The Inner House Of The Scottish Court Of Session Has Held, In T.L. Russell & ors v Transocean International Resources Limited & ors, that annual leave for offshore workers can be taken out of onshore "field breaks", thus choosing to follow the 2009 ruling of the Employment Appeal Tribunal ("EAT"). This decision has been one eagerly awaited by the offshore oil & gas industry, and is being met with significant relief by employers in the sector.
These cases have been ongoing for several years. In March 2008, the Aberdeen Employment Tribunal had decided that offshore workers were entitled to paid annual leave under the Working Time Regulations 1998 ("WTR") proportionate to the time spent working offshore and that field break could not count as holiday under the WTR. However, in March 2009, the EAT held (by a majority) that, provided the employer followed the requisite counter notice process under the WTR, providing for annual leave in field break would be in keeping with the requirements of the WTR for such leave.
The Court of Session Appeal
The primary arguments before the Court remained centred on whether annual leave could be taken from time already allocated as field break, or whether it would have to be taken from 'offshore time', being time that would otherwise be spent working. In the sample cases before the Court each employee worked on an equal time basis, with either 2 or 3 weeks offshore, followed by an equal period of field break.
A key argument on behalf of the unions representing the employees was that to allow the approach of holiday in field break would be the equivalent of requiring an onshore worker to take annual leave at a weekend. Their Lordships dismissed this argument, distinguishing between rest breaks in a 'working' week, and time off in a week in which no work is done (which, it was held, the WTR does not require to be classed as a rest period). The Court was also satisfied that the WTR do not lead to a situation where an employer can "controvert the fundamental right to... annual leave by stipulating that non-working days within the weekly working cycle (typically Saturdays and Sundays) must be treated as annual leave". In this way, the Court was convinced that the employers' arguments were sound, and that field break was available to be used as annual leave, concluding "... we consider that the working pattern of field-break applicable in these appeals satisfies the requirements of the WTR, interpreted in light of the [Working Time Directive]".
Although the possibility of a further appeal to the Supreme Court cannot yet be excluded, industry leaders are calling for this to be an end to this long-running dispute.
Practical Implications
As previously recommended, in our Law-Now after the EAT judgment, employers of offshore workers should ensure that any leave arrangements are suitably documented and notified to employees. A common approach will be to set out the arrangements in the employment contract, although further options are to notify annually or (where applicable) reach collective agreement over this issue.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 21/10/2010.
