Complainant

Respondent

Parties

Finbarr  O'Mahony

Doyle Shipping Group

Representatives

Diarmuid Long SIPTU

Anne O'Connell Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066841-001

21/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066841-002

21/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066967-002

25/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066967-003

25/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066967-004

25/10/2024

Over 21 and 25 October 2024, SIPTU submitted eight complaints to the WRC concerning a Deckhand and the Respondent.

21 October 2024

CA-00066841-001 Annual Leave

CA-00066941 -002 Public holiday

CA-0006641-003 Annual Leave (duplicate) withdrawn on consent.

CA-0006641 -004 Public holiday (duplicate) withdrawn on consent.

25 October 2024

CA-00066967-001 National Minimum Rate of Pay, withdrawn on consent.

CA-00066967-002 Sunday work

CA-00066967-003 Daily Rest Period

CA-00066967-004 Excessive Night hours

Five claims remain for decision.

On 30 October 2024, the Respondent, a Shipping Company, was notified of the full set of complaints.

On 11 November 2024, Anne O’Connell Solicitors came on notice for the Respondent.

Both Parties were invited to attend a hearing in the case scheduled for 19 May 2025. The case resumed on 24 June 2025.

Both Parties made helpful written submissions.

I asked if I could obtain a map of the boat to which the complainant was assigned? I received an account of dimensions and saw photographs of the grouping of 4 tugboats.

I also expressed an interest in meeting the local Union representative as in light of the parameters of the Organisation of Working Time Act and the associated Statutory instruments relied on by both parties, I was keen to gauge the industrial relations climate from which the instant claims sprung.

I have been fascinated by the shortfall in cross references to EU Directives and Domestic transposition by Regulation within the foundation employment documentation. I have not been provided with the employee handbook, so perhaps these references are visible there.

I say this as the complainant is not a lone boatman, but a crew member oof a rotational tug crew which occupies a berth in a harbour setting, with call out functions on a rotational basis.

 I wanted to understand what the Union has negotiated on a collective basis and just why a perceived shortfall had now developed in the complainant’s eye.?

 I noted that the complainant had not attended local meetings on pay or his disputed working conditions.

The Union Official was not available to attend the hearing in person. This is a disappointment, given the Industrial Relations background in LCR 22426 at the Labour Court and the submitted link to the case of Seahorse Unlimited Company and John Joe O Driscoll in PWD 2216, March 2022.

I attempted to obtain some clarity on the working time relied on by both of the parties in this case. I considered some post hearing submissions and responses.

I apologise for the delay in submitting this decision.

The Union outlined that the complainant assumed the role of Able seaman on a Tugboat operated by Lee Towage ltd on 24 February 2010.

1.       Memo of Agreement made on 24 February 2010. It was a Unionised employment.

“This Agreement should be read in conjunction with any agreement applicable to the company (as defined below and in the event of any inconsistency between them, the latter shall prevail. The Employee will be bound by the terms of any such crew agreement.”

The document was signed by both parties on 21 February 2010.

The Union described that the historical   industrial relations context, and background for the claims lay in LCR 22426 at the Labour Court, July ,2021.

This was a S20(1) hearing which addressed a proposed shift change for commercial viability purpose from two weeks on and two weeks off to one week on, one standby week and one week off.

The Court noted change to pay already recorded and awarded €5,000 to the complainant in

 “Full and final settlement of this claim “.

There was a subsequent revision of the shift to two weeks on and two weeks off. This has remained the complainants’ work pattern.

The Complainants employment transferred to the Respondent under TUPE on 23 September 2021.

“I wish to reassure you that you remain employed on your existing terms and conditions, but your employer will now be Doyle Shipping Group. Your continuity of service has not been affected by the transfer i.e. with your past period of service with Lee towage limited and your future period of service with Doyle shipping Group will be treated to one continuous period of service for legal and contractual purposes.”

A new contract followed.

The Union exhibited an email dated 18 July 2022, which purported to be an

 “Updated addendum to your contract “

This forms the context to the current claims.

The Complainant works as a deck hand on a Tugboat, the Alex, which operates within Cork harbour and berths at the Respondent site in Rushbrooke. The Complainant serves as one of three crew. The Tug is 30 metres long.

The Union outlined that during the complainants agreed roster of two weeks on, two weeks off, he remains static on the boat, except for refuelling and resupply. The boat is on permanent 24/7 standby to the Irving Oil Refinery.

The Complainant submits that he is required to work 336 hours over a two-week period. His contention of contravention of the national minimum wage legislation was withdrawn but the instant claims on annual leave, public holiday, Sunday, and excessive night work remain.

On 26 September 2023, the Complainant wrote to Human Resources and queried his categorisation as a 23-week paid employee per annum rather than his presumed 26 weeks.

There was some inconsistency in response, which prompted an intervention by the Union which identified.

1 The complainant had been denied annual leave.

2 He was paid less than minimum wage.

On January 12, 2024, the Respondent replied and explained the €40,000 salary breakdown.

The Union has taken issue with this categorisation and submitted the claims as listed to the WRC.

21 October 2024

CA-00066841-001 Annual Leave

The Union submitted that the Complainant is not permitted to take annual leave during rostered working time. Instead, annual leave is allocated during unrostered hours causing a system of payment in lieu of annual leave, contrary to the provisions of Section 2, Article 7(2) of the Organisation of Working Time Act, 1997.

The Complainant is owed 4 weeks annual leave pays.

CA-00066941 -002 Public holiday

The Union submitted that the Complainant has never received the benefit of public holidays, which amounts to a contravention of Section 21(1) of the Act.

The Union sought the remedy of 10 days’ pay.

25 October 2024

CA-00066967-002 Sunday work

The Union submitted that the Complainant has never received payment for working Sundays.

CA-00066967-003 Daily Rest Period

The Union outlined that as the Complainant remains at the disposal of the Respondent on a static basis for a two-week period, he has been denied his daily rest period 11 hours consecutive rest within 24 hr period. He has not received 15 mins break or a 24-hour rest period each week. He remains in a “state of permanent alarm “on standby. He cannot engage in personal activities and must maintain operational readiness for call out on emergency call out.

