Working Time Issues
Cases
Retained Firefighter v County Council
ADJ-00019225
Workplace Relations Commission
17 December 2019
[2020] 31 E.L.R. 106
Background
The complainant was employed by the respondent as a retained firefighter until his retirement on 3 October 2018. The complainant alleges that, during his employment with the respondent, he was on-call for 168 hours for 48 weeks of the year and that this time qualifies as working time for the purpose of the Organisation of Working Time Act 1997. The complainant relies on the CJEU decision in Ville de Nivelles v Matzak (Matzak) Case C-518/15 EU:C:2018:82 in support of his claim.
Summary of complainant’s case
The complainant, a recently retired retained firefighter, commenced his employment in 1991 and was employed on a continuous basis since that date until 4 October 2018.
In addition to having to respond to emergency calls and undertaking community fire safety initiatives, retained firefighters are mandated to attend regular training, so as maintain competency levels; this can often be weekly, as in this instance.
Unlike full-time firefighters, retained firefighters are not paid a full-time wage, however they receive a quarterly retainer for their services.
In accordance with the “Composite Retained Firefighters Agreement 1999”, the current practice is that all part-time firefighters in Ireland are on-call 24/7, 168 hours per week for at least 48 weeks in the year. To accommodate such, the regulations provide that all firefighters live within a 2-2.5km radius of the nearest station and that they must be readily available at all times throughout the day and night. In contrast, full-time firefighters are provided with a balanced working week of four days on and three days off rotating.
Initial legal argument: working time
In Ireland, working time is defined by the Organisation Working time Act 1997 (as amended) [“the 1997 Act”]. This in turn is subject to, and derives from, the European Working Time Directive 93/104. The 1997 Act itself covers all employees under a contract of employment. The recitals of the Directive expressly state that “the improvement of worker’s safety … and the health is an objective which should not be subordinated to purely economic considerations”. The original purpose of the Directive was to promote health and safety at work by amongst other means, requiring workers to be given the appropriate rest periods and paid holidays therein.
The term working time has a varied meaning across a huge range of *110 employment statutes. This can often be a straightforward matter. For many, working time begins when an employee arrives at their place of work at the relevant start time. However, in this instance the issue is more convoluted. As it currently stands, part-time retained firefighters work on an on-call basis and are therefore available for 168 hours a week at their employer’s discretion.
Under the European Working Time Directive which was transposed into Irish law by the Organisation of Working Time Act 1997, working time is defined as:
“Any time that the employee is at … his/hers employer’s disposal”.
There have been a number of important decisions in this area which have clarified and built on the definition of working time. In Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana Case C-303/98 EU:C:2000:528; [2000] I.R.L.R. 845, it was held that the physical presence and availability of the worker at the place of work during a stand-by period must be regarded as carrying out his duties, even if the activity actually performed varies according to the circumstances.
In Landeshauptstadt Kiel v Norbert Jaeger Case C-151/02 EU:C:2003:437 Jaeger and in Grigore v Regia Naţională a Pădurilor Romsilva – Direcţia Silvică Bucureşti Case C-258/10 EU:C:2011:122 the Court of Justice of the European Union (CJEU) held that the determining factor for the classification of working time, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties.
A more recent decision in Ville de Nivelles v Rudy Matzak Case C-518/15 EU:C:2018:82 pertained to the fire service in the town of Nivelles (Belgium). The volunteer firefighters in this instance were involved in operations and also provided stand-by and on-duty services, similar to the retained firefighters in Ireland and the complainant in particular. The case concerned a Mr Rudy Matzak, who acquired the status of a volunteer firefighter in 1981. He was also employed in a private company. In 2009, Mr Matzak brought judicial proceedings against the Town of Nivelles in order to obtain compensation for his stand-by services, which according to Mr Matzak should have been categorised as working time. Similar to the above cases, the Court of Justice of the European Union held that stand-by time which a worker is required to spend at home with the duty to respond to calls from his employer within eight minutes – which very significantly restricts the opportunities to carry out other activities – must be regarded as working time. The court pointed out in that regard that the determining factor for the classification of working time, within the meaning of the Directive was the requirement that the worker be physically present at the place determined *111 by the employer and be available to the employer in order to be able to provide the appropriate services immediately in case of need.
The court considered that even if that place, in the present case was Mr Matzak’s home and not his place of work, the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the need to reach his place of work within eight minutes were such as to objectively limit the opportunities which a worker in Mr Matzak’s circumstances had to devote himself to his personal and social interests.
The CJEU clearly provided that art.17(3)(c)(iii) of Working Time Directive 2003/88 must be interpreted as meaning that Member States may not derogate, with regard to certain categories of firefighters recruited by public service fire services, from all obligations arising from the provisions, including art.2 thereof, which defines concepts of working time and rest periods. Furthermore, the court concluded that art.15 of the Directive must be interpreted as not permitting Member States to maintain or adopt a less restrictive definition of the concept of working time than that laid down in art.2 of that Directive. Thus, the court determined that art.2 of the Directive must be interpreted as meaning that standby time which a worker spends at home, with the duty to respond to calls from his employer within a specified time period, very significantly restricting the opportunities for other activities, must be regarded as working time.
Further to the above, Belgian law (the Royal Decree of 6 May 1971) laying down the types of municipal regulations relating to the organisation of municipal firefighting services, Moniteur Belge of 19 June 1971, p.7891, regulates matters relating to the staff in that service. This is set out at point 12 of the Matzak judgment. It states specifically that that regulation contains provisions specific to the professional staff and volunteer staff of the fire service. Nowhere in that does it state that they must be home-based. The question of whether the Directive, in regards to working time and resting periods, be interpreted to the effect that it is not applicable to the concept of working time which serves to determine the remuneration owed in the case of home-based on-call time was addressed by the Cour du travail de Bruxelles (higher Labour Court, Brussels), to the Court of Justice (CJEU) as per para.22 of the judgment of the CJEU in the Matzak case. It can only be interpreted as the Cour du travail de Bruxelles, given the very restrictive working conditions set down in the Royal Decree of the 7 May, determined that in effect Mr Matzak had to remain primarily, as they put it, home-based.
Equally in regards to para.22(4) of the decision of the CJEU, as previously stated, nowhere in Mr Matzak’s contract, as well as the herein complaint, was he required to remain at home all the time. The decision is therefore on all fours with the position of retained firefighters in this jurisdiction and, as previously averred to, the position in this country is indeed arguably more restrictive.
