Complainant

Respondent

Parties

John  O'Connor

Kerry Creameries Ltd

Representatives

Mr Paul Maier BL instructed by Kirwan McKeown James LLP Solicitors

Mr Ray Ryan BL instructed by Mason Hayes and Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054303-001

19/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-002

19/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-003

19/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-004

19/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054303-005

19/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-006

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-007

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00054303-008

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-009

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-010

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00054303-011

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-012

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-013

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054303-014

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054303-015

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054303-016

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00054303-017

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00054303-018

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00054303-019

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054303-020

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054303-021

10/08/2023

The complainant and bulk tank driver, John OConnor submitted twenty-one complaints to the WRC across two dates of 19 December 2022 and 10 August 2023 through his Solicitors.

His case has run side by side with his colleagues Donie foley and Séamus Cronin.

I have taken some time to seek to reflect the correct context and background in this case back to the parties.

It is a complex case, yet I found Mr. OConnors account of what happened here to be very interesting. 

I received a primary written submission from the Complainant dated February 2024 which was supplemented in October 2024 and February 2025

I am not satisfied that my repeated request for particualrised submissions of the complaints have been met.

All three conjoined complainants responded differently to the topic of working hours, whilst employed. Mr. OConnor described a late dawning of awareness that something was wrong but equally expressed some unease on the haulier/ driver interface at the business.

The Parties accepted that the evidence added by Mr. Oconnell, General Manager and Ms. Fiona O Carroll, Human Resources applied in the global sense to all three complainants. I explained that I needed as much precision as possible and recalled Mr. Dillane in his capacity as Director of Transport.

 I will now list the key headings of the precursors.

The legal title was altered on consent.

The Complainant was employed as a Milk bulk tank driver for the Kerry Group. Both sets of complaints were directed towards the Kerry Group PLC/ Kerry Co -op on the complaint forms.

 “As the clearest and most appropriate respondent entity against a backdrop of 37 Irish subsidiary companies”.

 The Respondent took issue from early on that the respondent correct legal entity was incorrectly pleaded by the complainant side. They relied on LCR  22429, an IR Dispute raised by the identical grouping of bulk tank drivers in 2021 where Kerry Creameries Ltd was the agreed employer before the Labour Court.

An impasse followed, where I proposed to open the issue as a Preliminary Issue at hearing and offered legal authorities to guide the parties following the case management of July 2024.

I requested the parties to collaborate to seek to resolve the impasse.

The Kerry Group Financial Controller issued a helpful clarification which permitted the parties to move forward in the necessary direction of the hearing.

 The legal entity was later amended on consent across all complaints in all three complainants’ cases to

 Kerry Creameries Ltd.

The Complainant has clarified that he is a shareholder in the Kerry Group.

Concurrent Cases 

There are twenty-one live complaints for decision and a further two bundles of complaints spread over ADJ 46667, 49937 and 50364 for Mr. O Connor.

Counsel for the complainant has referred to refreshed complaints from October 2023.  This reference was built on a stand-alone letter which did not enter into the Centralised complaint validation process and was never assigned CA-numbers.

During my work with the Parties, in light of the fragmented lodging of complaints, Counsel for the Respondent had requested certainty surrounding the amalgam of complaints for hearing.

I endeavored to work with the parties on this plan and invitations to hear were issued based on the live complaints on each of the Decision documents in this group.

The Complainant came to hear as a trio with his long-term colleagues:

Mr. Donie foley  

Mr. Seamus Cronin

The grouping had originally hosted five complainants.

 On 3 April 2024, the Complainants Solicitors confirmed that following private mediation, two of the five complainants had settled their cases before the WRC. These cases were then closed.

Sadly, two former colleagues, not participant in the WRC process, but participant in the Driver section have passed away. RIP.

It is important for me to capture at an early stage that these three cases are presented as complex cases at WRC. Not alone did Mr. OConnor have extensive tenure at the business which ended earlier than he had planned, but the framework adopted for conflict resolution involved union   representation, which ran in parallel with legal representation for some time at the workplace.

The Union appears to have ceased their involvement following an impasse in Spring 2024 and before the cases came to Adjudication hearing.

The cases at both WRC Adjudication and WRC Inspectorate were led by the Complainants Solicitors and witnesses were not invited from the Union.

Mr. OConnor employment ended through redundancy of the entire seven directly employed fleet of milk tank drivers in December 2023. He has found some new work.

The Redundancy package on offer carried a dual statutory and non-statutory element.

The Union managed this process for Mr. OConnor et al.

 Historical Industrial Relations Context and Background to the case.

The Complainant confirmed that he had worked closely with a Shop Steward, Mt Fitzgerald, as he tried to unravel working time at the business.

I did not have the benefit of having any witness’ attendant from the Union in this case, but it is undisputed that a historical Collective Agreement governed the employment. Mr. OConnor expressed a latter interest in   these documents following his realization that things had changed in the business.

One of several antecedent events in these cases centers on an Industrial Relations claim advanced by the Union, on behalf of 7 Bulk tank drivers at Kerry Creameries led to the Labour Court in June 2021. LCR 22429.

At that time, it was apparent that the Union claimed:

1. a composite pay rate, inclusive of basic, gallonage and sampling pay so as to launch payment to the defined contribution pension for the seven claimants.

 The Labour Court did not recommend concessions to this claim.

2. 8.5% Pay increase to mirror the company pay agreement.

     5 days annual leave in respect of a 48-hr. week over 52 weeks

The Labour Court recommended further engagement and an avenue for return to the WRC.

3 Preferential Health Insurance contributions

The Labour Court did not concede this claim and went on to distinguish the claimants from salaried staff and categorized them as

“Hourly workers on annualised contracts “

It is that categorisation that appears to have prompted a significant negative reaction from Mr. Foley and his colleagues.

“The Court notes that the parties indicated their willingness at hearing to engage further regarding the claims for pay increases and annual leave. The Court recommends that if these further discussions do not result in agreement by end September, the parties, should at that point, avail of the assistance of the WRC. The parties may, of course, be avail of this assistance at any time in the meantime if there is agreement on the need to do so.

The Court notes the disagreement between the parties as to whether the workers concerned are salaried or hourly staff has given rise to conflicting expectations for both parties. The Court believes that it is clear that the workers concerned are hourly-paid staff who are engaged on annualised hours contracts. Such arrangements do not make them salaried staff, and their terms and conditions reflect that accordingly.

The court does not recommend concessions of the healthcare package sought by the Union.

The claim for the incorporation of two allowances into basic remuneration has significant potential knock-on implications in respect of the Company pension arrangements, including considerable potential extra cost to the Employer, Therefore the Court does not recommend concession of the claim. “

Representation:

The Complainants were represented by their Union, SIPTU, during their workplace issues, the weeklong protest in Tralee in January 2024 and the follow up WRC Conciliation hearing in the first quarter of 2024.

The employments rights issues have been represented from December 2022 by Kirwan Mc Keown James LLP Solicitors, Ms. Ann Marie James, who instructed:

1 Ms. Joy Tendy Kangere BL

2 Ms. Clare Bruton BL

And latterly

3 Mr. Paul Maier BL

For the complainants.

The Respondent has been represented by Mason, Hayes and Curran Solicitors, Mr. Ger Connolly who instructed Ray Ryan BL.

I am grateful to the parties for the preparatory work invested in these cases.

I am also grateful to the witnesses:

Complainants: Michael Walshe (affirmation) Respondent: James O Connell (affirmation)

                      Declan O Brien (affirmation) Eugene Dillane (oath)

                                                                                                            Fiona O Carroll

WRC Inspectorate Parallel complaint

On 19 December 2022, Mr. OConnor also made a complaint to the WRC Inspectorate.

The Complainant had an expectation that the outcome of this complaint would assist him in his concurrent suite of complaints before adjudication and was surprised when he was not participant in the onsite discussions in November 2023.

The Complainants tended to copy Adjudication Services in correspondence material to the WRC Inspectorate, and this became a contentious issue for me, which I requested the complainant side cease, with limited success.

I had explained to the parties that I did not have any role in the WRC Inspection as

“Chinese walls ““separated both entities within the WRC.

 In the run up to the first scheduled hearing, the complainants’ representatives repeatedly raised that they had been unable to obtain a WRC Inspection report from the source which they described:

“As crucial to providing clarity on our clients complaints.”

They attributed this as a cause of a genuine delay in providing written submissions for the suite of complaints before Adjudication.

A peripheral summary incorporated in the dossier placed the main issue as the complainant being denied rest and breaks not being recorded.

Correspondence of June 6, 2024, from the complainants’ solicitors referred to four pieces of legislation in the complaint made to the WRC Inspectorate.

On 25 September 2024, the WRC Inspectorate refused to release the requested report and outlined an alternative avenue for the complainants in sourcing this report through Section 41(10) of the Workplace Relations Act, Act, through WRC Adjudication. Another impasse followed.

 On October 3, 2024, the Complainants, by means of requested submission declared that the administrative decision which resulted in a refusal to grant access to the Investigation report.

 “May constitute an administrative decision which is incorrect in law “

The Complainants’ representatives submitted an FOI request in response to the vacuum of information surrounding the WRC Inspection report.

The Complainants went on to seek the report from the respondent who refused. They followed by seeking an order from the Adjudicator which would compel the WRC Inspectorate to release this report.

On 17 December 2024, the Respondent confirmed that the Kerry Group plc was subject to a broad inspection for compliance with employment legislation for the 6,000 workforces. They did not know that this had been initiated by the complainant. The Respondent highlighted that as the Road Safety Authority was the inspection body for tachographs the WRC Inspectorate

“Has no function in this regard “

The Respondent had received a contravention notice, but as it related to an inspection not specifically linked to the complainant, they refused release. The Respondent has already released working time records to the complainant.

The Complainant had indicated that they were seeking an inspection report, not in possession of the respondent and were in pursuance of the report, but not the Inspector.

On 29 January 2025, I compelled sight of documents linked to the WRC Inspectorate process of the same date as the complaints lodged with Adjudication. The complaint referenced records maintained under the Organisation of Working Time Act, 1997 against Kerry Group Services.

I had expressed my severe misgivings about entering the protected ground of another WRC entities investigative process during case management. I had also asked the complainants what exactly informed the WRC Inspectorate complaint of 19 December 2022 to review for duplication in my live complaints. I was troubled that the complainants’ representatives were unable to answer that question.

I have detailed an extract of the order where I sought the records of this process.

I have therefore decided that you are in possession of information that is relevant to myinvestigation and hereby notify you that, in accordance with my powers under section 41 (10) of the Workplace Relation Act 2015, that you are required to send me: The requests for Inspection by the WRC, August 2023. The WRC Inspection Report. A contravention notice of January 8, 2024. in relation to these matters, please forward to PRU@Workplacerelations.ie citing ADJ 46667 as the lead case, by close of business today, January 29, 2025. Please also note section 29 of the Act in relation to inspection reports. Once I have reviewed this, I will decide if it is necessary for you to attend the Workplace Relations Commission, Elysian Building, Cork on 4 February 2025 for that purpose.

I saw no need to compel the attendance of Mr. Adrian OKeeffe, WRC Inspector, in light of the duplication of complaints.

It seemed to me that the request made by the complainant dated 19 December 2022 prompted a site wide inspection broader than the foundation complaint under OWT alone. This is what has confused the Complainant side.

Agreement that Decisions in all three named cases of Donie Foley, John OConnor and Seamus Cronin would issue concurrently:

At July 2024 Case Management, the Respondents proposed, and the Complainant agreed that all decisions for the trio of complainants should be issued on the same day. I agreed to facilitate that consensus.

As the case progressed, it became clear that the Complainant had confined his termination package to a statutory redundancy and minimum notice, leaving an ex-gratia redundancy untapped and parked. While I did not have an IR case in this bundle, I inquired on a number of occasions if the parties wished to seek to resolve these matters informally? I am grateful to the principals for each party who took time and endeavored to resolve matters, however, efforts were unsuccessful. I am mindful of the last day of hearing which corresponded with a final attempt to resolve matters based on the respondent declaration of a noted “strength of feeling “on the complainant side.

It was Mr. OConnor who was most direct at hearing when he asked me to bolster up the redundancy offered. I explained that we were now in the employment rights arena and his request was an IR claim.

He also thanked me for hearing what happened to him and his colleagues at the respondent business.

 I now press on to Decision in each complaint.

Prior to the 4th day of this joint hearing, the Respondent made a declaration on the average of hours worked for Mr. OConnor.

I also requested details of loss and mitigation.

The Press attended the fourth day of the hearing. Two Transition year students attended the first three days of hearing in February 2025.

The Complainant commenced work as a Milk tank driver in or around 7 or 15 March 1991, firstly as a relief driver and latterly as a full-time driver assigned to his own geographical area in north Kerry. He worked full time to the date of his termination on 31 December 2023. He was paid weekly.

The Complainant that he earned a salary of €662.00 nett for a 64-hour week, the latter was disputed by the Respondent.

Summary of written submissions

The complainant was one of seven directly employed homogeneous milk truck drivers who collected raw milk from farms throughout Munster and delivering it to creameries in Cork and Kerry.

Counsel submitted that the documentary detail of Mr O Connors employment lay in the collective agreements from which a frustration had arisen on whether they captured the actual work undertaken in milk collection. Much was made of the significant impact that lack of recognition of stationary time / travel time had on Mr O Connors life.

WTA/06/02 Kerry Agribusiness and SIPTU, June 2006

Mr O Connors case is built on complaints under terms and conditions of employment, pay, hours of work and ultimately his dismissal. The complaints were repeated in part across 10 August 2023 and 26 October 2023.

Counsel for the Complainant contended that.

 “The impact the lack of terms had on the complainant knowledge and ability to pursue their statutory entitlements as raised in these complaints for the entirety of their employment relationship with the respondent and the statutory limitations on such claims as they are presently constituted “

The Complainant sought compensation for an absence of notification of a change in particulars of employment from 2018.