The Union argued against the limitations of legislation in this matter , specifically that Merchant Shipping Act 1894, European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009, S.I. No.532/2003 European Communities (Merchant Shipping) (Organisation of Working Time) Regulations 2003, and its amending S.I. No.245/2014 European Communities (Merchant Shipping) (Organisation of Working Time) (Amendment) Regulations 2014, that gave effect to Directive 1999/63/EC and Directive 1999/95/EC, and the amendment giving effect to Directive 2009/13/EC and certain provisions of Article 15 of Directive 2008/106/EC (referred to as the “Regulations”) do  not apply in the Complaints case.

The Complainant never leaves “smooth water “zones.

The Union sought the application of CJEU C-518/15, Ville de Nivelles v Rudy Matzak, where the then ECJ ruled that time spent on standby duty must be “working time “under Directive 2003/88/ EC as the worker is significantly restricted in their ability to manage their own time.

Belgian fire fighter was required to remain at his home during stand by periods designated by his employer and to respond to call out within 8 minutes. This period of standby was deemed working time.

The Union contended that the Respondent had contravened section 5 of the Act and “supports a claim under the Payment of Wages Act, 1991”, yet no such claim was advanced.

The Union distinguished Matzak from Kerry Co Council v David Walsh DWT 2252, where the Labour Court held that a fire fighter on call outs could not classify stand by time as “working time “

The Union sought a remedy of 1464 unpaid hours.

CA-00066967-004 Excessive Night hours

It was the Complainant case that he is bound to remain on the Tugboat for the full two weeks of his roster which contravened section 16 of the Act.

Response to Respondent Preliminary Argument:

The Union rejected the Respondent argument as they contended the Complainant was not a seafarer. He worked “in smooth waters “. He was not estopped by the exemptions relied on by the Respondent.

Evidence of the Complainant:

The Complainant recounted that he had 16 years’ service with Lee Towage prior to his commencement with the Respondent 6 years previously.

He outlined the Dispute before the Labour Court in 2021 in respect of a work pattern.

He told the hearing that the “old order “of 2 weeks on and two weeks off was restored to him without an apparent reason.

He received a new contract in January 2019 and a further update in January 2021. These were received by email but were not signed by him.

He confirmed that holidays had not featured in his Lee Towage contract and he had never been given or had he taken annual leave.

Instead, he worked 14x 24 hr days =4,368 hrs.

“Nobody told him he was entitled to annual leave “It did not feature on his pay slips.

The boat was tied up at Verolme. Rushbrooke.

He worked two Sundays per month and was not provided with enhanced payment.

He went on to recount that the work on the boat was not measured. He confirmed that he completed work outdoors as he towed ships in and out of the harbour. He also completed either maintenance, cleaning or painting most days between 8.30 to 4.30 pm. He confirmed that he had received 15-minute breaks.

Mr O Mahony was not clear on the dateline associated with his claims. He had not received 8-hour compensatory rest periods during his working time. He was unsure if it was factored into the 14 days off.

Mr O Mahony told the hearing that every boatman in the harbour received 2 weeks on, two weeks off and annual leave.

He accepted that he had an exemption as a harbour worker. He was not involved in the localised pay agreement from January 2024, but accepted the terms offered of 5%, made up of 2% and 3%. He sought payment of 4 public holidays.

He gave evidence of earnings.

He was sure that outside of doing an errand, he did not leave the boat during his two weeks on.

During cross examination, the complainant accepted that the Alex and Titan alternated in service. He was aware of the contract which prevailed for the Alex.

He recalled staff numbers increased one week after the Labour Court hearing.

He accepted that he had not mentioned annual leave as changes occurred in the work pattern. He did not receive 2.5 days annual leave per month.

He described being “captive “on the boat over 24 hrs and despite the provisions of SI 245/2014, the complainant admitted that he did get some rest on board.

He had not agreed to the proposed addendum to his contract, but confirmed he worked the changes.

The Complainant told Ms OConnell that he had not gone home for lunch or coffee but had fetched milk from the shop.

He was clear that he had not received €153.79 daily as annual leave. There had been a vote on acceptance of the offer of 5% increase in pay.

Mr OMahoney confirmed that he had received time off during a recent bereavement. He clarified this was his own banked time. He had raised the rate of pay with Human Resources but not the annual leave issue.

He had not discussed these claims with the captain.

In closing, Mr Long submitted that it was not permissible to build 21 days annual leave into the rostered down time as Annual leave cannot be replaced with an allowance.

The Union could not particularise the rest periods claimed. The Complainant wanted to receive Sunday premia for both Sundays worked in the month. This was not provided for in the contract of employment.

Mr Long acknowledged an exemption in Working  time , where  compensatory rest period prevailed. It was the allocation of rest time was what divided the parties.

The Complainant sought recognition for public holidays on 6 May, 3 June, and 5 August 2024.

The Complainant denied receiving a handbook by email.

The Respondent is an Irish Shipping and coordination company, which provides shipping and maritime support services.

It was common case that the complainant was employed as an Able seaman on the Alex Tugboat, which operates within Cork Harbour. There are two Tugboats Alex and Titan, one of which is on call at any time.

The Master is the sole person on “standby “.

The Respondent has rejected the 5 complaints before the WRC.

2024 Salary €41,200

2025 Salary €42,024

A separate subsistence payment is paid monthly at the rate of €375 .00.

The Complainant returned to “two weeks on and two weeks off “work pattern from July 2022.

It is the Respondent case that SI 532/2003 EC Merchant Shipping Organisation of Working Time Regulations 2003 as amended by SI 245/2014 EC Merchant Shipping Organisation of Working Time Amendment Regulations 2014 which gave effect to Directive 1999/63/ EC and Directive 1999/95/EC with the amendment giving effect to Directive 2009/13/EC and certain provisions of Art 15 of Directive 2008 /106/EC ( The Regulations’ ) form the applicable law in this case .

These Regulations set the scene for seafarers to avail of minimum hours of rest and annual leave.

1 Entitlement of not less than 10 hours rest in any 24-hour period, 77 hours in any 7-day period.

2 Hours of rest may be divided into no more than two periods, one at least 6 hrs and the interval shall not exceed 14 hours.