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Although the above are European-based cases, they have what is called direct effect in Ireland, in other words, individuals within Ireland can rely upon them. The Labour Court has followed the aforementioned decisions in a number of cases which have come before it in the past number of years. In addition, in accordance with the recent European preliminary ruling in Commissioner for An Garda Síochána v Workplace Relations Commission C-378/17 EU:C:2018:979 which clearly states that on the basis of primacy of EU law the WRC, a statutory body established for the resolution of employment-related disputes in Ireland, has the authority to disapply a rule of national law that is contrary to EU law where it is necessary to give full effect to the EU law.
In consideration of such, it is submitted that despite the fact that the complainant herein worked on an on-call basis, for the purposes of the legislation, he was still at his employer’s disposal during this time-frame. In summary, it seems that part-time retained firefighters, and the complainant in this instance, in application of the Nivelles case, due to the restrictive nature of their work, are at the disposal of their employer, meaning the entirety of the time spent on-call (168 hours weekly) qualifies as working time for the purpose of the Organisation of Working Time Act 1997.
In line with the above conclusions, the same argument was recently discussed in the European Parliament on the 19 September 2019, reference number 2019/2806(RSP). The European Federation of Public Service Unions (EPSU) have themselves stressed that the Working Time Directive and subsequent case law must apply to all firefighters in France. In France, volunteer firefighters have on-call shifts in emergency centers of up to 24 consecutive hours. It is strongly suggested that despite the on-call nature of their duties, that same must be considered as working time therein. They perform on-call duties without having sufficient rest time before or after other jobs they may have. Together with its affiliated French trade union organizations, EPSU demands that France applies the provisions of the Working Time Directive and its case law to all firefighters, professionals and volunteers.
Mutuality of obligation: retained firefighters in Ireland
Notwithstanding the contract of employment between the complainant and the respondent, which in itself gives rise to an employee and employer relationship, it is accepted that courts may look beyond the relationship of the parties to determine how the parties operate in reality and whether or not the employee is actually at the employer’s disposal therein.
For the purposes of completeness, it is important to clarify the extent of the obligations placed on firefighters during the on-call period. Questions have been raised as to whether or not the retained firefighters are actually at the disposal of their employer during this period casting doubt over the existence of mutuality of obligation between the parties.
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It is the complainant’s contention that the complainant, due to the on-call nature of his position was at the disposal of his employer for 168 hours a week for 48 weeks of the year. Moreover, he submits that during this period the retained firefighters are clearly at the disposal of their employers, thus giving rise to a clear mutuality of obligation between the parties.
As part of the complainant’s conditions of service, he is required to attend all calls. Firefighters may be rostered for duty in accordance with the station procedures. During a rostered period they will attend all fire calls. The obligation is on the firefighters to ensure that they receive all fire calls during the rostered period. If a firefighter is unable to attend during a rostered period, a substitute must be provided and the Station Officer’s approval received. Substitution will only be allowed once per week unless in exceptional circumstances as agreed under the disciplinary code.
Firefighters who do not attend for 75 per cent of all incidents to which they are called, will have 50 per cent of their retainer deducted. Further penalties may also be applied, including up to dismissal. During non-rostered periods, firefighters who are not on leave will be expected to turn out for duty if required to do so. Firefighters are required to carry a fire service alerter, which in turn must be switched on at all times and they must ensure said alerter is fully operational.
If a firefighter is in employment, they are obliged to inform their employer that they are a retained firefighter. Furthermore, they are required to have a letter from said employer certifying that they will be released to attend fires during their normal working hours.
Firefighters will reside and work within an acceptable distance of the fire station, as deemed by the Chief Fire Officer: generally, this is within a five minute travel time to their designated station, as measured using Google maps. If at any time change of work or place of residence affect availability the firefighter will be required to resign.
A/W/R (Absent without reason) is an option on the firefighters turnout report. This report specifies who was on a call and is used for both attendance, pay and disciplinary procedures (possible other items also including statistical purposes). Firefighters sign this after every attendance and the onus is on the Station Officer to put in the term associated with the firefighter.
The complainant questions that if the respondent suggests that firefighters are not at the disposal of the respondent during the on-call time, then why are firefighters ultimately disciplined for not attending said calls? By disciplining firefighters for not attending a call, it can only be determined that firefighters are at the disposal of the respondent and thus in turn establishing an undisputed element of mutuality of obligation, as they are required to accept all work. Furthermore, firefighter alerters only work within a certain range so if firefighters are not in the immediate area of 2.5km, they will be unaware of said calls, and then will be subject to disciplinary action on foot of same.
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In determining the nature of the parties’ relationship, the courts will take a holistic approach not confined to the written terms of the agreement between the parties. In conducting such an evaluation, the courts will look to the respective bargaining power of the parties and whether the written terms accurately record what was agreed (or whether one party effectively imposed a set of terms on the other). Although parties cannot themselves fix the status of their relationship in writing, the courts can look to the written categorisation of the relationship and decide that same is an accurate reflection of the relationship in reality. In application of such, the complainant notes the following:
1. The complainant, when on-call is required to operate within a 2.5km radius;
2. The complainant is obliged to respond to the alerts that occur during the on-call period;
3. Although the complainant may not be called in that period, he is still required to be within the radius, irrespective of workload;
4. If the complainant fails to attend an alert when on-call he is subject to disciplinary action, which includes deduction of his retainer and/or dismissal.
Therefore, in consideration of such, there is an obligation on the complainant to respond to all work provided in this period. It is not a case that the firefighters are free to select the work they wish to carry out whilst on-call, rather they are obliged to accept same at all times. This in turns, means the complainant and all retained firefighters are at the disposal of their respective employer, thus creating a clear element of mutuality of obligation therein.
Section 15 of the Organisation of Working Time Act 1997: prescribed weekly hours
Given that the complainant was at the respondent’s disposal for 168 hours a week, it is clear that his employer has breached s.15 of the Organisation of Working Time Act 1998, and that he should be compensated accordingly for the breach of the provisions contained herein.
Although it is accepted under art.17 of the Working Time Directive 2003/88, that Member States may derogate from arts 3, 4, 5, 6, 8 and 16; it is prescribed under Recital 16 that said category of workers subject to derogation must be given compensatory rest periods. For the avoidance of doubt, it states the following:
“It is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods.”
It is the complainant’s contention that, based on the above, the Working Time Directive has been incorrectly transposed into Irish law under S.I. No. 21 of 1998 – Organisation of Working Time (General Exemptions) Regulations and by the Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 (S.I. No. 52 of 1998) and ineffectively applied by the State therein.
