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1. 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 aspects of the Organisation of Working Time.

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

3. 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 provides 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.

4. The Plaintiff relies on Statutory Instrument No 20 of 1998 (“Organisation of Working Time (Exemption of Transport Activities) Regulations 1998”) (“S.I. No 20 of 1998”) whereas the Defendant relies on Statutory Instrument No 21 of 1998 (“Organisation of Working Time (General Exemptions) Regulations, 1998”) (“S.I. No 21 of 1998”).

5. S.I. 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:-

6. This language, on its face, is clearly capable of covering the activities of the Plaintiff’s employees referred to above.

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

8. 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.

9. 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.

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

11. The Defendant’s complaint was referred to a right’s commissioner who on 3rd July, 1998 concluded that the employees were covered by S.I. 21 of 1998, that is they were exempted subject to the provision by the employer of compensatory rest periods and breaks equivalent to those laid down by the statute. This decision was appealed to the Labour Court which on the 23rd February, 1999 disallowed the appeal. In the course of its conclusions the Labour Court provided as follows:-

12. The Plaintiff submits that the foregoing are not true finding of facts but are, rather, at best, findings involving mixed questions of fact and law. In particular the Plaintiff submits as a matter of law that the employees in this case cannot be dock workers within the meaning of Article 17 nor can they be engaged in the provision of services at a harbour within the meaning of paragraph 3(b)(ii) of the schedule to S.I. No 21. The Plaintiff further submits that, accordingly, this Court is free to determine which of these two statutory instruments covers the employees and submits that in fact they are covered by S.I. No 20 of 1998 as being persons engaged in an activity “....consisting of, or connected with, the operation of any ... vessel....” and are accordingly excluded from the purview of the Act of 1997 with the result that the employer is not obliged to provide compensatory rest periods and breaks.

13. The Defendant submits, that the above mentioned findings of fact are not open to be reconsidered by this Court but that if this submission is not correct then the employees are covered by S.I. No 21 of 1998 as being an activity falling within a sector of the economy “... (b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, ... and, in particular ... (ii) the provision of services at a harbour or airport .”

14. The third party submits that the clear purpose of the domestic legislation is to implement the Directive and that it follows the approach of the Directive insofar as it exempts from the application of the relevant portions of the Directive persons employed in particular classes (including, generally, transport) but that both the Directive and the Act, and indeed the Statutory Instruments, make specific provisions in the case of dock workers whereby the provision of these instruments apply to dock workers, albeit as an exempted category in respect of whom rest periods and breaks which are reasonably equivalent to those laid down by the legislation must be provided.

15. I have had the benefit of detailed written submissions on behalf of each of the parties and each of them in turn rely on a number of authorities.

16. There are two issues namely:

17. Mr. Kerr BL for the Plaintiff submits that, as a matter law, the employees in question cannot be persons engaged in the provision of services at a harbour or airport and indeed cannot be dockers within the meaning of the relevant legislation. He further submits that the Labour Court in purporting to find “facts” in this regard are in reality reaching conclusions either of law or mixed questions of law and fact which are open to review in this Court. He further submits that there was no evidence before the Labour Court upon which it could have found these “facts”.

18. Mr. Kean SC for the Defendant relies on a number of authorities including O’Leary -v- The Minister for Transport Energy and Communications [1998]: 1: IR: 558; Wilton -v- The Steel Company of Ireland Limited (unreported): O’Sullivan J. 28th May, 1998; O’Kelly & Ors -v- Trusthouse Forte plc [1993]: ICR: 728; Cork Corporation -v- Cahill [1987]: IR: 478; Irish Shipping Limited -v- Adams & Ors (unreported): Murphy J. 30th January 1987; Bates & Ors -v- Model Bakery Limited & Anor [1993]: ILRM: 22; Minister for Transport Energy & Communications -v- Campbells & Ors (unreported): Keane J: 29th January 1996 and C & D Food Limited -v- Cunnion [1997]: 1: IR: 147. These authorities make it clear that where this Court is dealing with an appeal from an expert tribunal on a point of law then it is not open to it to reconsider findings of fact.

19. There is no need, in my view, for a close analysis of these cases, because their general thrust is not under challenge from Mr. Kerr, and, indeed, I consider the principle to be well settled. While accepting the general thrust of these authorities Mr. Kerr suggests that in a number of the cases the appellate Court was dealing with findings by a tribunal which had either had full formal evidence or carried out an investigation of its own which, he submits, is not the situation in the present case. Rather, he submits, in the present case the matter was determined on written submissions only and accordingly this Court is in no worse a position in regard to making findings of primary fact than was the Labour Court.