3 provides that a seafarer on call on board shall have a compensatory rest period if his scheduled hours of rest are disturbed by call outs to work.

4 exceptions in case of emergency.

Respondents Position.

The Respondent outlined that the complainant is free to leave the boat during his rostered time on with the Masters permission as the boat is docked adjacent to his home.

1 Rest periods as provided for in the Regulations during two weeks on board.

Catering, washing, sleeping, tv, Wi fi on board.

The Tugboat is habitually docked and only departs in assistance to boats.

 “Coming in or going out of the harbour “

The Respondent disputed all 5 surviving claims.

21 October 2024

CA-00066841-001 Annual Leave  2.5 days per month is the recognised allocation  of annual leave

CA-00066941 -002 Public holiday  Incorporated into two weeks roster time off

25 October 2024

CA-00066967-002 Sunday work  incorporated into payment system

CA-00066967-003 Daily Rest Period        No Jurisdiction as exempted by Regulation

CA-00066967-004 Excessive Night hours No Jurisdiction as exempted by Regulation

Respondent Preliminary Argument

Ms O’ Connell argued that the Complainant is “engaged wholly in carrying on or performing the duties regarding the provision of services at a harbour “

Therefore, he falls within SI 21/1998, Organisation of Working Time (General Exemptions) Regulations 1998. He is exempt from Section 11 daily rest period, Section 12 rest and intervals at work, section 13 weekly rest periods, and section 16 nightly working hours under the Organisation of Working Time Act, 1997.

These claims should be struck out.

The Respondent outlined that the Complainant two weeks on is followed by two weeks paid leave. This incorporates paid time off for working Sundays, public holidays, and 2.5 days annual leave. This is consistent with Section 14 and 21 of the Organisation of Working Time Acts 1997 and Section 19 of that Act, as amended by the legislation.

These claims should be struck out.

Ms OConnell made a supplemental submission on 19 May 2025, in response to a delayed sighting of the complainant submission on 15 May 2025. The Respondent took issue with a number of inclusions by the complainant, which Ms OConnell deemed.

1 were not accurate.

2 Documents not properly attributed to the Respondent.

3 The complainant has not denied that he falls within SI 21/1998. Claims regarding daily rest break and working excessive night hours are exempt.

4 The Alex is a “sea going vessel “and is required to be so.

5 Annual leave of 2.5 days for two weeks off is not payment in lieu of annual leave.

6 Tug Alex or Titan is on call one of the two weeks. Master is point of contact.

The Respondent exhibited a letter referring to a Manning Certificate dated 17 December 1997 directed by Nautical surveyor Capt. OCallaghan to an address in Norway.

“With reference to Merchant Shipping (Safe Manning Document) Regulations, please be advised as per SI 347 Regulation 3. These Regulations apply to Irish Ships of 500 get or more “and as such the T/ B Alex does not require a safe manning document. This does relieve the vessel of her obligation regarding safe manning as per SI 368 and SI 369 1988.

…. We note your request to “occasionally trade outside the exemption limits in the Cork area “and reflected a commitment to increase to a 5-person crew. “

The Respondent also exhibited a licence issued by Port of Cork Company to Doyle Shipping group as set out by the Harbour Acts 1996 -2015 on towage services signed in February 2020.

Evidence of Kevin Hayden, Technical Support and Seafarer by oath

Mr Hayden gave evidence that the Alex was Certified as 100(A) 1, Load line and flag State. Classification Certificate exhibited.

In response to Mr Longs questions, Mr Hayden confirmed that the Alex held a valid load line certificate, which is clearly visible on board.

Evidence of Mick Kelly, Marine superintendent, Alex, and Titan.

Mr Kelly gave evidence of his previous working relationship with the Complainant in Lee Towage on a rotating 1 tug on, I tug off fortnightly pattern.

He submitted that the Alex had been contracted to the Refinery since 1997 and was “fully equipped for daily living “

The Doyle company bought Lee Towage which “copper fastened the Norwegian contract “

Annual leave was administered by crew members approaching the captain and the opposite Tug crew member covered the absence.

He added if there were any difficulties “we will provide cover “.

He submitted that provision for public holidays was within the two weeks off with a week off for Christmas on a rotational basis.

He confirmed that the boat remained at jetty at the waters edge as the shipyard was “industrial “.

Mr Kelly outlined a cordial staff relations culture where rest breaks were provided within 8.30 to 16.40 hrs. All crew members went to bed at night, and he was not aware of any complaints from the crew. Emergency call outs numbered 2-3 in 2024.

Overtime is worked through a swop system.

He confirmed that he managed the 5% pay increase in 2024.

3% in February 2024

2% February 2025

An increase of €26 in subsistence

He had not heard back from the complainant directly but heard back from the captain that all crew had accepted the offer. He had met with the crew on 6 occasions, but Mr OMahony was not in attendance.

He explained that the 2 weeks on followed by two weeks off work pattern was “universally understood in Maritime “

The fortnightly two weeks on and two weeks off work pattern replaced the Labour Court pattern in 2022, in the aftermath of covid as soon as “business was right “.

He distinguished the Alex base from the complainants’ references to the Shannon and Money point as “not relevant or comparable.”

He outlined that he had not generated any contracts and had not taken any complaints on rest breaks which are recorded on a logbook. He did not pay €153 for annual leave. Mr Kelly came to hearing holding a large bag of such logs which he humorously referred to as his “Roy cropper bag “I understood the reference to a UK tv programme.

During cross examination, Mr Kelly confirmed that the Alex undertakes river work outside of Whitegate in addition to being the second tug to the Titans anti-pollution function.

He decides which of the tugs is used.

He acknowledged that rest during working time was “casually applied “He confirmed that crew typically went home, if nearby and “not Macroom “which could be of indefinite duration if they remained contactable by phone. There is a 30-minute call out rule.

He lived in Bantry and could not go home. If the crew have not made it back, the tug must still proceed to the requested site.

In clarifications, he confirmed that “clock in /out “was not available on any ship. When requested how the provisions of the Organisation of Working Time Act 1997 were complied with? He answered “the work report “2 am to 7 am is deemed the universal rest period. There is no set metric, “rest when you can “.

In considering the exemptions attributed to harbour work, he responded that the 8-hr rule was complied with on compensatory rest.