S.I. No. 21of 1998 provides for a general exemption for ss.11, 12, 13, 14, and 16 of the Organisation Working Time Act 1998, as permitted under art.17 of the Directive. More specifically under s.4 of S.I. No. 21of 1998, the following is stated:
“If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.”
Under S.I. No. 21 of 1998, no reference is expressly made to s.15 of the 1998 Act in relation to a worker’s prescribed weekly hours. It is only under S.I. No. 52 of 1998 that an exemption is provided for the fire service regarding s.15 of the 1998 Act. However, no provision is made for compensatory rest therein as required for under Recital 16 of the Directive.
In consideration of such, in line with his initial point that the complainant’s working time amounted to a 168 hours weekly, the respondent is therefore in breach of s.15. Although an exemption is permitted under the aforementioned statutory instruments, no such compensatory rest, as guaranteed under the Directive, was provided to the complainant in this instance. Relying on Von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 EU:C:1984:153, the complainant submits that the compensation awarded to him should reflect the blatant abuse of the Directive by the respondent and be seen as a deterrent to others.
Summary of respondent’s case
The complainant is employed as a retained firefighter. Retained firefighters make up about 70 per cent of the fire service in Ireland, with full-time firefighters in major cities. Retained firefighters of which there are approximately 2,060 employed across the country in 202 fire stations. The delivery of fire services by way of retained fire services is common not just in Ireland but across the EU.
Whilst not attending at incidents the availability of retained firefighters does not require them to be in attendance at the fire station, they operate on the basis which requires them to be available within a specified distance of the fire station so that they can respond to an alerter and mobilise within a specified period of time. This availability is not considered to be working time. It is important to note that at this period of time where they are required to be available, retained firefighters can engage in other activities and be employed by other parties.
It is the position of the respondent that art.17 of the Directive identifies a *116 number of areas where derogation from the rights conferred by the Directive is permitted. In accordance with para.2 of this article derogations may be made from arts 3, 4, 5, 8 and 16 for certain cohorts of employments including:
“(iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services.”
These derogations as they apply to the role of retained firefighter are provided in this jurisdiction by S.I. No. 21 of 1998 – Organisation of Working Time (General Exemptions) Regulations 1998 (Appendix 1) and by the Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 (S.I. No. 52 of 1998) (Appendix 2).
These provide as follows:
“The persons employed in each of the classes of activity specified in the Schedule to these Regulations are, as respects the carrying out of the duties involved in that activity, hereby exempted from the application of sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act 1997 (No. 20 of 1997).”
The schedule specifically provides as follows: “the activity of a person employed by a fire authority in the position commonly known as retained fire fighter”.
The complainant seeks to rely on a preliminary ruling of the Court of Justice of the EU in Ville de Nivelles v Matzak; EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, a judgment of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the national court that submitted the question, as well as on other courts in the same domestic procedure in this instance Belgium. However, it is accepted that national courts interpreting EU law can take them into account. However, it is done so with regards to facts of the respective cases. It is the position of the respondent that the case of Ville de Nivelles v Matzak is not on all fours with the facts of this case and can be distinguished in that Mr Matzak was a volunteer firefighter whilst the complainant is a retained firefighter, they are two totally different types of employees.
Mr Matzak’s primary complaint was that he was not compensated to be available, while restricted to remaining at his home and prevented in undertaking work elsewhere. The complainant in this case was compensated, was not restricted to remain at home, and was free to commit to and undertake work elsewhere. The key element is that the complainant like all other retained firefighters was free to engage in other employments or other activities as he so wished, and it is believed that he did so.
The purpose and scope of the Directive is defined at art.2 which provides the following definitions of the expressions working time and rest period:
“ 1. ‘working time’ means any period during which the worker is working, at the *117 employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice;
2. ‘rest period’ means any period which is not working time.”
With regards to working time the CJEU has given specific definition in relation to this in particular, the ECJ cases of Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana Case C-303/98 EU:C:2000:528 [2000] I.R.L.R. 845 and Landeshauptstadt Kiel v Norbert Jaeger Case C-151/02 EU:C:2003:437 (“the SIMAP and Jaeger cases”). The CJEU held that the time spent on-call by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace and that by contrast, where workers must be reachable at all times but are not required to remain at a place determined by the employer, also called standby time, only the time linked to the actual provision of services must be regarded as working time.
The court has repeatedly held that the concept of working time under Directive 2003/88 is an autonomous concept of EU law, which must be defined in accordance with objective considerations by reference to the scheme and purpose of that directive, intended to improve workers’ living and working conditions. It requires that three conditions be satisfied. First, the worker must be at work; second, he must be at the employer’s disposal; and, third, he must be carrying out his activity or duties.
The onus is therefore on the complainant to prove that for the periods in question he met these criteria. If he was engaged in other activities for this time period which are the subject of his complaint, he cannot de facto meet the criteria and his complaint is moot.
The conditions of employment for all retained firefighters provide that a firefighter can be in employment with another employer however the firefighter must ensure that an employer is willing for the firefighter to be released from the working hours of that employer once alerted.
Individuals employed as a retained firefighter if not employed, may qualify for a jobseeker’s payment from the Department of Employment Affairs and Social Protection. People who are working as retained firefighters do not have to sign off for the days they are on-call, firefighting or training. This means that they can be paid a jobseeker’s payment for days that they are on-call, firefighting or training. This requirement is not considered by the Department of Employment Affairs and Social Protection as a restriction on the availability for work, so long as the individuals are satisfying the conditions of the scheme. This would appear to contradict the complainant’s claim as predicated on the decision in Matzak.
A retained firefighter is paid a retainer, this payment is by definition an amount that is paid to someone so as to be sure that that person can work for the person paying the retainer when needed. This cannot in itself constitute working time. Separately when this work is undertaken the person to whom the payment is made *118 is entitled to remuneration for this specific work. The payment of a retainer and payment for work undertaken are entirely separate. Therefore, the availability that is provided for under a retainer could not be considered working time.
It should be noted that the annual retainer allowance is a set figure and is not related to activity. In contrast, the other payments made to retained firefighters are calculated as and when the corresponding tasks are completed.
It is the position of the respondent that for retained firefighters there is a clear distinction between being required to be available for work and actually carrying out their contractual duties. There was no obligation on the complainant to carry out his contractual duties in the period for which the retainer applied unless alerted to do so. Once he was alerted and attended the fire station it is accepted that this period of time would be considered as carrying out his contractual duties and therefore working hours. On this basis there is no employment relationship existing for the availability/retainer period.
