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FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: KERRY COUNTY COUNCIL
(REPRESENTED BY LGMA) - AND - DAVID WALSH (REPRESENTED BY ALASTAIR PURDY & CO SOLICITOR) DIVISION:
SUBJECT: 1. Appeal Of Adjudication Officer Decision No(S) ADJ-00019586, CA-00025000-001 This claim was lodged with the WRC on the 1st February 2019 the cognisable period for the purpose of the Act is 2nd August 2018 to the 1st February 2019. There are twelve linked claims as follows: Organisation of Working Time Act 1997: CA-00029440-001 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-002 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July2019 CA-00029440-003 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-004 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-005 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-006 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-007 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-008 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029440-009 lodged 3rd July 2019 cognisable period 4th January 2019 to 3rd July 2019 CA-00029532-001 lodged 8th July 2019 cognisable period 9th January 2019 to 8th July 2019 CA-00029532-002 lodged 8th July 2019 cognisable period 9th January 2019 to 8th July 2019 Claim under the National Minimum Wages Act 2000. CA-00030251-lodged 14th August 2019 cognisable period 15th February 2019 to 14th August 2019. Preliminary issues Mr Purdy on behalf of the Appellant submitted that there is a lacuna in the Irish legal framework concerning the Working Time Directives and their relationship with the Organisation of Working Time Act 1997 and with S.I. No. 21/1998 Organisation of Working Time (General Exemptions) Regulations,1998 and S.I. No. 52/1998 Organisation of Working Time (Exemption of Civil Protection Services) Regulation,1998. It is his submission that S.I. 21/1998 provides no exemption to weekly working hours although it does provide for an exemption to rest breaks and daily rest periods subject to compensatory rest periods being made available. S.I. 52/1998 grants an exemption to the maximum working week and an exemption to rest breaks and daily rest periods but does not provide for compensatory rest for either exceeding the maximum working week and or not being able to avail of rest breaks. Mr Purdy submitted that the original directive has been incorrectly transposed into law and that the Court should address this issue as a preliminary issue. He further submitted that this is a matter that needs to be addressed by the High Court and that the Labour Court should seek clarification from the High Court on these two points of law. Mr Hunt on behalf of the Respondent submitted that if as submitted the Directive had not been transposed correctly this was a matter in the first instance for the Labour Court to address and citied Case C-378/17 The Minister for Justice and Equality and the Commissioner of An Garda Siochana v the Workplace Relations Commission which stated that “the principle of primacy of EU law, must be interpreted as precluding national legislation which restricted a national body established by law to ensure the enforcement of EU law in a particular area including jurisdiction, to disapply a rule of national law that is contrary to EU law in support of that position”. Mr Hunt submitted this judgment supported his contention that if the Directive has not been transposed correctly the Labour Court has jurisdiction to address that issue. Mr Hunt stated that the Respondent does not accept that the Directives were not transposed correctly. At the time of the Labour Court hearing, the Court advised the parties it would reserve its decision on this matter pending the full hearing of the case. Summary of the Complainant’s submission and evidence. Mr Purdy submitted that the Complainant commenced work on the 6th June 2008 as a retained firefighter and that he is on call 168 hours a week, 52 weeks of the year. The Complainant receives a quarterly retainer and is paid the going rate when called out to attend at a fire or when required to attend training. The Complainant’s contract requires that he normally reside and work in the town where the Brigade is located and in such a proximity to the Fire Station that will allow him to attend at an incident within a maximum time frame of five minutes. It also requires him to report to and get prior approval from the Station Officer for any intended departure at any time from the station ground. He went on to state that there is also a composite agreement between the local authorities and SIPTU in respect of retained fire fighters which states that in the case of an alert there is a liability on a firefighter to attend and in the case of drills the attendance criteria is 85%. This liability to attend is the basis upon which the retainer is paid. There is provision in the contract for the retainer to be withheld if the attendance criteria are not adhered to. The composite agreement also provides for a minimum of 100 hours training per annum. In a letter dated 21st September 2015 the Acting Chief Fire Officer in the region states that “all personnel are obliged to be available on a twenty-four (24) basis daily (excluding periods in which they are on approved leave.)” It goes on to state that a minimum requirement for 75% attendance is appropriate. However, it will be the Complainant’s evidence that he attends nearly all callouts and certainly in excess of 75%. The aforementioned documents all form part of the Complainants contractual obligations and clearly indicate that he is on standby 24/7, 52 weeks of the year. Mr Purdy submitted that as set out in the contract and the composite agreement the obligation is on the retained firefighter to attend all fires during the rostered period, if they are unable to attend they have to notify the Station Officer. The terms and conditions of employment provide for disciplinary measures if a retained firefighter does not achieve the minimum requirement of 75% attendance. Mr Purdy indicated to the Court that the Complainant was not contesting certain paragraphs of the Respondent’ submission set out below, but they were contesting paragraph 6.7 in respect of the 75% attendance requirement as it will be the Complainant’s submission that due to the station not being fully manned the requirement to attend was higher than 75%. The relevant paragraphs of the Respondent’s submissions not being contested are;