He stated that 2024 had been a very busy year and “first responsibility was to the crew “The crew cater individually and eat dinner on the ship on a voluntary basis. He also outlined that the crew habitually took breakfast in a nearby café in the area.

In redirect, Mr Kelly confirmed that steaming time is included in the work records. Fuelling is 4 times annually. Port of Cork works 1 week on, 1 week off and annual leave. He confirmed that a handbook, 1st edition evolved in 2024.

Evidence of Edel Bailey, Human Resource Director by affirmation.

Ms Bailey has been in the Human Resource function since 2018. She supports 755 employees at the Respondent business.

Ms Bailey undertook to furnish the Complainants annual leave record.

Ms Bailey was aware that the complainant was pursuing an interest in his wage’s vis a vis national minimum wage but was unaware the complainant had difficulty on annual leave.

The Complainant had wanted a restoration of the two weeks on and two weeks off work pattern.

The pay increase agreed between management and union was accepted by all and was delineated on the pay slip. The pay rise was contingent on time for time system.

 A new human resource system had been implemented.

Ms Bailey submitted that she had hoped to engage with SIPTU on the complainants’ issues, but “it didn’t work out “

During cross examination, Ms Bailey confirmed the Company was 40% unionised.

The Company had not engaged after February 2024, prior to the referral to the WRC.

In response to tab 5, on tug movements, Ms Bailey confirmed that she created the document but had not populated it. She did, however “check it when it came in “.

Ms Bailey did not accept that all work completed by the complainant was missing from the document. She confirmed that annual leave of 2.5 days was incorporated within the down time of two weeks.

In redirect, Ms Bailey confirmed that annual leave is not paid in isolation by the business but rather incorporated in the down time at 2.5 days per month.

Payment for annual leave only occurs at cessation of employment.

In closing Ms OConnell pointed to the timing of the annual leave claim which could not be view as accrued for the 2024 annual leave year. The Respondent had followed Merchant ship Regulation of 2.5 days annual leave per month against the industry norm of “time for time “.

She concluded that rest breaks were given liberally and records of time worked were maintained in the logbooks.

Ms OConnell added that the Union was mistaken on their application of compensatory rest periods when not rostered.

The Complainant had accepted the 5% pay increase and did not counter it by a particularised claim.

The Respondent re-emphasised that the staff handbook has issued to the complainant’s own email.

I have been requested to make a decision on these five listed complaints.

I have had some unease on the complainant’s apparent stand-alone presentation vis a vis the workplace setting of a rotational crew within a tug-boat system.

I note that he declined to avail of an offer of voluntary redundancy in 2017 and has clearly struggled in how his work pattern and attendance have been measured from the circumstances which unfolded in LCR 22426 .

The Complainants work pattern  stabilised back to two weeks on and two weeks off rota from July 2022.

I have a greater unease at the pronounced gap in the party’s perception of just what legislative framework governs the complainant’s employment which commenced in 2010 and transferred under the TUPE Regulations.

As I feedback to both parties, I would mark both parties’ cards on the frailty of both contracts of employment, both from Lee Towage and the respondent on the interface of EU Directives, subsequent transposing measures and just what exactly they meant to the complainant.

On a careful review of all contracts / memo of agreement, they are void of reference to the legislative framework as now set out in section 5 of the Respondent submission and subsequently disputed by the Union.

For instance, I would have expected to see reference at a minimum to the contextual setting in

Recital twelve of Directive 2003/88/EC, November 2003

12) A European Agreement in respect of the working time of seafarers has been put into effect by means of Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) (5 ) based on Article 139(2) of the Treaty. Accordingly, the provisions of this Directive should not apply to seafarers.

The Complainant has come forward to build a case for application of the jurisprudence of the CJEU on working Time and has sought application of Matzak.

I am also mindful of the salutary remarks of Owens J on the interface of EU Directives on Working Time transposed by Statutory Instrument in Ahmed Elganagy v Galopin Trawlers Ltd at the High Court, 2022.

This case concerned a claim for redress for breach of Article 6 of SI 709/2003, EC Workers on board Sea going fishing Vessels Regulations, 2003. The Court in that case highlighted the lack of provision for complaints for redress made under these Regulations and the provisions of Section 27(1) of the Organsiation of Working Time Act 1997 and Schedule 5 of the Workplace Relations Act 2015.

Article 6 of the Regulations of 2003 is not listed in Schedule 5 of the 2015 Act.

 The High Court concerned for the concept of “Equivalence “in domestic legislation derived from EU Directives and vulnerability of sectoral employees outlined some concerns.

This Court has identified one further Irish legislative act relating to hours of work and rest in the 1993 Directive and subsequent related Directives which does not expressly provide employees with a domestic remedy for breach equivalent to that set out in s.27 of the 1997 Act. This is the European Communities (Merchant Shipping) (Organisation of working Time) Regulations 2003 (S.I. No 532 of 2003). These regulations were made to give effect to Directive 1999/63/EC concerning the agreement on the organisation of working time of seafarers concluded by the European Community shipowners' Association and the Federation of Transport Workers' Unions in the European Union and European Parliament and Council Directive 1999/95/EC concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports (the 1999 Directive).

46.

Clauses 4, 5, 6, and 7 of the agreement annexed to the 1999 Directive laid down rules relating to daily and weekly work hours and rest and night work. Sea transport was excluded from the scope of the 1993 Directive. The revision to Article 1(3) of the 1993 Directive in Article 1 of the 2000 Directive continued this exclusion for seafarers as defined in Directive 1999/63/EC. The 2003 Directive which replaced these Directives with effect from 1 August 2004 did not continue this exclusion. This undermines any rationale for continuing to exclude workers in this sector from remedies equivalent to those given by s.27 of the 1997 Act.

The Parties will appreciate that I believe I have entered an avenue of vagueness and uncertainty set against the protections envisaged by the EC Directives.

I appreciate that the Respondent has now relied on the source for the complainant’s exemption from certain provisions of the Organisation of Working Time Act 1997 originate from his having to provide service at a harbour in accordance with Section 4 of the Act.