In its decision the court advised that a worker being required to be physically present at a place determined by the employer and to be available to the employer to provide services immediately, where it is impossible for the worker concerned to choose the place where they stay during stand-by periods, must still be regarded as coming within working time. However the situation is different where the worker performs a stand-by duty which requires that the worker be permanently accessible without being required to be present at the place of work or remain permanently at another location. Even if he is at the disposal of his employer (since it must be possible to contact him), in that situation the worker may manage his time with fewer constraints and pursue his own interests, and accordingly only the time linked to the actual provision of services must be regarded as working time.
The essential feature of an employment relationship is, according to the CJEU case law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Lawrie-Blum v Land Baden-Württemberg Case 66/85 [1986] E.C.R. 2121, and Kurz v Land Baden-Württemberg Case C-188/00 [2002] E.C.R. I-10691.
The ECJ decision in Lawrie-Blum v Land Baden-Württemberg [1987] I.C.R. 483, stated at para.17 of its judgment that;
“That concept (ie of “worker”) must be defined with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.”
In Kurz v Land Baden-Württemberg Case 66/85 [2002] E.C.R. I-10691, the court stated at para.32 of its judgment that: *119
“32. -In order to be treated as a worker, the person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal or ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the directions of another person in return for which he receives remuneration.”
The court in making its decision in Matzak stated that a contractual relationship “very significantly restricting the opportunities for other activities, must be regarded as ‘working time’“. The nature of the relationship between the respondent and the complainant outside of what is considered to be contractual hours once alerted to an incident, was characterised by the exercise of free choice, free from the direction of the employer, and free to undertake other employment or activities. This differentiates the complainant from other CJEU cases, for instance the constraints upon the doctors in SIMAP and Jaeger were different. Both had obligations. Both were not free of their employer’s control. The degree of control over the place in which the work was to be performed, and where the employee was to remain whilst on-call, was plainly of a different dimension from that of a retained firefighter, who has freedom of choice in relation to their location, availability and activity, e.g. working elsewhere or otherwise.
The contractual relationship between the parties is clear, the complainant received a retainer to be available, however the payment of a retainer did not preclude a firefighter from taking up other employment or being available to take up other employment or to undertake education courses, or to engage in sporting or social activities, etc., that the time is their own and they are free to pursue activities as they see fit. Retained personnel are not confined to their homes and have a choice of what to do with their time and engage in other activities when they are required to be available and not required to work.
The respondent believes that the position of the complainant can be distinguished from that of Matzak in that options were available to the complainant to stand down and that there were active arrangements available to him within the fire station to mark himself as being unavailable if he so wished. In addition to annual leave there were also provisions in place for casual leave aspects of the job which allow for all personnel to avail of structured time off. The provisions of the 1999 composite agreement which is set out below clearly reflects the position that a firefighter can seek to be marked as unavailable.
Both sides agree that staffing arrangements must guarantee the twin objectives of adequate availability of firefighters to respond to emergencies and structured time off to meet the social and family needs of the firefighters.
To meet these objectives, the following guidelines will be used in association with the Labour Court Settlement of 1973:
“One Pump Station: Optimum recommended staffing level of nine. (it is recognised that there are currently higher staffing levels in some locations.) All nine staff may *120 be alerted in the event of an incident. Alternatively, members, by arrangement with the Station Officer, may register unavailable for call-out; subject to the number available at all times to respond to a call not going below seven.
Two Pump Station: (For stations with more than 100 calls per annum). Optimum recommended staffing level of 15. These may be utilised in a number of ways: Two crews may be available at any time. In any event, both sides are committed to crewing arrangements, which ensure that there are sufficient staff to provide a necessary service.”
The respondents also believe that the position of the complainant can be distinguished from that of Matzak in that there was no absolute requirement to attend to calls when contacted and that the firefighter could make the decision as to attend or not. The complainant had discretion to not attend up to 25 per cent of the alerts, meaning that the time was his own and he could indeed decide whether to report to the respondent for work or not. So, the retainer did not place an absolute requirement on attendance where in general, contracts of employment do place an absolute requirement on attendance for contractual hours unless otherwise excused such as by reason of illness.
Whilst there is a requirement on the complainant to attend at the station as soon as possible when alerted if a firefighter attends up to 15 minutes after being alerted, he is still entitled to payment for one hour.
In relation to drills/training while there is weekly training, there is no absolute requirement for retained firefighters to attend all such sessions (85 per cent attendance rate).
Summary
Without prejudice to the above it is the position of the respondent that it did at all times apply what it believed were the required statutory obligations under the Organisation of Working Time Act with regard to the working time of retained firefighters.
Without prejudice to the above the complainant is placing significant reliance on the decision in Matzak which issued on the 21 February 2018. The complainant also references the judgment of the European Court of Justice in Von Colson. Whilst some cases may involve breaches that are major and deliberate with serious consequences for the employees involved at all times the fire service are cognisant of the health and safety of firefighters and will stand down firefighters if there are concerns. The system of retained firefighters has existed in this State in excess of 50 years. There has been no intentional breach of the Act. If local authorities are required to apply the provisions of Matzak it will effectively require the cessation of the retained fire service and implement a new and radically different model for the delivery of fire services which will require significant infrastructural change which cannot be implemented in the short term and in any intervening period fire services must continue to be provided.
*121
The distinction between the Matzak case and the complainant’s position is reflected in questions 3 & 4 referred to the Court of Justice which were very specific to the issue of being required to be physically at home:
“3. Taking account of art.153(5) TFEU and of the objectives of Directive 2003/88 concerning certain aspects of the organisation of working time, must art.2 of that Directive, in so far as it defines the principal concepts used in the Directive, in particular those of working time and rest periods, be interpreted to the effect that it is not applicable to the concept of working time which serves to determine the remuneration owed in the case of home-based on-call time?
4. Does Directive 2003/88 of 4 November 2003 concerning certain aspects of the organisation of working time prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?”
Within the ruling itself the court determined that its decision-making was based on the facts as presented which were:
“In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in art.2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within eight minutes.”
No similar requirement to remain at home applied to the complainant. This therefore differentiated the complainant’s position from that of Mr Matzak in that for the time that the complainant was required to be available he enjoyed a much wider range of options to utilise this time.
The respondent believes that the position of the complainant is more effectively reflected by the court in para.60 of its judgment in Ville de Nivelles v Matzak where it stated that:
“Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88 (see, to that effect, Landeshauptstadt Kiel v Norbert Jaeger Case C-151/02 EU:C:2003:437, paragraph 65 and the case law cited).”
