Complainant

Respondent

Parties

Donie  Foley

Kerry Creameries Ltd (amended on consent)

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-00054304-001

19/12/2022

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

CA-00054304-002

19/12/2022

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

CA-00054304-003

19/12/2022

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

CA-00054304-004

19/12/2022

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

CA-00054304-005

19/12/2022

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

CA-00054304-006

10/08/2023

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

CA-00054304-007

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-00054304-008

10/08/2023

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

CA-00054304-009

10/08/2023

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

CA-00054304-010

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-00054304-011

10/08/2023

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

CA-00054304-012

10/08/2023

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

CA-00054304-013

10/08/2023

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

CA-00054304-014

10/08/2023

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

CA-00054304-015

10/08/2023

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

CA-00054304-016

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-00054304-017

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-00054304-018

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-00054304-019

10/08/2023

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

CA-00054304-020

10/08/2023

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

CA-00054304-021

10/08/2023

Mr. Donie Foley, the complainant and bulk tank driver 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 John OConnor 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 and one which hosted a number of precursors or antecedent events, prior to hearing. Not least of which was a fragmented payment in redundancy which was not resolved.

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

The Respondent submitted a number of written submissions from November 2024 onwards .

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

However, 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 small 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 46672, 49934 and ADJ 50360 for Mr.  Foley.

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 hearing  were issued based on the live complaints on each of the Decision documents in this group.

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

Mr. John OConnor

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. Foley 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. Foleys’ employment ended through redundancy of the entire seven directly employed fleet of milk tank drivers in December 2023.

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

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

 Historical Industrial Relations Context and Background to the case.

The Complainant was a SIPTU shop steward.

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.

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 concession of 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 categorised 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,  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. “

As Mr. Foley addressed this in his evidence, I will return to its relevance there.

Representation:

The Complainants were represented by their Union, SIPTU, during their workplace issues, the week long 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. Foley 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 provided with an Inspection Report.

The Complainant 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.

It has been a cause of some surprise to me that the complainant has canvassed political advocacy to seek release of his decisions alone outside of those parameters. I addressed this on two occasions, re-stating the agreement and recorded that I have no intention of departing from the agreement.

I will follow through on my commitment to seek the circulation of all Decisions in the manner agreed.

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.

 I now press on to Decision in each complaint.

At the conclusion of hearing, I requested records on the averaging of hours for Mr. Foley.

I also requested details of loss and mitigation. I received an extract from his accountant’s profit and loss sheet but the detail on financial loss was lacking. I sought further information on the PRSI gap in records 1992-1994, but none was forthcoming.

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 4 April 1988 on a seasonal basis. 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 €777.00 nett for a 61-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 sole documentary detail of Mr Foleys 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 Foleys life.

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

Mr Foleys 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 for Mr Foley.

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 from home to farm to processing plant and home. 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 Foley.

Mr Foley did not have a contract, nor was he able 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 response to Mr Ryan, Mr Maier contended that Mr Foley was unaware of rules on breaks 2021-22, such was his level of disappointment in not being categorised as salaried worker that he began to focus on “all the hours “as he had no idea of his rights before receiving legal advice in 2022.

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-00054304-001    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-00054304-001

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

On 27 March 2024, the Complainant clarified:

CA-00054304-001 Payment of Wages Act 1991

 The complaint should have received payment in the sum of €9,998.04 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.

The Respondent had referred to loading time historically recognised for pay purposes alone as it was not calculable in the 48 hr averaging rule .

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

€168, 890 

Broken down as

€140,105 in unpaid wages (3,220 .61 hrs of overtime at double time €43.50 per hour)

€5,603   additional holiday pay

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

€9,621 in compound interest.

The Complainant sought compensation at twice the loss.

CA-00054304-002 Terms of Employment Information) Act, 1994(written statement)

Counsel for the complainant outlined that Mr Foley had never received a written statement contrary to the provisions of Section 3 of the Act.

He pointed to the uncertainty around whether a statement ahd ever been in existence and the detrimental effect the omission had on Mr Foley. 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-00054304-003 Maximum permitted number of hours.

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 the Respondent was in breach of this obligation from 19 June to 19 December 2022.

The complainant exhibited handwritten drivers’ weekly logbooks 22 Sept 2023 and attached an extract from the tacho records. He also exhibited his safety daily checklist for his assign truck 181 K 2366.