This warranted maximum compensation as “just and equitable “via the application of the Von Coulson principles of dissuasion, proportionality, and effectiveness.

Mr Maier BL sought a statement of core terms of employment.

Counsel also sought a determination on whether the Mobile Road Transport Activities Regulations 2012 SI 36/2012 applied to the Complainants work activities, in the event of a positive outcome, a maximum payment of up to 104 weeks wages ““as compensation for each of the six complaints made. He submitted that in the event that SI 36/2012 did not apply, consideration should be given to claims made under the Organisation of Working Time Act, 1997, in the alternative.

The Complainant also sought an order for recognition of work done during “stationary “time. Dellas C-14/04 [2005] ECR 1-10253.

The Complainant accepted that a collective agreement was in train during the employment, a reference period of 12 month applied to the averaging process of the formula of (A+B divided by C)

Opening Statement of Counsel.

In introducing this case, Mr Maier outlined the role held by the complainant. He submitted that the combination of driving and associated work was far in excess of that permitted in law. These excesses have now crystallised into wages which are properly payable “for Mr OConnor.

Mr O Connor was the sole complainant who had been issued a contract of employment following his request for terms in December 2008.

 However, it was not compliant with the Terms of Employment (Information) Act 1994. The Complainant was unable to avail of breaks or weekly rest. This also impeded his being paid for the hours he actually worked. He was owed a considerable number of wages as “properly payable “

Records of time worked were secured via a parked trucks tachograph. Therefore, the categorisation of rest time was a live issue as he regularly exceeded the annualised hours detailed in the collective agreement.

Mr Maier maintained that the mobile regulations 36/2012 applied to the Drivers in the case and they were not exempted by the 1997 Act. He was mindful that he could not recoup compensation on the double in respect of OWT and the Regulations.

Mr Maier respected the Collective Agreement on hours and the periodic rates of pay increases managed by SIPTU. However, these had not been revised since 2006.

In the aftermath of the hearing, I received a copy of the contract relied on by the parties. It was drafted in a similar font to the staff handbook but was unsigned or dated by either party.

However, I found cross reference to

1 mandatory overtime without a pay structure

2 Collective Agreements as the nexus and reference point throughout

3 Comprehensive disputes resolution mechanisms

In response to Mr Ryan, Mr Maier contended that Mr OConnor had experienced multiple violations of working time laws and regulations in addition to having received a fragmented and selective contract of employment.

Three Preliminary Issues

1.       Application to compel the attendance of WRC Inspector, Adrian O’ Keeffe for greater background surrounding the circumstances of the dismissal of Mr Foley.

2.       Seek to compel digital tachograph records print out to assist in the 12-month average calculation.

3.       Admission of a 4 mins You tube video featuring a demonstration of milk collection and steps taken.

CA-00054303-001    Payment of Wages received 19 December 2022

On 19 December 2022, the Complainant submitted the complaint as set out below.

The complainant made a claim to his employers for overtime payments and compensation, for having to work over and above their contracted hours for many years. The complainant is currently working a 2002 agreement, and their working hours are governed by a collective agreement (WTA/06/2) which is 48 hours averaged over 12 months. A Labour Court Recommendation No. LCR22429 stated that we were hourly paid staff. I have worked over and above my contracted hours and I am working during these periods when pumping milk and unloading milk on premises. I am seeking payment for those hours and payment during periods which the company classify as breaks, but where I am working. I have not received a statement of my average hourly rate of pay and its breakdown.

The Complainant was asked to populate further information on 15 February 2024

CA-00054303-001

• Please state the date you should have received payment.
• Please state the monetary value of wages / pay not received.

CA-00054303-004

• Please state how many consecutive hours you work.

On 25 March 2023, the Complainants Solicitors clarified the claim:

CA-00054303-001 The complaint should have received payment in the sum of €17,653.43 which is due from the 15th of June 2022 to the 15th of December 2022. CA-00054303-004 The compliant undertakes an average of 64 hours of work per week.

CA-00054303-001 Payment of Wages Act 1991

 The complaint should have received payment in the sum of €17,653.43 which is due from the 15th of June 2022 to the 15th of December 2022

The Complainant made written submission in October 2024 that he should be paid for the excess hours worked outside the collective agreement. He contended that LCR22429 had cast him as an hourly paid staff engaged on an annualised hours contract and excess hours were properly payable to him in accordance with Section 5(6) of the Act.

He submitted an Accountants report which estimated a total of unpaid wages 2017-2023 as

€ 280, 230

Broken down as

€247,163 in unpaid wages 

€9,884   additional holiday pay

€23,183 in pay proposed but never enacted June 2019 to 31 December 2023

€ 16,011 in compound interest.

The Complainant sought compensation at twice the loss.

CA-00054303-002 Sunday Working

When I work Sundays, I do not receive additional compensation.

The Complainant submitted that he was not receiving compensation for working Sundays in accordance with Section 14 of the Organisation of Working Time Act 1997.

CA-00054303-003 Maximum Hours Section 15 Organisation of Working Time Act 1997

I work excessive hours, and my working time is not correctly recorded

The Complainant submitted that he worked excessive hours, and his working time was not correctly recorded. He sought adjudication under section 27 of the Organisation of Working Time Act 1997.

The Complainant outlined that he had “called a halt “to excessive working when he sought a review in late 2021. He was disappointed that these hours were not recognised by the company

The Complainant outlined that the Respondent was in breach of this obligation from 19 June to 19 December 2022.

The complainant exhibited

By supplementary submission, the complainant submitted that Mr OConnor  is permitted as a matter of law to pursue his complaints under 2012 Regulations and Organisation of Working time Act 1997 simultaneously.

The Respondent has not demonstrated compliance with the averaging of 48 hrs over the 1-year reference period set down in the collective Agreement.

Counsel for the Respondent later  acknowledged that the complainants’ average hours was calculated at 58.46hrs based on the 12-month reference.

CA-00054303-004 Breaks Daily

I do not receive daily breaks and there is inadequate time for breaks during time when I am off loading milk at factories (and working)

On 19 December 2022, the complainant submitted that he did not receive breaks in his employment.

The cognisable period for this claim is 20 June 2022 to 19 December 2022.

The Complainant gave evidence on his not being able to access full breaks during his work as he was not provided adequate time.

 I do not receive daily breaks and there is inadequate time for breaks during time when I am offloading milk at factories (and working) (the complaint)

CA-00054303-005 Written Statement

I have not received a written statement of my terms of employment.

Counsel confirmed that the complainant had received a type of contract when he requested terms, However, he highlighted that it was incomplete, not reflective of the obligatory terms required by the Act and the detrimental effect the omission had on Mr OConnor. This hampered his capacity “to pursue statutory entitlements ““much earlier. Mr Maier pointed to a higher contravention of EU Directive 91/533/ EEC and sought the Von Colson principles in remedy.

He emphasised the scale of the employment and argued that detail from the collective agreements was insufficient.

CA-00054303—006     Daily rest period

 The Complainant submitted that he was not receiving compensation for working Sundays in accordance with Section 11 of the Organisation of Working Time Act 1997.

He did not have the benefit of a contract of employment to cross match reference. He submitted that he had not been provided with a staff handbook. He could not agree that Sundays were composite within the collective agreements.

CA-00054303-007     Breaks Organisation of Working Time Act 1997

On 10 August 2023, the complainant submitted that he did not receive breaks in his employment in accordance with Section 12 of the Act.

He denied receiving adequate rest time to compensate.

The cognisable period for this claim is 11 February -10 August 2023.

The Complainant gave evidence on his not being able to access breaks during his work as he was not provided adequate time.

He confirmed that he could access a break at the factory but was limited otherwise due to work demands

He was aware of the historical context of the collective Agreement registered at the Labour Court in 2006.

CA-00054303-008 Breaks SI 36/2012 Regulations

The Complainant that he had not received breaks as provided for in SI 36/2012.

Counsel for the complainant augmented his October 2024 on applicability of the Mobile Road Transport Regulations 36/ 2012.

He outlined that if EC 521/2006, the Regulation, applied to the Complainant activities, the Mobile Road Transport Regulations of 2012 must also apply.

Counsel drew a distinction from the Respondent argument on whether the Complainant was encompassed within the provisions of Article 2.

 He emphasised that the “Complainants vehicles unquestionably fulfilled the criteria in Article 2(1) (a) were.

“…. Each member state may grant exceptions from Articles 5 to 9” of the 2006 Regulations.

Instead, the complainant is seeking to invoke his rights under the 2012 Regulations which are separate to the rights set out in Articles 5-9 of the 2006 Regulations.

The 2006 Regulations apply to the complainants work and the Adjudicator holds the jurisdiction to proceed.

CA-000543043-009   Weekly rest period. Organisation of Working Time Act

The Complainant submitted that he was not receiving a weekly rest period in accordance with Section 13 of the Organisation of Working Time Act 1997.

The Complainant argued that the Collective Agreement did not permit a deviation from Section 13 a weekly rest period of 37 hours every 7 days. No compensatory rest arrangements prevailed.

Counsel also raised some doubt on the integrity of the documentation on “pumping time “and contended that it did not meet the objective outlined by Mr Pender in Appendix 2.

It was that lack of adherence to the Section 24 Agreement that should ground just and equitable compensation for contravention of the Act.

CA-00054303-010 Maximum number of hours Cognisable period 11 February 2023 to 10 August 2023

The Complainant submitted that he worked excessive hours, and his working time was not recorded correctly by his employer in accordance with Section 15 of the Organisation of Working Time Act 1997.

The Complainant outlined that the Respondent was in breach of this obligation from 11 February -10 August 2023

The complainant exhibited handwritten extract from the tacho records. He also exhibited his safety daily checklist for his assigned truck

The Respondent has not demonstrated compliance with the averaging of 48 hrs over the 1-year reference period set down in the collective Agreement.

Counsel for the Respondent later  acknowledged that the complainants’ average hours was calculated at 59.3 hrs based on the 12-month reference.

CA-00054303- 011   working more than maximum number of hours SI.36/2012.

Counsel sought consideration of this claim under the Regs where the complainant contended that his yearly average greatly exceeded the 48 hrs permitted under the Collective Agreement registered at the Labour Court.

He argued that there was no consensus on the prevailing statutory regime on measurement of time at this employment, which necessitated a dual approach under the Act and the Regs.

CA-00054303-012 Annual leave

The Complainant has submitted that he has not received his annual leave entitlement.

CA-00054303-13 public holidays

The Complainant did not receive the benefit of public holidays.

CA-00054303-14 Notification in advance of additional hours. Organisation of Working Time Act

The Complainant submitted that he had not been notified in advance of any additional hours.

CA-00054303-15 statement in writing.

Counsel submitted this as a refreshed complaint from CA-00054304-002 with a revised cognisable period.

CA-00054303-16 not notified of a change to terms of employment.

The complainant was not notified of changes in his terms of employment in contravention of Section 5 of the Act.

1 in 2018, the provision of a new tanker in 2018 meant that attendances working life altered to enhanced standby time and resulted in additional attendance, none of which was notified in writing.

2 These changes were perpetual and continuous throughout the cognisable period and worthy of the maximum remedy of compensation permitted.

CA-00054303-017 statutory employment records SI 36/2012 Regulations

The Complainant contended that the Respondent was not keeping statutory employment records in accordance with SI/36/2012

CA-00054303-18   no notification of working hours regulations SWI 36/2012

The Complainant submitted that he was denied notification of working hours Regulations applying to the road transport sector.

CA-00054303-19 Provision of records SI 36/2012

The Complainant submitted that his employer did not provide records of his journeys.

CA-00054303-20 Statement of core terms of employment

Counsel outlined that the complainant had not received a written statement of core terms of employment contrary to Section 3(1)(a) of the Act, as amended.

CA-00054303-21 Statement of core terms which deliberately contained false or misleading information.

Counsel outlined that the only documentation Mr OConnor received on core terms arose from the collective agreements. A contract /template was exhibited post hearing and did not generate further comment.

I did not receive any comment on the exhibition of the 2009 Drivers handbook.

The Complainant argued that those provisions derived from the Collective Agreements and directed to the complainant were in turn “false and misleading ““amounting to a contravention of Section 3((1) A of the Act throughout.

He drew my attention from the separate and distinct provisions of section 3(1) already decided.

Mr Maier argued that the complainant had been put to unnecessary legal costs in seeking his entitlements and sought maximum compensation.

Evidence of the Complainant:

Mr O Connor commenced work with the Respondent on 7 March 1991. Prior to this, he held a variety of jobs, including Mechanical Engineering, but came to work with the Kerry Group as wages were higher than where he was.

He acknowledged that he held a timecard but was “was never told anything “. He received pay for over time worked. He submitted that his pay stayed unaltered for 15 years.

The recalled that “getting milk in as soon as possible “was the overarching goal in an area of high activity.

He recalled a Rationalisation in 1992.

He undertook relief cover for six drivers and accepted direction from the Transport Manager.

Smaller creameries closed. He secured a full time Drivers role in 2000. He recalled sporadic pay rises 2001-2002 and acknowledged that he trusted the Union.

Further Rationalisation occurred around 2005, where Drivers departed the business. Hauliers came on the pitch and “they got the bigger farms “and had a head start, whereas the directly employed drivers got smaller farms and fell behind. Additional hours began to creep up.

High speed pumps were introduced and tankers changed to a larger capacity for gallonage, up to 6,000.

By 2022/2023, he was starting work at 5.30 -6am and finishing between 7.00 to 8 pm as he covered his Listowel area. Sometimes he was diverted from Listowel at beginning or end of day. He submitted that he worked a 73-hr week or at least 10–11-hour days.

Mr O Connor submitted that 15-minute walk about and 1.5 hrs standby was not included in the company calculations on time.

He recalled that Donie Foley had raised the issue of breaks during 2023, but it remained unresolved.