The Union accepts that the complainant provides service at a harbor but is dissatisfied by the incomplete absence of compensatory rest periods, annual leave, rest periods, Sunday, and public holiday entitlements.

I would have liked to have seen a much higher level of workplace engagement prior to referral to the WRC as the parties came to hearing from a complex setting where other parties engage in identical work patterns to the complainant.

I can see a year-on-year progression on pay agreements. However, this has not been accompanied by clarifications on what that pay encompasses ,which goes to the root of this case.

The Parties are divided on their interpretation of “working time “in this case. They are also divided on whether the complainant can be properly categorised as a sea farer. It is clear to me that both parties repeatedly referred to work on a ship, and this was also reflected I LCR 22426 from July 2021.

I will return to this.

In reaching my decisions I have listened carefully to the parties, considered all documents placed before me alongside the evidence adduced by both parties. I have subsequently reviewed all references to the legislative framework associated with this employment.

The Complainant is employed as an Able Seaman/ Deckhand. He works as a Crew Member of a Tugboat, The Alex.

This vessel was issued with a DNV   classification    certificate on   26 July 2021 -31 August 2025 at Cobh.

A record of activity dated May 2023 and attributed to Finbar O Mahony was exhibited during the case by the Union but deemed irrelevant to the case by the Respondent.

The Respondent argued that these were not documents which originated in the complainant’s employment and fell outside the temporal limitation for the claim.

The Documents detailed the “following national laws, regulations and/or collective agreements governing minimum rest periods apply to the ship “.

ILO Convention no 180 and the STCW Convention

Headings

·       Hours of rest in 24 hours

·       Overtime weekday

·       Overtime holiday

·       Cabin watch

·       IO Engine

·       Drill

·       Hours of rest in 24 hrs

·       Hours of rest in 7-day period. (The latter two “not to be completed by the seafarer “

It provides a space for “the seafarer to sign “.

My initial thought on reading is that the record provided a useful window into the instant case. However, the disputed relevance by the Respondent caused me to reconsider.

The contextual setting for the instant claims lies in the Organisation of Working Time Act 1997 from where my jurisdiction is derived.

EU Regulation of working time originated with Directive 93/104/EC.

 In Maeve Regans Employment law, chapter 4, Padraic Lyons and Emmet Whelan outlined that the stated purpose of the Directive was to enhance safety and welfare of workers and to provide for greater compatibility between work and family life.

Directive 2003/88 included a number category of workers not previously included in Directive 93/104 EC such as road, maritime and railway workers.

Article 17 of Directive 2003/88 allows for certain exclusions from a number of protections

1 daily rest

2 rests and interval breaks

3 weekly rest

4 Sunday premium

5 48 hr working

5-night working

6 work schedules

2.       Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection

Neither Party placed a Collective Agreement before the hearing.

The Respondent has relied on exemptions contained in the Organsiation of Working Time General Exemptions Regulations, SI 21/ 1998 later amended in 2004 and 2018 on the premise that the complainant provides services at a harbour. The Respondent contended that the complainant received adequate compensatory rest to balance these exemptions.

 The Union has countered this argument by contention that the Tug is not a sea faring vessel ((SI 245/2014, source.) The Union contended that the default position must be the provisions of the Organisation of Working Time Act,1998, alone which distances the facts of the case from the chronological evolution of successive Regulations.

I must decide if I can make decisions under the Act or whether the correct decision-making tool rests in the Regulations, given there are no applicable collective agreements.

The Organisation of Working Time Act, 1997 allows for exclusions for certain groups of workers in respect of Part II of the Act.

Section 11-18.

Section 3(2) of that Act provides for an exclusion at Section 3(2) (a) (ii))

for other work at sea

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,

Part II

The Union, on behalf of the Complainant requested I consider the Labour Court PWD 2216 Seahorse Unlimited company and JJ O Driscoll, March 2022. This case was described as the catalyst.

The facts of this case concerned an Able Sea man who worked 28 days at sea on duty followed by 28 days shore leave. Rate of pay was set by a 2016 Collective Bargaining Agreement. The Court established an unlawful deduction in wages which arose from sick leave. Mr O Driscoll had been paid a sick pay rate on his return to work, causing him a loss of €1,831.82.

I am not clear on the relevance of this case outside of the “28 days at sea on duty followed by 28 days shore leave. “Mr O’Mahony’s employment is not governed by a Collective Agreement.

What I could see is a myriad of addendums to the complainant’s contract of employment following TUPE and following the revision of the three-week roster back to two weeks on and two weeks off. The Complainant told me that he had not signed any of these addendums. I also found a copy of a contract which predated the TUPE timeline.

For me, these addendums demonstrated the respondents’ objectives of allocation of annual leave, and it is regrettable that the parties have not engaged in these important changes.

My own thoughts reverted back to a much earlier number of cases, 2001 and 2002 which involved crew members who worked in Dublin Swift Fast Ferry.

In Irish Ferries and Seamans Union of Ireland DWT 0135, crew members claimed an error on quantum of annual leave within 2016hrs annualised contract. The Rights Commissioner and the Labour Court considered just what the “work week “consisted of?

They both identified that 84 hours over 2 weeks and annual leave at 14 x 12 hrs =168 hrs annual leave was a correct calculation for a work pattern over a four-week pattern.

A year later the Labour Court looked at this arrangement through an Industrial Relations lens in LCR 17116 and acknowledged that crew arrangements on annual leave were not comprehended by a specific collective agreement. The Court recommended a buy out of the historical arrangements to aide moving forward.

The Respondent advanced a Preliminary Issue that the complainant in the instant case is not comprehended by Part II of the Act, that is the claims for daily rest and excessive night work, stating that SI   245/2014 is the applicable law.

The Union, reliant on CJEU jurisprudence countered this by submitting an argument that all time on the two-week roster on the tug must be marked as working time. Mr O Mahony was not a seafarer but instead operated in “smooth water “and was not estopped by the exemptions.

I note the Union reliance on Marine Notice 41/2022.

However, I note that the objective of this notice is not informative on rights but rather safety and navigational matters.

Marine Notices are issued purely for maritime safety and navigation reasons and should not be construed as conferring rights or granting permissions.

For my part, I would have much preferred if the parties had a collective agreement in this case as it has been necessary for me to go back in time here to establish what law, if any, governs a worker on a tugboat in Ireland.