Mr Purdy submitted that the question for the Court to consider, is “whether or not when on call the Complainant is at the disposal of the Respondent”. It is his submission that the Complainant is at the Respondent’s disposal, as the retainer makes it clear that retained firefighters have a liability to attend all incidences. Mr Purdy posed the question that if the Complainant is not at the disposal of the Respondent, why can he be disciplined for non-attendance. Mr Purdy submitted that the Working Time Directive set out three requirements for working time, a) the person must be working b) they must be at the employer’s disposal and c) they must be carrying out activities or duties. It is his contention that the case law supports their position that the Complainant’s time on standby is working time for the purposes of the directive, and he addresses the caselaw as set out below. The requirements for working time, have been elaborated on by the CJEU in various decision starting with Sindicato de Medicos de Asistencia Publica (Simap) and Conselleria de Sanidad y Consumo de la Generalidad Valenciana Case C-303/98, where the Court held that if the requirement on the worker is only that they be contactable, then only the time linked to the provision of the service is working time. In the case to hand the Complainant has to be not only contactable but capable of reaching the fire station within a five-minute time frame. In the cases of Landeshauptstadt Kiel and Norbert Jaegar Case C-151/02 and Grigore and Regia Nationla a Padurilor Romsilva-Directa Silvica Bucuresti Case C-258/10, the CJEU decided that a determining factor was that the worker must be required to be physically present at the place determined by the employer and be available to the Employer. In the case of Ville de Nivelles v Rudy Matzak Case C-518/15 the worker was a volunteer fire fighter who was obliged to respond within eight minutes to his station and to be physical present at a place determined by his employer which in this case was his home. The CJEU considered that even if that place was Mr Mazak’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 Mazak’s circumstances had to devote himself to his personal and social interests. The CJEU held therefore that the standby time was working time. It is Mr Purdy’s submission that this case is on all fours with the Complainant’s case, in fact the Complainant has a shorter time to reach the fire station than Mr Matzak had, and therefore the constrains are more onerous on the Complainant. In respect of a recent case MG v Dublin City Council Case C-214/20, Mr Purdy submitted that there are differences between the MG case and the Complainants case. Retained firefighters outside of Dublin are subject to two forms of constraints 1) being required to respond within a designated time frame and 2) live within a specified distance from the fire station. It was his submission that MG was not subjected to both of these constraints. The Complainant in this case because of staff shortages attends 95% of all incidents. The Complainant is routinely contacted by the Station Officer who wants to know his schedule and his location regardless of whether he is rostered or not. The Complainant will give evidence that he attends 95% of callouts. In the MG case the CJEU summarised the requirements as follows “in the light of all circumstances of the case and relying on the information set out in paragraphs 38 to 41 of the present judgment, whether , during his periods of stand-by time according to a stand-by system, MG is subject to constraints of such intensity such as to constrain, objectively and very significantly, the ability that he has to freely manage during those periods, the time during which his professional services as a retained firefighter are not required.” Mr Purdy submitted that the Complainant is restrained in the following manner;
The Complainant in his evidence to the Court stated that, as part of his initial application he had to submit a letter confirming that he would have permission to leave his bed and breakfast business to attend at a fire and that he was informed by the Respondent, that if he did not provide the letter there would be no job. He stated that since he joined in 2008 there were numerous occasions when they did not have full staffing and the impact of that on the rest of the staff is that it restricts the time off that staff can have and places additional pressure on them to turn out to all alerts. It was his evidence that during the Covid period they were down to six staff, and this resulted in his station Ballybunion, being made second pump to Listowel meaning all calls went to Listowel in the first instance but they still received alerts. The Complainant stated that he does not accept that he has discretion not to turn up to an alert and the impact of that is it causes restrictions in running his business and in his personnel life as fire fighting has to come first. It was his evidence that if he wants to leave the geographical area where the station is, he must check with the Station Officer to see what other staff are available and depending on the numbers he might not be granted time off to leave. This happened to him when he wanted to attend