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NOTE ON THE JUDGMENT OF THE SUPREME COURT IN THE OFFSHORE WORKERS WORKING TIME APPEAL [Important Note: The

contents of this Note and the decision of the Supreme Court should be kept strictly confidential until the Judgment is formally handed down by the Supreme Court at 9-45 a.m. tomorrow. As is stated in the draft Judgment: breach of any of these obligations may be treated as a contempt of Court. In particular, no press or media briefings should be given prior to 9-45 a.m.].
I am afraid that the appeal to the Supreme Court on behalf of the offshore worker members of Unite and the RMT (OILC) Unions has been dismissed and the decision of the Extra Division of the Court of Session confirmed. The practical consequence of the Supreme Courts decision is that the offshore workers cannot insist on taking the leave to which they are entitled pursuant to Regulation 13 of the Working Time Regulations (the WTR) during periods when they would otherwise be scheduled to be working offshore. Outrageously (in my opinion), this means that, for salaried workers, no practical benefit whatever is derived from the right to paid annual leave. No additional pay is received; no additional time off is granted beyond the normal break in the shift pattern (i.e. the 2 weeks onshore). For hourly paid workers the only benefit is to 5.6 weeks pay. Perhaps the most surprising element of the Supreme Courts decision is the conclusion set out in paragraph 43 of the Judgment that the meaning to be given to Article 7 of the Working Time Directive [the European basis for the Regulation 13 right to annual leave] is [not] open to any reasonable doubt. That conclusion, which is, in my view, plainly wrong, was reached against the backdrop that the Employment Tribunal had originally accepted the Unions argument that leave denoted a release from an obligation that would otherwise be present to work. On that basis the ET had concluded that the offshore workers must be permitted to take the leave to which they were entitled from scheduled offshore periods. I think that all those present at the Supreme Court hearing came away with a relatively clear impression that, at the very least, the proper construction of Article 7/Regulation 13 was sufficiently open to argument such that a referral to the European Court of Justice (ECJ) was required. It is very surprising that the Supreme Court disagreed.

The basis of the Supreme Courts decision can, briefly, be summarised as follows: (a) That the right to paid annual leave under the WTR/WTD does not have any qualitative element. Rather, it is a simple arithmetical exercise of calculating the number of days outside work that a worker has. Once weekly rest periods are deducted, it those days exceed 5.6 weeks (as they plainly do for offshore workers), then the obligation is discharged (paras 20 and 21). That the ECJ has never said that a pre-ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave (para 36). By way of comment, it seems to me that the ECJ has never been asked that question and should have been by way of referral in this case). That a rest period (of which leave is a category) simply means any period which is not working time and that filed break falls into that category (para 36). That there was no evidence that the pattern of working (2-on, 2-off) without additional leave periods has an adverse effect on offshore workers health and safety (para 37). That for these reasons [the Court] would hold that the respondent employers are entitled to insist that the appellant workers take their paid annual leave during periods when they are onshore on field break (para 38). That the Saturday problem (as I described it in the ET that the employers argument taken to its natural conclusion would mean that those working Monday to Friday could be forced to take leave on a Sunday), was a different problem which did not arise in this case. Hence, the Court only commented in passing that: There seems to me to be much to be said for the view that the entitlement is to periods of annual leave measured in weeks, not months. The worker can opt to take all or part of it in days, if he chooses to do so. But the employer cannot force him to do so. But I do not need to reach a concluded view on this point, and I have not done so. The reasoning of the Supreme Court is, in my opinion, surprisingly weak. The decision not to even refer the matter to the ECJ is very surprising. I consider it highly likely that the ECJ would have disagreed with the conclusion reached by the Supreme Court. At the end of the day, I consider that the case was lost because of the jury point reaction - that we encountered in both the EAT and the Court of Session - that the offshore workers already get 26 weeks off and cannot possibly need any more. This simply ignores the fact that the offshore workers are working highly compressed and

(b)

(c)

(d)

(e)

(f)

difficult shifts in order to accommodate the needs of the employer and the practical difficulties of getting to the rigs. The only positive spin that can be placed on this decision from a media perspective is, in my opinion, the indicative endorsement by the Supreme Court of the Court of Sessions conclusion that employees can insist on taking the leave to which they are entitled in week long chunks. That appears to be directly contrary to the wording of the WTR but is of clear benefit to all employees in all sectors. That is, in my opinion, what should be emphasised from the decision.