Mr O Connor submitted “I had a quick break if I was in the factory “It was fast.” Some farmers milked earlier, and canteen staff did their best to facilitate but the tanker activity was constant and did not allow for rest during the day. Eddie Fitzgerald had told him about the legal requirement for breaks, and he always took 2x15 minutes when he was in the factory.

He was off work for 6 weeks in 2022.

He received flat pay for Sundays, 30 in Collective Agreement.

Mr O Connor confirmed that he had been paid for his annual leave. He worked public holidays on direction of Mr Dineen, Area Manager and received leave.

Mr O Connor submitted that the excessive hours in driving had greatly affected his life, and he had to forfeit opportunities to tend to his own farm. He feared for his health and struggled with the increased responsibility the job asked of him.

Mr O Connor reflected on the level of cooperation which existed between the Transport Manager and him.

If he were requested to go to a different dept, he was assured that it could be a once off by agreement. He was troubled as he observed other workers going home earlier when he was compelled to hang around for two-thirds additional hours past 4pm regularly.

He was not notified of these additional hours when he started work.

The Complainant framed the context of his protected disclosure as 20 October 2022 when he raised the issue of working hours with the General Manager and when he had made the complaint to the WRC Inspectorate.

“This was the first time an Inspector had been brought in to go over the record of hours which would be damaging to the company.”

Mr O Connor recalled the end of November 2023 when he learned that his employment was to be made redundant and his job was gone. He did not accept the redundancy.

“They said that they were outsourcing all the milk to existing hauliers “

He did not pick up his letter of notification as he wanted to see what the figures for redundancy amounted to.

Solicitors took over the case.

He was offered €222,000 but lost out on €20,000 in pension for 2023 and €12,000 potential in lunch money. He received 8-week notice pay.

Mr OConnor gave evidence of finding some new work in September 2024 and described how his confidence was affected by the dismissal.

Mr O Connor submitted there were issues regarding seniority between drivers and hauliers.

He recalled that fifty drivers had departed in 1992, 6 in 2008 and 9 in 2009, when he, himself had successfully fought a threatened redundancy.

He said he was the last driver hired in direct employment at the respondent.

In redirect, the complainant expanded on the interface between driver and haulier. He needed his job to support his own business. His route was taken over by a haulier on hourly pay.

He looked back at the optimal working of having a truck and driver in each area and described it was a dream arrangement. He did not have cause to make complaints on working time before 2022. His tacho was out of date 24 to 28 October 2022

During cross examination,

Mr O Connor confirmed his absence from the business April/ May 2022, occurred against his wishes and where he felt he did not get the help he needed. He was stressed.

He submitted the Respondent was a “great Company “and he had bought shares to have a say. There was no trail of a raised share holder concern on any of the matters before me.

He submitted a discord existed with his transport manager and indicated that he was the reason he arrived at the WRC. I did not establish a live grievance in that regard.

He accepted that he had not received payment for over time since 1992. He had not been directly involved in the negotiations which led to the Collective Agreements, but in recent years as things changed, he had woken up and began studying them. He accepted that he did not have a claim for annual leave as this was covered by a haulier.

He maintained that he had seen rationalisation programmes in the past but disputed the commercial imperative relied on by the respondent. He countered that he was the man on the ground, every load was full, and he travelled further out than any hauliers and was more competitive than that model.

When questioned on the absence of a connection between the complaints made to WRC Inspectorate and redundancy, Mr O Connor replied that the process involving the Inspectorate endured and other employees were interviewed, while they were still employed. He had hoped for earlier feedback.

He countered that he offers of redundancy was not conclusive and was insufficient in the modern age. He was not interested in redundancy. He denied that the respondent offered continued employment. The waiver in full and final settlement was not acceptable.

He re-affirmed that the internal staff relations problems reflected co workers with longer service claiming seniority.

He had recorded breaks under protest from 2022and ceased in 2023. When Mr Ryan questioned him if it was his evidence that he did not take breaks? The complainant answered, “you had to go to tachograph to get breaks, and I never touched the tachograph” He confirmed that he had set the spare truck on the wrong mode in error.

He confirmed that he knew he was tachograph exempt but did not know organisation of working time act. It was not mentioned at CPC.

He disputed that his records “my figures “were wrong.

He disagreed with Mr Ryan on mitigation of loss as argued that he had bought his farm in 2013, 90 acres and had obligations there.

In clarifications, Mr OConnor confirmed his shareholder status. He said that he was paid a day in lieu when he worked on a bank holiday.

He had no knowledge of who else was made redundant in December 2023.

His work started 2-3 minutes from home and there was a 30-home journey. He did not work anywhere else. He directed the 6am start time himself, which was agreed with the Transport Manager. He was his own boss.

He did not benefit from any incentive for taking on the tachograph and denied getting any time in lieu.

He clarified that he had not been given alternatives to redundancy in factory stores or fertiliser area. He said it quiet at the meeting, but those options would not have suited him anyway He added that he had thought out some counter proposals but did not articulate them. He did not revert to the General Manager.

He confirmed that he was holding out for figures to justify redundancy but “they never came “He disputed the redundancy was genuine.

Mr OConnor asked if I could “Bolster up the Redundancy “? as that is what he wants. I explained that was an IR domain.

He was unable to quantify the quantum claimed in payment of wages claim. He confirmed that Pay Agreements had populated his tenure, but there was always a long lead into retrospection.

Evidence of Mr Declan O’Brien, Chartered Accountant by affirmation:

The Complainant submitted financial reports dated 9 and 15 October 2024 in preparation for hearing.

Cumulative sought €280,230 in total amount underpaid for Mr O Connor prior to compound interest.

In light of the disparity claimed in the statutory claims and this report, I Asked if Mr O Brien was available to the hearing to shed some light on his calculations. This is a summary of his evidence.

Mr O, Brien gave a cogent account of the brief he accepted to compile a report 2017-2023 of under payment of wages, holiday pay on an hourly rate of €21.75, nominated by the complainant. He utilised pay slips.

He calculated a projected loss over this period on

1 under paid wages

2 additional holiday pay

3 pay increase not realised by complainant.

He also calculated the weekly pay for the claims for unfair dismissal for Mr O Connor inclusive of lunch, gallonage and sampling allowance.

During cross examination, Mr Ryan directed a series of short questions where compound interest was deemed incapable of being linked to statutory clams live at WRC but was attributed to the strong contention of the complainant.

He clarified that overtime was a matrix of double time.

I asked for a clarification if the accountant had been provided with the parameters of the legislative framework in these complaints and the range of remedies. Mr O Brien submitted that he was not aware outside of the claims made under Unfair Dismissals Act and that compound interest was a habitual addition in his normal work.

I thanked Mr O’Brien for making himself available at short notice to the hearing

In closing,

Mr Maier outlined that the Complainant had sought re-instatement has had a significant impact on him and “It is who he is “.

He repeated the contraventions claimed, where the complainant was denied rest.

The Respondent had admitted to a breach of maximum hours. This was a safety provision, while not supported by medical certificate still amounted to causation of stress.

The Respondent accepted that no information had ben shared on S17 prior notification in accordance with Organisation of Working Time Act 1997.

He accepted that obligations under annual leave and public holidays had been discharged but was seeking an additional payment for the time worked in excess.

Collective Agreement was silent on Sunday working.

Mr OConnell confirmed that the Minister had not been notified of redundancies. Ms O Carroll had referred to thirty-eight redundancies.

The Complainant had stated that he would not have been able to adapt at the factory.

If Re-instatement was not possible then consider compensation on the evidence.

The Respondent in this case, Kerry Creameries ltd is a subsidiary of the Kerry Group PLC, a large Global Dairy Business. The Respondent has denied the claims made.

The Respondent came to hearing followed repeated contentions at Case Management and via the written submissions, that Mr O Connors statutory claims were not well founded.

Mr Ryan BL, Counsel for the Respondent opened by acknowledging Mr O Connors service.

This employment became subject to a Union/ Management Collective Agreement in September 2002 which was augmented by adjunct Agreement in 2005, approved by the Labour Court on 11 September 2006, WTA/06/2.

This covered annual hours, loading and unloading, gallonage, sampling and meal allowances.

He accepted that Mr OConnor was employed prior to the commencement of the Organisation of Working Time Act, 1997. However, Mr OConnor is to be easily recognised as a beneficiary of a

 “Carefully crafted written Collective Agreement “2002.

 which serves as a written instrument and fundamental starting point in the case.

The Respondent placed very considerable weight on the application of the terms of Agreements 2002-2005.

They also exhibited a contract of employment to Mr OConnor in 2009, unsigned.

He contended that the claims relating to SI 36/2012 were misconceived as they do not apply to milk collection drivers.

In addition, he argued that mobile workers are exempt from application of sections 11, 12, 13 and 16 of the Organisation of Working Time Act, 1997 (S.I 817/2004), mobile workers.

Mr Ryan argued that the terms of the collective agreement placed Mr OConnor outside the parameters of being able to satisfy the “properly payable “threshold required under the Payment

of Wages Act, 1991 as the Collective Agreement on annualised hours did not incorporate payment for overtime.

He endeavoured to place a context and background to the decision made to discontinue the fleet of directly employed bulk tank drivers in favour of outsourcing in December 2023. He told the hearing that a re-organisation of how the work was done was an option open to the respondent and the Redundancies that followed were made in that vein of commercial interest and did not amount to collective redundancies. The Redundancy was permitted as a defence to the claim for unfair dismissal through the application of Section 6(4) (3) of the Unfair Dismissals Act, 1977.

Mr Ryan outlined that the redundancies were prefaced by proper and transparent communications, which commenced in 2023, where the complainant was represented by his Union.

Mr OConnor had not mounted a challenge to his redundancy at the point or origin.

The Respondent disputed that the complainant had ever made a protected disclosure and there was no connectedness to a stated detriment from making such a disclosure.

Mr Ryan emphasised that Mr Oconnors claims were subject to a statutory limitation period / cognisable period of 6 months.

He went on the outline a distinguishing feature from that argued by the Complainant by directing the Adjudicator to the Road Safety Authority (RSA) which derogates Milk Collection Drivers from compilation of statutory records (Tachograph)

In addressing the claims made under Terms of employment, Mr Ryan contended that it was open to the complainant to request these details when the 1994 law was amended in 2018, but he did not do so.

It was the Respondent position that the complainant was offered an opportunity to work as a sub-contractor before his work was ended.

Eight Milk drivers departed the business, and the business model altered, where “there was now no way back “for the complainant.

Written submissions outlined a circumstance where Mr OConnor distanced himself from the break’s regime from 2023.

He had entered correspondence with the Respondent late 2021-March 2022 on the topic of his working hours. The figures presented by the complainant at hearing were not robust

 The Respondent was unable to secure his cooperation to restore the practice of recording working time.

Mr Ryan argued that claims now raised by Mr OConnor in something he absented himself from on purpose must be regarded as “disingenuous “and “artificial “.

Average hours 2022     58.46 / 48 hrs

                       2023    59.3 /48 hrs (statutory minimum rest applied)

Respondent response to the 3 Preliminary Issues

1 The Respondent was opposed to calling Mr O’ Keeffe under Section 40(10) of Workplace Relations Act, 2015, as once more it was “wholly undesirable “to muddy the “clear blue water “between WRC Inspectorate and Adjudication and not necessary for a fair Adjudicative process.

2 Digital records: hard copies in the agreed booklets.

3 The Respondent did not object to the You tube video but questioned relevance.

Payment of Wages CA-00054303-001

The Respondent has rejected the claim and relied on the 2002 Collective Agreement. This was supplemented in 2005, and both formed the basis of Mr OConnors working relationship with the company.

The Respondent rejected the accountants report on the matrices used to ground the claim, in particular, the double rate for overtime, when overtime Is not paid.

The Respondent denied any underpayment and directed a mandatory reading of the collective agreements which prevailed during Mr OConnors tenure of employment and a recognition of the cognisable period for the claim as 20 June 2022 to 19 December 2022.

CA-00054303-002 Compensation for Sunday working Cognisable period 20 June 2022 to 19 December 2022

The Respondent has disputed the claim and has relied on the Collective agreement which reflects Sunday work.

CA-00054303-003 Maximum permitted number of hours.

The Respondent accepts that employees who operate vehicles for milk collection must comply with section 15 of the Act .SI 817/2004

The Respondent had concluded a collective Agreement with SIPTU which permitted a 12-month statutory averaging period due to seasonal variations.

Loading and unloading not classified as working time. 72 minutes per load per day

The collective agreement was approved at the Labour Court on 13 September 2006

27 weeks x 66 hours – 2 loads 

10 weeks x 50 hours less two loads

9.6 weeks x 40 hrs less 57.6 less one loads.

The total annual average was pitched at 45.64 hrs over 12 months. Appendix 2 of the Collective Agreement.

I requested the parties provide the average hours over the reference period for Mr O Connor

2022 58.46 hrs

2023 59.3 hrs (68.88)

CA-00054304-004 Breaks

The Respondent has disputed the claim. They exhibited the Drivers handbook dated 2009.

“Breaks will be given in accordance with the Drivers Agreement and the Organisation of Working Time Collective Agreement “

The Respondent submitted that the complainant had received adequate rest during the cognisable period and throughout his employment.

Mobile workers are exempt from section 12 of the Act.

CA-00054303-005 Terms of Employment (Information) Act, 1994(written statement)

The Respondent has disputed the claim.

The Respondent outlined that the company issued statements of terms or contracts to its workforce, albeit this may have ranged back some 30 years ago. The Respondent is standing over the presiding force of the collective agreements in the complainant’s operational knowledge of pay and conditions from 2002. The Respondent had knowledge of the contract issued to Mr OConnor in 1991

The Respondent pointed to the commencement date of 16 May 1994 for the Terms of Employment (Information) Act 1994 as a date much later than the commencement date of Mr OConnor. This placed an onus on Mr OConnor to seek terms, if he wished in accordance with section 6, but he did not do so.