a golf tournament in Adare but could not go the day he wanted to as other staff members were on leave, so he had to go a different day. Mr Hunt in cross examination put it to the Complainant that on average he was called out for two hours a week and asked, how did that constrain the Complainant’s business. The Complainant did not dispute that it was on average two hours a week but stated that the constraint arose from not knowing when the call was going to come. The Complainant was asked how much of the 168 hours that he claims he is working for the fire brigade is spent running his business. The Complainant stated that he couldn’t put a figure on it but that he was actively involved in running his business. In response to a further question from Mr Hunt the Complainant confirmed that some of his other colleagues also had businesses and that they would often have to go to Listowel or other places, when this occurs, they would advise the station officer of their non- availability. The Complainant accepted that during some periods of Covid arising from staff shortages in Ballybunion, the process for mobilising was that Tralee and Listowel attended and that this provision could be applied by the Station Officer at other times if there was a shortage of available personnel. In terms of the requirement to be at the station within five minutes the Complainant stated the Ballybunion station has an average turnout time of six minutes. The Complainant accepted that if you turn up for a call you are paid but could not remember what the latest time is that you could attend at the station and still get paid. He accepted that 75% minimum turnout is what is required but stated that he did not know of anyone who stopped turning out once they reached the 75%. In response to a clarification sought by the Court the Complainant stated that he accepts that he can go beyond Ballybunion, but he has to get permission from the Station Officer. The Station officer has never refused him but sometimes he would ask him to delay for maybe thirty minutes depending on where other people were. The Complainant also clarified that on one occasion he could not respond to an alert even though the Station Officer had told him he was low in numbers and that he was not sanctioned for not turning out on that occassion. In response to a question from Mr Purdy in re-direct the Complainant confirmed that his contract does not say minimum of 75% attendance. He also confirmed that if wanted to go somewhere and the Station Officer said it was not possible at the time he wanted to go, the Station Officer would normally give him an alternative option. Mr Purdy is his closing statement submitted that the composite agreement states that for drills there is an 85% attendance but does not state minimum of 75% in terms of responding to alerts. Neither does the Complainants contract mention 75%. These are the documents that contain his general terms and conditions of employment and the only requirement set out is that in order to avail of the retainer he must respond to all alerts. There is an obligation on the Complainant to respond to all alerts and he must get prior approval if he is not going to be available. The Complainant does not have discretion around turning up he can seek approval not to be available, but that approval can be withheld. The Complainant is severely restricted in terms of location and time, and this severely limits what he can do when on standby. The Complainant’s circumstances are all on fours with the Matzak’s case. The background documents provided to the CJEU in that case did not say that Mr Matzak was required to be at home. His on call was undertaken at home because of the constraint of having to be within eight minutes of the station. The requirement on the Complainant is that he be within five minutes of the station which is a more onerous constraint. The Complainant does not dispute that there is a minimum required attendance of 75% but in practise attendance is higher because of ongoing staff shortages. Summary of the Respondent’s submission Mr Hunt on behalf of the Respondent submitted that retained firefighters operate on the basis of carrying an alerter that has an operational range of approximately 10- 15km. When the alerter goes off they respond, and the fire appliance has to be mobilised within a specified period of time. Whilst there is a requirement on the Complainant to attend at the station as soon as possible after being alerted, if a firefighter attends at the incident up to 10 min after being alerted, he is still entitled to payment for the full duration of the call. Mr Hunt stated that the Complainant’s contract which was opened to the Court clearly indicates that a retained firefighter can hold down another job and or be self-employed once the employer agrees to release them when the alerter goes off. It is not disputed that in the case before this Court, the Complainant is self employed and has his own business. Mr Hunt submitted that the test the Court should apply is “does the contractual relationship as a retained firefighter very significantly impact on his rest time”. Mr Hunt stated that in the case to hand the Complainant has the discretion not to attend up to 25% of calls and that it is not disputed that there is an operational requirement to keep the Station Officer informed of his availability. This is to allow the Station Officer to know at any given time the number of staff he has available to him to manage the service. If the Station Officer knows that he does not have sufficient staff, he notifies the supervisor, and another station is alerted. Mr Hunt submitted that in the year 2017 the Complainant attended 60 out of 64 incidents, in 2018 he attended 61 out of 66 and in 2019 he attended 49 out of 54. The records show that in those years several retained firefighters attended