Findings and conclusions
I note the complainant’s contention that he was at the respondent’s disposal *122 for all the time that he was on-call as a retained firefighter and, that due to the geographical and temporal constraints placed upon him whilst on-call, the entirety of the time spent on-call qualifies as working time for the purpose of the Organisation of Working Time Act 1997.
The complainant’s claim is grounded on the decision of the Court of Justice of the European Union (CJEU) in Ville de Nivelles v Rudy Matzak (Matzak).
The matter for me to decide, therefore, is if the factual matrix giving rise to the herein case is at one with the factual matrix in the Matzak case.
Definitions of working time
Article 2(1) of Directive 2003/88 defines working time as follows:
“‘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/or practice.”
Working time is defined by s.2(1) of the Organisation of Working Time Act 1997 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.”
The facts giving rise to Matzak are set out at para.10 of the opinion of Advocate General Sharpston as follows:
“Mr Rudy Matzak is a retained firefighter for the Ville de Nivelles (Town of Nivelles), Belgium. Under the arrangements which apply to his engagement, he is required to be available on call for work, for one week out of every four, during the evenings and at the weekend. He is paid only in respect of time when he is on active service. Time spent on call without the firefighter being required to carry out any professional duties (so-called ‘stand-by time’) is unpaid.”
As is clear from the above passage, Mr Matzak was rostered as being on-call for a defined period for one week in every four. However, one of the central elements of the herein claim is that, due to the on-call nature of his position, the complainant was effectively on permanent standby. I find that this represents a significant material difference in the factual matrix of the herein case and that of Matzak.
The Matzak decision was issued by the CJEU in response to a request for a preliminary ruling from the Cour de travail de Bruxelles (Higher Labour Court, Brussels) in the proceedings Ville de Nivelles v Matzak. The Cour de travail referred a number of questions to the CJEU including question 4 which related to home-based on-call time and read as follows: *123
“Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?”
The CJEU responded to the above question at para.66 of the judgment in the following manner:
“… the answer to the fourth question is that art.2 of the Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within eight minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.”
It is clear from the above that the CJEU considered the fact that Mr Matzak was required to be physically located at home during the period of stand-by was determinative in their finding that such periods must be regarded as working time.
Moreover, I note that at paras 59 and 60 in Matzak, the CJEU found as follows:
“59. Furthermore, it is apparent from the case law of the court that the determining factor for the classification of ‘working time’ within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties (see, to that effect, judgment of 9 September 2003, Jaeger C-15//02 EU:C:2003:437, paragraph 63, and order of 4 March 2011, Grigore C-258/10 EU:C:2011:122, paragraph 53 and the case-law cited).
60. Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger C-151/02, EU:C:2003:437, paragraph 65 and the case law cited). [Emphasis added]”
I also note in Matzak at paras 63, 64 and 65 the CJEU found as follows:
“63. The obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within eight minutes are such as to *124 objectively limit the opportunities which a worker in Mr Maztak’s circumstances has to devote himself to his personal and social interests.
64. In the light of those constraints, Mr Matzak’s situation differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.
65. In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in art.2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within eight minutes.”
Unlike Mr Matzak, the complainant was not required to remain at a location determined by his employer for the period that he was on-call. Even though there were temporal and geographic constraints placed on the complainant whilst he was on-call, he was free to take up employment during that period. In fact, the complainant held down a job as a school caretaker whilst he was employed as a retained firefighter. Accordingly, I find that this represents another significant material difference between the two cases.
Based on the totality of the evidence adduced, I find that contrary to the complainant’s contention, the herein case is not on all fours with Matzak and that there are significant material differences in the factual matrix of the Matzak case and that of the herein case. Accordingly, I find that the complainant cannot ground his case on the Matzak decision.
Decision
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Sch.6 of that Act.
Given my finding that the complainant cannot avail of the Matzak decision, I find accordingly that the complainant’s periods of on-call do not fall with the definition of working time as provided for under the Organisation of Working Time Act 1997. I find, therefore, that the herein complaint is not well-founded.
Andrius Stasaitis v Noonan Services Group Limited and Labour Court
2013 No. 311 MCA
High Court
11 April 2014
[2014] 25 E.L.R. 173
(Kearns P.)
KEARNS P.
delivered his judgment on April 11, 2014 saying:
Introduction
In these proceedings the appellant seeks an order pursuant *175 to s.28 of the Organisation of Working Time Act 1997 and Ord.84C of the Rules of the Superior Courts 1986, as amended, declaring that the Labour Court erred in law in its written decision dated December 6, 2013, when it determined that the respondent had complied with the requirements of s.12 of the Organisation of Working Time Act 1997 and was entitled to rely upon the exemptions set out in the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No.21 of 1998).
Should it be necessary, the appellant also seeks an order remitting his claim against the respondent to the Labour Court for reconsideration.
Background facts
The appellant is a Lithuanian national who was employed by the respondents as a security officer at the premises of DHL Logistics at Airport Park in Dublin, from September 3, 2009 until September 14, 2012. The site where the appellant worked is a warehouse facility where trucks, vans and other vehicles enter and leave the premises. The appellant’s function was to monitor this traffic and for that purpose he worked from a security hut at the entrance. It is common case that he worked in eight-hour shifts and that during those shifts he was not permitted to leave the security hut except for the purpose of checking vehicles entering and leaving the premises. He worked alone in performing these duties. It is also common case that his employers did not schedule any specific breaks for the appellant over the course of his shift, but rather left it to the appellant to take breaks during periods of inactivity which occurred during the shift.
The appellant was provided with kitchen facilities in the security hut and, while no specific breaks were provided for during his working shift, the respondents assert that there were significant periods of inactivity during the day during which he could take breaks. It is not in dispute but that the appellant availed of such breaks during the time in which he worked for the respondent, but he contends that, in failing to provide for specific break periods, the respondents were in breach of their statutory obligations.
The appellant brought a case before the Rights Commissioner, which was heard on February 11, 2003. The Rights Commissioner having rejected the appellant’s claim, the appellant brought an appeal to the Labour Court which heard his case on August 23, 2013.
On September 6, 2013, the Labour Court determined as follows:
“The court notes that the claimant worked for the respondent for three years during which time he made no complaint in relation to the matter now before the court. The court is satisfied as a matter of probability that the claimant was told that he could take breaks during periods of inactivity during the course of his shift. The court is further satisfied that the presence of cooking facilities in the security hut must have made it clear to the claimant (if he was ever in any doubt) that he could avail of breaks while at work. It is not denied that the claimant did in fact take breaks.