The Respondent was not legally obliged to provide written terms at the point of entry to employment in 1988-1992.

CA-00054303-006 Daily Rest Period

The Respondent has disputed the claim and argued that Mobile workers are exempt from Section 11 of the Act, provided adequate rest was provided.

The Respondent recalled the complainant ceasing recording his breaks in 2023 and was unable to prevail on him to comply.

CA-00054303-007 Breaks

The Respondent has disputed the claim submitted under Section 12. As a Mobile Worker SI 817 /2004 exempted the Complainant from the application of Section 12.

CA-00054303-008 Breaks SI 36/2012 Regulations

The Respondent has disputed the claim and deemed it misconceived on foot of “the 2012 Regulations do not apply to milk collection vehicle drivers “

In response to the complainant arguments, Council set out a chronology of the 2012 Regulations being adopted to implement Directive 2002/15/ EC.

Regulation 3 of 2012 Regulations apply to mobile workers and self-employed drivers to which Regulation EC 561/2006 or the EU Agreement concerning the work of crews of vehicles engaged in international road transport (AETR)

The AETR does not apply to the domestic based drivers in the instant case.

Article 13 (1) of the Regulations (2006) covers exemptions of certain vehicles in terms of Articles 5 to 9

Vehicles used for milk collection are exempt on daily driving time, daily rest breaks, daily and weekly rest periods as well as the need to have tachographs.

The Complainant is excluded from the rights provided for mobile workers under 2006 Regulations and cannot benefit from SI 36/ 2012 which implements the Regulation EC 561/:2006.

The Respondent exhibited an advisory circular from RSA which stated that vehicles used for milk collection are exempt from the EU rules on tachograph and drivers’ hours while present in the state.

CA-00054303-009 Weekly Rest Period

The Respondent disputed the claim. They contended that mobile workers are exempted from the application of section 13 through SI 817/2004.

The Complainant received adequate rest at all times in this cognisable period of February 11 to August 10, 2023.

CA-00054303-010 Maximum Number of Hours. Section 15 OWT

The Respondent accepts that employees who operate vehicles for milk collection must comply with section 15 of the Act but deny a contravention.

The Respondent had concluded a collective Agreement with SIPTU which permitted a 12-month statutory averaging period due to seasonal variations. This is referred to in the papers as Averaging period 12 months.

Loading and unloading was not classified as working time. 72 minutes per load per day

The collective agreement was approved at the Labour Court on 13 September 2006

27 weeks x 66 hours – 2 loads 

10 weeks x 50 hours less two loads

9.6 weeks x 40 hrs less 57.6 less one loads.

The total annual average was pitched at 41.41 hrs over 12 months. Appendix 2 of the Collective Agreement.

I requested the parties provide the average hours over a reference period for Mr OConnor

CA-00054303-011 Excess of Maximum Hours SI 36/2012

The Respondent has submitted that the 2012 Regulations do not apply to Milk Collection Vehicles. The Respondent operated a Collective Agreement on annualised hours.

CA-00054303-012 Annual leave

The Respondent disputed the claim.

2022 Mr OConnor availed of 25 days, carry over 13

2023 Mr O |Connor availed of 38 days holidays

The Respondent had no obligation on annual leave.

CA-00054303-13 public holidays

The Respondent disputed the claim.

The Respondent submitted that the Complainant received a paid day off on a public holiday and exhibited pay slips as collateral.

CA-00054303-14 Notification of any additional hours

The Respondent submitted that the Complainant was managed by a Transport Manager and hours allocated were drawn from this arrangement. They disputed any contravention.

CA-00054303-15 statement in writing.

The Respondent rejected the refreshed complaint of 10 August 2023 and argued there was no provision for this mechanism.

The Respondent rejected this claim outright and disputed the complainants’ presumptions on submitting refreshed complaints under the Act.

CA-00054303-16 not notified of a change to terms of employment.

The Respondent rejected the claim as a very “tenuous “allegation.

“The change in type of truck and the variation of hours worked due to seasonal variations cannot be said to amount to a change in terms and conditions of employment.”

CA-00054303-17 Employer not keeping statutory records Reg 12 SI 36/2012

The Respondent has disputed the claim and relied on the collective agreement on annualised hours. The Respondent has submitted that the 2012 Regulations do not apply to Milk Collection Vehicles.

CA-00054303-18 Not notified of working hours regulations.

The Respondent has disputed the claim and relied on the collective agreement on annualised hours. The Respondent has submitted that the 2012 Regulations do not apply to Milk Collection Vehicles.

The Respondent outlined that the Tachograph system operational at the business generated real time and audited records and these had been shared with the complainant, on demand.

CA-00054303-19 records SI 36/2012

The Respondent has disputed the claim and relied on the collective agreement on annualised hours. The Respondent has submitted that the 2012 Regulations do not apply to Milk Collection Vehicles.

The Respondent outlined that the Tachograph system operational at the business generated real time and audited records and these had been shared with the complainant, on demand.

CA-00054303-20 Statement of core terms of employment

The Respondent rejected the claim. Counsel outlined the historical practice of the provision of contracts and argued that the respondent was not liable to issue core terms to the complainant as his commencement date preceded the statutory commencement order.

The Respondent doubted that the complainant had ever sought terms as permitted under the Act as they contended that he would have been furnished with them.

The Respondent exhibited the driver specific handbook from 2009.

CA-00054303-21 Statement of core terms which deliberately contained false or misleading.

The Respondent has disputed the claim and pointed to the parameters of the complainant claim when they stated:

“.. the complainant cannot ride two horses and bring a claim to the effect that they did not receive a statement of terms and conditions of employment and also bring a claim to the effect that they received a statement that contained false or misleading information.”

The Respondent relied on the collective agreements as an accurate record of schedule of hours.

The Respondent concluded by submitting that there is no remedy available under Section 6(b) (2) of the Act as “a there is no distinct entitlement to employee compensation in relation to a breach of section 6 (B)(2).

Evidence of James OConnell. General Manager (Affirmation)

Mr OConnell is 1 of 5 Senior Managers and General Manager of the Agri business. He transitioned from the ground up to Head of Quality in 2017 to full time in the present role since January 2022.

Kerry Group employs 24,000 employees. However, the Company no longer employs drivers of milk collection. Historically, there were hundreds of staff drivers prior to the evolution of outsourcing from 2009.

The Company objective moved to a targeted 24/7 model from 2001, with flexibility provided by hauliers.

Costings were commenced in 2020, with flexibility for more contracted milk collection from March 2023. An earlier move in 2021 did not progress.

Monies to fund a redundancy were sanctioned from the Kerry Group.

On 16 August 2023, the company made the decision to outsource the milk collection service in full.

Mr OConnell was aware that Mr OConnor had made a protected disclosure, but termination of his employment was not linked to this.

On 26 October 2023, the news of redundancy for 20 people was shared with SIPTU, but the Union declined to attend a meeting.

On 3 November er 2023, the Union was notified at the Company office that following a review undertaken at the business, the model of milk driver was no longer viable at the business. This was a “commercial judgement” taken in the best interest of the company.

This kicked off the 30-day consultation for redundancy.

The Union wanted to know about allowances.

On 9 November 2023, Mr OConnell met with Mr O Connor and his colleagues.

I told them I would facilitate contractor’s roles post redundancy, outside of the redundancy process. I asked them to come to me directly within 7 days as routes were being carved out for tender and uptake “

The Union discussed the meal allowance.

Mr OConnell submitted that if Mr O Connor and his colleagues had expressed an interest in converting to contractors, he would have facilitated that, if not likely their own routes, but not far away.

He recalled announcing live company vacancies open to them in

Factories

Stores

Fertiliser / feed

In cross examination, Mr Maier explored the entity Kerry Agri Business as part of Kerry Agri business Trading ltd. He explained that Kerry Dairy Holding IRL sits on top of the legal entities.

Mr Twomey ex operations and transport manager was no longer with the business.

Mr Dillane as Transport Co Ordinator came to give evidence.

He was unaware of just how many employees were associated with Kerry Creameries ltd.

There were 4 pillars.

Mr OConnell reaffirmed that the decision to outsource the milk tank drivers evolved from 2001 and had been followed by various redundancies.

He decided the redundancies of 2023, which were not limited to drivers, but had a 2022 gestation.

He confirmed that the company had not presented a specific report to staff to justify redundancies. He simply read out the announcement and had not anticipated ending up at the WRC.

He denied this was a collective redundancy. It cost 1million euro.

Mr OConnell described the model of 24/7 deliver and collect milk via haulage contractors / owner derivers or sole traders through Service Level Agreement. The Company owns 60 tankers and routes are now optimised and efficient.

He knew that Mr O Connor was refusing to record breaks but had not discussed this with him. He did not accept the pattern relied on by the complainant as “he could take his breaks when and where he wanted “He was not limited to farm or factory. The tachograph provided a log on, log off mechanism.

In addressing the clams under Organisation of working Time Act. 1997, Mr OConnell relied on the collective agreement grounding the employment.

In clarification, Mr OConnell confirmed that the strike relied by the complainant on was a Protest.

In relation to the Tachograph classification of “other work “this was not measured outside of work.

I asked Mr OConnell if the untapped ex-gratia redundancy quantum was still there, or whether it had been a one-way journey back to its source.? He replied “It may not be one way “

He confirmed that the fleet of trucks operated by Mr OConnor and his colleagues had been sold.

He was not aware of a staff handbook.

Evidence of Ms Fiona OCarroll, Director of Human Resources

Ms O Carroll is HR Director in Kerry Dairy Ireland and Kerry Ingredients Irl ltd since 2013. Her career has spanned over 30 years in human resources.

The Human resource function has been restructured. Part of the HR    function has been disbanded in UK and Ireland. HR administration is provided from Kuala Lumpur with senior aspects retained.

She reports directly to CEO.

Ms O Carroll recalled the 16 August 2023 meeting where a commercial decision was made by Mr OConnell to restructure more than 20 roles through redundancy. She agreed with the plan and confirmed that this conversation commenced in 2020.

There was to be a reduction of 7 employees in Agribusiness, the homogenous group of drivers (2 of whom rip)

And 5 employees across the greater business.

She referred to the SIPTU generated letter of April 2022 where a company offer on annual leave and pay for the 7 drivers had been rejected in favour of awaiting the outcome of talks in Listowel.

1 a confirmation that contracted hours are in line with the average 48 hrs weekly in WTA/06/02, Collective Agreement.

2 hourly pays calculated on basic pay, sampling and gallonage allowances clarification.

3 clarifications on the hourly rate and its breakdown (what hours are flat rate, what (if any) hours are premium rate etc.

4 Clarification on Sunday pay within the agreement.

5 compensations for drivers who worked over and above contracted hours.

6 Agreement that working arrangements going forward will be 5 10 hr days in peak season with compensatory time off in off peak time. Compensation and overtime claimed.

Ms O Carroll confirmed that she had responded on 23 May 2023.

1 she made an error on standby time when she classed it as an exclusionary measurement.

2 Annualised hours arrangements prevailed.

3 Sunday addressed in the 2005 agreement.

4 Rejected 5-day week.

The announcement of redundancy followed in November, and a level of confusion followed over just who was representing the complainant. The first scheduled meeting of 31 October 2022 was not attended by SIPTU. Letters arrived from both Union and Solicitors.

The 3 rd. November meeting was introduced as an Individual consultation, but the 5 drivers came as a group and were represented by their Union. They asked to keep their roles but were informed their jobs were gone.

It became about “figures “after that and “heated meetings “followed.

Offers were made on foot of LCR   19437 and the respondent responded to the Union on 13 December 2023 through Ms OCarroll

“…. we note your reference to balloting your members for industrial action. While this is a matter for your members, we believe it unnecessary. However, before doing so it is important that hey fully understand as outlined 8in our correspondence to them that all ex gratia terms currently on offer will be forfeited on 31 December 2023 if we do not receive the signed redundancy agreements on the date specified i.e. on or before 14 December 22023.These amount will not be re-instated as they are only available to us until that date .

Should this arise, your members will be paid their statutory redundancy and notice only. It is therefore important that they make this decision with this knowledge and with a full understanding of its Ms OCarroll outlined that the waiver sought in the Agreement on leaving was “standard for Kerry “Mr Foley and his colleagues did not sign the redundancy agreement, and a Trade Dispute followed.

She denied there was any issue with Mr OConnors complaint to the Inspectorate as collaboration had followed between HR and WRC “many times “.

During cross examination, Ms O Carroll worked with Mr Maier to delineate the emphasis placed on bringing together of Dairy and nutritional Agribusiness. she confirmed she was the most senior human resource manager and had been directly involved in the restructuring programme from August 16, 2023. There were 7 driver redundancies inclusive of the transport manager.

The issue in how milk collection was organised was under consideration since 2001. The final decision to exit milk collection was made on 16 August 2023 as one that was more cost effective in favour of external hauliers. Ms Carroll outlined that it was advantageous in terms of flexibility and cost and constituted an initiative engaged by all Dairy Processors over the past 10 years.

The 4 Pillars are not companies. There are 9 legal entities in Kerry dairy Ireland of which her employer Kerry Ingredients Irl ltd was a subsidiary.

In answer to who controlled OWT compliance, Ms OCarroll answered the Transport Manager, prior to his departure.

Contracts are now in place for all employees.

 The Agreements were not incorporated in a statement of terms and were expressed terms. The Union/ Management had not engaged further following the respondent letter of May 23, 2022.

Ms OCarroll clarified that “stand by “consisted of “waiting for milk to go in and out “and it was working time at 72 minutes.

Employees had access to “My Kerry “as an information tool.

Ms O Carroll had some knowledge of compulsory redundancies but there were not a high number at the business. She confirmed that Mr O’Connor was offered the option of becoming a contractor during consultation. She recalled the 18 December 2023 letter of termination of employment on 29 December 2023.

