In last month’s Bottom Line Express ( http://bit.ly/RMy001 ) we spoke about the obligations on employers to follow the regulations covered in the Organisation of Working Time Act. The Act also has some exemptions and additional provisions which apply to certain categories of employees and in this article we will seek to identify those niche situations whereby the rules outlined in the Act don’t necessarily apply:
Who is exempt from the Organisation of Working Time Act?
The Act does not apply to the following employees:
- Gardaí
· Defence Forces
· Employees who control their own working hours
· Family employees on farms or in private homes
Who is exempt from the minimum rest and working time provisions?
Certain employees are exempt from the minimum rest and working time provisions in the Act as given the nature of their industry and employment as it would be too difficult to expect the employees to be able to take their breaks at set times so it is more appropriate that they can have more flexibility in respect of their rest breaks.
· Any person engaged in sea fishing/a person engaged in other work at sea;
· A person engaged in the activities of a doctor in training;
· A person who is employed by a relative and is a member of that relatives household 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
The exemptions for retail workers
Those individuals that are employed in the retail industry are generally entitled to a longer rest break than that which is set out in the current Organisation of Working Time Act provisions. As a general principle, if an employee works for 6 hours or more they are entitled to a 30 minute rest break. However, S.I No. 57/1998 Organisation Of Working Time (Breaks At Work For Shop Employees) Regulations, provides that where an employee who works in or about a retail shop works a shift of more than 6 hours and that shift includes the hours between 11.30am and 2.30pm then that retail employee is entitled to a break of at least one hour which must occur during those hours.
The term retail is seen to include the following types of business:
- 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 programs or catalogues at theatres or other places of entertainment.
The term shop is seen to include the following types of business:
- 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 launching;
- Any wholesale shop;
· 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 whole shop.
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.
Exemptions from record keeping
A current requirement of the Organisation of Working Time Act requires employers to keep records of their employees rest breaks for up to 3 years. However, however there are some exemptions; if the employer has electronic record keeping facilities and employers who have manual as opposed to electronic record keeping facilities and who are required to keep records.
Additional provisions in respect of professional drivers
Specific provisions of the Act do not apply to employees who are covered under Regulation (EC) 561/2006 which sets driver’s hours’ limits, minimum break and rests periods and the categories of operations which are exempted from tachograph rules. In essence professional drivers have different working time rules where they (a) operate a goods carrying vehicle which weighs 3.5 tons or more, and (b) operate passenger carrying vehicles which can hold over nine persons including the driver. The specific rules for these employees are as follows
· After a driving period of four and a 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
· The maximum hours driving in a day are 9 hours each day. This can be extended to 10 hours but this 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.
If you have any queries in respect of the Organisation of Working Time Act or any of its exemptions then please do not hesitate to seek advice through our 24 Hour Advice Service on 01 855 50 50 and one of our experienced advisors will be happy to assist.