I found the historical contract of employment from 2010 quite hopeless and of no illustrative benefit as it referred to the outmoded and repealed Holidays Employees Act ,1973. It is also silent on just what category the complainant falls in in accordance with the Organsiation of Working Time Act 1997. Is he a sea farer or not?  Is he a harbour service provider, or not?

The flag state suggests a proximity at least to a nautical setting.

This Agreement shall be governed and construed in accordance with Laws of the Republic of Ireland save to the extent that it conflicts with Any mandatory requirements of the law of the flag state, and the Parties submit to the exclusive authority of the courts of the Irish Republic.

 Following the transfer to the current employer, I can see how the Respondent tried to clarify this by addendum, but the message has clearly got lost in the transition back from a three-week work pattern to a two week on, two weeks off pattern from 2022. It is of note that the complainant did not sign these addendums.

On 18 July 2022, the Respondent framed an addendum on annual leave applied at 2.5 days per month for Mr O Mahony. I cannot find any evidence of this being disputed prior to the facts unfolding in this case. I can also identify a reference to a payment of €153.79 per annual leave day, which is ambiguous as both parties accept this was not paid as a stand-alone allowance at any time.

The job title of Able Seaman is “to perform deckhand duties on board daily Cork passenger ferry services to /from Spike Island and also on-board tugboats, which operate within the harbour, with call out in the eventuality of an oil spill in the harbour.

The responsibilities are listed as “watch keeping duties, at sea, when anchored and in port “

For me these places the complainant in proximity to the sea and the harbour.

Preliminary Issue of Jurisdiction:

The Respondent has placed the complainant in an exempted category of SI 21/1998 Organisation of Working Time (General Exemptions) Regulations 1998 as he provides services at a harbour.

The Union has rejected this contention and argued for the primacy of the Organisation of Working Time Act 1997 as the complainant does not leave smooth water.

The Respondent has held firmly to the over arching EU Directives 

1999/63/EC

1999/95/ EC

2009/13/ EC

2008 /106/EC

The amending Regulations which followed

SI 532/2003 EC Merchant Shipping Organisation of Working Time Regulations 2003

SI 245/2014 EC Merchant shipping Organsiation of Working Time Amendment Regulations 2014

The Respondent argued that these Regulations provide seafarers with an entitlement to specified minimum hours of rest and annual leave.

Not less than 10 hours rest in any 24 hrs period

77 hours in any 7-day period

The Complainant received his entitlement.

The SI 245/2014 amended the 2003 Regulations summarised the parameters of the provisions

These Regulations provide seafarers with an entitlement to specified minimum hours of rest, require records to be kept of seafarers’ daily hours of rest, and provide for the enforcement of the Regulations. They also provide for a minimum age for seafarers working on ships to which the Regulations apply, set out the conditions under which seafarers under the age of 18 may work at night, and provide for annual leave entitlements for seafarers, as set out in the Maritime Labour Convention, 2006 and in Council Directive 2009/13/EC.

Most important for the facts of this case, Council Directive 2009/13/ EC provides guidance for the hotly contested positions of this case on whether the Complainant is or is not a Seafarer for the purposes of the law?

COUNCIL DIRECTIVE 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC

Pre-amble

(6)

 The Agreement applies to seafarers on board ships registered in a Member State and/or flying flag of a Member State.

 (7) The Agreement amends the European Agreement on the organisation of working time of seafarers concluded in Brussels on 30 September 1998 by the European Community Shipowners’ Associations (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST).

 (8) For the purpose of Article 249 of the Treaty, the appropriate instrument for implementing the Agreement is a directive.

 (9) The Agreement will enter into force simultaneously with the Maritime Labour Convention, 2006, and the social partners wish the national measures implementing this Directive to enter into force not earlier than on the date of entry into force of the said Convention

Article 2

The Annex to Council Directive 1999/63/EC is amended as follows:

 1. in Clause 1, the following point three shall be added:

 ‘3. In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Agreement, the question shall be determined by the competent authority in each Member State after consultation with the shipowners’ and seafarers’ organisations concerned with this question. In this context due account shall be taken of the Resolution of the 94th (Maritime) Session of the General Conference of the International Labour Organisation concerning information on occupational groups.’.

 2. in Clause 2, points (c) and (d) shall be replaced by the following: ‘(c) the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Agreement applies.

The Competent Authority for the purposes of the Regulations is the Marine Survey Office.

I had cause to reflect on the provisions of

SI 373/2014

These Regulations may be cited as the Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement and Wages) Regulations 2014.

(2)

These Regulations come into operation on 20 August 2014.

these Regulations:

(a)

implement the provisions of the Maritime Labour Convention 2006 relating to Seafarer Employment Agreements (SEA) and wages; and

(b)

implement provisions of Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) on the Maritime Labour Convention 2006, and amending Directive 1999/63/EC.

These Regulations provide that a shipowner of a seagoing Irish ship who employs a seafarer must provide the seafarer with a written agreement in which the terms and conditions of employment of the seafarer are set out. The Regulations set out the minimum contents of seafarer employment agreements, the duties of shipowners with regard to records of employment, obligations towards seafarers who are not employees and minimum notice periods. The Regulations also set out provisions relating to the payment of wages.

“Irish ship” means a ship, other than a ship of war, known as such under-s.9 of the Mercantile Marine Act 1955; namely State-owned ships, ships wholly owned by Irish bodies corporate or Irish citizens, and other ships registered or deemed to be registered under the 1955 Act.

By Historical Context :

(2) On 23 February 2006, the International Labour Organisation adopted the Maritime Labour Convention, 2006, desiring to create a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour conventions.

(3) The Commission has consulted management and labour, in accordance with Article 138(2) of the Treaty, on the advisability of developing the existing Community acquis by adapting, consolidating, or supplementing it in view of the Maritime Labour Convention, 2006.

 (4) On 29 September 2006, the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) informed the Commission of their wish to enter into negotiations in accordance with Article 138(4) of the Treaty.