less that 75% of incidents but no sanctions were applied to them. It is open to the retained firefighters to attend more than 75% if they wish and most attended 80% or more incidents in that period. On top of the retainer they receive, the retained fire fighters are also paid for each incident they attend. Mr Hunt accepted that the contract and the composite agreement do not specifically mention 75% but it is mentioned in the letter from the acting Chief Fire Officer in the region and is generally accepted to be the minimum requirement. He also confirmed that the composite agreement applies to all retained firefighters including those based in Dublin. Mr Hunt submitted that the case before the Court is not on all fours with the Matzak case and submitted that the CJEU in that case clearly states “in those circumstances it is necessary to interpret the concept of working time provided for in Article 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 work within 8 minutes as working time”. There is no requirement on the Complainant to be at his home or to be at a particular place designated by the Respondent and therefore that constraint, that applied to Mr Matzak, does not apply to the Complainant. Mr Hunt went on to say that paragraph 60 of the Matzak case is more relevant to the case to hand where the CJEU states “Finally it must be observed that the situation is different where the worker performs a standby duty according to a standby 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 interest, 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.” Mr Hunt submitted that the CJEU has repeatedly held that the concept of working time under Article 2 of Directive 2003/88 requires that three conditions be satisfied. 1) the worker must be at work, 2) he must be at the employer’s disposal and 3) he must be carrying out his activity or duties. In the case to hand during his standby time while the Complainant may be at the disposal of his employer, he is not at work nor is he carrying out his activities or duties. In the case of D.J. v Radiotelevizija Slovenija case C-344/19 and RJ v Stadt Offenbach am Main Case C-590/19 the CJEU reversed the presumption set out in Matzak which found the entirety of the period spent on standby at home would be considered working time. The CJEU found that working time only existed if due to the restriction imposed by the employer on the employee when his or her professional services are not required this time is of no value for the employee. In the case to hand, it is not disputed that while on standby the Complainant runs his own business. It is the Respondent’s submission that this case is on all fours with the decision in MG v Dublin City Council. In that case the CJEU sets out guidance as to the general and objective criteria to be considered in the examination for assessing whether a period of standby time constitutes working time. Mr Hunt submitted that the relevant considerations are as follows:
He went on to state that it is clear from the Complainant’s evidence that he feels a duty to his community and a personal obligation to attend at incidences, but that this was not a contractual obligation. Mr Hunt stated that the Complainant also benefits financially from attending at incidences. The Complainant in his evidence accepted that he could turn out up to 10 minutes after the alerter goes off and still get paid in full for the incident. It is not disputed by the Respondent that the Station Officer in order to manage the service has to be informed of people’s availability. The Complainant in this case during his standby time runs his own business and his evidence to the Court was that he was actively involved in that business. It is the Respondent’s submission that this case is on all fours with the MG case. There is no basis to support the Complainant’s proposition that the time he spends on standby duty as a retained fire fighter is in fact working time as defined by either the Directive or the Organisation of Working time Act. Relevant law Article 2 of Directive 2003/99 provides: “For the purpose of this directive the following definitions shall apply:
Organisation of Working Time Act 1997 section 2(1) provides; “Working time” means any time that the employee is
Discussion and decision In the main the facts of this case as set out above are not in dispute. There is an issue between the parties in respect of the 75% minimum attendance and it not being set out either in the contract or the composite agreement. However, the Complainant in his evidence to the Court confirmed that he was aware that there is a 75% minimum attendance requirement, and he was also aware that there was a possibility of disciplinary action if his attendance fell below the 75% minimum attendance requirement. On this point the Court finds on the balance of probabilities that there is a 75% minimum attendance requirement, and that the Complainant is fully aware of it despite the fact it is not written into his contract or stated in the composite agreement. The following relevant facts are not in dispute between the parties:
