European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012

• Jurisdiction: Ireland
• Citation: IR SI 36/2012

ARRANGEMENT OF REGULATIONS

1. Citation

2. Interpretation

3. Scope

4. Reference period

5. Working time

6. Periods of availability, break times and rest times

7. Periods of availability

8. Breaks from work

9. Application of Council Regulation in relating to daily and weekly rest

10. Night work

11. Obligation to notify mobile worker

12. Obligations on employer

13. Obligations on self-employed driver

14. Obligation on mobile worker to supply information to employer

15. Agency workers

16. Powers of enforcement officers

17. Offences

18. Complaints to a rights commissioner

19. Appeal to the Labour Court

20. Labour Court power to take evidence, etc.

21. Publication of determination by Labour Court

22. Enforcement of determination of Labour Court

23. Costs of prosecution

24. Revocation

S.I. No. 36 of 2012

EUROPEAN COMMUNITIES (ROAD TRANSPORT) (ORGANISATION OF WORKING TIME OF PERSONS PERFORMING MOBILE ROAD TRANSPORT ACTIVITIES) REGULATIONS 2012

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 7th February, 2012.

I, LEO VARADKAR, Minister for Transport, Tourism and Sport in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purposes 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:

Citation

1. These Regulations may be cited as the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

Interpretation

2. (1) In these Regulations—

“AETR” means the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport done at Geneva on 1 July 1970;

“collective agreement” means an agreement between an employer and a body or bodies representative of the mobile workers to whom the agreement relates;

“contract of employment” means—

(a) a contract of employment or of service or of apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with another person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 (No. 27 of 1971) to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

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

“Council Regulation” means Regulation (EC) No. 561/2006 of the European Parliament and of the Council of 15 March 20062 as amended by Regulation (EC) No. 1073/2009 of the European Parliament and of the Council of 21 October 20093 ;

“Directive” means Directive 2002/15/EC of the European Parliament and of the Council of 11 March 20021 ;

“employer”, in relation to a mobile worker, means the person with whom the mobile worker has entered into, or for whom the mobile worker 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 worker concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

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

“employment regulation order” means an employment regulation order within the meaning of Part IV of the Industrial Relations Act 1946 (No. 26 of 1946);

“enforcement officer” means—

(a) a transport officer appointed under section 15 (inserted by section 117 of the Public Transport Authority Act 2008 (No. 16 of 2008)) of the Road Transport Act 1986 (No. 16 of 1986),

(b) an officer of Customs and Excise, or

(c) a member of the Garda Síochána;

“Minister” means Minister for Transport, Tourism and Sport;

“night time” means—

(a) in relation to work involving the use of motor vehicles used for carrying goods, the period between 00.00 hours and 04.00 hours, and

(b) in relation to work involving the use of motor vehicles used for carrying passengers, the period between 01.00 hours and 05.00 hours;

“night work” means any work performed during night time;

“reference period” means a period referred to in Regulation 4 used in calculating the average 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);

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

Scope

3. These Regulations apply to—

(a) mobile workers who are employed by or who do work for one or more undertakings established in a Member State, and

(b) self-employed drivers,

participating in road transport activities to which either the Council Regulation or the AETR applies.

Reference period

4. (1) The reference period for a mobile worker shall be—

(a) where a collective agreement, an employment regulation order or a registered employment agreement provides for the application of this Regulation in relation to successive periods of 17 consecutive weeks, each such period,

(b) where a collective agreement provides for the application of this Regulation in relation to successive periods of 26 consecutive weeks, each such period,

(c) in a case where—

(i) neither (a) nor (b) applies, and

(ii) the employer gives written notice to the mobile worker in writing that he or she intends to apply this subparagraph,

any period of 17 consecutive weeks in the course of the worker’s employment, or

(d) in any other case, each successive period in each year beginning at midnight at the beginning of the Monday which falls on, or is the first Monday after, a date in column (1) and ending at midnight at the beginning of the Monday which falls on, or is the first Monday after, the date on the same line in column (2) in the Table to this paragraph:

TABLE

Beginning(1) End(2) 1 January 1 May 1 May 1 September 1 September 1 January

(2) The reference period for a self-employed driver shall be—

(a) each successive period of 17 consecutive weeks,

(b) each successive period of 26 consecutive weeks, or

(c) in any other case, the period referred to in paragraph (1)(d).

Working time

5. (1) Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed—

(a) a working time of more than 60 hours in a week,

(b) an average weekly working time of 48 hours in any reference period.

(2) The average weekly working time of a person during a reference period shall be determined according to the formula—

(A+B)

C

where—

A is the aggregate number of hours comprised in that person’s working time during the course of the reference period;

B is the number of excluded hours during the reference period; and

C is the number of weeks in the reference period.

(3) In this Regulation “excluded hours” means hours comprised in—

(a) any period of annual leave taken by the person in accordance with the Organisation of Working Time Act 1997 (No. 20 of 1997) (save so much of it as exceeds the minimum period of annual leave required by that Act to be granted to the mobile worker),

(b) any absences from work by the person authorised under the Maternity Protection Act 1994 (No. 34 of 1994), the Adoptive Leave Act 1995 (No. 2 of 1995), the Parental Leave Act 1998 (No. 30 of 1998), or the Carer’s Leave Act 2001 (No. 19 of 2001), and

(c) any period of sick leave taken by the person.

(4) For the purposes of paragraph (2), the number of hours in a whole day shall be 8 and the number of hours in a whole week shall be 48.

(5) An employer shall ensure that the limits specified in paragraph (1) are complied with in the case of each mobile worker employed by him or her.

Periods of availability, break times and rest times

6. Periods of availability, break times and rest times shall not be included in the calculation of working time.

Periods of availability

7. A period shall not be treated as a period of availability unless the person performing mobile road transport activities knows before the start of the relevant period about that period of availability and its reasonably foreseeable duration.

Breaks from work

8. (1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

(2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

(3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

(4) Each break may be made up of separate periods of not less than 15 minutes each.

(5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

Application of Council Regulation in relation to daily and weekly rest

9. (1) In the application of these Regulations, the provisions of the Council Regulation relating to daily and weekly rest shall apply to the driver of the vehicle or a person carried in the vehicle in order to be available for driving.

(2) An employer or self-employed driver, as the case may be, shall ensure that this...