DETERMINATION NO. DWT0934
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
GOODE CONCRETE LIMITED
(REPRESENTED BY REIDY STAFFORD SOLICITORS)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Various issues relating to organisation of work
2. The workers referred their cases to the Labour Court on the 13th October, 2009, in acordance with Section 28(1) of the Organisation of Working Time, 1997. A Labour Court hearing took place on the 20th April, 2009. The following is the Court's determination:
This is a preliminary determination on a point of law arising in an appeal of a Decision of a Rights Commissioner in a number of claims brought by 58 claimants under the Organisation of Working Time Act 1997 (the Act).
The Claimants are truck drivers. At the time material to their claims they were employed in that capacity by Goode Concrete Limited, herein referred to as the Respondent. They brought claims alleging that the Respondent had contravened the Act, inter alia, in not providing them with adequate rest periods.
The claims were heard by a Rights Commissioner pursuant to s. 27 of the Act. In so far as the claims concerned working time, the Rights Commissioner found that the applicable law is contained in the European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2005, S.I. No. 2 of 2005. The Rights Commissioner went on to find that she had no jurisdiction, under s.27 of the Act or otherwise, to entertain a complaint alleging a contravention of the said Regulations. The Claimants appealed against that aspect of the Rights Commissioner’s decision. The Respondent cross-appealed against other aspects of the decision which are not relevant for the purpose of this preliminary determination.
At a case management conference convened by the Court to identify the issues arising in the case, it became apparent that a central point of difference between the parties concerned the law applicable to the organisation of working time of mobile workers. The Court is satisfied that it can deal with this question as a preliminary matter and by so doing there could be significant savings in time and expense. On that basis the Court agreed to proceed to deal with the question of law arising in the case and to issue a preliminary ruling on that question
The Issue for determination
The question which the Court was asked to deal with concerns the extent to which the Claimants in the proceedings are covered by the provisions of the Organisation of Working Time Act, 1997, and statutory instruments relating thereto.
There appears to be an absence of clarity concerning the ambit of two statutory instruments, namely S.I. No. 817 of 2004, entitled The Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 and S.I. No. 2 of 2005 entitled European Communities (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2005. Statutory Instrument 817/2004 was made pursuant to s.3 of the European Communities Act 1972 (No. 27 of 1972) and s 4(3) of the Organisation of Working Time Act 1997 (No. 20 of 1997). Statutory Instrument 2/2005 was made pursuant to s.3 of the European Communities Act 1972 only. It is expressed on its face to be for the purpose of giving effect to Directive 2002/15/EC of the European Parliament and of the Council of 11 March, 2002.
In order to ascertain the current state of the law regarding the question to hand it is first necessary to consider the position under the law of the European Community.
Directive 93/104/EC concerning certain aspects of the organisation of working time provides the starting point for any consideration of Community law in this field. The totality of the transport sector was excluded from the scope of this Directive. However this Directive was amended by Directive 2000/34/EC, the purpose of which was to include the transport sector within the Directive. A consolidated Directive (incorporating Directive 93/104/EC, as amended) was adopted on 4th November 2003 and is now cited as Directive 2003/88/EC.
The principle provisions of Directive 2003/88/EC, which are relevant for present purposes, are as follows: -
§ Article 1(3)
· Article 1(7)
The exclusion of the road transport sector from the scope of the Directive is removed.
· Article 20
The Directive introduces the concept of a “mobile worker” which is defined as “any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterways.”
It would appear that the provisions relating to mobile workers apply to all such workers regardless of the economic or industrial sector within which they work.
The provisions of the Directive relating to daily rest (Article 3), breaks (Article 4) weekly rest (Article 5) and restrictions on night work (Article 8) do not apply to mobile workers. Those excluded from these provisions must, however, be afforded “adequate” rest.
Article 14 of the Directive is of particular relevance. It provides that its provision shall not apply where other Community Instruments make more specific provision relating to the organisation of working time for certain occupations or occupational activities.
