THE long-running saga around holidays for offshore workers appears finally to have been brought to a close, with the decision of the Supreme Court handed down on December 7 in Russell and others v Transocean International Resources Limited (Scotland).
Almost as soon as the Working Time Directive was (intended to be) extended offshore in 2003, disputes arose as to if and how offshore working patterns could comply with the requirement to provide paid annual leave.
There have been various debates and lines of argument along the way, including in relation to the application of this piece of legislation to the UK Continental Shelf at all – something that was then resolved through amending legislation.
Ultimately, however, the central issue has been this: can annual leave for offshore workers be taken out of onshore “field breaks”?
Yes, says the Supreme Court, bringing to an end litigation first reaching the Aberdeen Employment Tribunal in October 2007 when the “sample” cases of seven workers (taken from a cast of hundreds) were heard.
All of these employees worked on offshore installations on a roster of 2/3 weeks offshore followed by a corresponding amount of time on onshore field break. All had their holiday requests denied by their employers, on the basis they had asked to take these during their offshore working time. The employers maintained holidays could only be taken from field break.
The employees’ claims, supported by the unions, were successful before the tribunal. However, the unions’ celebrations were short-lived, as the Employment Appeal Tribunal in March 2009 reversed this decision in favour of the employers. The Scottish Court of Session in 2010 agreed, as has the Supreme Court.
A constant theme in the union argument has been that allowing employers to count field break towards annual leave entitlement could pave the way for regular onshore Monday-to-Friday workers being made to take their holidays at the weekend.
The higher courts have been unconvinced. The Court of Session preferred to avoid the “absurd results inherent (in the unions’) argument” along with the knock-on effect such a principle would have on other professions (such as teachers) who are routinely made to take their holidays during certain periods of the year when they would not otherwise be working.
The Supreme Court saw no reason to depart from this view. It has ruled that offshore workers do not have a right to take their annual leave as time off from offshore work. In doing so they have explained it is not necessary that annual leave must always be taken from time that would otherwise be work.
A period of time does have to have a certain quality before it can be classed as rest. A rest period is simply any period that is not working time, including field breaks when the workers are onshore:
“The facts of this case do not support the idea that the field break is not a genuine break or otherwise unreal. Nor has there been any suggestion that the pattern of working has had, or is liable to have, an adverse effect on the (workers’) health or safety”.
Given that it is clear from the legislation that an employer can dictate when holiday is and is not taken, it therefore follows that oil and gas industry employers can require that their workers take holiday in that field break, and not otherwise.
This is the end of the legal battle, as the Supreme Court has decided it is unnecessary for any reference to Europe to be made, having already based its decision on an interpretation of the directive.
The unions have been very vocal in their disagreement with this outcome, and the talk is of threatened industrial action. Whether workers will support such steps remains to be seen.
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Penelope Warne is head of energy at international law firm CMS Cameron McKenna