SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997
PARK RITE UNLIMITED COMPANY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MR KENNETH O'TOOLE
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Geraghty
Employer Member: Mr Murphy
Worker Member: Ms Treacy
1. An Appeal Of Adjudication Officer Decision No(s). ADJ-00016687 CA-0021650-001
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 24 July 2019. The following is the Decision of the Court.
This is an appeal by Mr. O’ Toole, ‘the Complainant’, against a decision by an Adjudication Officer, (AO), of the Workplace Relations Commission, (WRC), that his employer, Park Rite Unlimited Company, ‘the Respondent’ did not breach his rights under the Organisation of Working Time Act, 1997, ‘the Act’.
The Complainant works for the Respondent as a car park attendant. Until March 2018, he had a one hour paid break and he could leave the site where he worked. In March 2018, the Respondent advised the Complainant that he would continue to be paid for a one hour break but he could not leave the site.
The Complainant lodged an internal grievance with the Respondent that was not upheld. His appeal was rejected also.
The Complainant lodged a complaint with the WRC.
The Respondent argued that it was not in breach of s.12 of the Act as the Complainant was employed in a sector covered by the exemptions to that section, set out in S.I. 21 of 1998.
The AO accepted the argument made by the Respondent.
The Complainant appealed to the Court.
The Complainant began working for the Respondent in July 2012 and he moved to the City Quay Carpark in September 2013. His ability to leave his workplace is important as his work hut is 7 ft. by 5 ft. On 12 March 2018, the Complainant was told that he would continue to be paid for his break but he could no longer leave the site and he could be required to interrupt his break to attend to customers.
The Complainant disagreed with this situation and he lodged a grievance. His grievance was not upheld and his subsequent appeal was rejected also.
The Complainant has a right to an uninterrupted break under s. 12 of the Act. The exemption clause relied on by the Respondent is not applicable. S. I. 21/1998 exempts those involved in the security industry. The Complainant does not hold a Security Licence and is not responsible for the security of vehicles. There is an ‘at owner’s risk’ waiver posted on tickets in the carpark for the information of customers. The carpark is not automated and the Complainant’s job is largely to collect fees and to show customers where to park.
The Respondent no longer provides cover for the Complainant’s breaks in order to save costs.
The Complainant is employed in a sector covered by the exemptions to s.12 of the Act set out in S.I. 21 of 1998.
The Complainant works on a ‘lone site’. As the carpark cannot be left unattended, employees on ‘lone sites’ are required to take their breaks on site and facilities are provided to enable them to do so.
The Complainant’s duties include cleaning, maintenance, patrolling, opening, closing of the carpark and provision of general assistance to customers, including managing access and egress, reporting health and safety concerns or unauthorised access to the carpark.
Under the Respondent’s break interruption policy if an employee cannot take their break or their break is interrupted they are facilitated in taking their break later.
S. I. 21/1998 provides an exemption in respect of;
‘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 an employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm’.
The Respondent is in full compliance with the Act.
The Applicable Law
Organisation of Working Time Act 1997
(3) Subject tosubsection (4), the Minister may by regulations exempt from the application ofsection 11,12,13,16or17any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice tosection 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to insection 4that exempt any activity from the application ofsection 11,12or13or 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 bysection 11,12or13.
