European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2005

• Jurisdiction: Ireland

STATUTORY INSTRUMENT

S.I No. 2 of 2005

European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2005

I, Martin Cullen, Minister for Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ), and for the purpose of giving effect to Directive 2002/15/EC of the European Parliament and of the Council of 11 March 20021 hereby make the following Regulations: 1. (1) These Regulations may be cited as the European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities Regulations 2005.

(2) These Regulations come into operation on 2 January 2006. 2. (1) In these Regulations -

“the Council Regulation of 1985” means Council Regulation (EEC) No. 3820/85 of 20 December 19852 as amended;

“the Directive of 2002” means Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002;

“AETR” means the European agreement concerning the work of crews of vehicles engaged in international road transport done at Geneva on 1 July 1970 as amended;

“Authorised Officer” means a transport officer appointed by the Minister pursuant to section 15 of the Road Transport Act, 1986 ( No. 16 of 1986 ), any officer of Customs and Excise or any member of the Garda Síochána;

“collective agreement” means an agreement by or on behalf of an employer on the one hand, and by or on behalf of a body or bodies representative of the employees to whom the agreement relates on the other hand.

“contract of employment” means —

(a) a contract of service or apprenticeship,

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 , and is acting in the course of that business, to do or perform personally any work of service for a third person (whether or not the third person is a party to the contract), and

whether the contract is express or implied and if express, whether it is oral or in writing;

“employee” means a person of any age, who has entered into or works under (or where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee, employed by that employer.

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in subparagraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

“employment” in relation to a worker, means employment under his or her contract of employment, and “employed” shall be construed accordingly;

“employment regulation order” means an order under section 48 of the Industrial Relations Act, 1990 ( No. 19 of 1990 );

“Minister” means the Minister for Transport;

“mobile worker” shall mean any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account;

“motor vehicle” has the meaning assigned to it by Article 1(2)(a) of the Council Regulation of 1985;

“night time” means in respect of motor vehicles used for carrying goods the period between 00.00 hours and 04.00 hours and in respect of motor vehicles used for carrying passengers the period between 01.00 hours and 05.00 hours;

“night work” shall mean any work performed during night time;

“period of availability” means a period during which the mobile worker is not required to remain at his or her workstation, but is required to be available to answer any calls to start or resume driving or to carry out other work, including but not limited to periods during which the mobile worker is accompanying a vehicle being transported by a ferry or by a train as well as periods of waiting at frontiers and those due to traffic prohibitions;

“person performing mobile road transport activities” shall mean any mobile worker or self-employed driver who performs such activities;

“reference period” means the period for calculation of the average maximum weekly working time;

“registered employment agreement” has the meaning assigned to it by section 25 of the Industrial Relations Act 1946 ( No. 26 of 1946 );

“self-employed driver” means anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out such transport, who is entitled to work for himself and who is not tied to an employer by a contract of employment or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom, individually or through a co-operation between self-employed drivers, to have commercial relations with several customers;

“week” means the period between 00.00 hours on Monday and 24.00 hours on Sunday;

“worker” means an individual who has entered into or works under (or, where employment has ceased, worked under) -

(a) a contract of employment, or

(b) any other contract whether express or implied and if express, whether it is oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract,

and any reference to a worker's contract shall be construed accordingly;

“working time” means the time from the beginning to the end of work during which the mobile worker is at his or her workstation, at the disposal of his or her employer and exercising his or her functions or activities, being:

(a) time devoted to all road transport activities, including, in particular —

(i) driving;

(ii) loading and unloading;

(iii) assisting passengers boarding and disembarking from the vehicle;

(iv) cleaning and technical maintenance;

(v) all other work intended to ensure the safety of the vehicle, its cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operation under way, including monitoring of loading and unloading and dealing with administrative formalities with police, customs immigration officers and others; or

(b) time during which the mobile worker cannot dispose freely of his or her time and is required to be at his or her workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where their foreseeable duration is not known in advance, that is to say either before departure or just before the actual start of the period in question, or under collective agreements or employment regulation orders or registered employment agreements;

“workstation” means:

(a) the location of the main place of business of the undertaking for which the person performing mobile transport activities carries out duties, together with its various subsidiary places of business, regardless of whether they are located in the same place as its head office or its main place of business;

(b) the vehicle which the person performing mobile road transport activities uses when he or she carries out duties; or

(c) any other place in which activities connected with transport are carried out.

(2) A word or expression that is used in these Regulations and is also used in the Directive of 2002 has, unless the contrary intention appears, the meaning in these Regulations that it has in the Directive of 2002.

(3) (a) A reference in these Regulations to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended.

(b) A reference in these Regulations to a paragraph or subparagraph is to the paragraph or...