With only days to go before the date due for its implementation, the bill to bring the EU 'Working Time Directive' into Irish Law has been introduced. 'This is a complicated but significant piece of legislation with important implications for all employers' writes Ian Moore, Partner with responsibility for A & L Goodbody's Employment Unit. The new legislation is expected to come in to force next year bringing with it provisions which in many instances will have a fundamental impact on employee conditions. The following synopsis of the changes should assist employers to plan for any changes required for compliance with the new regime.
CONDITIONS OF EMPLOYMENT/ PROTECTION OF HEALTH & SAFETY OF EMPLOYEES
The thrust of the new legislation is to protect the health & safety of employees at work. Whilst it is not highlighted in the bill, the stated intention of the EU Directive is that the organisation of work must take account of 'the general principle of adapting work to the worker'. Once enacted, the bill will limit weekly working hours and require employers to allow their employees to have particular breaks.
WORKING TIME
This is defined as the time when the employee is at the place of work or at the employer's disposal.
EXCLUDED PERSONS
Certain people are excluded from all or part of the legislation including the Gardai, doctors in training and those involved in sea fishing, transport or civil protection services. Persons in a position to determine the duration of their working time are also exempted. The definition of such persons is somewhat wider than what was envisaged in the Directive which had referred to 'Managing Executives' and arguably now includes a range of persons in less senior positions.
BREAKS AND REST
In both cases, the emphasis is on permitting the employee to have a break rather than enforcing it. In other words, whilst employers are obliged to ensure that their employees are allowed to take breaks, it is up to the employee to decide whether or not to take it.
The weekly rest period shall include a Sunday unless otherwise specified in the employee's contract.
WEEKLY WORKING HOURS
Here, the tone of the legislation alters stating that employers ' shall not permit' employees to work more than an average of forty-eight hours in a seven day period. Depending on the circumstances of the employer, the average may be calculated over a period of
It is envisaged that the average will be gauged over a four month period. Employers will have to satisfy particular criteria set out in the Bill in order to avail of a longer averaging period.
The averaging of weekly working hours cannot include the new minimum annual leave provisions. Any leave which the employee is entitled to over and above the statutory minimum may be included in the averaging up of weekly hours worked. Likewise, Maternity, Adoptive or Sick leave is not to be included.
COLLECTIVE AGREEMENTS
The new legislation contains strict criteria as regards the conclusion of Collective Agreements negotiated between an employer and his workforce. Collective Agreements must satisfy the Labour Court. In determining this, the Court must take into account various factors including '.whether the agreement has been concluded in a manner usually employed in determining the pay or other conditions of employees in the employment concerned.' The body negotiating on behalf of the employees must be 'the holder of a Trade Union licence, or an accepted body which is sufficiently representative of the employees.' In short, non-unionised employers will not be able to enjoy a longer averaging period for as regards the forty-eight hour maximum working week, without in effect ' recognising' a trade union.
NIGHT WORK
An employer is not permitted to allow a night worker to work more than an average of eight hours at night. Night work is defined as the period between midnight and 7.00am the next day. This is longer than the period specified in the EU directive. A night worker is a person who 'normally' works during at least three of those night hours and who works 50% of his annual total number of hours worked between those hours.
ZERO HOUR
Under 'Zero Hour' contracts the employee has no guarantee of work, yet contracts to make himself available as and when the employer requires. Despite reports of government resistance to these, particularly in the context of the recent Dunnes Stores dispute, such contracts are permitted in the Bill. There is however, a sting in the tail. Compensation must be paid to employees who are not called up on to work. This must be at a rate of at least 25% of the contracted hours or for fifteen hours, which ever is less.
SUNDAY WORK
There will now be an obligation to compensate employees involved in Sunday working. This may include a payment in addition to normal salary or wages, time off in lieu or a combination of both.
HOLIDAYS
As expected, the much heralded increase from fifteen to twenty working days a year is to be phased in between April 1997 and April 1999. The employer's discretion as to when holidays may be taken will be affected by the obligation to take account of' the need for the employee to reconcile work and any family responsibilities.' Businesses with compulsory holiday periods - for example a two-week shutdown in August, may find that an argument is made that family responsibilities necessitate the taking of a two week unbroken holiday period at another time of year.
POLICING OF LEGISLATION
The Bill provides that inspectors may enter places of work at reasonable times and may require employers to produce records. Any obstruction or refusal shall amount to an offence.
An employer will be required to keep records to demonstrate that he is meeting his obligations under the regulations. The exact form of these records has not yet been specified. Records must be retained for three years.
Employees or their trade unions can make application to a rights commissioner where they believe there has been a breach of the regulations. Up to two years' remuneration may be awarded as compensation.
CONCLUSION
Employers should now examine their current working practices to ensure comlience with the proposed legislation. If you are concerned about how the bill might affect your business or if you require specific advice on reviewing your work practices, please contact any member of our Employment Law Unit.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
CONDITIONS OF EMPLOYMENT/ PROTECTION OF HEALTH & SAFETY OF EMPLOYEES
The thrust of the new legislation is to protect the health & safety of employees at work. Whilst it is not highlighted in the bill, the stated intention of the EU Directive is that the organisation of work must take account of 'the general principle of adapting work to the worker'. Once enacted, the bill will limit weekly working hours and require employers to allow their employees to have particular breaks.
