The working time legislation excludes certain categories of workers. It does not apply to members of the Garda Siochana and the Defence Forces.
Certain parts of the legislation, in particular, those dealing with minimum rest periods, night working, Sunday work and zero hour working practices, do not apply to certain categories of persons including the following persons;
- those involved in sea fishing;
- doctors in training;
- those employed by a relative;
- those employed in a relative’s household or employed in a dwelling house or farm on which the relative resides; and
- persons who fix their own working time.
The Minister may by regulation, provide that specific parts of the legislation are to apply to a particular class of workers, to whom it would not otherwise apply.
Persons who fix their own working time must have genuine autonomy. They will be typically very senior employees.
There is an exception to the obligation to comply with certain aspects of the legislation, where exceptional and emergency circumstances apply. This may include an accident, incident or other unusual and unforeseeable circumstances. Compensatory rest periods must be allowed.
A number of general exemptions apply to various sectors, including
- activities in which employees are regularly required to travel significant distances from their home to workplace, or from one workplace to another, including offshore work;
- security, surveillance and protection services for persons or property which require continuous presence at a particular place, including in particular security guards and caretakers;
- activities in a sector of the economy or public service where it is foreseeable that the rate of production or the provision of services will vary significantly from time to time,
There are also exemptions for workers engaged in the carriage of passengers on regular urban services. There is an exemption in respect of persons working in railway transport, whose activities are intermittent, who spend their time onboard trains or whose activities are linked to transport timetables in order to enable continuity and regularity of traffic.
Continuity of Service
There is an exemption for activities whose nature is such that employees are directly involved in ensuring the continuity of production or the provisions of the service as the case may be. In particular, this includes
- services at residential institutions, hospitals and similar establishments;
- collection of household refuse or operation of an incinerator;
- industrial activity which cannot by reasons of their technical nature be interrupted;
- services at a harbour or airport;
- press, radio, television, postal, telecommunications industries, cinema industries;
- provision of ambulance, fire and civil protection services;
- production, transmission and distribution of gas, water and electricity;
- research and development.
Employers shall not require employees to whom the exemption is applicable, to work during a shift or other period of more than six hours’ duration, without a break of such duration as may be determined. In deciding the length of the break, the employer must have regard to the health, safety and comfort of the employee and to risk avoidance. More beneficial arrangements can be provided for under a collective agreement, registered employment agreement or employment regulation order.
Compensatory Rest Periods
The Code of Practice on Compensatory Rest has been published by the Labour Relations Commission. It was negotiated between the ICTU, IBEC, the Health and Safety Authority and certain governmental entities. It does not have the force of law, but may be taken into account in proceedings under working time legislation.
The Code gives examples of how compensatory rest may be provided. Eleven consecutive hours between shifts is required, in order to allow sufficient periods of sleep. Compensatory rest must be sufficient in the context of the particular employment. Where variation of the weekly rest periods is permissible, the arrangements must have regard to health and safety requirements and to the requirement for adequate rest.
Monetary compensation is not generally sufficient. The compensation may include elements of enhanced facilities in the workplace including provision for transport to and from work, the reduction of the monotony of working procedures, amenities and facilities, refreshment facilities, including meals, and enhanced physical conditions.
Certain categories of work and activities may be exempted by Ministerial regulation from particular aspects of the legislation. This applies in relation to seasonal work, security work, work involving significant travel, where the level of work varies from time to time and work whose nature is such that the employees are directly involved in ensuring continuity of production and services. The exemption must be genuinely necessary.
The Minister may by regulation, exempt from certain provisions of the legislation, persons employed in the transport of persons or goods and in civil protection services, where in the opinion of the Minister, the nature of the activity is such that otherwise, the effective operation of the service will be adversely affected.
Regulations have made special provision for various categories of person involved in aviation, road and rail transport, who have been exempted to various extents. Similarly, certain classes of persons working in the emergency services, certain airport employees, port and marine service sector employees are exempted in part.
Special provision has been made by regulations in respect of certain transport workers.
Transport workers are within the scope of the legislation (as amended). This includes those involved in transporting freight and passengers. Road transport workers in vehicles over 3.5 tonnes or carrying over eight persons (plus the driver) and mobile staff in aviation are subject to separate provision.