This did not fall within the cognisable period but did total a hand record of 71 hours worked without reference to break times.

By supplementary submission, the complainant submitted that Mr Foley 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.

CA-00054304-004 Breaks

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 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.

 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-00054304-005 Sunday working

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.

He acknowledged that he had raised this locally during 2022, but he had not chased progress through a grievance.

CA-00054304—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.

CA-00054304-007     Breaks

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. He acknowledged taking legal advice during 2022/3 but was unable to verify the date he ceased recording his breaks.

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

CA-00054304-008 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-00054304-009   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-00054304-010 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 drivers’ weekly logbooks 22 Sept 2023 and attached an extract from the tacho records. He also exhibited his safety daily checklist for his assign truck 181 K 2366.

This did not fall within the cognisable period but did total a hand record of 71 hours worked without reference to break times.

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

CA-00054304- 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-00054304-012 Annual leave

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

CA-00054304-13 public holidays

The Complainant did not receive the benefit of public holidays.

CA-00054304-14 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-00054304-15 statement in writing.

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

CA-00054304-16 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 considerably .There were changes to 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-00054304-017 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-00054304-18   no notification of working hours regulations SI 36/2012

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

CA-00054304-19 Provision of records SI 36/2012

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

CA-00054304-20 Statement of core terms of employment

Counsel outlined that the complainant had never received a written statement of core terms of employment contrary to Section 3(1)(a) of the Act, as amended.

CA-00054304-21 Statement of core terms which deliberately contained false or misleading information.

Counsel outlined that the only documentation Mr Foley received on core terms arose from the collective agreements.

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 Mr Donie Foley, Complainant

The Complainant combined his full-time job as a Milk tank driver with his role as a dairy farmer. He attended Agricultural college post leaving cert and commenced as a General Operative with the Respondent business in April 1988 working until, he was made redundant on 31 December 2023.

He was paid weekly but did not have a statement of terms of employment. He told the hearing he was aware of his hourly rate of pay historically “through local vigilance” He had received double time for Sundays and undertook shift work.

He engaged in a clock in system.

In 1990, he moved to the Mill at Farran fore at Kerry Agribusiness. Here he began driving with his colleague, Séamus Cronin and obtained his truck licence. He worked in feed and began milk tank driving in 1992. He did not receive terms and conditions for his new   role as a driver.

He worked longer hours in 1992 and was paid overtime.

Mr Foley outlined that he was a relief/ holiday driver across south and north Kerry. Hours were not recorded, but he was paid weekly with travel expenses.

Mr foley confirmed that he was subsequently paid on the 2002 collective Agreement with a 2005/6 reference to 48 hrs.

Mr Foley witnessed redundancies before securing his permanency as a driver, without a break in service and without any corresponding notification of employment related documents. He had not received a staff handbook.

Mr Foley recalled the unfolding of the 2002 collective agreement through the then LRC, 66 hrs basic and 11 hrs work per day. He had been a shop steward and recalled being in the Great Southern Hotel early one morning, where the agreement referred to as the “Holy Grail “, the new agreement.

 He understands that his future was secure through a permanent route in Dingle. “It’s all in it! “Reference to 48 hrs was to follow.

 He presumed he was linked to Kerry Agribusiness and was not aware he was employed by Kerry Creameries ltd.

He recalled service changes such as a digitalisation of tachographs in or around 2015/16, communicated by email, where breaks were deducted. The day was measured from.

 “Key on to key off “.

 and the company “got away with it “lack of adherence to the 48 hrs limit.

Mr Foley subsequently  learned of a preferential arrangement being offered to some salaried staff at Kerry Group in terms an extra 5 days, enhanced VHI and parental leave. He chased this with SIPTU, but the Labour Court determined that he was “hourly paid “  

Mr Foley contended that he had been on salary from 1992.

He was aware that annualised hours were in practice, but he was harassed to place the tachograph at rest as his line manager told him “There was plenty time to take breaks “However, he couldn’t take breaks due to the 11-rest period. He had been in dispute from 2016. Mr Foley was aware of a helpful precedent on annualised hours in Charleville and as drivers were reducing in cadre, measures were put in place on revised gallonage.

Mr foley submitted that the 2005 agreement confirmed that standby did not constitute working time.

27 weeks at 66 hrs.

