Rest periods in work.
Do they cause problems for you?
Are you an employer? Employee?
Working time, rest periods, public holidays, and annual leave are all dealt with in Irish law in the Organisation of Working Time Act, 1997.
And up to 2 years remuneration can be awarded in compensation to an employee for breaches of the Act.
In fact the hours of work, holidays, some statutory leave entitlements, days off, breaks, and so on are also determined by the Organisation of Working Time Act, 1997.
For employers it is important to note that working time and time off/annual leave should be viewed as health and safety issues for employees also.
The definition of “working time” in the Organisation of Working Time Act, 1997 is an important one:
|“working time” means any time that the employee is—
||(a) at his or her place of work or at his or her employer’s disposal, and
||(b) carrying on or performing the activities or duties of his or her work,
||and “work” shall be construed accordingly.
Section 2 defines “working time” and a “rest period”:
“rest period” means any time that is not working time;
Application and non-application
The Organisation of Working Time Act, 1997 does not apply to members of the Defence Forces and an Garda Siochana.
Section 3 of the Act also states that it shall not apply to people working in sea fishing or a doctor in training or workers covered by a collective agreement or those working in exceptional circumstances or an emergency or a person who is employed by a relative and is a member of that relative’s household or a person whose working hours are determined by him/herself.
Section 4 provides exemptions for other groups of employees including those covered by regulations made by the Minister for Enterprise and Employment including people working in the transport industry.
Section 6 of the Act allows an employer to give compensatory “equivalent” rest periods where an employee is not entitled to a rest period due to the operation of sections 4 or 5.
S.I. No. 21/1998 – Organisation of Working Time (General Exemptions) Regulations, 1998 provides for exemptions for certain workers from the operation of sections 11, 12 and 13 of the Organisation of Working Time Act, 1997.
Here is the list set out in the statutory instrument:
1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.
2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.
3. An activity falling within a sector of the economy or in the public service—
(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,
(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,
and, in particular, any of the following activites—
(i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,
(ii) the provision of services at a harbour or airport,
(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,
(iv) the provision of ambulance, fire and civil protection services,
(v) the production, transmission or distribution of gas, water or electricity,
(vi) the collection of household refuse or the operation of an incineration plant,
(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,
(viii) research and development,
On call or on standby?
If you are on call or standby the prime determining factor as to whether this is “working time” or not will be the requirement to be at a particular place or not-if a physical presence is required it is considered working time; if not, it is not considered working time, even though you may, like a doctor, be on call.
The Organisation of Working Time Act, 1997 does not apply to Gardai and Defence Forces members and certain sections of the Act do not apply to other groups of employees (for example people involved in the transportation of goods or people, people involved in sea fishing, employees covered by collective agreements, doctors in training etc.)
There are special regulations for fishermen, S.I. No. 709/2003 – European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003.
Minimum Rest Periods
Section 11 of the Act stipulates that an employee is entitled to a “rest period of not less than 11 consecutive hours in each period of 24 hours”; this is the daily rest period.
Section 12 states that an employee is entitled to a rest period of at least 15 minutes after working for 4.5 hours and a break of at least 30 minutes after working for 6 hours. Note: a break at the end of the working day is not acceptable and does not comply with the Act.
This 15 minute break can be included in the 30 minute break but would obviously have to start no later than 4 hours and 30 minutes after the commencement of work.
Section 13 deals with weekly rest periods and gives an entitlement to at least 24 consecutive hours of a break in each period of seven days, or at the employer’s discretion two rest periods each of which must be for at least 24 consecutive hours during a second seven days period. This rest period must be preceded by a section 11 daily rest period (see above).
Unless the employment contract provides otherwise, the 24 hours rest period “shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday”.
Compensatory Rest Periods
There are exemptions provided for certain workplaces and industries, In particular circumstances the employer can give compensatory rest periods where it is not possible for the employee to get his/her statutory entitlement in the normal course of events.
Section 6 of the Organisation of Working Time Act, 1997 is the relevant section.
The Labour Relations Commission prepared a Code of Practice, pursuant to section 6 of the act, about compensatory rest periods which you can access here.
There are special rules about breaks for retail workers.The relevant statutory instrument is 57/1998 – Organisation of Working Time (Breaks At Work For Shop Employees) Regulations, 1998.
These regulations cover any retail trade or business, but does not include any premises uses as a hotel or the preparation of food including catering operations or licensed premises.
For any shop employee whose hours of work include the hours from 11.30 a.m. to 2.30 p.m. and who works more than six hours, the minimum duration of the break shall be one hour. The one hour break should take place between the hours mentioned and cannot be granted at the end of the working day.
