Organisation of Working Time
The law on the organisation of working time seeks to ensure that employees do not work excessive hours. It is based to a considerable extent, on health, safety and welfare at work considerations. The health and safety considerations affect the employer, the employee, fellow employees and the general public.
The Irish legislation is based on the EU Working Time Directive. The purpose of the legislation is to prescribe maximum weekly working hour, minimum rest periods and holidays. It makes provisions for night workers.
In certain sectors, Joint Labour Committee employment regulations orders, registered employment agreements and collective agreements may provide a higher level of protection and oust the default position under the general legislation.
The Organisation of Work Time Act 1997 implements EU Directives on working time. These Directives were an integral part of EU Social policy, as developed in the 1990s and the following decades.
The legislation repealed earlier legislation, some of which was sector specific and which took a less general approach. The Conditions of Employment Acts, dating from the 1930s and numerous statutory instruments made under it, had specified working times in various industries. Legislation enacted in the same era also applies to shops and night bakeries.
The Directive is based on health and safety considerations. The UK had challenged the validity of the Directive on the basis that certain provisions, including, in particular, the maximum 48-hour working week, were not within the competence of the EU on genuine health and safety grounds. The European Court of Justice, however, asserted that it fell within the concept of health and safety, which embraced the entire working environment.
An employer may not allow an employee, who is subject to the legislation, to work more than to 48 hours in each 7-day period, calculated over a reference period of consecutive days. An employer must take steps to ensure compliance with the legislation.
The reference period is usually 4 months. The reference period does not include annual leave (other than that exceeding the statutory minimum), absence for parental, maternity, force majeure, carers leave, adoptive leave and sick leave.
The reference period may be or six months. The longer reference period also applies where the 4-month reference period is not appropriate on certain practical grounds. The reference period may be 6-months in the case of certain employees, particularly those whose working hours are seasonal. It is possible for the reference period to be specified in a collective agreement. It may be up to 12 months.
Working time is any period during which the worker is working, at the employer’s disposal or carrying out his activity or duties. Rest time is a period that is not working time.
The employer is obliged not to permit that the employee to work more than the maximum hours. If an employer ostensibly specifies less than the minimum working hours but provides a workload that requires more than the minimum hours, it may contravene legislation. Systems must be in place to monitor excessive workload.
Time on the premises will generally be working time. Periods of being on call on the premises are almost always working time and must be taken into account in measuring the overall maximum daily or weekly periods and rest periods. Other degrees of being “on call”, may or may not be working time for the purpose of the legislation. It is dependent on the circumstances, and courts must give effect to the protective purpose of the legislation.
Travelling time, even to an off-site location at the commencement of the day, is unlikely to be working time for the purpose of the legislation. It may be working time for the purposes of other legislation, so that allowances and expenses may be available.
The Court of Justice of the European Union has held that journeys made by workers without a fixed place of work between their homes and the first and last customer of the day count as working time for the purposes of the Working Time Directive.
Workers On Call
An employee on call on the employer’s premises is “working”, for the purpose of the legislation. Complex questions may arise where persons are on call to varying degrees. Exemptions apply to many such categories of workers, and the Directive contemplates that the matter may be regulated by agreement or regulations.
The European Court of Justice requires that national rules and practices be interpreted and given effect in the light of the wording and purpose of the Directives. In order to achieve an outcome consistent with the objective of the Directives in terms of working time and rest, States may provide arrangements having an equivalent effect, in relation to “on call” hours. This may reflect the lower intensity of “on call” work as against actual work time.
Employees are entitled to daily and weekly rest periods. They may waive or vary rest periods, to a certain extent. In other cases, there is an absolute requirement, and the taking of rests is not at the employee’s option. The employer must take steps to ensure that the rest periods are available in a meaningful sense and that they are availed of.
An employee is entitled to a weekly rest period of at least 24 hours, every 7 days. This 24-hour period must be preceded by at least an 11-hour daily rest period. Alternatively, the employee may be given two rest periods of 24 consecutive hours in the following 7-day period.
An employee is entitled to a break of at least 15 minutes every 4.5 hours. An employer must not require an employee to work for a period more than 6 hours without allowing him a break of at least 30 minutes (inclusive of the 15 minutes last mentioned.) The break may not be at the end or of the working day
In each 7-day period, an employee is entitled to a rest period of at least 24 consecutive hours. An employer may alternatively provide a second 24-hour rest period in the following seven-day period. The 11-hour daily rest period must precede the 24 / 48-hour period.
One of the rest periods must include a Sunday unless the contract requires the employee to work on Sunday. Employees, who are required to work on Sunday, must be compensated by
- the payment of a reasonable allowance having regard to the circumstances;
- an increase in pay by a reasonable amount having regard to the circumstances;
- granting of reasonable time off from work, having regard to the circumstances; or
- a combination of the above
Where there are variations under collective agreements or registered employment agreements, there must be provision for equivalent rests to those provided, under the legislation. The LRC has published a code of practice on compensatory rest and related matters.