He was informed that any attempt to change salaries was deemed a cost increasing claim, which impeded progress. He had to await the completion of wage increases fixed by the Agreement before advancing his claim in 2021.

In addressing his lack of opportunity to get a solid 15-minute break, he recalled that from 2015 onwards, his Transport Manager, Mr A, not present as a witness for either party, put him under pressure to record breaks.

He exhibited an extract of 1 week but deferred to the company’s electronic records. Mr Foley confirmed that the respondent had wanted him to take breaks, but he never got in excess of 10 mins together and never the 30 minutes. He was not paid for additional hours worked. His home life suffered from these restrictions as he left home early and the enhanced hours meant that he missed social engagements and was frequently tired. He acknowledged that air con was a more recent addition in the truck.

He clarified that there was a local TOIL arrangement in response to the extended day, but no formal mechanism to go to things like the dentist. This remained unchanged up to his termination from the business.

As Mr Foley sought to further categorise his claims, Mr Ryan BL called for “precision “

Mr Foley outlined that he was not paid a standalone Sunday rate, and he had been informed that this was built into his weekly pay.

He was seeking payment for public holidays within the cognisable period.

He submitted that he was always in the truck and there were two matrices.

1 put to rest.

2 rest by default

He said he habitually highlighted that with his obligation to hook up tanker, wash the fittings, load up, sampling only 5 mins was available to avail of a break. He understood that breaks were exempt in the 2005 agreement, and he understood SI 817/2014 exempted rest breaks.

By 2022, he had obtained legal advice, and he stopped recording his breaks.

Mr foley recalled that new tankers with an upward adjustment of work output occurred during 2018. By May / June he was completing 6 loads over 3 days. He had not received any notification that his hours were increased.

He outlined a typical day from 7 am, driving, collection, sample / wash, factory visits, (2 hrs) withhold ups of 40 mins.

Mr Foley linked his claim for payment of wags to the excess hours he worked over and above 48 hrs and referred to the accountant’s report. Some ambiguity arose on the actual of quantum claimed and Mr Maier BL submitted that there had been an ongoing underpayment from 19 December 2022.

Mr Foley clarified his service as 4 April 1988 to 4 May 1992 without break in service. He accepted that he had been laid off during winter.

He said that he had already spent a considerable amount of money on legal fees and this was the

 “People’s Court “He requested a way back to work.

During cross examination, Mr Ryan acknowledged Mr Foleys extended tenure and familial link to the business. Mr Foley responded that he had a strong sense of injustice and mistreatment. He accepted the circumstances had deviated from a voluntary redundancy climate and said:

“We were fine for redundancy if it was put right “

He submitted that he was dissatisfied at being forced to withdraw the claims within this complaint and refused to sign a waiver.

He explained that the respondent refusal to include the lunch money in the calculation of redundancy was a deal breaker and the quantum offered was insufficient for his financial objectives.

He agreed that €209 k was the quantum rejected.

Mr Foley disagreed that the impasse related to the quantum, but the hours of work. He recalled attending driving safety training annually, where the lesson on “accident “told him “We were on our own “

If he had accepted settlement on offer, then the issue of time management and adequate rest periods would remain unresolved at 80 hrs instead of 48hrs by the respondent. He felt strongly that this issue had the potential to harm his family or other families.

In response to Mr Ryans question on payment of over time during early days at the factory and the Mill, Mr Foley agreed there was a time in lieu system.

Mr Foley confirmed that in or around 2021 he responded to an email for salaried staff on VHI benefits. He outlined that he made an application as salaried staff, but there was no provision for a cost increasing claim and he was forced to await the conclusion of the wage agreement.

In addressing the Grievance outcome letter of November 2021, Mr Foley placed the activity intensification to 2018, where driver numbers reduced where he worked 52 weeks of the year now with little time for breaks.

He denied this was an Industrial Relations dispute and explained his grievance as he was fed up being intimidated around breaks and taking breaks. He was informed that he should turn off the tachograph for his breaks. He understood he was to take breaks in the factory.

He stated that there was no way in the world that he worked under 48 hrs and on many days “he did not have a genuine break “outside of a 7–8-minute interval while pumps were fitted for washing.

Mr Foley disagreed with Mr Ryan when he recalled not being obliged to take breaks when he referenced a Mr Michael Pender letter dated 3 February 2025 to the Irish Co-op Association.

He was immune from disciplinary action because of the 48 hr regulations.

