The 11 complainants in this case alleged several breaches of the OWT Act and were each awarded €5,000 in compensation by a Rights Commissioner (RC) under three of the four headings of complaint. The respondent employer appealed this finding to the Court. The three headings of complaint were:

* Section 13 – The requirement to provide weekly rest of 24 consecutive hours
* Section 16 – The obligation to limit the number of night time hours worked
* Section 17 - The obligation to notify starting and finishing hours of work

* Section 13 – Weekly rest

Under Section 13, an employer is obliged to ensure that an employee receives a weekly rest period of at least 24 consecutive hours. In principle, this 24 hour period should be immediately preceded by the daily rest period of 11 consecutive hours provided under the terms of Section 11 of the Act. In this case, the union on behalf of the complainants alleged that the weekly rest period was interrupted by the necessity for the complainants to ring in to ascertain the starting time for their next shift. The respondent argued that these calls did not interfere with rest periods of the complainants and did not come within the definition of working time and cited a number of European authorities in support of this contention.

The Court referred to a previous decision it had made on this issue that involved the same respondent. It noted that to constitute working time, the employee must be at his or her place of work or at his employer’s disposal and carrying on or performing the activities or duties of his or her work. In the previous case, the respondent had confirmed that a disciplinary sanction would follow for employees who did not make the call as they would fail to start their next shift at the scheduled time.

The Court found therefore that employees were duty bound to telephone in during their rest and it was therefore self-evident that they were at their employer’s disposal and performing work duties when doing so. In this instance, the respondent stated that no disciplinary action would result if the call was not made. The relevant employee would simply not be rostered for work. The Court concluded that this did not materially alter the situation and upheld the complaint. €750 was awarded to the complainants under this heading.

* Section 16 – Night time hours

This section of the Act does not permit an employer to allow a night worker – an employee who normally works at least three hours of daily working time between the hours of midnight and 7 a.m. and at least 50% of annual working hours between such times - to work more than eight hours over a 24 hour period, averaged over a two month reference period. The union alleged that the complainants were required to cover a 24 hour/7 days a week operation with shifts of between 9 and 15 hours. In this instance, the respondent accepted that the Act had been breached and the Court awarded €2,000 to each of the complainants under this heading.

* Section 17 – Notification of hours of work

The union stated here that the contracts of employment of the complainants do not set out the starting and finishing times of work and therefore under section 17, they should be provided with at least 24 hours’ notice of shift starting times but that this did not happen. Instead, the complainants were required to telephone 12 hours before the end of their weekly rest period to find out their starting time for the following day.

Thereafter, it appeared that the complainants had a three hour window within which they might be required to start or finish work. The respondent argued in response that the complainants have no normal or regular starting times due to the nature of the haulage business, and that the legislation allows for variations to start and finish times where a company is subject to unforeseen changes to its operations. It stated that it therefore operated a ‘task and finish’ policy and that in the case of DMR Transport and Majchrzak, the Labour Court had accepted that in some instances, the finishing times of work were not capable of ascertainment in advance and therefore Section 17 could not be complied with.

The Court, however, said that it could not accept that the argument advanced concerning the ‘task and finish’ policy had the same relevance when examining the obligation under Section 17 regarding starting times of work and that in all the circumstances, the respondent had not met its obligations under the section. A sum of €1000 was awarded under this heading amounting to a total of €3,750 to each complainant (€41,250 in total), as opposed to the €5,000 each awarded by the RC. The lower award may have been influenced by preliminary issues successfully raised by the respondent that the RC had granted an unnecessary extension of time to claim.