|Rests and intervals at work.||12.—(1) An employer shall not require an employee to work for a period of more than 4 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 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to insubsection (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 undersubsection (2)shall be more than 30 minutes (but not more than 1 hour).|
|(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained insubsection (1)or(2).|
|S.I. No. 21 of 1998.|
|ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGULATIONS, 1998.|
|I, TOM KITT, Minister for Labour, Trade and Consumer Affairs, in exercise of the powers conferred on me by subsection (3) ofsection 4of theOrganisation of Working Time Act, 1997(No. 20 of 1997), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 (S.I. No. 305 of 1997), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 (S.I. No. 330 of 1997), and having complied with subsection (4) of the said section 4, hereby make the following regulations:|
|1 Citation and commencement||1.These Regulations may be cited as the Organisation of Working Time (General Exemptions) Regulations, 1998, and shall come into operation on the 1st day of March, 1998.|
|2 Definitions||2.In these Regulations—|
|"the Act" means theOrganisation of Working Time Act, 1997(No. 20 of 1997);|
|"the exemption" means the exemption provided for by Regulation 3(1) of these Regulations.|
|3 Exemption||3.(1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.|
|(2) The exemption shall not, as respects a particular employee, apply in relation to|
|(a) section 11, 12, 13 or 16 of the Act if the employee—|
|(i) is not engaged wholly or mainly in carrying on or performing the duties of the activity concerned,|
|(ii) is exempted from the application of that section by virtue of regulations under section 3(3) of the Act,|
|(iii) falls within a class of employee in relation to which a joint labour committee (within the meaning of the Industrial Relations Acts, 1946 to 1990) may perform functions under those Acts,|
|(b) section 16 of the Act if the employee is a special category night worker within the meaning of subsection (3) of the said section 16.|
|(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.|
|4 Compensatory rest periods||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 Duty of employer with respect to the health and safety of employee||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 6 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.|
|6 Saving||6.Nothing in Regulation 4 or 5 of these Regulations shall prejudice a provision or provisions of a more beneficial kind to the employee concerned which is or are contained in—|
|(a) a collective agreement referred to in section 4(5) of the Act,|
|(b) a registered employment agreement,|
|(c) an employment regulation order.|
|1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.|
|2. 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.|
|3. An activity falling within a sector of the economy or in the public service—|
|(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,|
|(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,|
|and, in particular, any of the following activites—|
|(i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,|
|(ii) the provision of services at a harbour or airport,|
|(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,|
|(iv) the provision of ambulance, fire and civil protection services,|
|(v) the production, transmission or distribution of gas, water or electricity,|
|(vi) the collection of household refuse or the operation of an incineration plant,|
|(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,|
|(viii) research and development,|
|GIVEN under my hand, this 30th day of January, 1998.|
|TOM KITT, T.D.,|
|Minister for Labour, Trade and Consumer Affairs.|
|These Regulations prescribe that persons employed in the activities specified in the Schedule to these Regulations shall be exempt from the application ofsections 11,12and13of theOrganisation of Working Time Act, 1997which deal respectively with daily rest, rests and intervals at work and weekly rest, subject to being granted equivalent compensatory rest. Such persons shall also be exempt from the application of section 16 of that Act which deals with nightly working hours.|
All employees, unless otherwise exempted, are entitled to the protections provided in the Act. These include the right to breaks as set out in s.12 of the Act.
In the instant case, the Respondent has argued that the work which the Complainant is employed to carry out is covered by the exemptions provided for in S. I. 21 of 1998.
The Court has approached this argument with some caution. If it was intended that the work of carpark attendants generally should be covered by the exemptions then the Court is of the view that this could have, and most likely, would have, been stated explicitly in the Statutory Instrument. The fact that it was not leads to the Court to the view that each case has to be examined on its own merits.
The Complainant in this case does not work in an automated carpark. Therefore, his work requires him, and his contract provides for him, to engage to a large extent in cashier duties. Indeed, the list of duties outlined by the Respondent at the hearing and set out in the Complainant’s contract include ‘patrolling’ as just one of a wide range of tasks.
There is no doubt that there is a very important security/caretaker element to the Complainant’s duties. That, however, on its own, is not a fact that renders the Respondent to be exempt automatically from the requirements of s.12. To be so exempt, an employee must be engaged, as per s.3(2)(a)(i) of the S. I. set out above, ‘wholly or mainly’ in the exempted activity.
Security and caretaking functions are listed in Schedule 2 of the S. I. as being exempted activities but that is subject to the requirements of s. 3(2)(a)(i) of the S. I.
It is not argued that the Complainant is engaged ‘wholly’ in these activities. The question for the Court is whether his work is ‘mainly’ to engage in these activities.
The Court applies to the word ‘mainly’ the normal meaning of the word being ‘chiefly’ or ‘principally’ or ‘for the most part’. At the very least, to meet the definition requires that these activities constitute more than 50% of the work concerned. The burden of establishing that this is the case falls to the employer. If an employer cannot establish that an employee’s work consists of more than 50% of an exempted activity then, logically, the employee is entitled to the protections of the Act.
In the instant case, the Court is of the view that no case has been established that more than 50% of the Complainant’s work is of a security and/or caretaking nature. Therefore, the Complainant cannot be deprived of his rights under the Act.
The Court determines that the Complainant should be facilitated with his rights under the Act with effect from the date of this finding.
The Court overturns the decision of the Adjudication Officer.
Signed on behalf of the Labour Court
August 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.