Introduction

The issue of the calculation of working time continues to occupy the institutions of the European Union (EU), with recent attempts to revise parts of the ‘Working Time’ directive resulting in a failure to reach agreement between the Council of Ministers and the European Parliament.

One of the principal stumbling blocks appears to have been how to count on-call time, i.e. the time that an employee is at his/her place of work and therefore at his/her employer’s disposal but not actually working. A proposal to differentiate between ‘active’ on-call time and ‘inactive’ on-call time, with the former counting as working time and the latter not counting, was made by the European Commission but in April 2009 the Parliament rejected this proposal on the basis that all on-call time should count.

This question has been controversial since the European Court of Justice determined in a number of rulings, including the SIMAP (C-303/98) and the Jaeger (C-151/02) cases which concerned health care professionals, that time spent on call should be regarded as working time if the employee is required to be at the place of work and even if a bed is provided for rest purposes. In common with many other proposals for directives or revisions of directives, it now seems to be back to the drawing board, with the Commission currently engaged in a consultation with the social partners at European level on how the rules might usefully be amended.

Today’s email on Labour Court appeals considers a complaint under the Organisation of Working Time Act 1997, where the question of how to count the working hours of a truck driver was critical to the outcome of the case. This case is also useful for its guidance on the onus of proof in claims under the Act where an employer has not kept records of compliance in accordance with the S.25.

This analysis should be studied carefully by all employers. Particular attention should also be paid to the Court’s conclusion (and not for the first time) that an employer has a positive duty to ensure that employees take the breaks and rest periods that they are entitled to under the legislation and not merely be given the opportunity to take them.


Nolan Transport and Antanas (WTC/09/279, Determination No.DWT1117, February 7th, 2011)

The Facts

The claimant in this case worked for just under three years as a truck driver for the respondent company and alleged a number of breaches of the Act during the course of his employment. A Rights Commissioner (RC) rejected his complaints on the basis that a record of working hours over an eight week period produced by the employer indicated compliance with the legislation. This decision was appealed by the complainant to the Labour Court. In summary, his complaints revolved around three distinct issues:

* that he did not receive a daily rest period of 11 hours as required;
* that he did not receive appropriate rest breaks at the intervals required; and
* that he was regularly required to work an average in excess of the 48 hour per week maximum.

The claimant gave evidence that his work instructions were generally relayed to him by text message, with a time and place for load to be delivered or collected indicated. He would drive to the location in question and undertake the preparatory work associated with loading or unloading, sometimes taking a break in the cab whilst waiting for the loading or unloading to begin. He maintained that although he did not generally participate in it, he was responsible for the vehicle and had to stay with it during the loading/unloading process, even though his employer had never specifically instructed him to do so. He also confirmed that he was a qualified international truck driver and familiar with the law concerning his occupation and that he had not raised a grievance in relation to his breaks because it might have impacted on his continued employment.

The respondent contended that given the nature of the business, a truck driver is responsible for organising his own work so as to take the necessary breaks. It maintained that there were adequate opportunities during the working day to take breaks and that there were also substantial periods of inactivity that should not count as working time, when the driver was neither driving or engaged in ancillary activities such as fuelling and vehicle checks. With regard to daily rest, it argued that if the claimant had not had sufficient rest between finishing one assignment and beginning the next one, he should have informed the respondent and his work schedule would have been adjusted accordingly.

The respondent accepted that it did not maintain records showing compliance with the Act. However, it did put in evidence a document which recorded hours worked for the last 11 weeks of the claimant’s employment. This document showed that weekly working hours regularly exceeded the 48 hour maximum average but the respondent argued that if periods of inactivity were discounted, the maximum was not exceeded. It also revealed that the claimant’s daily rest period was frequently less than 11 hours but the respondent argued that this was because the claimant chose to start work before its expiry. The respondent accepted that the claimant’s daily driving time exceeded the applicable nine hour maximum on occasions and that the claimant was obliged to sign for a load before leaving a client’s premises.