In these circumstances the court is satisfied that regulation 5 of the Regulations *176 was complied with in relation to the claimant. The Court is further satisfied that the regulation 3 of the Regulations was operative in this case and that the claimant’s employment came within the exemption provided by that regulation.”
Having concluded that the appellant’s complaint was “not well-founded”, the Labour Court disallowed the appeal and affirmed the decision of the Rights Commissioner. The matter comes before this court by way of appeal from that decision.
Relevant statutory provisions
The preamble to the Organisation of Working Time Act 1997 states that it is:
“An Act to provide for the implementation of Directive 93/104 of November 23, 1993 of the Council of the European Communities concerning certain aspects of the organisation of working time, to make provision otherwise in relation to the conditions of employment of employees and the protection of the health and safety of employees.”
The word “break” is not defined in the Act, but “rest period” is defined as “any time that is not working time”. In turn, “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.”
Section 12 of the Act provides:
“(1) An employer shall not require an employee to work for a period of more than four hours and 30 minutes without allowing him or her a break of at least 15 minutes.
(2) An employer shall not require an employee to work for a period of more than six hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than one hour).
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”
However, it was provided by s.4 of the Act that the Minister could by regulation exempt from the application of s.12 any specified class or classes and by S.I. No.21 of 1998 (Organisation of Working Time (General Exemptions) Regulations 1998) the Minister did exempt from the application of s.12: *177
“An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.”
The Regulations also provide (at reg.3(3)) that:
“3. The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with regulation 5 of these Regulations in relation to him or her.”
The Regulations go on to provide as follows:
“4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
5.(1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than six hours duration) without allowing him or her a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.”
Submissions
On behalf of the appellant it was submitted that the time during which the appellant was required by the respondent to be present in the security hut can only be classified as “working time” both within the relevant domestic legislation and within the meaning of the Working Time Directive. “Rest periods”, as defined in the legislation, are defined in opposition to working time, and an employee cannot be considered to be working and at the same time to be enjoying the benefit of a rest period.
While the present appeal was limited in its scope to a point of law, it was submitted that it was also open to the High Court to intervene if it found that the Labour Court had based its decision on an unsustainable finding of fact. In the instant case the Labour Court had erred in determining that the respondent fulfilled the requirements of regs 4 and 5 by awarding purported compensatory rest breaks, when at no material time was the applicant engaged in anything other than “working time” as defined by the Act. Alternatively, the findings of fact made by the Labour Court were erroneous. The periods of inactivity experienced by the appellant in the course of his duties were neither a rest period *178 nor a break. The inferences drawn by the Labour Court from the presence of cooking equipment in the security hut were and are unsustainable having regard to the fact that the appellant was, at all times he was in the hut, required to be available to discharge work duties as they might arise. The fact that those duties may only have arisen intermittently does not alter the fact that the appellant was required to be available for the discharge of such duties and therefore could not have been on a rest period or break.
The right to a rest break during the course of work is guaranteed by art.4 of the Working Time Directive and is an essential social right to which all workers in the E.U. are entitled. As such, any derogation from that right must be construed strictly. That had not happened in the instant case. The Act of 1997 and the Regulations made thereunder specifically provide that the exemption shall not apply unless the provisions of reg.5 are complied with. Regulation 5 had not been complied with because the employer had failed to determine the duration of any break to which the appellant was entitled and had failed also to have regard to the additional requirement to consider the “comfort of the employee” as required also by the same article of the regulation.
In summary, given that the appellant was clearly required to be available for work and was working within the meaning of the Act of 1997 during the entirety of his eight-hour shift in the security hut, he could not therefore be said to have had any rest break, whether compensatory or otherwise, for any of that period of time. It followed therefore that the appellant was afforded no breaks pursuant to regs 4 or 5 of the Regulations of 1998. The respondent was therefore not entitled to rely upon the exemption set out in reg.3 which must be strictly construed as a derogation from a European law right.
On behalf of the respondents, it was submitted that it was not in dispute that the appellant was provided with his daily rest period of at least 11 hours between shifts and his weekly rest period. The dispute between the parties focussed exclusively on breaks at work which are set out in s.12 of the Act of 1997. While s.4(3) of the Act provides that the Minister may by regulations exempt certain activities from the application of s.12, s.6 contains certain safeguards in respect of such exemptions and maintains the distinction between rest periods and breaks as follows:
“6(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of sections 11, 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12 or 13.
(2) Where by reason of the operation of subsection (1) or (2) of section 4, or section 5, an employee is not entitled to the rest period or break referred to in *179 section 11, 12, or 13 the employer concerned shall-
(a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or
(b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5.”
Regulation 4 of S.I. No.21 of 1998 also provides as follows:
“4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in section 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.”
It was submitted there had been no error of law in circumstances where arrangements for a break for the appellant had been put in place which were, at the very least, equivalent to the breaks referred to in the Act. In fact, it was submitted, the arrangements put in place by the respondents provided for more rest for the employee than did those provided for by the Act.
It was further submitted that there was no error of law in the instant case and no unsustainable findings of fact. The Labour Court had correctly determined that the respondent was entitled to rely on the exemption contained in reg.3 of the Regulations of 1998, subject to compliance with reg.5 and there was no error of law on the part of the Labour Court. The Labour Court had found as a fact that the appellant was allowed to take breaks during periods of inactivity and was thus perfectly entitled to determine that the respondent had complied with the provisions of reg.5.
It was further submitted that the facts of the instant case were identical with those considered by the Employment Appeals Tribunal and the Court of Appeal in the case of Hughes v Corps of Commissionaires Management Ltd [2011] I.R.L.R. 100 (EAT); [2011] I.R.L.R. 915 (CA). In that case the Court of Appeal had stated at para.54:
“We would accept that if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes. If the break does not display those characteristics then we do not think it would meet the criteria of equivalence and compensation. In this case the arrangements plainly did meet those criteria, as the *180 EAT found. Indeed, since the rest break begins again following any interruption, many would say that this was more beneficial than a regulation 12 ‘Gallagher’ break would be.”
