The Labour Court has rejected a claim by a retained firefighter that the requirement to be on call 24 hours a day, 365 days a year effectively meant he was working all of that time.
Martin Gilbert was paid an annual retainer of €10,383 for being on call at the time his case was first heard by the Workplace Relations Commission (WRC) in 2019, after which he received specified hourly rates for attending drills or incidents with the amounts varying according to the time of day or whether it was a weekend.
The WRC had heard retained firefighters made up 70 per cent of all firefighters in Ireland at the time of the case with full-time firefighters common only in cities.
He was required to be able to report to his station within 10 minutes of an alert and to attend 75 per cent of alerts that did not arise when he was on an agreed period of holiday or sick leave.
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He was permitted by Dublin City Council (DCC), which organised the service, to engage in other employment and worked as a taxi driver but said that the need to be able to report within the 10-minute time frame meant he could not accept a fare of more than €10 and was prevented from attending many family events, pursuing hobbies or visiting his mother in a nursing home as it would take him too far from the station.
The Labour Court heard that in 2019 he had responded to 339 alerts but attended less than 50 per cent of the incidents that prompted them. The amount of time he had been engaged in duties each month ranged from 15 to 26 hours that year.
He said that the council was in breach of several sections of the Working Time Act, 1997 as he was obliged to consistently work far in excess of permitted hours, was not paid a premium for working Sundays or public holidays and did not receive legally required rest periods.
The WRC ruled against Mr Gilbert, describing the assertion that he was working 24 hours a day, 365 days a year as “absurd” and the Labour Court was heard on an appeal over a number of days. As part of the process the court referred the issue of “working time” and “rest periods” as defined in the Act and a European directive to the Court of Justice of the European Union.
It found that “the concept of ‘working time’ within the meaning of directive 2003/88 covers the entirety of periods of standby time, including those according to a standby system, during which the constraints imposed on the worker are such as to affect, objectively and significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests”.
In the case of Mr Gilbert, however, it found the fact that he was able to work in full-time employment while on standby was “an important indication that the terms of the standby system do not place that worker under major constraints”.
It also pointed to the fact he did not have to be at a particular location at specified times and did not have to attend after every alert as significant.
In its judgment the Labour Court said that “the time spent on standby by the appellant is not ‘working time’ for the purpose of the directive and the Act” and so “such periods must therefore be regarded as ‘rest periods’”.
Accordingly, it said, no complaint of a breach of the Act could be upheld.
