SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
RUSKIM SEAFOODS LTD
(REPRESENTED BY PENINSULA BUSINESS SERVICES)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. An appeal against a Rights Commissioner's Decision no: r-129621/129622/132137/132138-wt-13/JW.
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 28th July 2015 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 30th September 2015. The following is the Determination of the Court.
This is an appeal by Sarunas Juodris (hereafter the Claimant) against the decision of a Rights Commissioner in his claims under the Organisation of Working time Act 1997 against his employer, Ruskim Seafoods Ltd (hereafter the Respondent). The Respondent has also cross-appealed against the same decision.
The Claimant presented a multiplicity of claims to the Rights Commissioner under a number of enactments and in respect of various alleged infringements of those enactments. The claims were based on overlapping facts.
The appeals under each of the enactments were conjoined by the Court and heard together.
This Determination relates to the Claimant’s claims under the Organisation of Working Time Act 1997 (“the Act”).
The claims arising under the Act are as follows: -
- 1. That the Claimant was not afforded adequate daily rest periods in contravention of s.11 of the Act;
2. That the Claimant was not afforded adequate rest breaks at work in contravention of s.12 of the Act;
3. That the Claimant was not provided with sufficient advance notification of his finishing times in contravention of s.17 of the Act;
4. That the Claimant was recorded as having availed of two days’ paid annual leave while on certified sick leave in contravention of s.19 of the Act.
The Claimant was employed by the Respondent as a delivery truck driver from 17 September 2007 until 7 June 2015. The Respondent is an importer and distributor of poultry, meat and fish throughout Europe.
Having considered the submissions of the parties and the evidence adduced at the hearing of the appeal, the Court has reached the following conclusions.
Applicability of sections 11 and 12 of the Act
The Claimant is a mobile worker within the meaning of European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Transport Activities) Regulations 2012 (S.I 36/2012) (hereafter “the Regulations”). The Claimant has brought separate proceeding alleging various contraventions of the Regulations.
In Determination DWT1398,Lucey Transport Limited and Marius Serenasthis Court extensively considered the applicability to mobile workers of provisions of the Act that overlap with provisions of the Regulations.
Having considered the applicable legal principles the Court concluded in that case as follows: -
- It seems to the Court that there are clear difficulties with the provisions of the Act and those of the Regulations in their current form standing side by side and a Rights Commissioner, and this Court on appeal, having concurrent jurisdiction to entertain a complaint arising from the same set of facts under both the Act and the Regulations. Such a result could not have been intended. Moreover, a consideration of considerable relevance in theGoode Concretecase was that the Regulations then in force operated in the field of criminal law only whereas the Act provided for civil redress in disputes between individual workers and their employer. That is no longer the case. In these circumstances, there is force in the argument that since Directive 2002/15/EC takes precedence over Directive 2003/88/EC, (as is clear from Recital 2 in the preamble to Directive 2002/15/EC) any conflict or inconsistency between the Act, which gives effect to the latter, and the Regulations, which give effect to the former, should be resolved in favour of the Regulations.
- It seems that any ambiguity concerning the applicability of the Act to workers engaged in activity now covered by S.I. 36/2012 could easily be resolved by the making of regulations pursuant to s.3(3) of the Act exempting such workers from the relevant provision of the Act. Regrettably, no such regulations have been made. Nevertheless, the Court has come to the conclusion that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. Moreover, when read as whole, it could not be said that the Regulations now provide a lesser level of protection to workers to whom they relate than that provided by the Act. It follows that the Regulations, rather than the Act, should now be relied upon in pursuing complaints concerning any infringement of the rights of such workers concerning their working time.
It was submitted by the representative of the Claimant that in light of the making of these Regulations the decision inLucey Transport Limited and Marius Serenasshould not be followed in respect of a period prior to the making of the Regulations.
The Court does not accept that submission.
In is clear from the decision inLucey Transport Limited and Marius Serenas, and for the reasons stated therein, that the Regulations are intended to definitively and exclusively regulate the organisation of working time of persons performing road transport activities. Consequently provisions of the Act that overlap with provisions of the Regulations are inapplicable to persons to whom the Regulations relate. That Determination was followed by the Court in Determination DWT1577,Stan O’Reilly t/a C&D Recycling and Aigars Plauka. The making of Regulations under the Act by the Minister for Jobs, Enterprise and Innovation in 2015 merely codified the law in that regard and does not invalidate or offset the conclusions reached by the Court inLucey Transport Limited and Marius Serenas.
Sections 11 and 12 of the Act overlap with provisions of the Regulations. Consequently the Court must hold that those provisions of the Act are inapplicable in the instant case. In reaching this conclusion, the Court notes that at the time material to this aspect of the claim there was no provision for the making of a complaint to a Rights Commissioner concerning a contravention of Regulation 9 of the Regulations, which overlaps with s.11 of the Act. The only sanction for a breach of that Regulation lay at the material time within the criminal law. That omission has since been rectified. Nevertheless, the Court is satisfied that the clear intention of the lawmaker in promulgating the Regulations was that the entitlements of mobile workers to daily rest periods should be governed by the Regulations and not by the Act. In so far as the Regulations as originally drafted may have contained an omission, that omission cannot be rectified by this Court.
Accordingly, the claims under sections 11 and 12 of the Act are dismissed.
Section 17 of the Act
The Respondent submitted roster sheets for the period March to April 2013 to the Court in evidence. The roster sheets submitted clearly show an Estimated Time Finish (ETF) for the Claimant on each working day covered by the roster sheets. The uncontested evidence of the Respondent is that the Claimant finished his delivery duties earlier than the ETF on a number of occasions.
The claim under s.17 of the Act fails and accordingly the decision of the Rights Commissioner in this regard is affirmed.
Section 19 of the Act
The claim relates to a period of two days (12 and 13 January 2013) during which the Claimant was on certified sick leave but in respect of which the Respondent paid the Claimant for two day’s annual leave. The Employer did not contest the Claimant’s submission in this regard. Accordingly the decision of the Rights Commissioner in relation the s.19 complaint is set aside and the Claimant and the Court directs the Respondent to pay the Complainant compensation in the sum of €200.00
The decision of the Rights Commissioner is varied in terms of this Determination.
Signed on behalf of the Labour Court
23rd October, 2015______________________
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.