Mr Foley argued that he should be paid for Saturday and Sunday work without express provision in the Agreement.

He refuted any semblance of a genuine redundancy as while he had been offered a contractor role, he was the sitting driver, and he wished to remain.

Mr Foley gave minimal evidence on loss and mitigation. He earned approximately €5-10, 000 from his family farm. He is currently undertaking further training in human resources.

In redirect, Mr foley in commenting on the quantum he left behind, he said that he had seen drivers be given more than that amount. He had an issue being forced to drop these complaints. The redundancy did not incorporate lunch money in the calculation.

He reaffirmed working in excess of 48 hrs per weeks.

He drove c 300 -400 kms per day and in referring to the tachograph said it recorded that he couldn’t take a break.

He stated that salary was mentioned on pay slip.

He confirmed that he took an individual grievance to address hours and breaks through the IR pathway.

He said he was not offered new work from the company as contractors took the jobs, and he contended that the company just washed their hands of the breaks and 48 hrs issue.

In clarifications, Mr foley confirmed that he held a tachograph, but did not have normal start and finish times.

He is a small shareholder in the Kerry group.

He had not received a staff handbook but had undertaken induction and training in the tachograph. He was unable to recall when he ceased recording breaks via tachograph.

He maintained that the 2005 Agreement endured for 3 years. The Union had not submitted a clarification in LCR 22429 in 2021.

He had applied the lunch money in paying for his lunch at the factory.

He was not participant in any workplace accidents.

There was no local agreement on overtime.

He did not appeal the redundancy outside of attending the WRC in the aftermath of the 5 men protest in Tralee. There were no alternatives to redundancy discussed.

Evidence of Michael Farrell, Farmer.

Mr Farrell farms a 500-acre holding three miles west of Dingle. He contended that he had no choice but to send his milk production to the Kerry group, which provided a large part of his farm income through a service level agreement.

He recalled being present on site approximately half of the time during Mr Foleys visits and had full faith in him. Mr foley was welcome to hang around the farm but he was not offered tea.

He detailed the process of milk collection which required a skill to operate to avoid “flicking off “

During cross examination, he outlined the frequency of Mr Foleys attendance through the seasonal variations of summer and winter, which dipped for around two weeks at Christmas.

He confirmed that there is currently a demand for Lorry drivers as there no contractor / owner operates west of Tralee.

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. Mr Foley was linked to an estimated under payment of €140,105 in respect of an estimated overtime hour. Added to this was an estimated €5,603 in unpaid holiday pay, an unincorporated proposed pay increase mentioned on 15 May 2023 of €23, 183.

Cumulative sought €168, 890 in total amount underpaid for Mr foley 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 Foley as €1, 429.65, 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.

Mr Maier gave closing remarks .

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 Foleys statutory claims were not well founded.

Mr Ryan BL, Counsel for the Respondent opened by acknowledging Mr Foleys “very long service “which commenced in 1988.

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. Mr Foley was participant in negotiations.

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

He accepted that Mr Foley was employed prior to the commencement of the Organisation of Working Time Act, 1997. However, Mr Foley 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.

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 Foley 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.

He 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 Foleys 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 Mr Foley to request these details when the 1994 law was amended in 2018, but he did not do so.

Mr Foley did not respond as this question was framed at hearing.

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 Foley distanced himself from the breaks regime from 2021 when he raised individualised grievances regarding his employment. Some tension followed when Mr Foley ceased recording breaks, and the Respondent was unable to secure his cooperation to restore the practice.

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

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-00054304-001

The Respondent has rejected the claim and relied on the 2002 Collective Agreement, where Mr Foley participated in negotiations. This was supplemented in 2005, and both formed the basis of Mr Foleys 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 countered the complainants stated view that he was an hourly paid worker and contended that the complainant was mistaken in his view of the LCR 22429.

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

CA-00054304-002 Terms of Employment Information) Act, 1994(written statement)

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 was not in a position to exhibit the contract for Mr Foley, but outlined that Mr Foleys colleague, Mr OConnor was provided with a contract c 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 Foley. This placed an onus on Mr Foley 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-00054304-003 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 a reference period for Mr Foley.

 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-00054304-005 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-00054304-006 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 2022 and 2023 and was unable to prevail on him to comply.

During his grievance in 2021, Mr Foley contended that he was not required to take breaks or record them.

