SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
COASTAL LINE CONTAINER TERMINAL LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation WT114/98.
2. The appeal, on behalf of twenty-four (24) full-time employees and eight (8) casuals in Dublin Port is against WT114/98 which concerns a dispute in relation to the Working Time Act, 1997 over compensatory rest periods for the employees concerned. The workers are employed as crane drivers/terminal operatives and are engaged in the loading and unloading of ships at the port.
The Union claims that the Organisation of Working Time Act, 1997 S.I. No. 21 of 1998 (Exemptions General) should apply in this particular case. The Company, however, argues that the work performed by the claimants relates specifically to a scheduled shipping service and as such constitutes an activity connected with the operations of transport and as such the terms of S.I. No. 20 of 1998 (Exemptions of Transport Activities) should apply.
The issue was the subject of an investigation by a Rights Commissioner. The Rights Commissioner concluded that the terms of S.I. No. 21 of 1998 are derived from Article 2 of the Council Directive. The Article provides that member states may make derogations provided that the workers concerned are afforded equivalent periods of compensatory rest or appropriate protection. Article 2.1. C (ii) specifically refers to dock or airport workers.
The Directive recognised that workers whose employment is related to transport may require different arrangements, by agreement, from the generality of workers. Such workers, however, are not excluded from the Directive or the Working Time Act by reference to Article 1.3. and S.I. No. 20 of 1998 which related to those engaged directly in transport at sea, by air, etc. .
From the above interpretation, the Rights Commissioner concluded that the workers concerned are not covered under S.I. No. 20 of 1998 but are covered under S.I. No. 21 of 1998 and recommended that negotiations take place between the parties in the context of S.I. No. 21 of 1998.
The Company appealed against the Rights Commissioner's Recommendation WT114/98 on the 10th July, 1998, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 11th September, 1998.
This case concerns a complaint made by SIPTU on behalf of a number of named members employed by Coastal Line Container Terminal Limited. The substance of the complaint is that these employees, being covered by the Working Time (General Exemptions) Regulations 1998, S.I. No. 21 of 1998, (S.I. No. 21), are not provided with compensatory rest as provided for by Article 4 of those Regulations.
The employer claims that S.I. No. 21 is not applicable to the employees. They say that the work in question is exempted from the provisions of Section 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997 (the Act) by virtue of the Organisation of Working Time (Exemption of Transport Activities) Regulations, 1998, S.I. No. 20 of 1998 (S.I. No. 20).
The dispute was investigated by a Rights Commissioner who held that S.I. No. 21 and not S.I. No. 20 is applicable to the employees. The employer appealed that decision to the Court.
The employer operates a terminal at Dublin Port at which scheduled shipping services, involving the transport of goods to and from the UK and Europe, are loaded and discharged. The goods transported are carried in containers which are loaded and unloaded by crane. The employees who are associated with this claim are employed by the employer as crane drivers in the operation of those cranes.
Conclusions of the Court:
In considering the issues arising in this case, the Court has had regard to the provisions of both Statutory Instruments, the Act and Directive 93/104/EC ("the Directive") from which the domestic legislation is derived. Section 3(3) of the Act, under which S.I. No. 20 is made, authorises the Minister to exempt from the scope of the relevant sections, persons employed in any specified class or classes of activity involving the transport of goods or persons.
This power is derived from Article 3 of the Directive which states:
- "This directive shall apply to all sectors of activity both public
and private within the meaning of Article 2 of Directive 89/391/EEC,
without prejudice to Article 17 of this Directive, with the exception
of air, rail, road, sea, inland waterways and lake transport, sea-fishing,
other work at sea and the activities of doctors in training."
Article 17.2 and 17.2.1 of the Directive states;
- "2. Derogations may be adopted by means of laws, regulations
or administrative provisions or by means by collective agreements or
agreements between the two sides of industry provided that the workers
concerned are afforded equivalent periods of compensatory rest or that,
in exceptional cases in which this is not possible, for objective reasons,
to grant such equivalent periods of compensatory rest, the workers
concerned are afforded appropriate protection;
2.1 from Articles 3, 4, 5, 8 and 16;"
S.I. No. 21 exempts a number of activities from the application of Sections 11, 12, 13 and 16 of the Act. These Sections are equivalent to Section 3, 4, 5, and 8 of the Directive.
Among the activities exempted from the operations of 11, 12, 13 and 16 under the Schedule to S.I. No. 21 are, at paragraph 3(b)(ii) of the said Schedule, the provisions of services at a harbour or airport.
It is submitted by the employer that the term "dock workers" as used in the Directive and the expression "provision of services at a harbour" as used in S.I. No. 21, would not include those engaged in an activity consisting of, or connected with, the operation of any vehicle or train, vessel or aircraft or other means of transport within the meaning of paragraph 1 of the Schedule to S.I. No. 20.
The Court is unable to accept this submission.
The Court finds as a fact that the employees are dock workers within the meaning of Article 17.2.1(c)(ii) of the Directive and involved in the provisions of services at a harbour within the meaning of paragraph 3(b)(ii) of S.I. No. 21. Therefore, they cannot be covered by the exemptions provided by S.I. No. 20.
The Court is reinforced in this view by two further considerations, namely:-
1. In July 1997, prior to the enactment of the Statutory Regulations, S.I. No. 20 and S.I. No. 21, the European Commission adopted a White Paper on the sectors excluded from the Directive in which it expressed disapproval of an over-expansive interpretation of the exclusions. In particular paragraph 14 of the White Paper states:
- "the way in which the exclusions are drafted has been interpreted as implying that all workers in the transport and sea-fishing sectors are excluded from the scope of the Directive, even those who performed sedentary tasks.The Commission considers that this should be clarified, as there is no objective reason why "non-mobile" employees should be treated differently in comparison to employees carrying out similar tasks in other industries. The test should relate to the nature of the activity, not to a definition of "sector" in which the employee works."
2. Given the very clear language of Article 17 2.1(c)(ii) of the Directive and paragraph 3(b)(ii) of the Schedule of S.I. No. 21, any intended exemption of the type of activities in which the employees are engaged under S.I. No. 20 would, in the Court's view, have been expressed in clear and unambiguous terms. The fact that this was not done reinforces the Court's view that S.I. No. 21 is the relevant regulation which applies to the employees.
It is the Determination of the Court that the complainants are covered by the Organisation of Working Time (General Exemption) Regulations, 1998 (S.I. No. 21 of 1998) and that their employer Coastal Line Container Limited should ensure that each of them has available to himself or herself a rest period and break such as to comply with the provisions of Regulation 4 of the said Regulations. The details in that regard should be agreed between the parties. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
23rd February, 1999______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.