Ms OCarroll wrote to SIPTU dated 5 January 2023 (sic)

“….. compulsory redundancies have nothing to do with the issue at hand. Despite Kerry complying with the terms of a previous Labour Court recommendation which resulted in your members being of aware that your members rejected this offer as they believe their current case before the Workplace Relations Commission (WRC) concerning working time are of greater value to the amount offered. These cases are assigned a hearing date of 31 January 2024 by the WRC but have since been cancelled. “

The Respondent recognised the complainants appointed Solicitors “to focus on the resolution of this claim “pre the protest in Tralee.

The Respondent had not hosted a localised procedural framework surrounding the myriads of claims from December 2022 as no request was made to process these complaints at base.

In clarifications, Ms Ocarroll confirmed that Sunday had not been recognised for pay purposes historically.

There was no push back from the Union on the error regarding the categorisation of stand by time in May 2022.

Pay slips were sent electronically and a 2009 staff handbook was available within the business. This was submitted to the WRC on 13 May 2025.

Ms O Carroll confirmed that a Protected Disclosure Policy was available at the business.

The alternatives to redundancy were set in the alternative’s roles discussed at the early meeting with the Union.

The business did not host a leaving party for the Drivers.

 Additional Evidence of Gene Dillane, oath

A review of Mr O Connors averaged hours for 2022 = 58.46 hrs (driving, other work, card) cannot be altered and are unique to driver.

These records followed a full review and reflected the absence of driver card 24-28 October.

He engaged with the Transport Manager not the complainant.

In 2022, the complainant had placed truck to default but by 2023 he had stopped recording breaks.

Figures reflected absences of 20x 8 hr days, holidays,

The complainant was in the factory four times x10mins on the review.

During cross examination, Mr Dillane confirmed he was the person who took tacho records transposed to excel sheet. It was impossible for him to evaluate the records from the digital records.

Loading and unloading is working time, other work.

In closing Mr Ryan summarised that Mr OConnor had taken statutory redundancy. He had not been paid for overtime from 1992. He had demonstrated an awareness of the collective agreement and had previously recorded his breaks prior to 2023.

The claim for payment of wages was unstateable as there was no agreement on overtime.

The Respondent had discharged the necessary burden of proof that Redundancy was the reason for the complainant’s termination of employment rather than his reliance on the reportage to WRC Inspectorate.

The timeline for redundancy was objective from 2001-2009-2023. Mr OConnor was the last Milk Collectio0n Driver directly employed by the company and the evidence adduced on the “commercial imperative “was compelling.

The Complainant had not stated that the redundancy was a sham.

In addressing the claim for unfair dismissal and preferred remedy of re-instatement, Mr Ryan said it was unsuitable “on the grounds of practical reality “of significant re-organisation. He pointed to deficits in the effort expended by the complainant in finding new work. An Bord Banistiochta Gaeil Scoil Moshiolog v the Labour Court and O Suird and Dept of Education [2024] IESC 38.

The Respondent had met its obligation on furnishing records of working time to the complainant (Lucey)

The Complainant had ceased to record breaks in 2023.

The claim on notification of change did not occur within the cognisable period allowed and predated the gallonage increase.

There was no protected disclosure.

On a clarification, I remarked that the protected disclosure to WRC had not been mentioned by either party in the context of the threatened Judicial review.

From the outset, an issue arose on the correct legal entity of the respondent. The Complainant had relied on a number of different entities which were promptly challenged by the Respondent. This challenge was avoidable if the parties had resolved this at point of entry to the WRC.

It should not have taken hours of WRC time to preside over the parties chasing a consensus in a legal entity in an employment linked to a 1988 start date. I did it in deference to Sylvia Wach and Travelodge and lessons learned there. I wanted the legal title to be agreed and respected at first instance.

I had cause to direct the Parties to resolve this matter by offering key authorities as guidance and allowing time for the matter to be decided as a Preliminary issue at hearing.

Ultimately on 26 November 2024, some 2 years post submission of the first batch of complaints, I received a cogent letter of comfort from Mr Richard Chute, Chief Financial Officer with Kerry Dairy Ireland which gave a written declaration and rationale that Mr OConnor was employed by Kerry Creameries ltd and any award made at WRC would be met by the Kerry Group. This broke the impasse.

I would like to thank Mr Chute for his key intervention and leadership in this impasse.

Particularisation of Claims made:

From my first correspondence with the parties, I called for particularisation of the claims. I did this to check that I had jurisdiction firstly and secondly in light of the apparent duplication of the claims made between December 2022 and February 2024.

There was also the omnipresence of Collective Agreements in this case.

I have directed considerable attention to seeking progress on specifics of complaints rather than broad brush strokes which highlight contraventions without placing a readily identifiable context and background to the contraventions relied on.

As an outsider to any employment setting, I review, it is important for me to understand what happened, where and when it happened and who was involved. It is a bonus, if I find records of efforts to fix matters at point of origin but I need specifics to avoid speculative proceedings or to avoid revisionism and wasting time during a hearing. This becomes a mandatory requirement where both parties are professionally represented.

In this case, the Respondent has been consistent and tantamount to pedantic in their recognition of the claims made as “artificial “and groundless. They have not moved from that position.

As an independent decision maker, I cannot not be swayed by such a unilateral dismissal of content and must look below the bonnet of the claims for myself. That is why, what, where, when, and who and measures to fix it come in.

I am afraid I have become pedantic seeking that detail in these claims and I have now concluded the claims without the requested specificity. The law is built on certainty, and my understanding is that parties come to Adjudication for finality and closure at first instance. Particularisation of claims made is a cornerstone of that process to inform a final decision. It may even have prompted an earlier settlement of some of the claims.

I will give one illuminating example for the parties to reflect on.

The claim under payment of wages was received without specification. WRC Admin requested this area be populated. On 27 March 2023 it was populated in excess of €17,000 which governed the period 15 June to 15 December 2022.

 While I fully appreciate that the complaint forms do not constitute a statutory form, none the less they are the first window into the claim and for which a defence or concession is prepared.

 By the time the hearing had concluded in this case, the complainant submitted a figure claimed of €296 ,000 inclusive of compound interest claimed for unpaid wages. I will return to this in my findings as I understand this figure was directed at a number of claims, not just payment of wages proper.

I illustrate to capture the time spent in seeking clarification and specificity.

Union and Legal representation

Finally, I wish to make brief reference to the trajectory of these cases as they came to the WRC in December 2022 and concluded in February 2024.

Mr OConnor and his colleagues have placed LCR   22429 from July 2021 as their Rubicon within this employment. They believed that they were wrongly cast in that Industrial relations recommendation. I can see that Mr OConnor has described that hauliers were regarded as hourly paid workers at the business. Perhaps that is the comparison that irked the directly employed driver, given inter grade tension.

 Mr OConnors request for clarification in his hours predated the action of the Union to give life to the Courts Recommendation in April and May 2022.

The Union and Management entered correspondence in April and May 2022 under the auspices of LCR   22429       and indicated movement on a pay claim. However, this process seemed to pause in the Summer of 2022.

The next event in the sequence are the complaints to the WRC on 19 December 2022, not visibly prefaced by local engagement.

It seems to me that the lines of demarcation were attempted to be drawn by the representatives in relation to

1 21 complaints to WRC from 2022. Legal representation

2 Notification and Management of Redundancy. Union representation

I saw some cross fertilisation by the legal team in the Redundancy but none by the Union in the 21 complaints.

The issue appears to have come to two “pinch points “when the complainant was requested to sign a compromise agreement on redundancy which incorporated resolution of his WRC complaints, which he refused.

The second was referred to by the respondent as a barrier to progressing the WRC Conciliation process in early 2024 when the Complainant indicated that he intended to challenge his dismissal and seek compensation rather than consider an offer of return to the business.

There were two dated claims for unfair dismissal 19 January 2024, remedy of compensation and 20 February 2024, remedy of re-instatement.

The Complainant has since withdrawn the first in time claim for UD leaving the claim for re-instatement, albeit framed as a class action complaint.

The Respondent admitted to a certain confusion about who was speaking for who throughout the period November 2023 to February 2024, a key period in these cases as employment ended here and Protests followed. Was it the Union or the legal team?

For my part, I must conclude that these divergent approaches without clear lines of demarcation, however well intention resulted in a “when worlds collide “scenario, which goes to the very heart of this case.

I find that the complainant viewed the Union and Legal approach as two separate horses to carry and boost his grievances home and was satisfied to back both horses in the proverbial one race to that end.

However, the circumstances at the centre of the case are complex as the Track Announcer is the Collective Agreement, the territory of the Union as an excepted body before the Labour Court and the Respondent.

It is not unusual that employees would initiate parallel proceedings, and an employee is entitled to choose who should speak for them.

The Parties will recall that I made frequent reference to the longevity of these Agreements without mutation. The Respondent put the gap in time down to the exigencies of business. The Complainant was uncertain as to why mutation had not followed for the collective since 2006 outside of ongoing in house pay agreements.

For my part, I found a steady schedule of change in the cadre of drivers through redundancy and retirements from 2009 -2023 where Hauliers, larger trucks and tachographs entered the frame.

Mr O Connor, the second complainant was the last driver hired in 1991.

I accept that the Agreements of 2002 and 2005 were not mutated outside of adjunct pay agreements which appeared to be linked to a Factory setting in Listowel/ Charleville.

Both representative groups claimed the complainant as their member/ client, but worlds collided at a very important juncture in the complainant’s working life.

Understanding of the role of the WRC Inspectorate

The Parties clearly have operational knowledge of the 3 Pillars of the WRC Inspectorate, Conciliation and finally Adjudication.

I found the complainant insistence that Adjudication should fill in for the perceived lack of information from WRC Inspectorate to be challenging, especially when I had repeatedly addressed the parties in our separateness through the “Chinese walls “and not wanting to be called on to make either party’s case for them. The complainant contended that release of the requested information may result in a complete or even partial   resolution of the matter.

I was surprised that the Complainant was unable to particularise the complaints made to the Inspectorate, when I inquired   and sought to obtain a private viewing of the investigation report as a basis for seeking an order to compel viewing.

I should not be expected to make either parties case for them. I refused that request.

Having eventually and reluctantly compelled   release of the investigation report, I found a duplication in the claims made before both pillars of the WRC.

The Complainant was not aware of the function of the WRC Inspectorate and that a complaint such as his generates a broad investigation on site. However, he should take some satisfaction that the remedial action of contracts issued to all employees arose from this process.

For my part, as I explained to the parties, I ordered release of the report and complaint forms to resolve another impasse and to save the hearing from even further delay through threatened judicial review. I regret to say that there was no visible impact on resolution of the claims in full or in part prompted by a release of this report, which I must now conclude was a fishing exercise.

I say this as the application on day 4 of hearing to compel Inspector OKeeffe was prompted to secure information on the climate of the business in the period of time which led up to the redundancies. I refused this application as the complaints made to the Inspectorate were not submitted under the Unfair Dismissals Act and came 14 months after the initial complaint to the WRC Inspectorate.

CA-00054303-001    Payment of Wages

The Complainant has claimed a variety of payments under this claim heading. The Respondent has focussed on the cognisable period and the vacuum in particulars.

For my part, I struggled with the absence of a contract of employment early on and the clearly stated claim that the complainant was owed additional pay for hours worked in excess of the collective agreements. Where was I to start on legal relations in this employment?

The contract template submitted by the Complainant side was not issued in 1991 as the detail honoured reference to pay being determined by the Drivers Agreement and latter-day employment laws e.g. Organisation of Working Time Act 1997 in addition to reference to a Rights Commissioner Rec from 2005.

Collective Agreements: The company and SIPTU have a number of agreements in place which are part of your terms and conditions of employment, namely the 2002 Drivers Agreement conducted through the LRC ref CC0l/2578 and the Collective Agreement on working time approved by the Labour Court on 11th September 2006 - WTN06/2

The above is an abstract from that contract template:

Wages are defined in Section 1 of the Act as:

wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5(6) of the same Act determines that an underpayment of wages that are properly payable can constitute a deduction of wages, prohibited in law.

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

This was addressed on appeal to EAT in Sullivan v Dept of Education, [ 1998,] ELR 217 where a teacher contested an adjunct allowance paid at basic rather than honours degree rate. The Tribunal found that the degree held by the complainant was worthy of the higher qualification allowance (properly payable) and ordered the differential to be paid.

I moved on to consider Balans v Tesco Ireland ltd PWD 14/2021 on remittal from the High Court to the Labour Court, another mammoth journey and one with some overlaps with Mr OConnor in the sense that the complainant worked to collective agreements in the course of his employment.

The Labour Court made “properly payable “their stated objective in deliberating the transition of Mr Balans to a different position which attracted a 20% premium payment, but where the salary was erroneously recorded.

In finding that the sum claimed was not properly payable, the Court drew on the “totality of the circumstances referrable to the employment” which included the complainant being covered by collective agreements.

I have listened very carefully to both parties in this case; I have found that Mr O Connor was in on the ground floor of the 2002-2005 Collective Agreements for his grade which determined “income structures for drivers “in “weekly and monthly payments “. Agreement Register WTA/06/2 on Organisation of Working Time Act 1997 was registered at the Labour Court on 11 September 2006 (22 employees) and operated from 1 January 2005.

“The collective agreement has been concluded in the manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned. “

In house Agreement was unaffected.

Mr OConnor was specifically delineated as Driver 37290

27 weeks at 66 hours less 388.8 hrs, 10 weeks 50 hrs less   2 loads, 9.6 weeks 40 hrs less 57.6

Total 1,905.20 hrs annually, many of his driver colleagues were equally recorded, some were less.

Mr OConnor admitted that he had worked to these collective agreements for many years but was not live to the contents until things changed for him on activity levels.

Mr OConnor accepted that overtime was not incorporated in these collective agreements and his hours had deviated from the Agreements.

He did not walk away from these agreements. He was one of the 7 workers in LCR 22429.