The Company had consistently reminded the complainant the importance of those breaks up to reference to Disciplinary action.

CA-00054304-007 Breaks

The Respondent has disputed the claim submitted under Section 12. As a Mobile Worker SI 817 /2004 exempted the Complainant from the a0ppliaction of Section 12.

CA-00054304-008 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-00054304-009 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-00054304-010 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 45.64 hrs over 12 months. Appendix 2 of the Collective Agreement.

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

CA-00054304-011 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-00054304-012 Annual leave

The Respondent disputed the claim.

2019   Mr foley accrued 33 days annual leave and availed of this.

2020 Mr foley accrued 33 days annual leave and availed of 31 days + 2 carried over.

2021 Mr foley accrued 33 days and availed of 35 days (carry over)

2022 Mr foley availed of full 33 days.

2023 Mr foley accrued 34 days and availed of 37 days holidays.

The Respondent had no obligation on annual leave.

CA-00054304-13 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-00054304-14 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-00054304-15 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-00054304-16 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-00054304-17 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-00054304-18 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-00054304-19 SI 36/2012 Records

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-00054304-20 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-00054304-21 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 hey 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 foley 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 Foley 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 foley 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 Foley 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 Mr foleys employment.

He was aware that Mr Foley had raised the topic of his claim that he worked in excess of OWT in August 2023, but HR normally issue a written statement.

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

He clarified  the Tachograph classification of “other 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 foley, and his colleagues had been sold.

He was not aware of a staff handbook.

Evidence of Mr Gene Dillane, Transport Controller by oath.

Mr Dillane has a background as a Mechanical Engineer. His job involves liaising with Drivers, Mechanics, the RSA and Legal. He is with Kerry Creameries ltd since May 1993.

He gave evidence that after May 1, 2006, it became essential to record digital records in trucks.

Tachographs were fitted to record the daily activities of trucks by driver card insertion on the minute-by-minute activity of data.

He described the then fleet of trucks as 1 truck per employee and 2 spare.

Four categories prevail alongside distance travelled and speed recorded. There is a button overhead and the driver, Mr foley is obliged to press that button to trigger a category on the digital field of:

Driving

Other work

Rest breaks

Availability

Driver has autonomy to change default settings. If the truck is stopped, other work / rest is applicable. If driving resumes the record automatically restores.

If the driver took a break without activating the button to change function, the system records work.

Mr Dillane submitted that SI 36/2012 provided a 12-month matrix for measurement of time and Mr Foley was 46.92 hrs in 2022. (A +B divided by C)

Tachographs were installed in April 2016 and recording and training commenced in January, May, and September 2017.

The Driver’s name was present on the screen and “during any given day, it will ask you if you rested? “

Mr Dillane was aware that Mr Foley maintained that he did not have to take breaks. He recalled a meeting in his office on 30 October 2020, without the benefit of minutes which addressed this topic.

Mr foley told him that sometimes he forgot to record the breaks and other times he did not get the chance. Mr Dillane reminded him of his personal responsibility for recording breaks and indicated that he would flag with the Transport Manager, as:

“I couldn’t see how he understood he couldn’t take breaks “

He had not recorded the break speed limit.

The CPC had discussed breaks at the annual updates.

He gave an example from 25 August 2022 from the records provided to hearing. Rest had to be a minimum of 15 minutes to be picked up and catalogued as a break.

Mr Foley had not recorded breaks in 2023.

During cross examination, Mr Dillane agreed that he fitted the description of Expert.

Mr Foley had been allocated to a new 3 axle tanker in May 2018 as farms were enlarging and getting bigger. Work patterns didn’t really change.

He agreed this had not followed a consultation with the Union or safety committee, nor had a new policy unfolded.

In Mr Foleys geographical area, both he and a contractor operated the patch. Audits occurred every couple of months via weekly excel sheets.

The 12-month averaging was populated by information sent at 4.30 pm by SIM card from the previous day as records are required to be retained for 2 years over a rolling calendar year. Reports may be utilised in court and “can’t be modified “

Mr Maier queried who carried responsibility for adherence to legal limits? Mr Dillane replied, the Transport Manager. Mr Dillane conceded that he flagged his concerns on the vacuum in break time recording.

The Collective agreement is permitted within SI 36/2012 regulations and SI 817/2004 carried a derogation from the Organisation of working time Act.