The Law

The Court again emphasised an employer’s obligation to keep records, in the prescribed form, to show compliance with the provisions of the Act under S.25 (1). In turn S.25 (4) then goes on to provide that where such records are not kept and a complaint is brought by an employee alleging a breach of the Act, the onus will be on that employer to show that the provision in question was complied with.

However, the Court asserted that this burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the respondent employer to mount a defence.

In practice this means that the claimant must first bring such evidence as is available to support a stateable case of non-compliance. The respondent should then be called upon to produce records of compliance as required by the legislation. If such records are produced, the legal burden will be on the claimant to show that they should not be accepted as evidence of compliance and if s/he cannot do so, the complaint must fail. Where records are not produced after the claimant has made out a stateable case, the respondent employer must establish on the balance of probabilities that the provision was complied with, in order to succeed in its defence. In this case, the Court accepted that the claimant had given credible evidence that the Act had been breached in respect of rest breaks, daily rest and working hours. The respondent in turn accepted that it had not maintained records in accordance with S.25 (1) and the onus was therefore on it to otherwise show compliance.


Weekly Working Hours Complaint

The Court stated that it was agreed between the parties that the Directive 2002/15/EC concerning the organisation of working time of persons performing road transport activities applied to the sector in this case. It noted that Article 3 of that directive defined working time to include ‘time during which the mobile worker is at his workstation, at the disposal of the employer and exercising his functions or activity’.

The question of whether the maximum hours of work provisions of the Act had been breached turned therefore on whether the claimant was free during periods of inactivity to leave his workstation and dispose freely of his time. It noted in this regard that Article 3 (a) 1 of the directive provides that periods awaiting loading or unloading, where the foreseeable duration is not known in advance, are to be regarded as working time.

The claimant had maintained that he was obliged to remain with his truck and monitor loading and unloading operations at all times. In turn, the respondent had told the Court that the time taken to load or unload was not foreseeable and varied depending on a range of factors. Ultimately, the Court therefore concluded under this heading that the respondent had failed to discharge the onus upon it prove that the periods of so called inactivity fell outside the definition of working time.


Breaks During Working Hours Complaint

The claimant himself gave evidence that he received two 30 minute breaks per day. Although there was no evidence given as to the timing of these breaks or the intervals between them, the Court found that there was insufficient evidence to disclose a breach of the Act under this heading.


Daily Rest Period Complaint

Under this heading, the Court found that the uncontested evidence disclosed that the claimant regularly commenced work before the expiry of the 11 hour daily rest period since he last worked on the previous day. In essence, the respondent’s defence was that this was the claimant’s own fault for having failed to inform the respondent that the starting times assigned to him would infringe the Act.

The Court noted that the European Court of Justice (ECJ) had considered in the case of Commission v United Kingdom (2006 IRLR 888), whether the working time directive imposed an obligation to provide workers with the opportunity to take breaks or a more positive obligation on an employer to ensure that breaks are actually taken. This case arose as a result of proceedings brought by the European Commission against the United Kingdom that its guidelines on the application of statutory provisions regarding working time which provided that ‘employers must make sure that workers can take their rest, but are not required to make sure they do take their rest’ failed to effectively implement the directive.

The ECJ held that the statement in question amounted to an incorrect statement of Community law. It stated that workers must actually benefit from the daily and weekly rest periods provided under the working time directive, in order to achieve the essential objective of the directive which is to secure the effective protection of the safety and health of employees by allowing them to enjoy minimum periods of rest. The position adopted by the respondent in this case on this particular issue therefore - effectively that it was for the employee himself to see that obligations regarding rest are observed – amounted to a breach of S.11 of the Act.

In conclusion, the Court awarded the claimant compensation in the amount of €7,500. No part of the award was made in respect of pecuniary loss, meaning that the entire award was to compensate for the breaches of Sections 11 and 15 of the legislation.