Richard Grogan on employment law: Landmark case for truck drivers’ claims

Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on an important case for claims by truck drivers.

An opinion of Advocate General Tanchev delivered on the 2nd February in case C-102/16 Vaditrans Buba and Belgische Staat. This case has the potential to revolutionise claims by truck drivers.

The relevant legislation in Ireland is SI 36 of 2012 as amended.

This case will have particular relevance to international truck drivers and international trucking companies.

The issue relates to drivers taking weekly rest periods. The relevant EU Regulations are Regulation No 561/2006. Regulation 8 (6) provides that in every two consecutive weeks a driver shall take at least two regular weekly rest period or one regular weekly rest period and one reduced weekly rest period. Where the driver takes a reduced weekly rest period the driver must be compensated by an equivalent period of rest taken in block before the end of the third week following the week in question.

Regulation 8 (8) provides that where a driver chooses to do so daily rest periods and reduced weekly rest periods away from base may be taken in the vehicle as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.

This case revolved around the issue of weekly rest periods and reduced weekly rest periods. The Advocate General Tanchev has in the opinion stated that only the reduced weekly rest period can be taken in the vehicle.

The Advocate General has fairly stated that the ECJ has yet to squarely address the questions as to whether under Article 8 (6) and (8) of Regulation 561 of 2006 that a regular weekly rest period for drivers may be spent in the vehicle. It is even questionable taking account of questions which have been raised in the Commission as to whether a regular week the rest period can be taken inside the vehicle. The Advocate General has effectively held that the weekly rest period cannot be taken in the vehicle. A reduced weekly rest period can.

There are significant implications for those in the trucking industry particularly those who are involved in the long distance haulage. These Regulations as regards rest period have never been seriously contested before the Labour Court, in our knowledge, relating to the issue of weekly rest periods having to be taken away from the vehicle. We now have a very live issue for employees and employers. If the weekly rest period has to be taken away from the vehicle and it is not then this is a criminal offence.

SI 36 of 2012 is silent as to where a rest period must be taken. The Labour Court has consistently held that they must interpret Irish Legislation in conformity with European Legislation unless it is conta legume. As SI 36 of 2012 is silent whether the rest periods have to be taken then SI 36 of 2012 will have to be read in conjunction with Regulation 561 of 2006.

It should be noted that it is only when the driver chooses to take daily rest periods or reduce weekly rest periods he/she may do so in the vehicle therefore it would appear there can be no requirement for the employee to do so as this would breach Article 8 (8) of the Directive.

Of course this is only an opinion of the Advocate General. I fully expect that the decision will issue in due course but it is likely that the decision will follow that of the Advocate General. This usually happens. There are times when it does not but this is a very recent decision and it would appear to me that it is very likely that the Court will follow the opinion of the Advocate General.