Coastal Line Container Terminal Ltd v SIPTU

JurisdictionIreland
JudgeO'sSullivan J.
Judgment Date16 December 1999
Neutral Citation[1999] IEHC 62
CourtHigh Court
Docket Number[1999 No. 193 Sp.]
Date16 December 1999
COASTAL LINE CONTAINER TERMINAL LTD v. SIPTU & ANOR
IN THE MATTER THE ORGANISATION OF WORKING TIME ACT, 1997

BETWEEN

COASTAL LINE CONTAINER TERMINAL LIMITED
PLAINTIFF

AND

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
DEFENDANT

AND

THE MINISTER FOR ENTERPRISE TRADE AND EMPLOYMENT
NOTICE PARTY

[1999] IEHC 62

No. 193 Sp/1999

THE HIGH COURT

Synopsis

Employment

Employment; working time directive; plaintiff claims employees, members of defendant, are excluded from ambit of Organisation of Working Time Act, 1997; whether employees excluded from purview of legislation; whether employees come within the general ambit of the directive whether employees excluded subject to the provision by employer of compensatory rest days, breaks and time off; whether it is open to the Court to entertain an argument which has the effect of reopening findings of fact in the Labour Court; whether Court in a better position to make findings of fact; whether it be unfair to the defendant to allow the plaintiff to present arguments in the teeth of their own submissions to the Labour Court; whether it is open to make submissions that the work activities of employees cannot constitute them dockers or persons engaged in the provision of services at a harbour or airport within the meaning of the Organisation of Working Time (General Exemptions) Regulations 1998, (S.I. No. 21 of 1998): whether the Organisation of Working Time (Exemption of Transport Activities) Regulations, 1998 (S.I. No. 21 of 1998 apply to the plaintiffs; whether as a matter of law it was impossible or incorrect for the Labour Court to find that employees were dockers or persons engaged in the provision of services at a harbour; art. 17 Council Directive 93/104/EC.

Held: Reliefs sought by plaintiff refused; it was open to the Labour Court to find that employees were dock workers within the meaning of art. 17 and were involved in the provision of services at a harbour within the meaning of S.I. No. 21 of 1998.

Coastal Line v. Services Industrial Professional Technical Union - High Court: O'Sullivan J. - 16/12/99 - [2000] 1 IR 549

Citations:

EEC DIR 93/104 ART 17

ORGANISATION OF WORKING TIME (EXEMPTION OF TRANSPORT ACTIVITIES) REGS 1998 SI 20/1998

ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGS 1998 SI 21/1998 REG 3(1)

ORGANISATION OF WORKING TIME ACT 1997 S3(3)

ORGANISATION OF WORKING TIME ACT 1997 S4(3)

ORGANISATION OF WORKING TIME ACT 1997 S28(6)

ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGS 1998 SI 21/1998 REG 3(2)

ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGS 1998 SI 21/1998 REG 3(4)

ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGS 1998 SI 21/1998 SCHED PARA 3

ORGANISATION OF WORKING TIME (GENERAL EXEMPTIONS) REGS 1998 SI 21/1998 SCHED PARA 3(b)(ii)

O'LEARY V MIN FOR TRANSPORT 1998 1 IR 558

WILTON V STEEL CO OF (IRL) LTD UNREP O'SULLIVAN 28.5.1998 1998/34/13339

O'KELLY V TRUSTHOUSE FORTE PLC 1993 ICR 728

CORK CORPORATION V CAHILL 1987 IR 478

IRISH SHIPPING LTD V ADAMS UNREP MURPHY 30.1.1987 1987/3/855

BATES V MODEL BAKERY LTD 1993 ILRM 22

MIN FOR TRANSPORT V CAMPBELL UNREP KEANE 29.1.1996 1996/7/1861

C & D FOOD LTD V CUNNION 1997 1 IR 147

MARLEASING V LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA 1990 1 ECR 4135

VON COLSON & KAMANN V LAND NORDRHEIN-WESTFALEN 1984 ECR 1891

LAWLOR V MIN FOR AGRICULTURE 1990 1 IR 356

BOSPHORUS HAVA YOULLARE V MIN FOR TRANSPORT 1994 2 ILRM 551

EEC DIR 93/104 ART 1(3)

EEC DIR 93/104 ART 17(2)(1)(c)(ii)

ORGANISATION OF WORKING TIME ACT 1997 S6

ORGANISATION OF WORKING TIME ACT 1997 S4

ORGANISATION OF WORKING TIME ACT 1997 S11

ORGANISATION OF WORKING TIME ACT 1997 S12

ORGANISATION OF WORKING TIME ACT 1997 S13

EEC DIR 93/104 ART 17(2)(1)

EEC DIR 93/104 ART 17(2)(1)(c)(i)

1

O'sSullivan J. delivered the 16th day of December, 1999.

