The recent High Court decision of  Mr. Andrius Stasaitis v Noonan Service Group Limited & Anor [1]. addressed compensatory rest breaks at work under the Organisation of Working  Time  Act  1997  (the  "1997  Act").

Background

The appellant, Mr. Stasaitis was employed by the respondent as a security officer at the premises of DHL Logistics. Mr. Stasaitis worked alone from a security hut at the entrance to the premises. He worked 8 hour shifts and was not permitted to leave the security hut except to check vehicles entering and leaving the warehouse facility. The respondent did not schedule specific breaks for the appellant over the course of his shift and the onus was on Mr. Stasaitis to take his breaks during periods of inactivity during his shift.

Mr. Stasaitis contended that the respondents were in breach of their statutory obligations in failing to provide for specific break periods. Mr. Stasaitis’ claim under the 1997 Act was rejected by the Rights Commissioner and subsequently on appeal by the Labour Court. Mr. Stasaitis appealed the decision to the High Court on a point of law.

Compensatory Rest Breaks under  the 1997 Act

The 1997 Act entitles employees to daily rest breaks, interval breaks and weekly rest breaks. For example, an employee is entitled to a 15 minute break where the employee has worked up to 4.5 hours and a 30 minute break where the employee has worked up to 6 hours which may include the first 15 minute break. These breaks cannot be taken at the end of the working day.

Certain employees and certain sectors of work are excluded either under the 1997 Act, or under specific regulations, from the provisions in the 1997 Act in relation to rest periods.

Exemptions

The Organisation of Working Time (General Exemptions)      Regulations     1998    [2]        (the "Regulations") provide that persons ‘wholly or mainly’ employed in the activities specified in the Regulations shall be exempt from daily rest breaks, period interval breaks, weekly rest breaks, restrictions on the length of night work and the requirement of prior notification of start and finish times. The specified activities are:

  1. those regularly required by the employer to travel significant distances;
  2. security or surveillance workers required to be continuously present at a particular place or places;
  3. an activity falling within a sector of the economy or in the public service where production or service requirement varies significantly but the employee’s presence is necessary to ensure continuity.

Examples falling within this category include the provision of services at a harbour or airport, productions in the press, radio, television, or postal industries, agriculture, research   and   development   and   tourism.

The 1997 Act and the Regulations provide that employees who are unable to avail of their daily rest, interval breaks and/or weekly rest breaks are entitled to equivalent compensatory rest breaks as soon as possible after the statutory rest has been missed out on.

Alternative Arrangements

Where it is not possible for objectively justifiable reasons to provide an equivalent rest break, an employer may provide for alternative arrangements. Such alternative arrangements cannot be by way of monetary or material benefit and should instead constitute a benefit which improves the physical conditions under which the employees work or the amenities or services available to the employees while at work.

Code of Practice

The Labour Relations Commission developed the Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order 1998 [3] (the "Code of Practice") to provide guidance to employers and employees in relation to compensatory rest breaks. The Code of Practice advises that employees and employers should adopt a ‘common sense’ approach to take account of the circumstances existing in the employment and having regard to the safety, health and well-being of employees. The Code of Practice sets out a non-exhaustive list of alternative arrangements which an employer could provide to employees to compensate them, including the following:

  1. refreshment   facilities,   recreational   and reading material;
  2. appropriate  facilities/amenities  such  as television, radio and music; or
  3. transport    to    and    from    work    where appropriate.

Mr. Stasaitis

Mr. Stasaitis, as a security guard, fell within the category of worker covered by the Regulations. On that basis, where Mr. Stasaitis was unable to avail of the rest breaks under the 1997 Act, he was entitled to equivalent compensatory rest breaks or the benefit      of      alternative      arrangements.

The respondent provided Mr. Stasaitis with kitchen facilities in the security hut and, while no specific breaks were provided for during his shift, the respondent asserted that there were significant periods of inactivity in the course of the day during which he could move to this area of the security hut to take his breaks and avail of these facilities. He was not however entitled to move away from the hut. Mr. Stasaitis did not dispute that he availed of such breaks but contended that the respondents were in breach of their statutory obligations in failing to provide for  specific rest breaks.

High Court Decision

President Kearns, in the High Court, referred to the inherent “paradox” in the case before him and pointed out that if successful, the outcome to the proceedings would have the effect of significantly reducing the appellant’s periods of actual rest. Similarly, if the respondent’s argument was successful, an employee could spend more time resting than in  the  discharge  of  his  security  functions.

While acknowledging that any derogation under the 1997 Act had to be construed strictly, President Kearns dismissed Mr. Stasaitis’ claim. President Kearns was satisfied that the arrangements put in place by the respondent complied with the respondent’s obligations to provide compensatory rest breaks to Mr. Stasaitis under the 1997 Act and the Regulations. The respondent was not obliged to provide for specific rest breaks in order to comply with such obligations.