A mobile worker is one employed as part of the travelling or flying personnel, who operate transport services for passengers or goods, by road, air or inland waterway. The standard provisions in respect of daily rest periods, intervals, weekly rest periods, nights working in the legislation do not apply to them. They are, however, the subject to a separate higher level of protection.
Employers must ensure that mobile workers have adequate rest. This requires that there be sufficient regular rest periods, of sufficient duration and continuity, so as to ensure that they do not cause injury to themselves or to fellow workers in the short or longer term, as the result of fatigue or other irregular working patterns.
There is specific legislation for workers in the goods and passenger road transport sector. EU Directives requires the enactment of road transport legislation in relation to mobile road transport services. These regulations apply to mobile workers including self-employed drivers. It covers workers driving vehicles up to 3.5 tonnes (or more covered by the AETR agreement) and passenger transport for over nine persons. It applies to mobile workers who may be employees or may be self-employed.
There are requirements regarding the average working time and the amount of rest that must be taken daily and weekly. Not more than an average weekly working time of 48 hours in a reference period and not more than 60 hours may be worked in any week. Periods of availability, rest times and break times are not part of the calculation
Workers in this sector may not work without a break for more than six consecutive hours. After this period, a break of at least 30 minutes is mandatory. Where the working time exceeds 9 hours, a break of at least 45 minutes is required. (Each may be separable into 15 minutes
The maximum period of night work is 10 hours in a 24-hour period.
A mobile worker’s and a self-employed driver’s working time is limited to an average of 48 hours a week. A mobile worker or self-employed driver may work up to 60 hours in a single working week, as long as they maintain the 48-hour weekly average over the reference period. The mobile worker must not work more than 60 hours in a single week.
Breaks and periods of availability (where the mobile worker or self-employed driver does not have to be at their workstation but must be available to take calls or start work) known about in advance do not count as working time.
Daily rest period shall be at least 11 hours, with an exceptional reduction to 9 hours maximum three times a week. Daily rest can be split into 3 hours’ rest followed by 9-hour rest to make a total of 12 hours’ daily rest. Weekly rest is 45 continuous hours, which can be reduced every second week to 24 hours. A compensatory requirement applies for reduced weekly rest periods. Weekly rest is to be taken after six days of working, except for coach drivers engaged in a single occasional service of international transport of passengers who may postpone their weekly rest period after 12 days in order to facilitate coach holidays.
Drivers in this sector may not work
- without a break for more than four and a half hours. After driving for this period, a break of at least 45 minutes is mandatory. This can be distributed over the four and half hours Breaks of at least 45 minutes (separable into 15 minutes followed by 30 minutes) must be taken after four and a half hours at the latest;
- for more than nine hours per day or 56 hours per week. This may be extended to 10 hours no more than twice during a week
- for more than 90 hours in two consecutive weeks
Daily rest period shall be at least 11 hours, with an exceptional reduction to 9 hours maximum three times a week. Daily rest can be split into 3 hours’ rest followed by 9-hour rest to make a total of 12 hours’ daily rest. Weekly rest is 45 continuous hours, which can be reduced every second week to 24 hours. Compensation arrangements apply for reduced weekly rest period. Weekly rest is to be taken after six days of working, except for coach drivers engaged in a single occasional service of international transport of passengers who may postpone their weekly rest period after 12 days in order to facilitate coach holidays.
Workers and self-employed drivers must be made familiar with the regulations and records must be kept by employers and self-employed persons. Tachographs are required to be installed and maintained on certain categories of transport vehicle. They record journey length and other particulars. There is a provision for maintenance of manual and/or digital records. Compliance is subject to continuous monitoring and controls, which are carried out on a national and international level by checking tachograph records at the roadside and at the premises of undertakings.
Mobile staff in civil aviation are subject to special regulations. They arise from an international agreement on working time for workers in the airline sector. They cover crew members on civil aircraft. Working time is time spent carrying out duties at the employer’s disposal. This includes on-call duty, where the worker is required to be physically present at the workplace.