20. Furthermore, he submits as a matter of law, that the findings of fact were not open having regard to the provisions of the relevant legislation.

21. I cannot accept that this Court is in a better position than the Labour Court to make these findings of fact. The Labour Court is an expert and experienced tribunal in a way which is not true of this Court. Furthermore, written submissions presented to the Labour Court on behalf of the Plaintiffs included a detailed description of the work carried out by the Plaintiff’s employees and in my view it would be unjust to the Defendant to permit the Plaintiff to make submissions which would in any way undermine its own presentation to the Labour Court, albeit that such presentation was not presented by way of oral evidence which is, I accept, the appropriate manner of presenting evidence to the Labour Court in a case such as this. If this material did not amount, in the formal sense, to an agreed statement of facts, it came so close, in my opinion, as to make it unfair to the Defendant, if at this stage the Plaintiff were entitled to present arguments in the teeth of their own submission to the Labour Court.

22. This does not, however, entirely dispose of the Plaintiff’s submission in this regard. The Plaintiff submits, that as a matter of law the work activities of the Plaintiff’s employees as so described in the Plaintiff’s submission to the Labour Court cannot constitute them dockers or persons engaged in the provision of services at a harbour or airport within the meaning of S.I. No 21 of 1998.

23. This latter portion of the submission is, in my view, one which it is open to the Plaintiff to make to this Court because it is a submission of law. Accordingly, I will proceed to consider it. I wish to make it clear that in so doing I am not reopening any fact found by the Labour Court; I am simply considering whether as a matter of law on the basis of the material submitted by the Plaintiff and the other parties to the Labour Court it was impossible or incorrect for that Court to describe the Plaintiff’s employees as dockers or persons engaged in the provision of services at a harbour as so defined by the relevant legislation.

24. The Defendant and Notice Party rely on a number of cases to show that both the European Court and the Irish domestic courts have acknowledged that in construing domestic legislation which implements European law, the Court should adopt a teleological approach to interpreting the former so as to achieve and implement the true scheme and purpose of the latter. In this connection the Defendant and third party relied on Marleasing AV La Comercial Internacional de Alimentación SA (Case C-106/89) von Colson -v- Land Nordrhein-Westfalen (Case 14/83) and Lawlor -v- Minister for Agriculture [1990]: 1: IR: 356; Bosphorus Hava Youllare Turizm -v- Minister for Transport Energy and Communications [1994]: 2: ILRM: 551.

25. Once again, Mr. Kerr BL accepted on behalf of the Plaintiff the thrust of these authorities. He submitted however, that the intention of the Irish legislation, following the policy of the Directive, was to exclude dockers from the ambit of the legislation as being persons so closely connected with transport as to require their exclusion. In this, for example, they were distinguishable from car park attendants at ports who might be working in a harbour but who were not so closely connected with the operation of a vessel as to make it a matter of policy that they should be excluded from the provisions requiring rest days and breaks.

26. Mr. Kean SC supported, on this aspect of the case, the detailed submission made by Ms Ruane BL for the Notice Party tracing the policy of the Directive through the Act of 1997 into the Statutory Instruments.

27. Accordingly, to deal with this issue, I must now, have regard to these pieces of legislation in order to ascertain the true position.

28. I note that the Directive at Article 1(3) excludes “...air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training” from the application of the Directive. However, by Article 17(2)(1)(c)(ii) it is clear that “dock or airport workers” come within the general application of the Directive, albeit in the context of derogations which may be adopted in their cases but only subject to the proviso that “the workers concerned are afforded equivalent periods of compensatory rest”. From this it is clear that the Directive treats differently the sector of activity comprising sea transport on the one hand, and on the other, the sector of activity involving the need for continuity of service or production, particularly “dock or airport workers”. If, at first blush, one might have thought that dock workers would have been engaged in the sector of activity described as sea transport, this impression must be corrected in light of the provisions of Article 17(2)(1)(c)(ii) where, quite explicitly and clearly, dock workers are included within the general purview of the Directive.