 (5) On 19 May 2008, the said organisations wishing to help create of a global level playing field throughout the maritime industry, concluded an Agreement on the Maritime Labour Convention, 2006, hereinafter referred to as ‘the Agreement’. This Agreement and its Annex contain a joint request to the Commission to implement them by a Council decision on a proposal from the Commission, in accordance with Article 139(2) of the Treaty.

 (6) The Agreement applies to seafarers on board ships registered in a Member State and/or flying flag of a Member State.

 (7) The Agreement amends the European Agreement on the organisation of working time of seafarers concluded in Brussels on 30 September 1998 by the European Community Shipowners’ Associations (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST). (8) For the purpose of Article 249 of the Treaty, the appropriate instrument for implementing the Agreement is a directive.

 (9) The Agreement will enter into force simultaneously with the Maritime Labour Convention, 2006, and the social partners wish the national measures implementing this Directive to enter into force not earlier than on the date of entry into force of the said Convention.

Article 2 provides some guidance on the argument raised by the Parties at hearing on categorisation of the complainant.

Article 288 of TFEU provides that Directives are binding by objective on the Member State. However, some discretion exists on transposition.

 In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Agreement, the question shall be determined by the competent authority in each Member State after consultation with the shipowners’ and seafarers’ organisations concerned with this question. In this context due account shall be taken of the Resolution of the 94th (Maritime) Session of the General Conference of the International Labour Organisation concerning information on occupational groups.

I have nothing before me which points to the parties having had that Marine Survey Office determination as it seemed to me at hearing, the difference in opinion was being ventilated for the first time at the WRC hearing.

This is the reason I wanted to engage with the local union official. The Respondent was clear there were no local discussions prior to this case being referred to the WRC. The Directive wanted more for the parties than this lack of clarity on categorisation or documentation.

I point the parties to the provisions of SI 373/2014

 Maritime Shipping (Maritime Labour Convention) (Seafarer Employment Agreement and Wages) Regulations (Consolidated)

S.I. No. 373 of 2014

These Regulations:

(a)

implement the provisions of the Maritime Labour Convention 2006 relating to Seafarer Employment Agreements (SEA) and wages; and

(b)

implement provisions of Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) on the Maritime Labour Convention 2006, and amending Directive 1999/63/EC.

These Regulations apply to all seagoing Irish ships wherever they may be.

4.Duties of owners with regard to agreements

A shipowner of a seagoing Irish ship who employs a seafarer shall ensure that—

(a)

an agreement is entered into, in writing, and signed in duplicate by the seafarer and the shipowner or his or her representative in which the terms and conditions of employment of a seafarer are set out,

(b)

before a seafarer signs the agreement, he or she is given an opportunity to examine and seek advice with respect to the agreement,

(c)

he or she retains a signed original of the agreement and that the seafarer is given a signed original of the agreement,

(d)

a copy of the agreement in respect of each seafarer shall be made available on board for inspection,

(e)

where a collective bargaining agreement forms all or part of an agreement, a copy of that agreement shall also be made available.

………

I offer the opinion that both parties would have benefitted greatly from consideration of this SI.

I find that I must resolve this Preliminary argument in favour of the Respondent. While mindful of and disappointed by the lack of clarity in the legislative framework surrounding this employment available in the employment paperwork.

 I find that I am bound to accept the provisions of SI 21/1998 as the complainant is engaged mainly in his role as Able Seaman/ Deckhand in the course of provision of service at a harbour which distances him from the protections of the certain provisions of the Act on this occasion.

The exemption with regard to Section 11, 12, 13 and 16 of the Organisation of Working Time Act 1998 prevails strictly on the basis that the employer provides equivalent compensatory rest periods in accordance with section 6 of the Act.

It is notable that these complaints have not emerged as complaints under section 6 as I accept I carry a jurisdiction under Section 27 to adjudicate on contraventions raised under section 6 of the Organisation of Working time Act 1997.

I appreciate the parties may wish to need clarification from the Marine Survey Office / Competent Authority on whether the complainant is properly categorised as a Sea farer as I lack the devolved authority or jurisdiction to determine this point.

I find the complainants employment is encompassed by Regulations

SI 21/1998, SI 245/2014, SI 373/2014, SI 59/2023. I appreciate these Regulations are based on a compliance model and penalties are outlined as being recognised as offences which attract fines or major interventions in the operation of a ship.

I am left with some doubt on whether these penalties match the remedies envisaged in the Directive. Gallopin distinguished by stated exemption.

Substantive Case :

I now move to the substantive case of the 5 complaints.

I have considered the Union reliance on seeking an expansion on the definition of the Complainant measurement of working time through the 8-minute call out in Matzak. However, I say these arguments are secondary to a first in time priority of having to examine the current work arrangement shrouded as it is by Regulations rather than the more robust footing of section 27 of the Organisation of Working Time Act, 1997.

21 October 2024

  CA-00066841-001 Annual Leave

The Complainant came to this case unsure as to whether he had ever received annual leave during his employment which spanned 2010 to present day.

His first statement of employment reflected paid annual leave. This was expanded on in subsequent contracts by addendum and replacement contract.

I derive my jurisdiction in this claim from section 19 of the Act

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

I note section 10(A) (1) of SI  245 /2014 provides a seafarer is entitled to paid annual leave calculated on a minimum 2.5 calendar days per month and may not be replaced by an allowance.

This is reflected in the employment documentation and supported by Mr Kellys evidence that annual leave is provided during the rostered time off and if time off needed during the roster “we cover it “I accept that evidence.

This has not been countered by complaint under the SI 245/2014 to an Inspector.

I find that I can examine the complainants annual leave entitlement under Section 19 of the Act as the complainant is entitled to seek a remedy under Section 27 of the Act.

I have not found identifiable records of the complainant being paid in lieu of annual leave.

However, he has not proved a contravention of the Act on this occasion. I accept that annual leave has been applied in accordance with the Act. I was satisfied with the records exhibited by the respondent.

I would urge the parties to engage locally on achieving a mutual understanding of how annual leave is applied in this workplace in the interest of harmonious industrial relations and the spirit of the EU Directive.

Ahmed Elganagy v Galopin Trawlers Ltd at the High Court. Owens J.

The answer to the question posed depends on whether provisions of the Irish legal framework implementing EU Directives on working time can and should be interpreted as providing this remedy in order to conform with the law of the European Union.