These regulations covers workers in any retail trade or business or shop or wholesale outlet. and includes a barber or hairdressers.
Section 14 provides for compensation for employees who are required to work on a Sunday, where this “has not otherwise been taken account of” in deciding pay.
Employees can be compensated by an allowance or pay increase or paid time off or a combination of these measures.
Employees can, in certain circumstances, rely on agreements governing “comparable employees” with a view to establishing appropriate levels of compensation.
Weekly working hours
Section 15 deals with weekly working hours and states that an employee cannot work in excess of an average of 48 hours in a week-the average is taken over a two to twelve month period, depending on the industry and whether you are a night worker or not.
This case-ANDRZEI GERA T/A FAMILY BAKERY SAMO ZDROWIE and JUSTYNA MALECKA-saw two workers each being awarded €10,000 in compensation for breach of the weekly working hours law. You can read the full decisions here and here.
The Organisation of Working Time Act, 1997 also contains provisions covering night workers (section 16 offers extra protection), section 17 covers circumstances where an employee may not have a regular starting and/or finishing time that he/she must be told at least 24 hours in advance of the relevant starting and finishing time (the same applies to overtime required to be worked) and zero hours contracts are covered in section 18.
Certain sectors of activity are exempted from the rest provisions of the Organisation of Working Time Act 1997, for example some transport activities. These exemptions are normally set out in a statutory instrument so legal advices is recommended to check whether your industry is affected by an exemption.
Section 16 of the Act gives additional protection to night workers. Employers cannot expect or oblige night workers to work over 8 hours in a 24 hour period; a night worker is a worker who works at least 3 hours post-midnight as night work is considered to be from midnight to 7 am.
Section 17 of the Act provides that where an employee does not have “normal or regular starting and finishing times of work” the employer must give at least 24 hours notice of the relevant starting and finishing times.
The employee is entitled to the same notice re overtime/additional hours that the employer requires the employee to work.
Zero hours contracts
There has been increasing controversy about the use of zero hour contracts and there are reviews currently (2014) being carried out in Ireland and the UK by Ged Nash and Ed Miliband respectively.
These contracts are contracts of employment with a difference-they do not have a specified hours of work but the employee must be available for work for a certain number of hours in a week or when required, or a combination of both.
The use of zero hours contracts in the UK has soared in the last few years and, unlike in Ireland, there is no compensation for workers who are not called in to work.
The Organisation of Working Time Act, 1997 provides for zero hours contracts in section 18. Unlike in the UK, there is a certain degree of protection for the worker in Ireland.
In the UK if you are not called in to work in any week, you don’t get paid.
In Ireland, there is some compensation for workers who work less than 25% of their contracted hours in a week. If the employee got no work at all, he is entitled to 25% of the possible available hours or 15 hours, whichever is the smaller.
If the employee got some hours, they should be compensated to bring them up to 25% of the possible available hours.
Here’s an example: say Sebastian is contracted to be available for 20 hours per week but got no work in a given week. Then Sebastian is entitled to be compensated with 25% of the 20 hours, that is 5 hours, or for 15 hours, whichever is less.
5 hours is clearly the smaller so Sebastian is entitled to be paid for 5 hours.
If Sebastian got 3 hours work, then he would be entitled to be compensated by an extra 2 hours to bring him up to 25% of the contracted hours.
Organisation of Working Time Act 1997 and Employers Records
Section 25 of the Organisation of Working Time Act, 1997 obliges the employer to keep certain records:
|25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
||(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
||(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
||(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
S.I. No. 473/2001 – Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 provides a form which employers can use to record hours worked on a daily and weekly basis, a record of leave granted to each employee and a weekly record of the starting and finishing times of employees.
We have created a spreadsheet which allows you to maintain these records in accordance with the legislation and regulations.
You can download it here.
Enforcement Procedures and Remedies
Disputes are dealt with by a Rights Commissioner in the first instance with appeals to the Employment Appeals tribunal once referred within 6 months of the alleged breach. The Rights Commissioner has a number of options open to him/her including ordering the employer to pay up to two years remuneration as compensation.
Section 27 of the Organisation of Working Time Act, 1997 provides that up to 2 years remuneration can be awarded to the employee in compensation by the Rights Commissioner or the Labour Court on appeal:
|(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
||(a) declare that the complaint was or, as the case may be, was not well founded,
||(b) require the employer to comply with the relevant provision,
||(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
We always recommend, regardless of whether you are an employer or employee, that you consult with a legal professional for advice as the consequences of an error in this area can be very costly.
The Organisation of Working time act, 1997 also deals with annual leave/holidays from work. Click on the link to learn more.