The staff handbook from 2009 reflects that.

“Rates of Pay are in accordance with the 2002 Drivers Agreement as included in your contract of employment. These rates shall increase in line with agreed pay movements “

The Complainant exhibited correspondence where he sought extra pay from 2021-2022 but was unsuccessful due to the collective agreements.

The Complainant has requested that I recognise his claim for unpaid overtime, knock on annual leave and an incomplete pay negotiation contained in April 2022 Union correspondence.

I can accept that the collective agreements 2002-2005 created legal relations with the complainant and the respondent due to their clear and specific detail on pay followed by many years of uninterrupted consideration of those terms. O’ Rourke et al V Talbot Ireland ltd [1984] ILRM 557

This was a case at the High Court, where foreman representatives at a motor assembly plant forged an agreement with the company.

which “guaranteed “no redundancies prior to 1984 as a quid pro quo for co cooperating with redeployments rather than a reliance on “an assurance “.

Barrington J in considering the climate surrounding the redundancies which followed in September 1980 accepted that the management witnesses had not intended on entering legal relations, but this was not expressed.

Instead, the foreman reps by their insistence on substitution of “assurance” by “guarantee” satisfied the objective test in the UK case of Edwards v Skyways ltd [1964] 1 WKLR 349

“ .. made clear that they were looking not for some pious aspiration or commitment in honour, but for a guarantee, peculiar to each foreman against being made redundant prior to 1984”.

payable under his contract of employment or otherwise,

The Complainant also accepted that he benefitted from pay increases by agreement additional to these agreements over the year but was compelled to wait for retrospection. I note SIPTU Agreement to pay increases on 23 December 2010.

6% March 2009 to March 2010, where cost increasing claims were prohibited during the life of the agreement.

It is a central consideration for me that I cannot identify any attempt at variation or cancellation of this Agreement since date of registration.

Section 24 (6) Where a collective agreement which has been approved of under this section is subsequently varied by the parties thereto, any of the said parties may apply to the Labour Court to have the agreement, as so varied, approved of by the Labour Court under this section and the provisions of this section shall apply to such an application as they apply to an application under subsection (2).

The Industrial Relations case   heard at the Labour Court in June 2021 LCR22429 was a Collective action.

1 basic pay, gallonage, samplings to be composite for pension purposes (rejected)

2 8.5% increase in pay over 3 years to mirror Listowel (pay claim)

3 Additional 5 days annual leave for hours worked.

The Court recommended that further engagement follow on the second and third claim on a collective basis.

As this is an IR Rec, where the complainant was one of the worker claimants rather than an employment rights case, I cannot apply the doctrine of res adjudicata (already decided).

However, I must direct my mind to the claim for excess hours worked outside the agreements.

By April 12, 2022, SIPTU had rejected the company’s offer on pay and annual leave and had stated an intention of lodging a claim of 13.5% over 2 years to May 2023 and were watching developments in Listowel. I accept I have not heard directly from Ms Ryan at SIPTU in evidence, but her reference to the drivers wishing to

 “Lodge a claim for all additional hours worked since 2008 “

This was compounded by the drivers seeking over time for all extra hours worked was illuminating as it did not feature again past Ms O’Carroll’s response of 23 May 2022. I accept Ms O’Carroll’s evidence on this letter.

What these circumstances mean is that change appeared to be in contemplation by the Union in seeking to revise local agreements in the aftermath of LCR 22429, which had sought 8.5% pay increase.

However, these remained aspirations rather than recognisable claims until the manifestation of the 19 December 2022 WRC complaint form, seeking payments for overtime going back years and payment for time misrepresented as breaks. There was no mention of seeking the terms of a pay agreement which may or may not have been applied to Listowel staff by then.

For me, a claim for properly wages requires a tangible component, such as Ms Sullivan standing with her degree in her hand saying this is inequitable.

In Medical Ambulance ltd and Aidan Ryan PWD 201, 2020, the Labour Court could not identify any contractual provision for additional payment, and the case fell on the hurdle of not being properly payable.

I  fully accept that the complainant carried a deep sense of injustice that he was expected to work harder , longer, grapple with a tachograph  and place himself on extended stand by at the end of the  working day , however , I cannot find  any set of circumstances which allow me to look  into the collective agreements presented in the agreed booklets or otherwise  and find  these contentions can be safely elevated in law to  becoming properly payable wages and I cannot draft that mutation  myself .

I will make one comment on annualised hours working as this system is often used as an alternative to overtime, where salary is paid on the basis of an agreed availability to work prescribed hours from a reserve/bank system.

The difficulty in the instant claim is the historical context of what were the intentions of both parties Union and Employer has been distilled to the recollections on paper rather than person and were not helped when no one from the Union came to hearing.

For me, Mr OConnors complaint, identical to his colleagues was framed partly in the first person and partly in the third person and I wondered if the spirit of the claim was more industrial relations.?

I note a myriad of mention of Union pay claims live at Labour Court / WRC and at the work location, none of which appeared to have concluded in Agreement in the 18 months before this claim crystallised.

I have to reject the accountants report prepared by Mr O’Brien as it was not framed against the boundaries of the Payment of Wages Act 1991 and consisted of speculative claims on inflated wages. This is no criticism of Mr O’Brien, but I would have liked to see a more objective report framed against the jurisprudence on properly payable wages. Balans / Sullivan referred.

I have not seen a manifestation of the Listowel Agreement of 2022 so as to draw any inferences of how that concluded or was applied.

I have considered the Agreements which prevailed during the complainant’s tenure. I have also considered the parallel pay rounds he received.

 In the 6 months preceding this complaint, I have nothing tangible which allows me to elevate his reference to excess hours, annual leave, or an incomplete pay claim   to becoming properly payable wages under the Act.

I cannot take the matter further in assessing whether a deduction occurred.

I find the claim is not well unfounded.

CA-00054303-002 Sunday work, compensation.

I have considered this disputed claim. I looked back over the Respondent records for the cognisable period and noted that the complainant worked Sundays until October 2022 followed by holidays. He told me that he understood he had a liability to work 30 per year. This is clearly an agreement.

My jurisdiction is drawn from Section 14 of the Act.

Sunday work: supplemental provisions.

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

The income structure for drivers was captured in the 2002 and 2006 Collective Agreements which comprised an annualised hours arrangement.

This was augmented by sampling, gallonage and meal allowance.

Mr OConnor 1,905.20 hrs        driver 37290

I am satisfied that this arrangement reflected a 7-day work pattern which incorporated Sunday working.

I note the Union claim for clarification of Sunday working and Respondent response of Sunday being one of the 7 days for Milk collection and incorporated in the Agreements.

I have found that payment for Sunday working had been taken account of in the determination for the pay in the annualised hours Agreement registered with the Labour Court in 2006.

I find the claim is not well founded.

CA-00054303-003   Organisation of Working Time Act 1997, excessive hours, and recording.

Section 15 of the Organisation of Working time Act applies to the complainant.

Weekly working hours.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

SI 817/2004 do not apply to drivers covered by Tachograph records such as Directive 2002/15/EC.

 Directive 2000/34/EC is transposed by the Regulations SI 817/2004.

 Mobile Workers are exempted from the application of sections 11, 12, 13 and 16 of the Act.

WTA/06/2, THE Collective Agreement approved by the Labour Court on 11 September 2006 outlined a working week of 48 hours averaged over 12 months from year three onwards in respect of Mr OConnor.

I asked the parties to put forward the average figure for this claim.

The Respondent responded that 2022, the cognisable period for this claim averaged 58.6 hrs for Mr OConnor which exceeded the 48 hrs permitted.

I conclude that the Respondent has conceded this claim.

I find the claim is well founded.

CA-00054303-004 breaks organisation of working time act 1997 20 June -19 December 2022

I find that Mr O Connor has not particularised his claim.

I find that he was provided with time for adequate rest but absolved himself from availing of it or from recording it as an adjustment to his disappointment following the Labour Court Rec of July 2021.

However, I found a culture of availability of breaks at the business consistent with the Collective Agreement. I found the green records of breaks on every day of the exhibited records.

I found some confusion on working time measurement not cured by the abandonment of recording.

For me, this places his claim in jeopardy.

I find that Section 12 does not apply to the complainant due to the overarching Collective Agreement and availability of adequate rest time.

I find the claim is not well founded.

CA-00054303-005 Terms of Employment Information) Act, 1994(written statement)

The complainant has submitted that he was not provided with a full statement of his terms of employment during his employment tenure.

The Complainant exhibited a templated contract issued in 2009 with similar font size to the staff handbook exhibited by the Respondent. However, the respondent has not exhibited term outside of the Collective Agreements.

On 15 May 2025 I received Milk Assembly Drivers Employee Handbook, 1 January 2009. This was a comprehensive document and showcased the closed shop nature of the plant and the collective agreements on pay and working time.

The Complainant submitted that he had not received a contract or a handbook and in his early years and had not been focussed on terms until matters changed in time and he began to seek information from his shop steward

As the handbook clearly presents as additional to the contract, it is likely that a contract issued but the version I received was undated and more importantly unsigned by the parties.

The Employment (Miscellaneous Provisions) Act 2018 amended the Terms of Employment (Information) Act 1994 and permitted an existing employee to require an employer to furnish a written statement of particulars within two months of the date of request.

I have set this out for information purposes only as an earlier option available to the complainant.

I have listened as the Complainant told me that lack of a clear statement of employment impeded a safe navigation of his employment.

 I have identified a defined vacuum in terms of employment shared with the complainant, not fully remedied by the templated contract or collective agreement. This amounts to a continuous contravention of Section 3 of the Act. I would have preferred if the complainant had been more proactive in this area and I understand that the Company has now rectified this company wide by provision of statements where they were not available.

 I find the claim is well founded.

CA-00054303-006 Daily Rest period

Section 11 of the Act provides a

Daily rest period.

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The cognisable period for this claim is 11 February 2023-10 August 2023.

During this case, I heard Mr OConnor report a late awareness of how his rest breaks should unfold. He acknowledged the collective agreements.

For my part, I have reflected on the complainant’s tenure at the business, and I am left to wonder why he didn’t seek to resolve this issue before 2021-2022?

This is one of the key claims where I detected the Respondents reference to “artificiality “in train.

The Complainant by his own admission worked extra hours, largely unquantified. He denied receiving any time in lieu but underwritten by an unofficial time in lieu but rather a grace and favour model of agreeing to the Transport managers requests for extra work. He did not refuse but equally displayed a resentment to hauliers going home earlier.

Once more, I say, a climate of self-governance was apparent.

The Collective Agreement of 2006 stipulated a daily rest period of 13 hrs every 24 hrs (year 2) and SI 817 /2004 excused mobile workers from the application of Section 11.

An opportunity for adequate rest must have been available as a backdrop.

I have scrolled through the records relied on by the Company during the cognisable period, as I have not received a particularised claim. I have not detected a variance on the 11 consecutive hours relied on by the complainant or the 13 hours in the collective Agreement.

I have found that the complainant did not agree on the respondent’s interpretation of availability, prevalent in SI36/2012 but not in the Act.

The complainant has built a matrix for measurement not practised at the business and this goes to the root of his dissent.

However, I am satisfied that the Respondent did not expect the complainant to forsake his opportunity for adequate rest.

I find that Section 11 does not apply here.

The claim is not well founded.

CA-00054304-007 Breaks cognisable period 11 February 2023 to 10 August 2023

I find that Mr O Connor has not particularised his claim.

I find that he was provided with time for adequate rest but absolved himself from availing of it or from recording it as an adjustment to his disappointment following the Labour Court Rec of July 2021.

However, I found a culture of availability of breaks at the business consistent with the Collective Agreement. I found the green records of breaks on every day of the exhibited records.

I found some confusion on working time measurement not cured by the abandonment of recording.

For me, this places his claim in jeopardy.

I find that Section 12 does not apply to the complainant due to the overarching Collective Agreement and availability of adequate rest time.

I find the claim is not well founded.

CA-00054303-008 Breaks SI 36/2012 Regulations

In my consideration of the disputed jurisdiction in this claim, I also took some time to chart the historical concept of working time both here in the domestic setting and in the EU. I have found a complex and sometimes confusing pathway.

I found page 3 of the staff handbook seen for the first time on 13 May 2025 reflected:

“Breaks will be given in accordance with the Drivers Agreement and the Organisation of Working Time collective Agreement “

This was not amended by the SI 36/2012 Regs.

I found it helpful to reflect on chapter 4 of Maeve Reagan on Working Time, Padraic Lyons and Emmet Whelan.

“Eu Regulation of working time originated with Directive 93/104/EC which proved to be a controversial European initiative eventually becoming law on 23 November 1993 after a protracted period of negotiation between Member States.

Unanimity on the matter of working time was particularly difficult to achieve resulting in the use of Article 118A of the EC treaty to allow passage OF 93/104/EC by means of a qualified majority voting and confirming that the directive is a health and safety measure …….

Directive 2003 /88 increased the scope of working time regulations, including a number of categories of workers who were not included in Directive 93/104/ EC.

The Organisation of Working time (Inclusion of Transport Activities) Regulations 2004 transposed the provisions of Directive 2003/88 in applying the full protections of the 1997 Act to general transport workers, with the exception of certain mobile workers “

 (SI 817/2004) 

The 2008 Regulations at (SI  62/2008) implemented Council Regulation 561/2006/EC on the

 “Harmonisation of certain social legislation relating to road transport” which applies to all drivers.

They give effect to Council Regulation 3821/85/EC (recording equipment). The 2008 Regulations also concern the application of the Eu Agreement concerning the work of crews of vehicles on ~international Road transport AETR.

A full list of exemptions can be found clearly delineated historically in Article 4 EC Regulation 3820/85 up to 2007 and replaced by EC Reg 32006 RO 561 Article 13(1) Regulation 561/2006

“Provided the objectives set out in Article 1 are not prejudiced each Member State may grant exceptions from (Art 5-9) and make such exceptions to individual conditions on its own territory or with the Agreement of the States concerned, on the territory of another member state, applicable to carriage by the following “my emphasis.