Mr Dillane was asked what instrument he used to apply exemptions? He replied he did not know outside of the institutional capacity of the tachograph. The Complainant did not clock in or out.

He does have option to take rest and finish his day later.

He declined oversight of the 2006 agreement as he did not allocate hours directly.

Mr Maier asked whether at 46.9 hrs for 2022 came close to the limit? Mr Dillane outlined the matrix and added that Mr foleys sick note had not been exhibited.

Mr Gillane detailed the operational requirements attached to milk collection and delivery and breaks were permitted in any setting. He dismissed the question on wouldn’t breaks extend the working day by relying on the clear parameters of 48 hrs averaging which included breaks.

Other drivers recorded their breaks during 2022 and 2023.

Drivers were permitted rest as needed.

In redirect, Mr Dillane re-affirmed the proximity of drivers to him on a daily basis on the plant.

In clarifications, Mr Dillane was satisfied that measurement of time and the explanation was covered at CPC annually.

He clarified that Mr Foley had requested working time records during 2022, and these were provided to him. Sundays were not separated from the working time.

He understood the mobile road regulations applied to Mr Foley. He had not sought compensatory rest periods.

Page 19, 72 minutes for each load.

Mr Foley recorded 19 days sick leave in 2022.

 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.

Ms O Carroll recalled Mr Foleys grievance submitted through the hub. It related to his being unable to take breaks.

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 consequences.”

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 Foleys 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.

Ms OCarroll could not recall whether Mr foley had received his statement of terms and conditions but stated “I’m sure he got something “and she felt sure that his terms and conditions could have been updated at his request.

Ms O Carroll declared that Mr foley was an annualised hours employee paid the same throughout the year, similar to manufacturing at Charleville.

 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 foley 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 offered generous ex gratia redundancy payments way above the current Kerry Policy, we are 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 Mr Foley or his colleagues.

Mr Ryan provided closing remarks .

I have been given 21 complaints submitted to the WRC in bursts from 19 December 2022. As I reflect on the passage of time since I received carriage of these cases in February 2024, I find that it is important for me to record my reflections on the path travelled on the way to hearing as backdrop before I consider the merits of the claims made. It has been a mammoth journey.

I had hoped to have finalised this decision in June 2025; however, I needed more time to finalise my deliberations.

When I became aware of the splintered redundancy process, where significant quantum was retained by the company on the ex-gratia offer (the parties are agreed on these figures) I encouraged the parties to engage to explore settlement of this unfinished business. Mr O’Connell’s evidence provided a welcome insight into the state of play there. However, while the parties took time to engage during the time allocated to hearing, no consensus emerged from that conclave.

Legal title

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 Foley 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 needed to understand the parameters of these .

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 as €9,998.04 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 €178, 511 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 Foley has placed LCR   22429 from July 2021 as his Rubicon within his employment. He believed that he was wrongly cast in that Industrial relations recommendation and decided on an individual grievance.

 This predated the action of the Union to give life to the Courts Recommendation in April and May 2022. He was unrepresented in that process, which I found unusual for a former shop steward in a closed shop employment. (Reference Employee handbook January 2009.)

 His issues remained unresolved.

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.

The Findings

I now move to my findings proper which followed a careful consideration of all oral evidence and written submissions from both parties.

I thank the Parties for reading my prefacing remarks which I believe inform the complex background in the case before me.

Adjudicator Decision on 3 Preliminary Issues raised on Day 1 hearing:

CA-00054304-001    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 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?

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 Foley 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 Foley 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 Foley was specifically delineated as Driver 38065

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 2,099.60 hrs annually, many of his driver colleagues were equally recorded, some were less.

Mr Foley admitted that he had worked to these collective agreements for many years and things changed for him on receipt of the new truck and imposition of the tachograph c 2018.

Mr Foley accepted that overtime was not incorporated in these collective agreements and his hours had deviated from the Agreements since 2019.

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 “

His own personal grievance in 2021 seemed to reflect interpersonal communications and a defiance in not cooperating with the tachograph. A careful reading of his appeal dated November 2021

“My workload has increased over the last number of years due to the increased volume of milk produced over the winter. There is no opportunity to recoup my hours overtime. I do not get paid for overtime “

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.

He has called on the WRC as “the People’s Court “to concede his claim.