WORKING TIME
This is defined as the time when the employee is at the place of work or at the employer's disposal.
EXCLUDED PERSONS
Certain people are excluded from all or part of the legislation including the Gardai, doctors in training and those involved in sea fishing, transport or civil protection services. Persons in a position to determine the duration of their working time are also exempted. The definition of such persons is somewhat wider than what was envisaged in the Directive which had referred to 'Managing Executives' and arguably now includes a range of persons in less senior positions.
BREAKS AND REST
In both cases, the emphasis is on permitting the employee to have a break rather than enforcing it. In other words, whilst employers are obliged to ensure that their employees are allowed to take breaks, it is up to the employee to decide whether or not to take it.
Daily rest- Employees will be entitled to rest of not less than
eleven consecutive hours in each twenty-four hour
period.
Breaks- Where the employee works for more than 4.5 hours he is
to be allowed to take a break of at least fifteen
minutes. If he wants to work on for up to six hours,
the break has to be at least thirty minutes.
Weekly Rest- In addition to daily rest and breaks, employees are to
be granted not less than twenty-four consecutive hours
rest in a week or forty-eight hours in period of
fourteen days. These must follow immediately, the
eleven hours of consecutive daily rest. This ensures
that the employee receives thirty-five hours rest in a
period of seven days or fifty-nine hours over fourteen
days.
The weekly rest period shall include a Sunday unless otherwise specified in the employee's contract.
WEEKLY WORKING HOURS
Here, the tone of the legislation alters stating that employers ' shall not permit' employees to work more than an average of forty-eight hours in a seven day period. Depending on the circumstances of the employer, the average may be calculated over a period of
- four months
- six months in particular circumstances, or
- no more than twelve months, but only where a Collective Agreement is reached.
It is envisaged that the average will be gauged over a four month period. Employers will have to satisfy particular criteria set out in the Bill in order to avail of a longer averaging period.
The averaging of weekly working hours cannot include the new minimum annual leave provisions. Any leave which the employee is entitled to over and above the statutory minimum may be included in the averaging up of weekly hours worked. Likewise, Maternity, Adoptive or Sick leave is not to be included.
COLLECTIVE AGREEMENTS
The new legislation contains strict criteria as regards the conclusion of Collective Agreements negotiated between an employer and his workforce. Collective Agreements must satisfy the Labour Court. In determining this, the Court must take into account various factors including '.whether the agreement has been concluded in a manner usually employed in determining the pay or other conditions of employees in the employment concerned.' The body negotiating on behalf of the employees must be 'the holder of a Trade Union licence, or an accepted body which is sufficiently representative of the employees.' In short, non-unionised employers will not be able to enjoy a longer averaging period for as regards the forty-eight hour maximum working week, without in effect ' recognising' a trade union.
NIGHT WORK
An employer is not permitted to allow a night worker to work more than an average of eight hours at night. Night work is defined as the period between midnight and 7.00am the next day. This is longer than the period specified in the EU directive. A night worker is a person who 'normally' works during at least three of those night hours and who works 50% of his annual total number of hours worked between those hours.
ZERO HOUR
Under 'Zero Hour' contracts the employee has no guarantee of work, yet contracts to make himself available as and when the employer requires. Despite reports of government resistance to these, particularly in the context of the recent Dunnes Stores dispute, such contracts are permitted in the Bill. There is however, a sting in the tail. Compensation must be paid to employees who are not called up on to work. This must be at a rate of at least 25% of the contracted hours or for fifteen hours, which ever is less.
SUNDAY WORK
There will now be an obligation to compensate employees involved in Sunday working. This may include a payment in addition to normal salary or wages, time off in lieu or a combination of both.
HOLIDAYS
As expected, the much heralded increase from fifteen to twenty working days a year is to be phased in between April 1997 and April 1999. The employer's discretion as to when holidays may be taken will be affected by the obligation to take account of' the need for the employee to reconcile work and any family responsibilities.' Businesses with compulsory holiday periods - for example a two-week shutdown in August, may find that an argument is made that family responsibilities necessitate the taking of a two week unbroken holiday period at another time of year.
POLICING OF LEGISLATION
The Bill provides that inspectors may enter places of work at reasonable times and may require employers to produce records. Any obstruction or refusal shall amount to an offence.
An employer will be required to keep records to demonstrate that he is meeting his obligations under the regulations. The exact form of these records has not yet been specified. Records must be retained for three years.
Employees or their trade unions can make application to a rights commissioner where they believe there has been a breach of the regulations. Up to two years' remuneration may be awarded as compensation.
CONCLUSION
Employers should now examine their current working practices to ensure comlience with the proposed legislation. If you are concerned about how the bill might affect your business or if you require specific advice on reviewing your work practices, please contact any member of our Employment Law Unit.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
