainant) made under the Organisation of Working Time Act, 1997 (the Act).

The Adjudication Officer decided that the complaint was well founded.

The hearing of the Court

The complaint before the Court concerns a contention by the Complainant that he was ‘on call’ on a number of occasions when a Public Holiday fell during the cognisable period for the within complaint. He contended that his time spent ‘on call’ on a public holiday should be regarded as working time within the meaning of the Act and that he was entitled to receive the public holiday entitlement provided by the Act to persons at work on a public holiday.

At the hearing of the Court the parties were invited to address decisions of this Court where the matter at issue was whether time spent ‘on call’ should be regarded as working time within the meaning of the Act.

Both parties sought time to make supplemental written submissions on the Court’s jurisprudence in this matter.

The Court heard the comprehensive submissions of both parties at its hearings and, at the conclusion of the hearing, invited the parties to make any supplemental submissions they might wish to make within a specified timeframe.

The Court advised both parties that the matter would be decided on the basis of the parties’ original written submissions, the comprehensive hearing of the Court and any supplemental submission either party might make. Both parties agreed that this approach of the Court was appropriate.

Relevant law

The Organisation of Working Time Act, 1997 at section 2(1) provides as follows;

“Working time” means any time that the employee is

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

b) carrying out or performing the activities or duties of his or her work.

The Act at Section 21, in relevant part, makes provision as follows:

Entitlement in respect of public holidays.

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Background

It is undisputed that the Complainant was, during the cognisable for the within complaint made on 22nd August 2022, required to be ‘on call’ on 18th March 2022 and 6 June 2022 which were both public holidays.

The Complainant contends that, within the meaning of the Act, he should be regarded as having been at work on both of these dates by virtue of the fact that he was ‘on call’. He contends that the entire time when he was ‘on call’ on those two dates was, within the meaning of the Act, ‘working time’.

The Complainant was not called out on either date. The Appellant submits that no ‘phone call was made to the Complainant on either date and no submission has been made by the Complainant that he received any such call. Consequently, the Complainant was, in the submission of the Appellant, not at work while ‘on call’ on either date.

It is not disputed that during the cognisable period for the within complaint the ‘on-call / call-out’ rates applicable to the Complainant, as a result of a collective agreement between the Appellant and the representative trade union recognised for such purposes were as follows:

Standby rate: €450 pw

Call-our rate: Minimum payment of 4 hours overtime if called to the site and if the call out exceeds 4 hours the standard applicable overtime to be applied thereafter. If an employee is called to the site on a public holiday, he or she is paid a day’s salary, overtime for the hours worked plus a day off in lieu of the public holiday.

Discussion and conclusion

The Complainant submits that the payment arrangements set out at section 21(1) of the Act should be applied to him on both occasions where he was ‘on call’ on public holidays during the cognisable period for the within complaint on the basis that time spent by him on call was ‘working time’ within the meaning of the Act. It is not disputed that whereas he was ‘on call’ on both dates he was not ‘called in’ or at his place of work or otherwise at his employer’s disposal or required to carry out or perform the activities or duties of his work on either date.

It is not disputed that that the Complainant was afforded a paid day off on each of the two public holidays concerned.

The Act transposes the provisions of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (the Directive) into Irish Law. That directive does not address the issue of payment in respect of public holidays. Both parties have however, at the invitation of the Court, made submissions on the relevance of the jurisprudence of the CJEU in relation to whether time spent ‘on call’ should, for the purposes of the directive, be regarded as ‘working time’.

The Directive, in relevant part, makes provision at Article 2 as follows:

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 practise

2) ‘rest period’ means any period which is not working time.

The jurisprudence of the CJEU establishes that a person can be at work or at rest and that no third state is possible within the meaning of the Directive.

In its Judgement C-214/20 given on 11th November 2021 in the referral made by this Court, the Court of Justice of the European Union decided in relevant part as follows:

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).

Whereas the Directive has no application to the matter of pay for public holiday purposes, the analysis of the CJEU is, in the view of this Court, persuasive in addressing the matters raised in the within appeal. The Appellant seeks to have this Court conclude that time spent by him on two public holidays when he was ‘on call’ but not called out or otherwise contacted by the employer, was working time within the meaning of the Act. The Respondent submits that the Appellant was free at all times to carry out his own activities while ‘on call’ with no constraints related to response time or geographic location resting upon him while ‘on call’.

In the view of the Court, the Complainant has not demonstrated that he was in any way constrained in terms of how he chose to spend his time on the two occasions or where he chose to locate himself.

The Court concludes that the fact of the Appellant being on call on the two occasions which are the subject of his complaint does not meet the definition of ‘working time’ set out at section 2(1) of the Act. The Court accepts that the Complainant was not, by virtue of being on call, under a temporal constraint or a geographical constraint while on call. He was, by any reasonable standard, free to engage in personal activities consistent with not being engaged in work.

On the two occasions at issue, the Complainant was not at his place of work and did not carry out or perform the activities or duties of his or her work other than carrying a mobile phone.

The Court concludes that the Complainant cannot be considered, within the meaning of the Act, to have been at work for the purposes of calculation of his entitlement to pay for the two public holidays at issue.

Decision

For the reasons set out above the Court concludes that the Complainant was not engaged in ‘working time’ on the two public holidays at issue in the within complaint and, consequently, the within appeal must fail.

The decision of the Adjudication Officer is set aside.

The court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
23 April 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.