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 years. 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 “

I note that Mr foley made an individual claim for pay and compensation for hours in excess of the 48 hr Agreement on 5 May 2022 and was diverted back to the Union parallel approach.

 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 wait longer at factory drop offs , 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 Foleys complaint 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-00054304-002 Terms of Employment Information) Act, 1994(written statement)

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

The Respondent through Ms O Carroll submitted she believed “he received something “. However, the respondent has not exhibited term outside of the Collective Agreements.

Ms O Carroll referred to a staff handbook in evidence. I requested sight of this.

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 at the business relied on local knowledge for information on his terms and conditions.

As the handbook clearly presents as additional to the contract, it is likely that a contract issued but neither party was in a position to exhibit it for my inquiries.

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 some doubts in that regard given his proximity to the information in his work as a shop steward.

However, I have identified a defined vacuum in terms of employment shared with the complainant, not remedied by 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-00054304-003   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 Foley.

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

The Respondent had some records but had not quantified the figure.

The Complainant put forward figures of 61 and 80 hrs but did not demonstrate a breakdown. If I am to take a calendar year as a snapshot measurement 20 December 2021 to 19 December 2022, I have considered the electronic records placed before me.

The Complainant submitted that he worked in excess of the annualised figure year on year and he argued that the respondent had gotten away with it.

There was a lack of clarity on what calculations of working time entered the averaging matrix particularly on availability /standby.

This was an area that the Complainant expressed the most frustration and argued that the respondent had habitually consciously breached S 15 of the Act.

For my part, I found certain overtures in the complainants’ story and that of

Stable field ltd v Ana Lacramioara Manciu DWT 1924

This was a case of a vulnerable worker whose employer had an IT system but chose to exhibit fragmented documentation in defence of the claim for excess hours of work.

 The records presented by the Respondent to the Court consisted of pay slips and pay analysis sheets. They are not records of the type contemplated by the Statutory Regulations These do not offer any conclusive evidence of hours worked. It was open to the Respondent to provide the Court, together with their submission, with decisive evidence of hours worked, by supplying the primary records necessary to ensure compliance with s.25. The Respondent did not do so and confirmed at the hearing that they had not brought the documentation required. The obligation to maintain records is on the employer and if he fails to fulfil that obligation, he must bear the consequential burden of rebutting the evidence of the Complainant. In this case the employer has not rebutted that evidence to the satisfaction of the Court. Accordingly, the Court must hold that the employer contravened the Act in respect of the hours worked, as alleged by the Complainant.

In the instant case, I did not have the benefit of precise evidence from the complainant on this topic. This was not saved by his decision to cease to record breaks at an unspecified date, but sometime in 2022. By then he had received a dossier of his averaging records from the business.

I have also established that there was an unofficial time in lieu system in operation without visible records. This points to an element of self-governance on time.

The distinguishing factor in Stable field is the 2006 collective Agreement.

I looked through the tachograph records presented to me and I have attempted to apply the 48-hr averaging rule over 12 months. I have not identified a contravention of Section 15 of the Act.

I found 3 weeks of credited contributions, year 2022 on the prsi records plus annual leave absences.

I found that the Respondent has rebutted the evidence of the complainant.

I find the claim is not well founded.

CA-00054304-004 Rest breaks, Organisation of Working Time Act, 1997

Section 12 of the Act

Rests and intervals at work.

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

I have reflected on my jurisdiction within the Organisation of Working Time Act 1997, namely at Section 4(5), to begin on the influence a Collective Agreement places the working live of beneficiaries of same

 (5) Without prejudice to section 6, if—

(a) a collective agreement that for the time being stands approved of by the Labour Court under section 24, or

(b) a registered employment agreement,

provides that section 11, 12 or 13 shall not apply in relation to the employees to whom the agreement for the time being has effect, or a specified class or classes of such employees, section 11, 12 or 13, as the case may be, shall not apply in relation to those employees or the said class or classes of such employees.

Section 6

Compensatory rest periods.

6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of section 11, 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12 or 13.

The Collective Agreement WTA/06/02 which stood visibly unmuted from the date of approval at the Labour Court 11 September 2006 complies with Section 4(5) of the Act

30 mins   S 12(2)

A careful review of the Tachograph records presented by the Respondent reflect breaks taken in the cognisable period. The complainants own evidence pointed to his preference for having his breaks at the factory setting and not farmers homes such as Mr Farrell.