29. When one turns to the Act of 1997 one finds that the legislature has adopted a somewhat similar approach. By Section 3(3)(a) the Minister is given powers by regulation to exempt from the relevant provisions of the Act persons employed in a class of activity defined as “involving or connected with the transport (by whatever means) of goods or persons” . This power to exempt is not made conditional on a proviso that compensatory rest periods of an equivalent nature be provided by the relevant employer. In this, Section 3(3) contrasts with Section 4(3) which also enables the Minister to make regulations exempting from several sections of the Act any activity “referred to in paragraph 2,.2.1. of Article 17 of the Council Directive” , but subject to the provisions of Section 6 of the Act which specify that any regulations referred to in Section 4 exempting any activity from the application of Sections 11, 12 or 13 of the Act “...shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break as the case may be provided for by Section 11,12 or 13”.

30. From the structure of the Act of 1997, therefore, it is fair to infer that the general intention of the legislature was to follow the structural approach adopted in the Directive, whereby transport activities (properly so called) could be made the subject of exempting provisions which were not linked to compensatory rest periods while other “Article 17” type activities could be exempted from the strict provisions of the legislation but only on the basis that compensatory provisions were put in place.

31. It is further to be noted that the activity which the Minister may exempt by regulations pursuant to Section 4(3) of the Act of 1997 is explicitly defined by reference to Article 17(2)(1) of the Directive itself. This clearly, as already indicated, identifies “dock or airport workers” engaged in an activity involving the need for continuity of service as being one of the exemptable classes of activity but subject to the workers involved being afforded equivalent periods of compensatory rest.

32. When one turns, then, to the statutory instruments themselves the first thing one notices is that S.I. 21 of 1998 is made explicitly by reference to Section 4(3) of the Act of 1997. It is made, that is, by explicit reference to a power which is in turn defined by the very words of Article 17(2)(1) of the Directive which, in the clearest terms includes dock or airport workers. Furthermore the schedule to S.I. 21 of 1998 (which lists the exempted activities) follows with significant particularity, the details of Article 17(2) itself. For example, 3(i) of the Schedule refers to “the provision of services relating to reception, treatment or care of persons in a residential institution, hospital or similar establishment” - almost word for word, the provisions of Article 17(2)(1)(c)(i) of the Directive.

33. The next paragraph of S.I. 21 of 1998 at (ii) specifies “the provision of services at a harbour or airport” whereas the Directive next refers to “dock or airport workers” . If the Minister in this statutory instrument intended by the phraseology used to refer to an activity other than that carried out by “dock or airport workers” , he would to my mind certainly have so specified, given that he is following, with significant particularity, the details and layout of the Directive itself in the formulation of his statutory instrument.

34. Accordingly, in my view, S.I. 21 of 1998 clearly intends, to capture dock or airport workers when it refers to (those engaged in) “the provision of services at a harbour or airport”.

35. Is there anything in S.I. 20 of 1998 which would call this conclusion into question?

36. Put another way, does the language used in S.I. 20 of 1998 necessarily refer to dock workers with such emphasis or clarity as to displace the conclusion which I have already reached in regard to the interpretation of S.I. 21 of 1998?

37. It is, of course, perfectly true, as I indicated at the outset of this judgment, that the phraseology used in the schedule to S.I. No 20 of 1998 could, prima facie , capture dock workers or indeed any category of workers who could be said to be “connected with” the operation of a vessel.

38. It was clearly the Minister’s intention that one or other but not both Statutory Instruments would cover dock workers. Furthermore, the language used in the schedule to S.I. 20 of 1998 is sufficiently close to the language in Section 3(3) of the Act of 1997 and Article 1(3) of the Directive as to make it proper to interpret the intention lying behind this language by reference to those provisions and in particular by reference to Article 1(3) of the Directive. It is already clear, however, from the analysis carried out earlier in this judgment, that the purpose and scope of Article 1(3) of the Directive (excluding its application to sea transport) was never intended to apply to dock or airport workers and, that being the case, I must conclude it was not the Minister’s intention when making S.I. 20 of 1998 to make it applicable to dock workers or persons engaged, as are the Plaintiff’s employees, in the operation of cranes and such machinery for the purpose of loading and unloading vessels at the Plaintiff’s facility at Dublin Port.

39. I must conclude, therefore, that the Plaintiff is not correct when it submits that as a matter of law it was not open to the Labour Court to find that the Plaintiff’s employees were dock workers within the meaning of Article 17.2.1.(c)(ii) of the Directive and were involved in the provision of services at a harbour within the meaning of paragraph 3(ii) of the Schedule to S.I. No 21 of 1998.

40. In the circumstances, I must refuse the reliefs sought by the Plaintiffs.