A free health assessment is required before assignment and afterwards, at regular intervals. A reassignment to day work may be required in consequence of the health assessment. The maximum annual working time may not exceed 2000 hours. Flying time is limited to 900 hours. This is to be spread as evenly as practicable over the year.
There are special provisions (made by regulations under the Act) in respect of mobile work in civil aviation. In addition to standard annual leave, they are entitled to periods free of all duties and standby of at least 96 days annually, in the home base. There is an entitlement to at least seven local days monthly with a total of 96 local days annually.
There are requirements for keeping records in a form prescribed by the Irish Aviation Authority. The legislation is enforced by the Irish Aviation Authority, whose inspectors may verify and enforce compliance. There is provision for complaints and redress, similar to that applicable under employment legislation.
Doctors in Training
There are specific regulations in respect of doctors training in hospitals. The provisions apply to activities of a doctor in training, other than consultants and hospital doctors who are registered medical practitioners, who work without supervision in professional matters. A doctor is entitled to at least 11 consecutive hours’ rest, in a 24-hour period. This does not apply where there is a change in shift, and the daily rest cannot be thereby taken at that point.
Breaks of 15 minutes must be afforded every 4.5 hours. A 30-minute break is required after six hours which may include the 15-minute break. A compensatory rest or break is required during a period in which there would otherwise be rest or break. In exceptional circumstances where it is not possible, objectively speaking to grant the break, protection appropriate to safeguard the doctor’s health and safety must be provided.
A period of 24 consecutive hours’ rest is required every 7 days, at a minimum. The weekly rest is to be preceded by the daily rest period. There is, therefore, to be a full day off following the termination of normal working hours.
In place of a 24-hour rest, two rests may be given within the next seven days, each of which is 24 consecutive hours. If they are together, then the daily rest period must precede it. If they are separated, it must precede each.
The maximum working week is 48 hours every seven days. The reference period is six months. It may be extended to up to 12 months under a collective agreement.
There are exemptions for certain civil protection services. They are available where the nature of the activity is such that if the legislation was to apply, the efficient operation of the service would be adversely affected. It may apply to prisons, fire authorities, Dublin Port, Irish Marine Emergency Services, Airport and Harbour Police.
There are provisions in respect of cross-border railway services which have limited application in Ireland. It makes provision for daily rest time, breaks and maximum working hours.
There is a provision in respect of persons, workers in the shipping industry. other than fishing vessels or pleasure craft. They apply to ships registered in the State. There are specific requirements for breaks, rest, working hours, which differ from the general provisions.
The sea owner, ship owner and Master of the ship have obligations to give effect to the regulations. The Master or other authorised person must maintain records. Certain records must be given to the worker monthly and be retained for a period. Schedules of service at sea and in port and working hours must be set. There is provision for emergencies.
References and Sources
Employment Law Meenan 2014 Ch.10
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Organisation of Working Time Act 1997
Organisation of Working Time Act (Commencement) Order 1997, S.I. No. 392 of 1997
Organisation of Working Time (Determination of Pay For Holidays) Regulations 1997, S.I. No. 475 of 1997
Organisation of Working Time (General Exemptions) Regulations 1998, S.I. No. 21 of 1998
Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order 1998, S.I. No. 44 of 1998
Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998, S.I. No. 52 of 1998
Organisation of Working Time (Breaks At Work For Shop Employees) Regulations 1998, S.I. No. 57 of 199
Organisation of Working Time (Code of Practice on Sunday Working in The Retail Trade and Related Matters) (Declaration) Order 1998, S.I. No. 444 of 1998
Organisation of Working Time (Public Holiday) Regulations 1999, S.I. No. 10 of 19991286
Organisation of Working Time (National Day of Mourning) Regulations 2001, S.I. No. 419 of 20011287
Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001, S.I. No. 473 of 2001
Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004, S.I. No. 817 of 2004
Organisation of Working Time (Inclusion of Offshore Work) Regulations 2004, S.I. No. 819 of 2004
Organisation of Working Time (Exemption of Civil Protection Services) (Amendment) Regulations 2009, S.I. No. 478 of 2009
Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015, S.I. No. 342 of 2015
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
Drafting Employment Contracts 3rd Ed. Gillian Howard 2017
The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016