I also noted that the time in lieu system had no visible rules for me to check the balance of hours returned to the complainant.

I realise that the complainant must have rest time made available by the Employer. I find here that the respondent had engaged in an active campaign for Mr foley to take breaks as far back as 2021 and for whatever reason he did not want to capture the time for comprehensive recording.

I find that he was provided with time for adequate rest but absolved himself from availing of it. I can appreciate that he had home commitments, and he may have sought to prioritise those. However, I found a culture of availability of breaks at the business consistent with the Collective Agreement.

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.

I find the claim is not well founded.

CA-00054304-005 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 hardly ever worked on Sundays. I noted that he worked the 18 September 2022.

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 Foley :2099.60 hrs.

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-00054304-006 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 Foley demonstrate an awareness regarding his need to honour the 11-hour rest period. He spoke about it as proximate and integral to his work. He also spoke being placed in a vulnerable position regarding losing out to protections he expected under the Act and that is what motivated his claims under OWT.

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 August 2023?

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 but underwritten by an unofficial time in lieu system, deemed by him to be useful but not robust to support a trip to the Dentist.

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.

I found a certain poetic licence in how he assembled his example of hours dated September 2023, not strictly before me.

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 Foley 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

. I can appreciate that he had home commitments, and he may have sought to prioritise those. However, I found a culture of availability of breaks at the business consistent with the Collective Agreement.

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-00054304-008 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 Foley 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 Foleys 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 cast him and the sub plot of tension with hauliers absorbed a lot of his thinking during 2021 and 2022 , This prompted his interest in “ the hours “ and “ all the hours “ as a way to reverse that thinking . 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 Foley 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-00054304-008 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-00054304 -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-00054304-010 Maximum number of hours 11February to 10 August 2023

The claim is not well founded.

CA-00054304 -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. I accept that he was paid for loading time .

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-00054304-010 Maximum number of hours 11February to 10 August 2023

I found that the Respondent has rebutted the evidence of the complainant.

I find the claim is not well founded.

CA-00054304-011 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-00054304-012 Annual Leave

The Complainant has disputed his annual leave entitlement.

 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.

I have examined the annual leave records and considered the pay slips exhibited during the cognisable period. Mr foley was paid a holiday payment on 4 weeks of March 2023, once in April on three occasions in June and once in August 2023. Sick leave record followed on 17 August 2023. 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.

CA-00054304-13 Public Holidays

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

I found Mr foley very vague in his evidence on public holidays. He was not convincing. Given his extensive background and existent qualifications in human resources, I would have expected more precision. The Complainant seemed to believe that he had not been recognised if he worked a public holiday.

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.

Mr foley was paid a holiday payment on 4 weeks of March 2023, once in April on three occasions in June and once in August 2023. Sick leave record followed on 17 August 2023. I conclude that this is a composite recording for annual leave and public holidays as there are several unitary days rates paid, which match with the respondent submission.

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-00054304-14 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.

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 a last-minute additional run to Tipperary from his evidence. Neither party demonstrated that this was prefaced by a 24 hr notice by word of mouth or work-based notice. I found this was a casual arrangement most probably underpinned by a time in lieu system referred to by Mr foley.

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-00054304-15 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-00054304-002.

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-00054304-002 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-00054304-16 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-00054304-17 statutory 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 on employment records.

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

The claim is not well founded.

CA-00054304-18 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 on Mr Foleys request. This is a duplicate claim with WRC Inspectorate.

The claim is not well founded.

CA-00054304-20 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 1992 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 foley.

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 Foley.

(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-00054304-21 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 for an offence under this section may be brought and prosecuted by the Commission.

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-00054304-001    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-00054304-002 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 order the Respondent to pay the complainant €3,279 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-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 find the claim is not well founded.

CA-00054304 -004 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-000543004-005 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-00054304-006 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-0054304-007 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 as the Complainant was clear that he spent the lunch money when he was in the factory.

I find the claim is not well founded.

CA-00054304-008 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-00054304 -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-000543-010 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 claim is not well founded.

CA-00054304-011

 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-00054304-012 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-00054304-13 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-00054304-14 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-00054304-15 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-00054304-16 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-00054304-17

 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-00054304-18

 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-00054304-019

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-00054304-20 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-00054304-21 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 .

Twenty-one complaints December 2022 to August 2023 during live employment.