“Vehicles used for milk collection from farms and the return to farms of milk containers or milk products intended for animal feed) “

Protection for workers in road transportation is provided by the EC (Road transport) Organisation of Working Time of persons performing mobile road transport activities Regulations 2012. SI 36/2012.

A definition of mobile worker is adopted from Directive 2002/15/EC

A mobile worker is any worker forming part of the travelling staff including trainees and apprentices who is in the service of an undertaking which operates transport services for passengers or goods for hire or reward or in its own account.

SI 36/2012

I found a very interesting analysis in the Labour court case of

Lucey Transport ltd and Marius Serenas DWT 1398, July 2013.

This grappled with the circumstances of whether the 2012 Regs or the 1997 Act applied in the case of an HGV driver. Finding that the Regs applied in those circumstances. Kevin Duffy made some interesting observations worth reflecting here:

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 the Goode Concrete case 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 inconsistence 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.

Outcome

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 towhom 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.

This is a reasoned analysis for those that do not drive a milk tank, but the Decision provides a welcome insight into the application of SI 36/2012 for self-employed drivers, which explains Mr Dillane’s reliance on it in evidence.

The Workplace Relations act 2015 provides jurisdiction to me as an Adjudicator in relation to contraventions of Regulation 5, 8, 10, 11 and 12 of SI 36/2012.

Regulation 17 provides that non-compliance constitutes an offence and if guilty on summary conviction a class A fine, or on conviction on indictment to a fine not exceeding €250,00.

Regulation 17(6)

Proceedings for an offence under these Regulations may be brought and prosecuted summarily by the Road Safety Authority (RSA) or a member of Garda Siochana.

This brings me to my consideration of both parties stated positions on the application or otherwise to the complaints raised before me.

I am not able to address what the Complainant refers to as refreshed complaints whilst placing a (2) in brackets as I need to have properly validated complaints with their individual specific CA prior to appending my decision.

The above CA complaints were received on August 10, 2023, were validated and served on the respondent. They have a cognisable period accordingly of February 11 to August 10, 2023.

In seeking to resolve the conflict between the parties on whether SI 36/2012 conveyed a legitimate standing on the complainant, I read and re -read the submitted documents and considered what each witness said at hearing.

The Parties collectively exhibited at page 731, Agreed booklet.

February 2023 Road Safety Authority

Exemptions and Derogations from EU Tachograph and Drivers Hours Rules

Tucked into the second category of Irish registered vehicles exempted from the EU rules on tachograph and driver’s hours rules while operating within the State:

(n) Vehicles used for milk collection from farms and the return to farms of milk containers or milk products intended for animal feed.

The earlier Respondent booklet had included a similar account, but neither provided a genesis for that apparent exclusion.

I return to the disagreement between the parties on application of SI 36/2012 in this matter, where the Respondent was certain of exemption of milk tank drivers and the Complainant most doubtful of exemption and more focused on inclusion.

For my part, I reflected on the historical actions of the Parties to the Collective Agreement, who from my reading at least sought to arrive at a collective agreement on maximum hours of work 2005/2006, without prejudice to existing house agreements. This was a stated objective in Directive 2002/15/EC.

However, I couldn’t establish a dossier on SI 36/2012 or its terms at the business. The reliance on manual logs rather than the tachograph records, despite his possession of a tacho card placed Mr OConnor outside the historical frame of SI 36/2012. I was not presented with any local agreement which at a minimum referenced SI 36/2012 or its incorporation. I found this confusing.

EC 561/2006, Regulations implemented by SI  62/2008, now requires a more detailed review.

Art 1 references rules on driving times, breaks, rest periods for drivers engaged in carriage of goods by road.

The Regulation also aims to promote improved monitoring and enforcement practices by Member States   and improved working practices in the road transport industry.

Art 13 protected the objectives of Article 1 and allowed Member States some discretion on granting exceptions on a range of named scenarios from island vehicles to vehicles used for driving instruction /examination to section (l) vehicles used for milk collection.

Article 13(2) is of keynote.

Member States shall inform the Commission of the exception granted under para 1 and the Commission shall inform the other member states.

The Complainant has stated that rights under the 2012 Regulations SI 36/2012, which derived from Directive are separate to rights set out in Articles 5-9 of the 2006 Regulations. SI 62/2008.

The Respondent points to Regulations 2017 on EU Road Transport Working Conditions and Road Safety implement Reg 4 /2017 Regulations SI, 567/2023. This was a further attempt to give full effect to EU Reg 561/2006, EU Reg 165/2014, 581/2010 and 2016/799.

For my part, I wanted to examine the actions of the Irish State under Article 13(2) in respect of the 2006 EC Regulation Article 13(2).

I also wanted to understand the depth of each point each party made.

Having listened carefully to the evidence, I found major precision in what Mr Dillane told the hearing, unlike the complainant, I took from his evidence that he saw an application of SI 36/2012 on the maximum hours rather than a universal coverage.

I found an absence of precision in Mr OConnors  evidence in that regard as by the time this claim had evolved , it was clear he carried a high level of dissatisfaction at how the company rewarded  him and the sub plot of tension with hauliers absorbed a lot of his thinking during 2022 and 2023 , Both witnesses viewed the measurement of working time very differently.

It may have helped me if I had managed to pick up on earlier teething problems in the localised knowledge on contemporaneous evolution of the Regulations, Directives and secondary legislation which have collectively now formed a central prism in this part of the case. I could not establish any deliberations outside preparation of collective agreement on maximum hours from that era.

I can see that the directly employed Driver group were subjected to seismic changes and expectations in their work from the time of 2002 onwards, perhaps the move to enclose this working relationship by robust joint agreements at Kerry  was an effort at equilibrium as the changes launched from Europe in such a determined and targeted attempt at safety, harmonisation  and measurement of working time mechanically and electronically.

I also asked the Parties if they had any caselaw from Europe on this topic?

However, outside of the cases referred to e.g. Dellas, Tyco etc but nothing came on the topic of the application of exemptions for milk tank drivers across the EU.

It is truly a complex area and one I have invested a lot of time trying to make sense of as the origin of the exemptions was not immediately apparent by law or by footnote.

A careful reading of the Jurisprudence of the Labour Court did not yield any further detail on milk tank drivers in SI 36/2012 cases.

Simply Trak (Irl) ltd and Seán Bennett RTD 191

Cosgrave Transport Irl ltd and Roman Bilicki RTD 157

And

 First Glass ltd and Babianakais RTD 152, where former Chair Kevin Duffy emphasised the public law provision in Directive 2002/15/EC and SI 36/2012.

There is a further point of considerable significance. Directive 2002/15/EC, which the Regulations are intended to implement, is, inter alia, for the purpose of securing road safety. It is, to that extent, a public law provision. It imposes obligations on those employed in mobile transport activities, and their employers, which are directed at ensuring that their own safety and that of other road users is not imperilled by unsafe driving practices, including driving while fatigued. Regulation 8(1) is for that purpose. It places an obligation on mobile workers not to work more than 6 consecutive hours without a break. The non-observance of that obligation is punishable as a criminal offence. That is clear from Regulation 17(1) which provides that “a person” who fails to comply with the Regulations commits an offence. As was pointed out by Davis LJ (Jackson and Ellias LJJ concurring) in. (On the Application of Road Transport Union) v Secretary of State for Transport[2013] EWCA Civ 962, (at pars 48, 49,) any attempt by a driver to seek redress having decided not to comply with the  Regulations would be met by a plea of ex turpi causa non oritur actio( a person cannot seek redress for their own illegality) or by the obvious submission that it would not be just and equitable for such a person to recover.

I have no wish to wrong anyone involved in this case; however, I now move to share my opinion on the status of the complainants and respondents stated positions in relation to SI 36/2012.

SI 88/2011

SI 229/2017 EU Road Transport Working conditions Regulations revoked SI 62/2018.

First Council Regulation” means Council Regulation 561/2006 of the European Parliament and of the Council of 15 March 20061, as amended by Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 20092 and the Second Council Regulation

Article 3 provides:

(1) Subject to Regulation 4, these Regulations apply to carriage by road in relation to the matters set out in Article 2 of the First Council Regulation.

Exception of certain categories of vehicles from application of certain Articles of First Council Regulation and from Second Council Regulation

4. (1) Carriage by—

(a) the vehicles mentioned in subparagraphs (a) to (l) and (n) to (p) of Article 13(1) of the First Council Regulation, and

(b) specialised vehicles transporting money for the purposes of mobile banking services, currency exchange or savings transactions, are excepted from the application of

(i) Articles 5 to 9 of that Regulation, (minimum age, daily/ weekly driving limits, compulsory recording of driving outside these regs, break time 45 mins after 4.5 hrs, daily and weekly rest, categorisation of other work if driving from ex home or operational base)

(ii) the Second Council Regulation, Member States may exempt from the application of this Regulation vehicles used for transport operations which have been granted an exception in accordance with Article 14(2) of Regulation (EC) No 561/2006; they shall immediately notify the Commission thereof.

SI 386/2011 The EC Road Transport Exemptions Regulations 2011

gave full effect to EC Regulation 561/2006 and Reg EEC 3821/85 exempted milk tank drivers in Irish registered vehicles from recording equipment regulation and in respect of travel between Ireland and UK with reciprocal arrangements for UK registered vehicles in the State. I illustrate this simply to capture the nature of evolution o0f change.

(iii) the Implementing Regulation, Tachograph

(iv) the Regulation of 2010. EU) No 165/2014 of the European Parliament and of the Council laying down the requirements for the construction, testing, installation, operation and repair of tachographs and their components.

Article 11

A Member State may provide for longer minimum breaks and rest periods or shorter maximum driving times than those laid down in Articles 6 to 9 in the case of carriage by road undertaken wholly within its territory. In so doing, Member States shall take account of relevant collective or other agreements between the social partners. Nevertheless, this Regulation shall remain applicable to drivers engaged in international transport operations.

Article 13 (2) No 561/2006; called for a notification of exemption.

 I can see that exemption was incorporated in SI 229/2017 at Regulation 4 as Milk drivers are categorised as Article 13 (1) (l) in EC Regulation 561/2006.

 This was in place on the Notice of the making of this Statutory Instrument was published in.

“Iris Offigiul” of 7th February 2012.

The Respondent has directed me to article 2(4) of Directive 2002/15 /EC

This Directive 2002/15/ EC shall supplement the provisions of Regulation (EEC) No 3820/85 (Reg 561/2006) and, where necessary, of the AETR Agreement, which take precedence over the provisions of this Directive.

The Respondent has submitted that the exception derived from Regulation 561/2006 negates   the complainant rights to benefit from the provisions of SI 361/2012. The Complainants says the rights are separate in law and are not extinguished.

My jurisdiction in SI 361/2012 is narrow and focused on

Regulation 5 excess in working time.

Regulation 8 breaks: consecutive hours

Regulation 10 N/ A night work

Regulation 11 notification of the Regs

Regulation 12   record of a working pattern

I considered with interest EC Reg 561/ 2006, which enjoyed a direct effect and two relevant SI 229/2017 and SI 567/2023 which identified rules on carriage by vehicles which operate in the State.

 SI 361/2012 which gives effect to Directive 2002/ 15 / EC   refers to mobile workers as opposed to vehicles.

I find that the exemptions granted first in time by means of the activation of the discretionary clause of Article 13(1) EC Reg 561/ 2006 via SI 229 /2017 and 567/2023 take precedence on this occasion over Directive 2002/15 given effect via SI 36/2012, in this Member State

If I follow a purposive interpretation, I must conclude that the exemption to milk tank collection vehicles which are propelled by drivers must stand and the complainants rights fall to those in collective agreements and Organisation of Working time Act,1997. I cannot find that Mr OConnor has an actionable claim under SI 36/2012 as his status as driver of a vehicle covered by Regulation 561/2006 takes precedent on this occasion. He is already exempted for obligatory Tachograph rules relevant to self-employed drivers.

I find for the Respondent in the argument that the Complainant falls outside the scope of SI 362/2012.

CA-00054303-008 breaks

 I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012 on breaks.

The claim is not well founded.

CA-00054303 -009 weekly rest period Organisation of Working Time Act 1997,

My jurisdiction is derived from Section 13 Organisation of Working Time Act 1997.

Weekly rest periods.

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

The collective Agreement states that from Year 3 onwards, the weekly rest period is 37 hours every seven days which exceeds the provisions of Section 13.

The Complainant has not demonstrated which weeks within the cognisable period served as variant to the Collective Agreement.

There is no doubt that the Complainants refusal to record working time has made my analysis of his complaint more arduous.

Once more, I looked through the records presented by the Respondent and was unable to isolate a variance on the Collective Agreement.

I understand that SI 817/2004 rules Section 13 out for Mobile workers.

I must conclude that the Collective Agreement WTA /06/02 as presented permitted a 37-hour weekly rest period for the complainant. I have no detail on when this was disturbed given the time in lieu local arrangement and lack of transparent recording.

I have found the claim is not well founded.

CA-00054303-010 Maximum number of hours 11February to 10 August 2023

The Respondent has confirmed a variance from the 48-hr averaging rule reflected in Section 15 of the Act.

I find the claim well founded.

CA-00054303-011 SI 36/2012 maximum hours

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012 on maximum hours.

The claim is not well founded.

CA-00054303-012 Annual Leave

The Complainant has disputed his annual leave entitlement on his claim form.

 Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Complainant accepted in evidence that he received his accrued annual leave. Counsel submitted that the claim for annual leave centred on the excess hours worked.

 I conclude that this is a composite recording for annual leave and public holidays as there are several unitary days rates paid.

I would have preferred to have seen public holiday delineated.

I have not found a contravention of Section 19 during the cognisable period as the complainant received payment for statutory annual leave.