Directive 2002/15/EC was adopted so as to make specific provisions in relation to the organisation of working time in the road transport sector. It is clear from the recitals to the Directive that it is intended to take precedence over Directive 93/104/EC, as amended (now Directive 2003/88/EC). This arises by virtue of Article 14 of Directive 2003/88/EC and the second recital to Directive 2002/15/EC
The sixth recital to Directive 2002/15/EC indicates its intended scope. It states: -
Regulation (EEC) No. 3820/85 has been substantially amended by Regulation 561/2006. Its scope is limited, inter alia, to vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more or to vehicles covered by the European Agreement Concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR). These provisions relate, in effect, to the international road freight sector.
“ The scope of the Directive covers only mobile workers employed by transport undertakings established in a Member State participating in mobile road transport activities covered by Regulation (EEC) No. 3820/85, or failing that, by the European agreement concerning the work of crews of vehicles engaged in international road transport.”
Domestic Law Provisions
The domestic law provisions regulating working time and related matters are to be found in the Organisation of Working Time Act 1997, and the various statutory instruments made thereunder. There have been no amendments to the primary legislation since its enactment. Its stated purpose is to implement Directive 93/104/EC
Section 3 of The Organisation of Working Time Act 1997- Non-Application of Certain Provisions
This section permits the Minister to exempt from the application of certain provisions of the Act specified activities connected with, inter alia, transport of goods and persons. Regulations were made pursuant to this provision, by S.I. 20 of 1998, exempting transport activities from the application of sections 11, 12, 13,15, and 18. of the Act. These sections deal, respectively, with daily rest, breaks, weekly rest, weekly working hours and night working.
It should be noted that while Directive 93/104/EC excluded the totality of the transport sector from its scope this exclusions was not replicated in the Act. Rather, provision was made to exempt transport activities from the scope of the Act by statutory instrument. This may be reflective of the fact that at the time the Act was enacted discussions were underway at European level on the inclusion of the transport sector within the ambit of the Directive. It should also be noted that while Directive 93/104/EC excluded the totality of the transport sector (including non-mobile workers in that sector) from its scope the Irish Regulations excluded transport activity only and appear to have applied to all transport activity regardless of the economic sector in which it was undertaken.
Inclusion of the Transport Sector
(b) mobile staff in civil aviation as defined in the Annex to Council Directive 2000/79/EC of 27 November 2004.
The Consolidated Directive 2003/34/EC was transposed in domestic law by the Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 (S.I. No. 817 of 2004). The expressed intention of these Regulations is to bring transport activities within the purview of the 1997 Act in conformity with the requirements of Directive 2000/34/EC.
Regulation 4 of S.I. 817 of 2004 provides that the following are excluded from the scope of the Regulations: -
(a) persons performing mobile road transport activities as defined in Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002, and
By Regulation 5 of S.I. 817 of 2004, the Organisation of Working Time (Exemption of Transport Activities) Regulations 1998 (S.I. No 20 of 1998) are revoked in their entirety. These were the Regulations by which the transport sector was originally excluded from the scope of certain provision of the Organisation of Working Time Act 1997.
Regulation 6 of S.I. 817/ 2004 provides that mobile workers are exempted from the application of sections 11, 12, 13 and 16 of the Act.
Regulation 7 provides that if a mobile worker is not entitled, by reason of an exemption under Regulation 6, to the rest period and break referred to in sections 11, 12, and 13 of the Act, the employer shall ensure that such a mobile worker has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as adequate rest.
The term “mobile worker” in these regulations has the same meaning as that ascribed to the term in Directive 2000/34/EC, that is to say; “any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterways.”
Effect of S.I. 817/2004
The effect of S.I. 817/2004 is to revoke the exclusion of transport activities from the ambit of certain provision of the Organisation of Working Time Act 1997. Hence such activities are now included in the provisions of the Act but are subject to a new exemption, in the case of mobile workers, from the provisions of Sections11, 12, 13 and 16, which deal, respectively with daily rest, breaks, weekly rest and night work.
Instead of the provisions of these sections mobile workers are now entitled to “adequate rest”. The regulations provide that a word or expression which is used in the Regulations and which is also used in the Directive has, unless the context otherwise requires, the same meaning in the Regulations as it has in the Directive. The term “adequate rest” appears in the Directive at Article 2(9) and is defined as meaning: -
Following the making of these Regulations mobile workers are now covered by the restriction of weekly working time to an average of 48 hours.