In Gallagher v Alpha Catering Services Ltd. (t/a Alpha Flight Services) [2004] EWCA Civ. 1559; [2005] I.C.R. 673 the court examined equivalence and compensation as regards a rest period and a rest break where the employees complained that they were not entitled to rest breaks under reg.12 of the Regulations of 1998. Gallagher can be distinguished from the instant case as in Gallagher the company was not entitled to rely on a derogation and so the issue of compensatory rest did not apply. The decision in Hughes referred to Gallagher and examined what was meant by a ‘”Gallagher rest break” at para. 37:
“In a special case, such as the present one, the worker is not entitled to a ‘Gallagher’ rest break. The employer is, however, obliged ‘wherever possible’ to allow the worker to take ‘an equivalent period of compensatory rest’. It is plain that this is not the same as a ‘Gallagher’ rest break. Certainly, the objective is to provide the worker with some break from his duties but the language of equivalence and compensation shows that it is something which is not identical to a ‘Gallagher’ break. It can denote something which makes up for the fact that the worker does not receive such a break, by providing a break that is as near in character, quality, and value to a ‘Gallagher’ rest break as possible. The precise elements of that equivalent period of compensatory rest will obviously vary according to the facts and circumstances of the individual case. In some cases, it may be possible for the employer to provide a break that very nearly meets the ‘Gallagher’ criteria — circumstances where the worker is technically ‘on call’ during the 20 minute break, but is, in practice, never called on, for example. In others, it may be that less freedom is able to be afforded to the worker during his break but he does get one or it may be that no break at all can possibly be given during the shift of each cycle, but that is compensated for by the worker being given a double break of 40 minutes in the second shift he works in the cycle. There are, no doubt, many other possible scenarios.”
It was further submitted that Directive 93/104 must be construed in such a manner as to limit the scope of derogation to what is necessary. Exemptions under reg.3 of the Regulations of 1998 and the requirement to allow a break under reg.5 must be construed in a manner consistent with the requirement for the appellant to be continuously present in the security hut, which is the relevant exempted activity. It was submitted that having regard to the nature of the exempted activity and the health, safety and comfort of the employee, the rest breaks available to the appellant comply with the requirements of reg.5. The Directive in its recitals recorded:
“[I]t is necessary to provide that certain provisions may be subject to derogations *181 implemented, according to the case, by the Member States or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods.”
The Directive thus acknowledges that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities and art.4 of the Directive sets out a pragmatic requirement in respect of rest breaks where the working day is longer than six hours with a margin of appreciation being afforded to national legislation. The appellant in this case was undoubtedly afforded adequate rest by the respondent.
In reply counsel further stressed that the particular requirements of Irish law were such that the employer must fix the duration of any break. That had not occurred in the instant case and, for that reason, the appellant was entitled to succeed.
Discussion
The Organisation of Working Time Act 1997 gave effect to Directive 93/104 (the “Working Time Directive”) in Irish law. The Directive provides for rest periods and breaks (arts 3-5) and, of course, it is not in dispute in this case that the appellant was provided with his daily rest period and his weekly rest period. The entire controversy between the parties herein concerns breaks at work and whether the arrangements put in hand for this appellant by his employers come within the terms of permissible derogations, both under the Directive and under the Act of 1997.
Both sides in the case before the court were in agreement that principles of strict construction must be extended to any derogation which, as in this case, operates to exempt the employer from strict statutory obligations. That requirement of “strict construction” can only mean in this particular context that an interpretation is adopted which most effectively secures the rights of an employee as envisaged by both the Directive and the legislation. Thus, the court is satisfied that any arrangements put in place must satisfy the criteria of equivalence and compensation.
On a purely factual basis, it is difficult to see how it could possibly be argued that the appellant in this case is less well off by virtue of the arrangements put in place for compensatory rest in his case. It is common case that, when not required to operate the barrier or check vehicles in or out of the premises, the appellant could move to an area in the security hut where he had available to him kitchen and other facilities, although, of course, he was not at liberty to move away from the security hut. It is not in dispute but that these were the arrangements for breaks and that the appellant availed of them.
There is thus something of a paradox inherent in this case. The appellant is arguing for an interpretation of the relevant statutory provisions whereby he *182 would be entitled to specific breaks of fixed duration during his working shift. If successful, such an outcome to the proceedings could in real terms have the effect of significantly reducing the appellant’s periods of actual rest. Equally, in arguing the case for the employer, a result could occur whereby an employee could spend more time resting — and perhaps significantly more — than the time spent in the actual discharge of his security functions. It seems to the court that the parties to this appeal have both been driven to adopt positions which seem to be actually inimical to their own wider interests.
Both parties made detailed submissions as to the role of the court in an appeal of this nature. The court is satisfied that the jurisdiction of the High Court in this regard was comprehensively addressed by Hedigan J. in the case of An Post v Monaghan, unreported, High Court, Hedigan J., August 26, 2013; [2013] IEHC 404, where he stated (at p.14):
“This is an appeal on a point of law from a decision of the Labour Court. I will deal first with the role of the court in such an appeal. It is plainly a limited role. The court may only intervene where it finds that the Tribunal based its decision on an identifiable error of law or an unsustainable finding of fact. The court should be slow to interfere with the decisions of the Labour Court because it is an expert administrative tribunal. See Henry Denny & Sons v Minister for Social Welfare [1998] I.R. 539. Unless a claim of irrationality is sustained, the court cannot weigh the strengths or weaknesses of the arguments or evaluate its determination thereon. See Wilton v Steel Company of Ireland [1999] E.L.R. 1 at 5per O’Sullivan J.. The court may, however, examine the basis upon which the Labour Court found certain facts. It can consider whether certain matters ought or ought not to have been considered or taken into account by the Labour Court in determining the facts. See N.U.I. Cork v Ahern [2005] IESC 40per McCracken J.”
I am quite satisfied in this case that there was no unsustainable finding of fact by the tribunal. It was perfectly entitled to hold that the arrangements put in place whereby the appellant could obtain rest during periods of inactivity at work provided a sound factual basis for its findings. The Court was entitled to find that the arrangements either met the statutory requirements or satisfied a test that they complied with requirements of equivalence and compensation in lieu thereof.
The court is therefore satisfied that the single issue which it must determine is whether the Labour Court fell into error in its interpretation and construction of the relevant statutory provisions.