2

These proceedings arise from a complaint by the Defendant on behalf of some 38 whole and part-time employees of the Plaintiff who are members of the Defendant to the effect that these employees are not receiving compensatory rest days, breaks and time off work as required by Irish legislation which implements the European Council Directive (93/104/EC: 23rd November, 1993)concerning certain aspect of the Organisation of Working Time.

3

The employees in question are engaged as terminal operative driving cranes and other such equipment for the purpose of loading and unloading vessels at a facility operated by the Plaintiffs at Dublin Port.

4

The Plaintiff claims that these employees are excluded from the ambit of the relevant legislation; the Defendant contends that they are included, albeit in an exempt category which provided that whilst statutory provisions do not apply strictly to them, they must be afforded rest periods and breaks which can reasonably be regarded as equivalent.

5

The Plaintiff relies on Statutory Instrument No 20 of 1998 (" Organisation of working Time (Exemption of Transport Activities) Regulations 1998") (ldquo;S.I. No 20 of 1998") whereas the Defendant relies on Statutory Instrument No 21 of 1998 ("Organisation of Working Time (General Exemptions) Regulation, 1998") ("S.I No 21 of 1998").

6

S.L No 20 of 1998 exempts certain activities from the application of the relevant sections of the parent Irish statute which is the Organisation of Working Time Act, 1997("The Act of 1997"). The activity thus excluded, insofar as relevant, is described as follows:-

"An activity consisting of or connected with, the operation of any... vessel,... (whether of goods or persons) other than an activity of a person holding a position of an administrative, managerial or clerical nature that is not directly related to the operation of such a means of transport."

7

This language, on its face, is clearly capable of covering the activities of the plaintiff's employees referred to above.

8

S.I No 21 of 1998 exempts (subject to the provision of equivalent rest periods and breaks)

" An activity falling within a sector of the economy or in the public service -"

9

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,

10

and in particular. ...

11

a (2) The provision of services at a harbour or airport ..."

12

Once again the language of S.I. No 21 of 1998 is, on its face, also capable of covering the activity of the plaintiff's employees.

13

For this reason it is necessary to consider the legislative context of both these Statutory Instruments before deciding which of them actually refers to these employees. Before doing so, however, I must deal with a preliminary point raised by the Defendant and supported by the third party to the effect that the Labour Court (whose finding is challenged by the Plaintiff in these proceedings) made specific findings of fact to the effect that the employees in this case are dock workers who are engaged in the provision of services at a harbour and that, such being the case, it is not open to this Court to entertain an argument which has the effect of reopening these findings of fact.

14

before dealing with these legal submissions, however, it is appropriate that I first set out the relevant legislative framework.

THE DIRECTIVE
15

Counsel Directive 93/104/EC of 23rd November, 1993 concerning certain aspects of the Organisation of Working Time

16

Whereas the Community Charter of the fundamental social rights of workers ... declared that

17

2 "7. The completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community.hellip;

18

8. Every worker in the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonised in accordance with national practices....

19

19. Every worker must enjoy satisfactory health and safety conditions in his working environment. Appropriate measures must be taken in order to achieve further harmonisation of conditions in this area while maintaining the improvements made " ...

20

Whereas, given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of this directive. ...

21

Whereas it is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry; whereas, as a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods;

Section 1 : Scope and Definitions
Article 1
Purpose and Scope
22

1. This directive lays down minimum health and safety requirements for the organisation of working time.

23

3. This directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training;

Article 17
Derogations
24

2. Derogation may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest ...

25

2 2.1 From Articles 3,4,5,8 and 16: ...

26

(c) In the case of activities involving the need for continuity of service or production, particularly....

27

(ii) dock or airport workers;

THE ACT OF 1997
"Organisation of Working Time Act, 1997

3. -

(3)

The Minister may, after consultation with any other Minister of the Government who, in the opinion...

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