A significant number of complaints have been received in FTA Ireland from operators who have had determinations made against them in the Labour Court under the Organisation of Working Time Act 1997 (OWTA).
FTA Ireland has sought legal advice on how this situation has arisen, and what effect it has on operators who comply with EU Regulations for mobile workers. While the legal situation is very complicated, it can be summarised as follows:
1. Mobile workers were excluded from the provisions of the OWTA when it was enacted.
2. This exclusion was ended with the signing of SI 817/2004.
European guidelines for mobile workers, which were set down in Directive 2002/15/EC, were codified in detail in EU Regulation 561/2006. These explicitly define the working-time regime that applies to mobile workers; and EU Regulations supersede national laws under the EU Treaties.
Successive Transport Ministers introduced SI 2/2005, and SI 36 of 2012, in order to bring Irish legislation for mobile workers into line with EU Regulations. However, the Labour Court, in numerous cases since the Goode Concrete case (DWT0934) in 2009, has taken the unilateral view that mobile workers are covered by the OWTA.
Although the provisions of EU Reg 561/2006 are more onerous (in most respects) for employers than those of the OWTA, the decision of the Labour Court to stick to the OWTA exposes employers (who are compliant with EU law) to the possibility of adverse findings in the Labour Court.
The following lists possible issues that could arise for the employers of mobile workers because of failure to enforce EU laws:
· Breach of the OWTA for reduced daily rest (permissible under EU Regs, not permitted under the OWTA).
· “Failure to keep adequate records” finding under the National Minimum Wage Act: due to the Labour Court’s rejection of the tachograph as an instrument for measuring working time.
· Restriction in length of night working for mobile workers; eight hours under OWTA, ten hours under EU Regs.
· Misinterpretation of what constitutes “rest” could lead to a breach of the 60-hour week, or the 48-hour average week.
· An adverse determination due to misapplication of Sec 17 of the OWTA: This requires 24 hours of changes to the working day be given, in employments where there are no fixed starting or finishing times. This is a practical impossibility for much of the transport business.
· Determinations of payment of wages below statutory minimum wage: this could occur where the calculation of “rest” is different to EU Regs.
This list is not exhaustive, and further issues could arise where the Labour Court continues to ignore EU Regulations. As late as the 14th May 2014, in Mikulskis Vs Grange Transport (MWD 1414), the Labour Court declared “…the Court does not accept that the tacograph (sic) charts are evidence of the Complainant’s working hours.” The misspelling was not a typo, as it appeared three times in the Labour Court determination. The fact that staff in the Labour Court not only reject tachograph evidence, but cannot even spell the word, does not bode well for employers.
The Road Safety Authority (RSA) provides guidance to employers on compliance with Directive 2002/15/EC. Our advice is that this guidance is correct. As the RSA and the Gardai are responsible for roadside enforcement, operators have no choice but to comply with this guidance.
FTA Ireland wrote to the Labour court in December 2013 to ask them to clarify their position on EU Regulations. They have yet to reply. The association made a presentation to the Joint Oireachtas Transport Committee in April, but nothing more as yet.
FTA Ireland also met with the Department of Jobs, Enterprise and Innovation in May, who are looking into the matter.
While FTA Ireland acknowledges the efforts of the Transport Minister to set matters straight with SI 36/2012, the fact is that the Labour Court is ignoring this legislation. And although the issue is primarily one for the Minister for Jobs and Enterprise, the Cabinet is collectively responsible for this mess.
The governing law for all mobile workers in the EU is set down in EU Reg 561/2006, which came into effect on 1st January 2007. Seven and a half years is more than enough time for Ireland to get its Act in order.