“[Regular] rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, [workers] do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or the longer term”
However by virtue of Regulation 4 the Regulations do not apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC. That is workers who are drivers or crew of vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more or to vehicles covered by the European Agreement Concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR).
Hence, on a plain reading of the Regulation such persons are fully encompassed by the provisions of the 1997 Act without the exemptions provided for by Regulation 6 of S.I. 817/2004.
European Communities (Organisation of Working Time of persons Performing Mobile Road Transport Activities) Regulations 2005 (S.I. No. 2 of 2005)
These Regulations were made by the Minister for Transport in exercise of the powers conferred on him by s. 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2002/15/EC. This section of the 1972 Act allows for the making of laws, by regulation, necessary to meet the States obligations arising from its membership of the European Community. However while such laws may make incidental, supplementary and consequential provisions they may not go further than is necessary to meet the requirements of the Community instrument which they are intended to implement.
These Regulations faithfully implement Directive 2002/15/EC. They have the same scope as the Directive (they are applicable to the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3,5 tonnes or more or to vehicles covered by European Agreement Concerning the Work of Crews of Vehicles engaged in International Road Transport)
Current Position in Domestic Law
The legal requirements in domestic law in relation to the Organisation of Working Time of those coming within the ambit of the Regulations contained in S.I 2/2005 are governed both by the Organisation of Working Time Act 1997 and by those Regulations.
2. The generality of mobile workers are exempt from the requirements of sections 11,12,13 and 16 of the Act but they must be provided with adequate compensatory rest, as that term is defined in Directive 2003/88/EC
There is no inconsistence between the requirements of the Act of 1997 and the Regulations. Rather the Regulations augment the requirements of the Act by making more particular provision in respect to the maximum weekly hours which may be worked within the same averaging period as that prescribed by the Act. Here the Act provides that average weekly working time may not exceed 48 hours averaged over a four-month period. The Regulations provide that working hours may not exceed 60 in any particular week within the same averaging period.
An absolute limit of 10 hours is placed on the duration of night work in any 24 hour period. The practical effect of this provision is that while under the Act of 1997 the maximum permissible duration of night work in a 24 hour period may not exceed an average of 8 hours measured over a two month period, under the Regulations the duration of night working may not exceed 10 hours on any particular night. There is no material difference between the Act and the Regulations with regard to the provision of breaks.
The Regulations are not made pursuant to any provision of the Act of 1997 and consequently cannot add to or take from any provision of that Act. Moreover, Regulations can only be made under the Act of 1997 by the Minister for Enterprise Trade and Employment. The Minister for Transport made these regulations. Consequently the Regulations do not affect the scope or applicability of any provision of the Act of 1997. Further, the Regulations provide for the imposition of criminal sanctions for any contravention thereof. Neither the Rights Commissioners nor this Court can exercise any jurisdiction in the enforcement of the Regulations.
Arising from the foregoing the current legal requirements regarding the organisation of working time of mobile workers can be summarised as follows-
1. Mobile workers (which include those who drive, or travel in, vehicles in the course of their employment) are covered by the general provisions of the Organisation of Working Time Act 1997.
3. Mobile workers who work in activities covered by Directive 2002/15/EC, that is to say workers who are drivers or crew of vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more or to vehicles covered by the European Agreement Concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR) are fully covered by the Act of 1997 and are not exempt from the requirements of sections 11, 12, 13 and 16 of that Act.
4. The Rights Commissioners and this Court on appeal have jurisdiction to deal with complaints from all mobile workers alleging a contravention of the Act of 1997.
5. Mobile workers referred to at 3 above, and their employers, are separately covered by the requirements of the European Communities (Organisation of Working Time of persons Performing Mobile Road Transport Activities) Regulations 2005 (S.I. No. 2 of 2005). However a contravention of those Regulations (S.I. 2 of 2005) amounts to a criminal offence triable summarily before a Court of competent criminal jurisdiction. Neither the Rights Commissioners nor this Court have jurisdiction to entertain a complaint concerning a contravention of these Regulations.
6. The Court was told that the Claimants in the main proceedings are engaged in driving trucks of over 3.5 tones. Accordingly they are covered by all the provisions of the Organisation of Working Time Act 1997 and are not covered by the exemptions provided for by S.I.817 /2004.
Signed on behalf of the Labour Court
30th April, 2009 ______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.