The Court notes that in the case to hand the Complainant is not obliged to remain at a place determined by his employer nor is he obliged by his employer to attend all callouts. As set out above the Court finds that the requirement on this Complainant is that he turns out for a minimum of 75% alerts. It was not disputed by the parties that the Complainant regularly attended in excess of the minimum requirement. The Respondent in this case, makes no determination as to where the standby time should be spent other than that the Complainant attend with in five minute (to mobilise the appliance) or within 10 minutes of being alerted. Therefore, the restrictions placed on the Complainant in this case are not of the same nature as applied to Mr Matzak. Mr Purdy submitted to the Court that Mr Matzak was not required to be at his home and provided correspondence to support that contention, while that may well be the case, the Court finds from a reading of the CJEU decision that the Court in coming to their decision and as set out in their judgment, based the judgment on the assumption that he was at his employers disposal, at a place determined by his employer (his home). In looking at this case the Court has to take that fact into account and the Court finds that the case before it is not on all fours with Matzak for the reasons set out above. The Court then considered the case of MG. While the Respondent submitted that the Complainants case was on all fours with this case, Mr Purdy contended that MG did not have the same level of restriction applied to his standby time as the Complainant had. The Court relying on the information in respect of MG’s terms and conditions as set out in the CJEU judgment compared the restrictions that applied to him with the restrictions that applied to the Complainant and determined that both operated under similar constraints. Paragraphs 12 to 17 of the judgment of the CJEU sets out the following:
At paragraph 24 of the judgment the CJEU distinguishes the Matzak case from the MG case and states “ The situation which led to that judgment should, however, be distinguished from that at issue in the main proceedings, since Dublin City Council does not require MG to be at a particular location when on stand-by and , in addition, permits him to work on his own account- which he does as a taxi driver- or to work for another employer”. In the MG case the Court held that of the four questions submitted to it only the first two were admissible, those questions were as follows:
Paragraph 39 states that “conversely where the constraints imposed on a worker during a specific period of stand-by time do not reach such a level of intensity and allow him or her to manage his or her own time, and to pursue his or her own interest without major constraints, only the time linked to the provision of work actually caried out during that period constitutes ‘working time’ for the purpose of applying Directive 2003/88.” Paragraph 43 states “ In that regard, the possibility offered to MG to carry out another professional activity during his periods of stand -by time is an important indication that the terms of the stand by system do not place that worker under major constraints having a very significant impact on the management of his time provided that it is established that his rights and obligations arising from his employment contract, from collective agreements and from the legislation of the Member state concerned are structured in such a way as to permit the effective pursuit of such an activity for a significant portion of those periods.” The Court went on to say at paragraph 45 that “organisational difficulties that a period of stand-by may generate for the worker concerned such as the choice of residence or place for the pursuit of another professional activity which are more or less distant from the place that he must be able to reach within the time limit set in the context of the post as a retained firefighter may not be taken into account”. The Court concluded at paragraph 48 that “ the answer to the first and second question is that Article 2 (1) of Directive 2003/88 must be interpreted as meaning that a period of stand by time according to a stand-by system served by a retained firefighter, during which that worker with the permission of his or her employer, carries out a professional activity on his or her own account but must, in the event of an emergency call, reach his or her assigned fire station within 10 minutes, does not constitute working time within the meaning of that provision if it follows from an overall assessment of all the facts of the case, in particular from the scope and terms of that ability to carry out another professional activity and from the absence of obligation to participate in the entirety of the interventions affected from that fire station, that the constraints imposed on the said worker during that period are not of such a nature as to constrain objectively and very significantly the ability that he or she has freely to arrange during the said period, the time during which his or her services as a retained firefighter are not required”. Applying those considerations to the facts of the case before the Court, the Court finds that the Complainant is not obliged to participate in the entirety of the interventions and that there is a 75% minimum requirement attendance in place. The constraints that are placed on the Complainant do not “place him under major constraints and have a very significant impact on the management of his time” and that he is able to pursue other activities for a significant portion of his standby periods including running his own business. This finding was supported by the Complainant’s evidence that his is actively involved in his own business and the Respondent’s uncontested submissions that on average the Complainant is obliged to attend 84 hours per annum averaging at 1.7 hours per week. Taking all of the above into consideration the Court determines that the time spent on standby by the Complainant is not working time for the purpose of the Directive and or the Organisation of Working Time Act 1997 and that no breach of the Act occurred during the cognisable period. Having heard the case in full and concluding that in this case, time spent on call did not qualify as working time, the issue of exemptions from the maximum working week and weekly and daily breaks did not arise. Therefore, there was no requirement for the Court to address these issues. The Complainants appeal fails. The Decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ian Kelly, Court Secretary. |