Decision
Under the requirements of the Organisation of Working Time (General Exemptions) Regulations 1998 the appellant is entitled to compensatory rest breaks and the respondent relies on reg.3 to claim that no breach of the appellant’s rights has occurred. What falls to be determined is the classification of the terms *183 “working time”, “rest periods” and “breaks”. As set out above all are defined under the Directive except for the term “break”. The terminology of domestic legislation must be determined in light of the wording and purpose of the Directive as per the European Court of Justice (ECJ) in Marleasing SA v La Comercial Internacional de Alimentatión SA Case C-106/89 [1990] E.C.R. I-4135; [1992] 1 C.M.L.R. 305. It is submitted on behalf of the appellant that the definition of the term “rest period” as referred to in Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana Case C-303/98 [2000] E.C.R. I-7963; [2001] 3 C.M.L.R. 42 and Landeshauptstadt Kiel v Jaeger Case C-151/02 [2003] E.C.R. I-8389; [2003] 3 C.M.L.R. 16 (cases where the issue of rest periods for doctors was considered) ought be differentiated from working time to mean that an employee cannot be both working and enjoying a break. The ECJ in that context held that in the case of a doctor, time “on call” was to be construed as working time. This however cannot be deemed to be analogous to the case presently before the court. The “rest period” is the time between shifts as opposed to a break which occurs within the working day. Although there is no set definition of “break” it must be interpreted in the particular circumstances of this case to mean that the employer must ensure that the employee is afforded the compensatory breaks as per the derogations under the regulation. The court must then move to the examination of the compensatory breaks afforded under national legislation.
In relation to s.6 of the Act of 1997 the appellant states that the employee was not provided with a compensatory or equivalent rest period or break in circumstances where the employee was not entitled to the “ordinary” rest period or break under ss.11, 12 or 13. Under s.6(2)(b) the employer has an obligation to make “such arrangements as respects the employee’s conditions of employment as will compensate the employee”. These arrangements must compensate the employee for the derogation under ss.11, 12 or 13. As per s.6(3) the compensatory arrangements cannot be monetary or of any material benefit. However the requirement under s.6(2) may be met where the employee is provided with better physical conditions or amenities or services whilst at work as per s.6(3)(b). In this instance the employee was provided with kitchen facilities and an area within which to take breaks during periods of inactivity. The employee in this case was permitted to take such breaks as he wanted during periods of inactivity and was provided with amenities and facilities to do so. Therefore the requirement to provide compensatory rest periods in relation to the derogation from the statutory rest periods and or breaks must be deemed to have been complied with.
Further, the decision in the Court of Appeal in the case of Hughes v Corps of Commissionaires Management Ltd [2011] I.R.L.R. 100 (EAT); [2011] I.R.L.R. 915 (CA) fortifies the view of this court in finding that the criteria of equivalence and compensation for breaks were met by the arrangements put in place by the employer. The view of the Court of Appeal in the Hughes case was that, since *184 the rest breaks in fact begin again following any interruption, this type of break may be regarded as even more beneficial than the statutorily defined breaks.
I would dismiss the appeal.
Francis Doyle and Roland Gilmartin v Midland Tribune
DWT046
DWT047
Labour Court
21 January 2004
[2004] 15 E.L.R. 255
Subject
Appeal against Rights Commissioner’s Decision WT2324/00/FL.
*256
Background
The worker concerned was employed by the company from October 1999, until April 8, 2000, as a print technician. The issue before the Court is that the worker concerned was required to work excessive hours without rest breaks. The company states that all workers are free to take their breaks as and when it is practical.
The issue was referred to a Rights Commissioner for investigation. His decision issued on November 28, 2002. He decided that the employer should pay €950 to the claimant in compensation.
The company appealed the Rights Commissioner’s decision to the Labour Court on December 6, 2002, in accordance with s.28(1) of the Organisation of Working Time Act 1997. The Court heard the appeal on October 14, 2003, the earliest date suitable to the parties.
Determination
The company appealed two aspects of the Rights Commissioner’s decision — his findings and decision under s.11 and s.12 of the Act.
The employer submitted that the company was exempted from the provisions of the Organisation of Working Time Act 1997, by virtue of S.I. No. 21 of 1998 Organisation of Working Time (General Exemptions) Regulations 1998. The schedule states that:
“An activity falling within a sector of the economy or in the public service—
(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,
(iii) production in the press …”
The provision of the regulation exempts those activities from the application of ss.11, 12, and 13. However, these regulations state that a provision specifying a rest period or break equivalent to those provided for in ss.11, 12 and 13 must be provided.
Paragraph 4 of the regulation provides for compensatory rest periods:
“If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in ss.11, 12, and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break”.
Paragraph 5 of the regulation details the duty of an employer in respect to the health and safety of employees: *257
“(1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than six hours duration) without allowing him or her a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.”
The company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.
Having considered the written and oral submissions and having investigated the details supplied by both parties, the Court is satisfied with the conclusions drawn by the Rights Commissioner that the employer was in breach of ss.11 and 12 of the Act, in respect of daily rest periods and breaks. The Court is also satisfied that compensatory rest periods equivalent to the rest period and breaks provided for under ss.11 and 12 of the Act were not available to the appellant.
Accordingly, the Court upholds the decision of the Rights Commissioner and the company’s appeal is disallowed.
Francis Doyle and Roland Gilmartin v Midland Tribune
DWT046
DWT047
Labour Court
21 January 2004
[2004] 15 E.L.R. 255
Determination
The company appealed two aspects of the Rights Commissioner’s decision — his findings and decision under s.11 and s.12 of the Act.
The employer submitted that the company was exempted from the provisions of the Organisation of Working Time Act 1997, by virtue of S.I. No. 21 of 1998 Organisation of Working Time (General Exemptions) Regulations 1998. The schedule states that:
“An activity falling within a sector of the economy or in the public service—
(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,
(iii) production in the press …”
The provision of the regulation exempts those activities from the application of ss.11, 12, and 13. However, these regulations state that a provision specifying a rest period or break equivalent to those provided for in ss.11, 12 and 13 must be provided.
Paragraph 4 of the regulation provides for compensatory rest periods:
“If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in ss.11, 12, and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break”.
Paragraph 5 of the regulation details the duty of an employer in respect to the health and safety of employees: *257
“(1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than six hours duration) without allowing him or her a break of such duration as the employer determines.
(2) In determining the duration of a break referred to in paragraph (1) of this regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.”
The company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.
Having considered the written and oral submissions and having investigated the details supplied by both parties, the Court is satisfied with the conclusions drawn by the Rights Commissioner that the employer was in breach of ss.11 and 12 of the Act, in respect of daily rest periods and breaks. The Court is also satisfied that compensatory rest periods equivalent to the rest period and breaks provided for under ss.11 and 12 of the Act were not available to the appellant.
Accordingly, the Court upholds the decision of the Rights Commissioner and the company’s appeal is disallowed.
Division of the Labour Court: Ms Jenkinson (Chairman), Mr Grier, Mr Somers.