CA-00054303-13 Public Holidays

I found this complaint unusual in an employment live from 1988 and where public holidays are a statutory entitlement.

The Complainant accepted that he was recognised for his public holiday commitment.

Entitlement in respect of public holidays.

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

I would have preferred to have seen public holiday delineated on the pay slip.

I have not found a contravention of Section 21 during the cognisable period.

The claim is not well founded.

CA-00054303-14 Notification of hours in advance Organisation of Working Time Act 1997

I listened to the complainant as he outlined being asked to take on an extra driving commitment at intervals without adequate notice which he submitted was certainly not in the realm of the provisions of Section 17 of the Organisation of Working Time Act 1997.

(to subsection (3), at 2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subjectleast 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

The Staff handbook, 2009 placed working time within the collective agreement, but also referenced a clocking in procedure. This has clearly been overtaken by the Tachograph card and records which result.

There were no normal start and stop times or contractual references. The Complainant admitted in evidence that he had altered his start times himself.

These records generated a variety of start times during the cognisable period of February 10 to August 10, 2023. This is reflective of an annualised hours work pattern with seasonal variations.

I am satisfied that the complainant did make himself available to the respondent business on a number of occasions during the cognisable period in agreement with the Transport Manager.

I could not identify a 24-hr lead in period.

I have identified a contravention in Section 17(2) of the Act.

I do not have further particulars of absence of 24 hours’ notice.

I find the claim is well founded.

CA-00054303-15 statement in writing.

The complainant has introduced this claim as a “refreshed complaint” which was received by the WRC on 10 August 2023.

The cognisable period is therefore 11 February 2023 -10 August 2023.

I have already decided an identical complaint for an earlier cognisable period of 20 June 2022 to 19 December 2022 in CA-00054303-002

The Respondent has rejected the claim out of hand as being repetitive and without legislative basis.

For my part, the parties will by now have read my findings and decision in CA-00054303-002 where I have decided the same facts on their merits and have made a decision.

I am invoking the rule in Henderson and Henderson [1843] 3 Hare 100 to remind the parties that litigation should be underpinned by concerted efforts to conflate issues for a statement of claim, first in time.

I find the claim is not well founded as it is duplicated and thus res adjudicata.

CA-00054303-16 not notified of a change to terms of employment.

The Complainant has been clear in his evidence that he witnessed seismic change in his working life from the acquisition of the new tanker in 2028 and the increased activity.

He regarded this as a universal practice amongst his fellow drivers, yet there was no apparent attempt to vary the Collective Agreement, live since 2002-2006 onwards.

The Respondent relied on the word artificiality on a number of occasions in respect of the claims made by the Complainant in this case.

The cognisable period for this claim is 11 February to 10 August 2022. My jurisdiction in this claim is derived primarily from Section 41(6) of the Workplace Relations Act 2015 and secondly from Section 5 of the Terms of Employment (Information) Act, 1994

A careful reading of Section 5 of the Act is called for.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

[(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

I have already established that the respondent has not exhibited the signed statement of terms on commencement of employment outside of the collective agreements.

It was open to either party or the Union to seek to vary terms of any collective agreement. No one came to hearing and gave evidence of this approach from 2018 onwards. It has been the complainant’s evidence that his terms of employment attributed to the collective agreement were overtaken by the work pattern that followed the new tanker and the tachograph, 2018 and he was not notified of that change in writing.

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I find this claim is manifestly out of time and thus statute barred. I am unable to progress further.

I find the claim is not well founded.

CA-00054303-17 statutory records Regs 36/2012

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012 on employment records.

I found that the Respondent provided records and Mr O Connor replicated these records by hand. This is a duplicate claim with WRC Inspectorate.

The claim is not well founded.

CA-00054303-18 notification of Regs 36/2012

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012 on notification of the Regulations.

CA-00054304-019 records

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012.

I found that the Respondent provided records. This is a duplicate claim with WRC Inspectorate.

The claim is not well founded.

CA-00054303-20 Statement of core terms of employment

The Complainant is seeking the benefit of an amendment made to the Act by means of the Employment Miscellaneous Provisions Act 2018, where core terms are to be given or cause to be given by the employer to the employee not later than 5 days following the commencement of employment.

The Complainant by his own admission worked continuously from 1991 and can avail of the provisions of Section 6 of the Act

. Existing contracts of employment

(1)

Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement [containing the particulars specified in subsections (1) and (1A) of section 3] and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4.

2)

An employer shall, within 2 months after the employer has been required to do so under subsection (1), furnish to the employee concerned a written statement in accordance with that subsection.

I accept that the complainant had at the very minimum an oral contract with the respondent was which was augmented by the collective agreements 2002-2005 and the driver handbook from 2009.

I have not identified an activation of this section 6 by Mr OConnor. I find he sought terms in 2008/9 but not since that date.

I also note that Section 3(3) bows to the presence of collective agreements as a depository of terms. The Collective agreements have currency for Mr OConnor.

(3) The particulars specified in paragraphs (d) Pay , (j )Overtime ) and (k) probation  of subsection (1A) or paragraphs (h), (j), (k), (l), (n) and (q) of subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars

which the employee has reasonable opportunities of reading during the course of the employee’s employment, or which are reasonably accessible to the employee in some other way.

I find that the complainant is a beneficiary of transitionary arrangements of the Legislation post 2018 and while best practice would suggest that the Respondent ought to have considered this amendment for an existent workforce such as Mr Foley , ultimately , I agree with the respondent that he could have actioned an application under Section 6 to which they would have been compelled to respond in law .

I cannot establish proof of this action within the cognisable period 11 February -10 August 2023

I find the claim is not well founded.

CA-00054303-21 Statement of core terms which deliberately contained false or misleading information.

I have considered both parties stated positions on this claim. The Complainant by his own admission had not been provided with a statement of core terms.

However, as I consider my jurisdiction in this claim, I note that Section 7(2) does not permit me a clear line in jurisdiction.

2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G,  shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) In relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, ] and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

A careful reading of Section 6 B (2) reads as a next step to the earlier section 6 A on Inspection

(2) An employer who deliberately provides false or misleading information to an employee, or who is reckless as to whether or not false or misleading information is provided, as part of the statement required by section 3(1A), shall be guilty of an offence.

(3) A person guilty of an offence under this section shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or to both.

(4) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) Summary proceedings I find I lack the jurisdiction to decide this complaint as I have no delegated authority as set out in Section 7(2) of the Act.

This authority seems to be the preserve of the WRC Inspectorate, who hold authority to initiate prosecutions.

I lack jurisdiction to decide this complaint.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00054303-001    Payment of Wages

Section 6 of the Payment of Wages Act, 1991 requires that make a decision in relation to the complaint in accordance with the relevant redress provisions under section 5 of that Act.

I have found the claim is not well founded.

CA-00054303-002 Sunday Compensation

Section 27 of the Organisation of Working time Act, 1997 requires that I make a decision in accordance with Section 14 of that Act.

I have found that payment for Sunday working has been taken account of in the determination for the pay in the annualised hours Agreement registered with the Labour Court in 2006.

I find the claim is not well founded.

CA-00054304-003   Organisation of Working Time Act 1997, excessive hours, and recording.

Section 27 of the Organisation of Working time Act, 1997 requires that I make a decision in accordance with Section 15 of that Act.

I have found the claim well founded in light of the 2022 averaging of 58.46 hours, variant on the 48-hr average.

In accordance with my powers under Section 27(3) of the Act, and having regard for all the circumstances, I award the Complainant €5,500 as just and equitable compensation for the contravention of Section 15 of the Act.

CA-00054305 -004 Breaks Organisation of Working Time Act 1997,

Section 27 of the Organisation of Working time Act, 1997 requires that I make a decision in accordance with Sections 4, 6 and 12 of that Act.

I have found that Section 12 does not apply to the Complainant due to the detail of the Collective Agreement and provision of adequate rest.

I find the claim is not well founded.

CA-00054303-005 Terms of Employment (Information) Act, 1994 (written statement)

Section 7 of the Terms of Employment (Information) Act 1994 requires make a decision in relation to the complaint in accordance with the relevant redress provisions under section 3 of that Act.

I have found the complaint is well founded.

 In accordance with my powers under section 7 of the Act, I have had regard to Section 7 (1) (A)

Section 7 Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

7.Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

(1)

An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has—

(a)

complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015or

(b)

been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

I note that the Inspectorate report indicated:

“Employees will be notified of the contravention and of their rights to present a complaint to an Adjudication Officer of the WRC “dated 31 January 2024.

As the employment relationship had ended for the complainant in December 2023, he has not received this notification or benefitted from the corrective action initiated by the respondent, therefore, I must press on to consider his right to a remedy in this case.

I found a selection of terms provided to the Complainant in 2009; however, they were not signed by the Respondent.

 I order the Respondent to pay the complainant €2,186 .00 in compensation in respect of the continuous breach of that Act. I have calculated the weekly remuneration in accordance with Regulation 7 of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 as €1,093.

CA-00054303-006 Daily rest period

Section 27 of the Organisation of Working time Act, 1997 requires that I make a decision in accordance with Section 11 of that Act.

I find the claim is not well founded.

CA-0054303-007 I do not get breaks.

Section 27 of the Organisation of Working time Act, 1997 requires that I make a decision in accordance with Sections 4, 6 and 12 of that Act for the cognisable period of February 11, 2023, to August 10, 2023.

I have found that Section 12 does not apply to the Complainant due to the detail of the Collective Agreement and provision of adequate rest.

I would have preferred to have received particularised claims here.

I find the claim is not well founded.

CA-00054303-008 I do not get breaks.

Regulation 18 of EC (Road Transport) Organisation of Working Time of Persons Performing Mobile Transport Activities Regulations 2012. SI 36/2012

 I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012.

The claim is not well founded.

CA-00054303 -009 weekly rest period Organisation of Working Time Act 1997,

My jurisdiction is derived from Section 13 Organisation of Working Time Act 1997.

Weekly rest periods.

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

The collective Agreement states that from Year 3 onwards, the weekly rest period is 37 hours every seven days which exceeds the provisions of Section 13.

The Complainant has not demonstrated which weeks within the cognisable period served as variant to the Collective Agreement.

There is no doubt that the Complainants refusal to record working time has made my analysis of his complaint more arduous.

Once more, I looked through the records presented by the Respondent and was unable to isolate a variance on the Collective Agreement.

I understand that SI 817/2004 rules Section 13 out for Mobile workers.

I must conclude that the Collective Agreement WTA /06/02 as presented permitted a 37-hour weekly rest period for the complainant. I have no detail on when this was disturbed given the time in lieu local arrangement and lack of transparent recording.

I have found the claim is not well founded.

CA-00054303-010 maximum hours cognisable period 11 February 2023 -10 August 2023

Section 27 of the Organisation of Working Time Act 1997 requires me to make a decision in accordance with Section 15 of that Act.

The Respondent has conceded the claim by declaration of an averaging of 59.3 hrs 2023.

In accordance with my powers under Section 27(3) of the Act, and having regard for all the circumstances, I award the Complainant €1,500 as just and equitable compensation for the contravention of Section 15 of the Act.

CA-00054303-011

 Regulation 18 of EC (Road Transport) Organisation of Working Time of Persons Performing Mobile Transport Activities Regulations 2012. SI 36/2012

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012.

The claim is not well founded.

CA-00054303-012 Annual leave

Section 27 of the Organisation of Working Time Act 1997 requires me to make a decision in accordance with Section 19 of that Act.

The claim is not well founded.

CA-00054303-13 public holidays

Section 27 of the Organisation of Working Time Act 1997 requires me to make a decision in accordance with Section 21 of that Act.

The claim is not well founded.

CA-00054303-14 Notification in advance of additional hours

Section 27 of the Organisation of Working Time Act 1997 requires me to make a decision in accordance with Section 17 of that Act.

I have found the claim well founded.

I order the Respondent to pay the complainant €1,000 as compensation in respect of the contravention of Section 17 of the Act.

CA-00054303-15 statement in writing.

Section 7 of the Terms of Employment (Information) Act 1994 requires make a decision in relation to the complaint in accordance with the relevant redress provisions under section 3 of that Act.

I find the claim is not well founded.

CA-00054303-16 not notified of a change to terms of employment.

Section 7 of the Terms of Employment (Information) Act 1994 requires make a decision in relation to the complaint in accordance with the relevant redress provisions under section 5   of that Act.

I find this claim is manifestly out of time and thus statute barred. I am unable to progress further.

I find the claim is not well founded.

CA-00054303-17 statutory employment records

 Regulation 18 of EC (Road Transport) Organisation of Working Time of Persons Performing Mobile Transport Activities Regulations 2012. SI 36/2012

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012.

The claim is not well founded.

CA-00054303-18 notification of regulations

 Regulation 18 of EC (Road Transport) Organisation of Working Time of Persons Performing Mobile Transport Activities Regulations 2012. SI 36/2012

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012.

The claim is not well founded.

CA-00054303-019 provision of records

I find that the Complainant has been granted an exemption derived from EC Regulation 561/2006, SI 229 /2017 and SI 567/2023 and lacks locus standi to advance his complaint in SI 36/2012.

The claim is not well founded.

CA-00054303-20 Statement of core terms of employment

Section 7 of the Terms of Employment (Information) Act 1994 requires make a decision in relation to the complaint in accordance with the relevant redress provisions under section 3   of that Act.

The claim is not well founded.

CA-00054303-21 Statement of core terms which deliberately contained false or misleading

Section 7 of the Terms of Employment (Information) Act 1994 requires make a decision in relation to the complaint in accordance with the relevant redress provisions under section 3 of that Act.

I find I lack the jurisdiction to decide this complaint as I have no delegated authority as set out in Section 7(2) of the Act.

This authority seems to be the preserve of the WRC Inspectorate, who hold authority to initiate prosecutions.

I lack jurisdiction to decide this complaint.

21 complaints arising from employment as a Milk tank driver 1991-2023