The Organisation of Working Time Act 1997 had a serious impact on the conduct of all businesses. This piece of legislation will have a serious impact on the conduct of all businesses.
Its main terms are:-
All workers shall be entitled to 11 consecutive hours rest in any twenty-four hour period.
All workers shall be entitled to a rest break of fifteen minutes for each consecutive working period of four hours and thirty minutes, and a rest break of thirty minutes for each consecutive working period of six hours, which latter period may include the forementioned fifteen minute break.
All workers shall be entitled to a minimum uninterrupted rest period of twenty four hours plus 11 hours for each seven-day period, which rest period shall in principle include Sunday. The employer may refuse to grant his employee the required rest period in one week, provided he gives the employee two rest periods of twenty-four hours in the following week.
All workers shall be prohibited from working on average in excess of 48 hours for each seven day period. The reference period for calculation of this rest period must be 4 months, in certain limited circumstances 6 months, or where agreed in a collective agreement, up to 12 months.
An employer must take an employee’s “double-jobbing” into account when calculating points 1 – 4 above.
All workers shall be entitled to four weeks paid holidays.
All night workers’ normal hours of work shall not exceed on average eight hours in any 24 hour period.
The employer is required to give 24 hours notice prior to the start of the working week of the times at which the employee will be required to start and finish his work for that working week, and of working days on which the employee will be required to work additional hours.
In respect of “zero-hour” contracts (where the employer requires the employee to make himself available for work, even though he may not be called in for work), an employee is entitled to be paid a minimum of 25% of either the contract hours, if specified, or the normal hours of work in a working week for that type of work.
In respect of working on Sunday, the employer is obliged to give the employee an increased rate of pay, allowance or paid time in lieu, such as is reasonable.
The legislation does not specify the body upon whom shall rest the obligation to supervise and enforce these regulations, merely granting the Minister the power to appoint inspectors. However, it seems likely that the controlling authority will be the Health and Safety Authority.
The key point for employers to note is that they will be obliged to carry out the additional bureaucratic work to create and maintain the records which will demonstrate compliance with these regulations for a period of three years. However, it may gladden the hearts of already overworked employers that the proper maintenance of these records will afford them the only likely successful defence to establish compliance with these regulations.
Inspectors have been given the right to enter upon premises, make enquiries and request sight of these records, and failure to comply is an offence punishable on summary conviction by a fine of £1,500.00 and £500.00 for each day the offence continues. An Inspector may only exercise his right to enter upon an employer’s premises on consent, or by production of a District Court warrant. In every case, the employer should require that the Inspector produce his certificate of appointment from the Minister prior to permitting him to enter. However, effectively, these provisions mean that the employer’s own records can be used against him, and his right to silence is gone.
Proceedings under the legislation are by way of complaint by an employee or, on the employee’s consent his trade union, to a Right Commissioner within 6 months of the alleged breach of the legislation, with an appeal to the Labour Court within 6 weeks of the decision. The Rights Commissioner may declare the complaint well founded and/or require the employer to remedy the breach and/or compensate the employee by up to two year’s remuneration. An intransigent employer who does not abide by the decision of the Rights Commissioner or Labour Court, will be compelled to do so upon application to the Circuit Court.
The provisions which will have the most intrusive effect on employers are the 48 hour week. Ireland has not availed of the seven year derogation period in respect of the 48 hour week, and this provision has the full power of law. Presently, no additional funding has been provided by the Government for the enforcement of these provisions. Employers may choose to continue their present practises in contravention of the law, or attempt to contract out of the provisions of the Directive, but they shall do so at their peril. Any attempt to avoid the 48 hour week provisions, as with the other provisions in the legislation, will be void. If a dispute should arise between an employer and an employee, neither party will be able to rely on the terms of the contract or agreement between them as they relate to the hours of work. The employee is given some protection by a provision stating that the employee shall not be penalised for his refusal to co-operate with the employer in activities which breach the employer’s obligations under this Act.
Unfortunately, the legislation states that if the penalisation by the employer constitutes a dismissal of the employee, the employee is not entitled to remedies under the Unfair Dismissals legislation. This is somewhat curious. Undoubtedly it was intended that the employer should not be entitled to dismiss the employee by reason of the employee’s refusal to co-operate with the breach of the regulations. In that case, a preferable approach would be to deem such a dismissal an unfair dismissal, with the most appropriate remedies being re-instatement or re-engagement.
The legislation makes no provision for a very important provision in the grounding directive. Article 13 of Council Directive 93/104 requires that employers will need to adapt the working environment to alleviate monotonous work and work at a pre-determined rate. This obligation of the employer to adapt the workplace to the worker represented a clear shift in the emphasis of health and safety legislation to date. Thus far, employers have been obliged to carry out risk assessments designed to disclose potential risk of physical injury or other accidents, and to draft a Safety Statement which addresses these potential risks. However, the concern of the directive in this respect is for the mental and psychological well-being of the worker. It was intended that the employer will not have to concern himself merely with whether a repetitive task has a potential risk of physical injury, but will have to implement measures to ensure that the functionality of the workplace encourages the psychological and mental welfare of the worker. Implied in this new duty of course is an obligation on the employer to consult with employees. Unfortunately, the legislation does not carry this proposal forward, and its wording in the directive is too imprecise to be directly effective. Hopefully, this will not be another example of the good intentions of the Commission floundering on the rocks of imprecision in wording and indecision in enacting.
Another noteworthy emphasis in the legislation is that it uses collective agreements as instruments to flesh out detail or provide exemptions. This indicates a clear preference in the legislation for dealing with trade unions. The relevant provisions are points 1, 2, 3, 4, and 9 as set out above. While there is not an obligation to recognise trade unions in order to negotiate with them (the Government may legislate in default), this is the clear intention.
The Garda Siochana and Defence Forces are exempt entirely from the legislation. The following areas are excluded from the working time sections of the regulations, but are subject to the provisions in relation to holidays:-
Persons with autonomous decision-taking powers in respect of their working time.
Persons engaged in sea fishing, other work at sea, or doctors in training.
The Minister choose to exempt following areas from certain parts or the entire legislation:-
Security, surveillance and civil protection industry.
Force majeure is also an exception.
Employees will welcome the implementation of this legislation, but employers will face the difficulties of managing the paperwork to comply with its provisions. It signals yet again, the advance of employee’s conditions at the behest of the E.U.