In the second of our posts looking at the Organisation of Working Time Act, 1997, we will now examine at the Act in the context of some of the anomalies that exist within the Act, exemptions, and non application of the Act.
However it should be noted that these "exemptions" highlighted are not exclusions whereby no legislation will apply, it means than an employer can not apply certain provisions of the legislation, on the proviso that "Compensatory Rest Periods" will apply.
Who does the Organisation of Working Time Act not apply to?
The Act is very broad in terms of to whom the legislation applies, however it does state that the totality of the Act will not apply to the following categories of workers;
- Gardaí
- Defence Forces
- Employees who control their own working hours
- Family employees on farms or in private homes.
The third bullet point is especially useful from the point of view of a Company whereby for Directors/CEO contract, it can be referenced that they will determine their own working hours for the purposes of S.3(2)(C) of the Organisation of Working Time Act, 1997. There are other employees and circumstances that are also exempt from the act some of the categories we will cover separately. Exemption of Minimum rest and working time provisions There are a number of industries/class of workers who are exempt solely from the provisions in relation to Minimum Rest and Working Time, these are:
- A person engaged in sea Fishing/ a person engaged in other work at Sea, however this class of worker are now covered by S.I No. 819 of 2004 (Organisation of Working Time (Inclusion of Offshore Work) Regulation 2004)
- A person engaged in the activities of a doctor in training, now covered by S.I. No. 494 of 2004 - European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004
- A person who is employed by a relative and is a member of that relatives house hold and whose place of employment is a private dwelling house or a farm in or on which he or she and the relative live.
- A person whose working time is determined by themselves
- A person employed in shift work.
- A person employed in an activity consisting of periods of work spread out over the day
There are also certain industries where there are alternative pieces of legislation (Statutory Instruments or E.U. Directives) that would supersede the organisation of Working Time Act, 1997. Compensatory Rest Periods The LRC has published a guide on Compensatory Rest Periods, whereby when an employer (in certain industries) is exempt from certain provisions in relation to rest breaks, this does not mean an employee is not entitled to rest breaks, it means that compensatory Rest Periods will apply. in such circumstances the rest periods are postponed temporarily to be taken at a more appropriate time, so even though the working hours are more flexible the employee does not lose out on rest. Retail workers Those employed in the retail industry are subject to a provision for rest breaks which is larger than the current Organisation of Working Time Act provisions. S.I No. 57/1998 provides that where an employees hours of work include the hours from 11.30am to 2.30pm during a shift of 6 hours or more, they are entitled to a break of at least one hour. The term Retail Trade is seen as;
- Barber or hairdresser
- Hiring goods otherwise than for use in a trade or business
- A pawnbroker
- Retail sales by auction (but not the sale of programmes or catalogues at theatres or other places of entertainment)
The term Shop is defined as;
- Any premises in which any retail trade or business is carried on
- Any premises in which goods are received direct from customers for cleaning, repairing, altering or laundering
- Any whole sale shop (which is any premises occupied by a wholesale dealer or merchant where goods are kept for sale wholesale to customers resorting to the premises)
- Any warehouse occupied for the purpose of trade or business or by a wholesale dealer or merchant for the purpose of the business carried on in a wholesale shop.
However a shop does not include;
- Any premises used for or used for the purpose of a hotel, preparation of food /catering or any business carried on pursuant to an intoxicating liquor licence.
Shop employee means
- an employee who does shop work and shop work means work in or about a shop.
Driving Hours Specific provisions of the act do not apply to employees who are covered under Regulation (EC) 561/2006 which sets driver’s hour’s limits, minimum break and rests periods and the categories of operations which are exempted from tachograph rules. This covers goods carrying vehicles (over 3.5 tonnes) and passenger carrying vehicles which can hold over nine people including the driver. the RSA has published a guide for Drivers Hours. Rest breaks - After a driving period of four and half hours, a driver shall take an uninterrupted break of not less than 45 minutes unless he takes a rest period. A break means any period during which a driver may not carry out any driving or other work and which is used exclusively for recuperation. This break may be replaced by a break of at least 15 minutes followed by a break of at least 30 minutes each distributed over the 4½ hour driving period Maximum driving hours – the maximum hours driving in a day are 9 hours each day. This can be extended to 10 hours but can only be done twice a week. The maximum hours driving in a week are 56 hours a week and no more than 90 hours in any two consecutive weeks. Night work - is between 00.00am and 04.00am for goods vehicles and 01.00am and 05.00am hours for the transport of passengers The Act is not exactly straightforward and can require some investigation to determine certain provisions, however it should be noted there are fines of up to €1,900 if a person is found guilty of an offence under the legislation.