Sunday Working I
The rest periods must generally include a Sunday. If it is only 24 hours, it must include a Sunday unless an alternative provision is made in the employee’s contract.
Unless otherwise provided in an employee’s contract, the weekly rest period must be a Sunday, or if the weekly rest period is more than 24 hours, it must include a Sunday. If an employee is required to work on a Sunday, he must be compensated in some other fashion such as
- an allowance that is reasonable having regard to all the circumstances;
- increased in the rate of pay by such amount as is reasonable;
- the grant of paid time off, as is reasonable; or
- a combination of the above.
Sunday Working II
Rights Commissioner or the Labour Court, now the Workplace Relations Commission may assess the premium for working Sundays. It is to have regard to the value of Sunday work with reference to comparable employees, under a collective agreement applicable to the comparable employee. The onus is on the employee to establish the comparator.
Where employees in the retail sector must work Sundays, employers must have regard to the Labour Relations Commission Code of Practice on Sunday working. The Code recommends that compensation should be set by collective agreement or by reference to the arrangement in comparable collective agreements in the retail sector.
The Code recommends that employees should be able to volunteer to opt in and out of working arrangements that includes Sunday on a rota basis. It recommends that newly employed employees may be contracted to work Sundays, as a regular pattern, but that those with at least two years’ service on such a contract, should have the opportunity to opt out for urgent, personal and family reasons on giving notice. All employees should be entitled to volunteer to work on peak Sunday periods such as Christmas.
A worker must have a rest period of at least 12 hours in each 24-hour period during which he works for an employer. Workers have a daily rest period of at least 11 consecutive hours. Exemptions apply. The provisions do not apply to persons working in prisons, places of detention, firefighters, certain airport police, harbour police and persons working in certain emergency services.
A break of at least 15 minutes is required every 4.5 hours. An employer is not to require an employee to work for more than six hours without a break of at least 30 minutes, including the 15-minute break mentioned above.
A break at the end of the working day is not sufficient. Ministerial regulations may require longer breaks for particular sectors.
Variation by Collective Agreement
The legislation may be displaced by the provisions of a collective agreement, registered employment agreement or employment regulation order. The collective agreement must be approved by the Labour Court, before it may take effect. Any variation to the agreement must also be approved.
The Labour Court must consult with employers and employees, before making its decision. It may approve the collective agreement, provided that certain condition apply. It must be appropriate to approve it, having regard to the provisions of the Directive. The agreement must be concluded in the normal manner in which such agreements are concluded. It must be negotiated by an authorised trade union or certain other representatives. The agreement must be in a format approved by the court.
Labour Court Approval
The Labour Court may approve collective agreements which provide for working hours, including daily rest periods and intervals, weekly rest periods and night working hours. The provision applies to employers covered by trade unions or excepted bodies, which are usually recognised staff associations.
The Labour Court must be satisfied that the agreement conforms with the principles of the Working Time Directive. It must be satisfied that the agreement has been entered in accordance with normal industrial relations practice in respect of the employers and employees concerned (e.g. through trade unions and/or other representatives. The agreement must be suitable for approval. Variations to the agreement must be approved by the Labour Court.
Night Working I
Night working is working between midnight and 7 a.m. the following day. A night worker is an employee who normally works at least three hours of his daily working time during night-time and whose night time working hours exceeds 50% of the total hours worked during that year.
Normally, a night worker should not work more than an average of 8 hours in a 24-hour period. The average is calculated over either a 2-month period or a longer period if it is part of a collective agreement.
If the night work involves special hazards or physical or mental strain, then working hours cannot exceed 8 hours in a 24-hour period. The employer is required to carry out a risk assessment in order to determine whether the night work involves special hazards or physical or mental strain.
Night Working II
A special category night worker is defined as one in relation to whom an assessment has been carried out under health and safety legislation in relation to the risks attached to night work, which indicates that the work involves special hazards or heavy physical or mental strain.
The reference period must be made up of consecutive days and months. It is not to include rest periods of less than 24 hours, annual leave under except that in excess of the statutory minimum, absence under protective legislation and sick leave.
Unless the employment contract, employment regulation order, registered agreement or collective agreement provides for the normal or regular starting and finishing time, the employer is to specify at least 24 hours before the first working day weekly the normal starting and finishing times for the coming week.
If overtime is provided for under the contract at an employer’s discretion, the employee must be notified at least 24 hours before commencement of the first day of overtime. This 24-hour period is to be a period during which the employee is not otherwise required to work. He is to be notified 24 hours before the last day on which he was required to work, for example, Thursday before the following Monday in a typical cycle.
The employer may require the employee to work in exceptional unforeseen circumstances.
An employer may set a roster prior to each period. If the needs of the business are difficult to foresee, procedures should nonetheless be put in place to give the relevant notice even if the business requirements are difficult to foresee.
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
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
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
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
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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