5.

Yes, they can and should be so interpreted. What has been omitted from the Regulations of 2003 is there by implication. This is because it must be assumed that in the Regulations of 2003 the State intended to include this remedy by making a change to s.27(1) of the 1997 Act, as this was necessary to implement a Directive of the European Council and Parliament in a manner compliant with European law.

I find the claim is not well founded.

CA-00066941 -002 Public holiday

The Complainant has submitted that he has never been paid for or received public holidays and he has sought payment for three identified public holidays within the cognisable period of this claim.i.e. 22 April 2024 to 21 October 2024.

The Respondent has referred to the complainant’s salary being a composite salary which incorporates public holidays.

I found no distinction within the two weeks roster on or two weeks roster off which recognised or stratified public holidays.

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.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

I find that I have jurisdiction to decide on this claim.

In Cadbury Ireland ltd and SITU/ ATGWU DWT 993, 1999, 10 ELR 202

The amount of holiday pay to which an employee is entitled in respect of a public holiday falls to be determined in accordance with articles 5(1) and 5(2) of the Organisation of Working Time (Determination of Holiday Pay) Regulations 1997 (S.I. No. 475 of 1997), as enacted under section 22 of the Organisation of Working Time Act 1997.

(2)

Where the public holiday falls on a day of the week on which the employee in issue ordinarily works, the employee is entitled to be paid the amount received for the normal daily hours which he or she worked on the last working day prior to the public holiday in accordance with article 5(1) of the Regulations.

(3)

Where the employee does not normally work on the day of the week on which the public holiday falls, the appropriate rate is one-fifth of a week's pay.

(4)

The claimants who ordinarily worked on Monday were entitled to ten hours holiday pay based on the above calculation, those who did not, were entitled to eight hours holiday pay.

I have some unease regarding the longevity of this ambiguity in the workplace and would urge the parties to engage on this issue going forward.

For now, I find that the Respondent has contravened Section 21 of the Act. I also note that the complainant did not exercise section 21(2) in support of his claim.

I find the claim is well founded.

25 October 2024 claims

CA-00066967-002 Sunday work

The Complainant submitted that he worked two Sundays a month and he did not receive the provisions of Section 14 of the Act.

The Respondent responded by insisting that the two weeks roster off incorporated a recognition of Sunday work.

For my part, I could not identify a hard copy of a satisfactory collateral for that statement.

I was troubled by the longevity of this anomaly.

I appreciate that an argument may exist between the parties that Part II of the Organsiation of Working Time Act 1997 , section 11-18 may not have application due to Section 3 exemption on “ other work at sea “ However, by drawing on the premise enunciated by the High Court in Gallopin , the complainant ought to have an opening through the window of Section 27 of the Organisation   of Working Time Act 1997 which permits me jurisdiction to investigate this claim.

The Complainant has not made a complaint under any of the Regulations used to transpose the Directives.

Sunday work: supplemental provisions.

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

I find that the Complainant is obliged to work two Sundays a month outside of his annual leave period. I cannot identify a contractual term or a collective agreement which are clearly discernible of a contractual payment or circumstances that end in payment for Sunday work. Viking Security ltd v Valent DWT 1489

I must conclude the claim is well founded for the cognisable period 26 April 2024 to 25 October 2024.

CA-00066967-003 Daily Rest Period

I find that the complainant is exempted from Section 11 of the Act by operation of the exemption granted for harbour work, SI 21/1998 (section 4 OWT) . I find that he has not lodged a complaint under the Regulations.

He has not demonstrated a recognisable disconnect in provision of compensatory rest periods in respect of interruptions in his rest time and once more I urge the parties to discuss this at base.

I find that I lack the jurisdiction to decide on this claim. Gallopin distinguished as the complaint under Regulation has not been tested to the Inspector.

CA-00066967-004 Excessive Night hours

I find that the complainant is exempted from Section 16 of the Act by operation of the exemption granted for harbour work, SI 21/1998 (section 4 OWT) . I find that he has not lodged a complaint under the Regulations as a night worker.

He has not demonstrated a recognisable disconnect in provision of compensatory rest periods in respect of interruptions in his rest time and once more I urge the parties to discuss this at base.

I find that I lack the jurisdiction to decide on this claim. Gallopin distinguished as the complaint under Regulation SI 245/2014 has not been tested to the Inspector.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time act 1997 requires that I make a decision in relation to these complaints in accordance with relevant redress provisions under Section 19, 21, 14, 11 and 16 of the Act.

There is no claim under Section 6 .

21 October 2024

  CA-00066841-001 Annual Leave

I have found this claim is not well founded.

CA-00066941 -002 Public holiday

I have found this complaint is well founded. I have established a contravention of section 21 of the Act within the cognisable period.

I order the Respondent to comply with Section 21 of the Act going forward and pay the complainant €1,000 in compensation in respect of the contravention.

25 October 2024

CA-00066967-002 Sunday work

I have found this complaint is well founded. I have established a contravention of section 14 of the Act within the cognisable period.

I order the Respondent to comply with Section 14 of the Act going forward by paying time plus half for Sunday work.

I also order the Respondent to pay the complainant €1,500 in compensation in respect of the contravention.

CA-00066967-003 Daily Rest Period

In light of the application of the provisions of the Regulations SI 532/003 and   SI 245/2014 and the unexplored complaints procedure to the appropriate body in the first instance, I cannot claim jurisdiction in this matter at this time.

CA-00066967-004 Excessive Night hours

In light of the application of the provisions of the Regulations SI 532/003 and   SI 245/2014 and the unexplored complaints procedure to the appropriate body in the first instance, I cannot claim jurisdiction in this matter at this time

I close by commending these findings for the collective consideration of the parties and in the sincere hope that the Parties will engage on the ambiguities I have identified in these findings. I have found it a truly challenging work arrangement to analyse.

I am encouraged by the recent legislative developments in the inclusion of the Defence forces into the body corporate of the Organisation of Working Time Act 1997 in named circumstances in SI 11/2025.

I wish both parties well in reaching a mutual understanding of the work pattern  and compensatory rest periods .

Working time, Sunday, Public holiday, rest periods, and night work on a tugboat.