Organisation of Working Time (Code of Practice On Compensatory Rest and Related Matters) (Declaration) Order, 1998

• Jurisdiction: Ireland
• Citation: IR SI 44/1998
• Year: 1998

S.I. No. 44 of 1998.
ORGANISATION OF WORKING TIME (CODE OF PRACTICE ON COMPENSATORY REST AND RELATED MATTERS) (DECLARATION) ORDER, 1998
WHEREAS the Labour Relations Commission may, by virtue of section 35 (2) of the Organisation of Working Time Act, 1997 (No. 20 of 1997), prepare a code of practice for the purposes of one or more sections of that Act (other than section 6(2)),
AND WHEREAS the Labour Relations Commission is required, by virtue of section 35(3) of the said Act, after consultation with the National Authority for Occupational Safety and Health, to prepare a code of practice for the purposes of section 6(2) of that Act,
AND WHEREAS the Labour Relations Commission, having consulted with the National Authority for Occupational Safety and Health and having complied with section 35(4) of the said Act, has prepared a code of practice for the purposes aforesaid and submitted a copy of it to the Minister for Labour, Trade and Consumer Affairs (being the Minister of State to whom functions in this matter have been delegated by the Order hereafter recited),
AND WHEREAS the Minister for Labour, Trade and Consumer Affairs may, by virtue of section 35(5)(b) of the said Act, make such modifications to a code of practice so submitted to him and declare, by order, the code as so modified to be a code of practice for the purposes of the section or sections concerned of that Act,
AND WHEREAS the Minister for Labour, Trade and Consumer Affairs has, by virtue of the said provision, made modifications that he considers appropriate to the code of practice so submitted to him for the purposes of declaring, pursuant to that provision, the code to be a code of practice for the purposes of the sections concerned of the said Act,
NOW, I Tom Kitt, Minister for Labour, Trade and Consumer Affairs, in exercise of the powers conferred on me by section 35(5)(b) of the Organisation of Working Time Act, 1997 (No. 20 of 1997), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 305 of 1997 ), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 ( S.I. No. 330 of 1997 ), hereby order as follows:
	1 Citation	1. This Order may be cited as the Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order, 1998.
	2 Code of Practice	2. The code of practice set out in the Schedule to this Order is hereby declared to be a code of practice for the purposes of section 6 of the Organisation of Working Time Act, 1997 (No. 20 of 1997), so much of the other provisions of Part I of that Act as relate to that section and so much of Parts II and IV of that Act as relate to that section.
SCHEDULE
ORGANISATION OF WORKING TIME ACT, 1997
CODE OF PRACTICE ON COMPENSATORY REST PERIODS AND RELATED MATTERS
Department of Enterprise, Trade and Employment, Dublin 2.
An Order ( S.I. No. 44 of 1998 ) declaring this code to be a Code of Practice for the purposes of section 6 of the Organisation of Working Time Act, 1997 was made by Tom Kitt, Minister for Labour, Trade and Consumer Affairs on 24/2/1998.
NOTE:— This Code of Practice is not a legal interpretation of the Act
CONTENTS
PAGE NO. 1. Labour Relations Commission 4 2. Introduction 5 3. General Principles of and Arrangements for Equivalent Compensatory Rest and Appropriate Protection 8 4. Complaints Procedure 12 5. Appeals 14 6. Enforcement of Decisions of the Rights Commissioner/Determinations of the Labour Court 15 7. Annex — Exempted Activities 16
1. LABOUR RELATIONS COMMISSION
1. The Labour Relations Commission has prepared this Code of Practice oil Compensatory Rest in accordance with the provisions of section 35 of the Organisation of Working Time Act, 1997 . When preparing the Code of Practice the Commission held meetings and consultations with the Irish Business and Employers Confederation, the Irish Congress of Trade Unions, the Labour Court, the Department of Enterprise, Trade and Employment and the Irish Co-Operative Organisation Society.
2. In accordance with section 35(3) of the Act the Commission has also consulted the National Authority of Occupational Safety and Health in the preparation of this Code.
3. The Commission has taken account of the views expressed by these organisations to the fullest extent possible in preparing this Code.
4. The Code is designed to assist employers, employees and their representatives in observing the 1997 Act generally as regards compensatory rest. It gives guidance, in particular, on arrangements that may be put in place to comply with the compensatory rest provisions which apply where, because of exemptions or collective agreements or emergencies or unforeseeable circumstances, employees cannot avail themselves of the rest or break periods provided for in sections 11, 12 or 13 of the Act.
5. While failure on the part of any person to observe the Code will not, in itself, render that person liable to civil or criminal proceedings, the Code shall be admissible in evidence before a Court, the Labour Court or a Rights Commissioner in proceedings under the Organisation of Working Time Act, 1997 .
2. INTRODUCTION
NOTE
This section of the Code gives a general description of some of the provisions of the Organisation of Working Time Act, 1997 and is not a legal interpretation.
The Organisation of Working Time Act, 1997
1. The terms of the EU Directive on Working Time, (Council Directive 93/104/EC of 23 November, 1993), have been transposed into Irish law by means of the Organisation of Working Time Act, 1997 and Regulations made under the Safety, Health and Welfare at Work Act, 1989 .
2. The Organisation of Working Time Act, 1997 became law on 7 May, 1997. Section 35 of that Act provides for a Code of Practice that provides practical guidance as to the steps that may be taken for the purposes of complying with any section of the Act. The Commencement Order bringing the Act into operation, on a phased basis, was signed on 24 September, 1997. Under the Commencement Order, section 35 of the Act, inter alia, came into operation on 30 September, 1997. The provisions on rest and working hours are effective from 1 March, 1998.
3. The Minister for Labour, Trade and Consumer Affairs, under section 35 of the 1997 Act, asked the Labour Relations Commission to prepare a Code of Practice for the purposes of section 6 of the Act. As section 35(3) of the Act provides that the Commission, after consultation with the National Authority for Occupational Safety and Health, shall prepare a Code of Practice for the purposes of section 6(2), this Code is prepared under section 35(2) for the purposes of section 6(1) and under section 35(3) for the purposes of section 6(2). Under the Commencement Order section 6 of the Act came into operation on 30 September, 1997.
4. The Organisation of Working Time Act, 1997 , sets out statutory rights for employees in respect of rest, maximum working time and holidays. In summary, the key provisions of the Act on minimum rest and maximum working time are as follows:
• maximum average net weekly working time of 48 hours;
• a daily rest break of 11 consecutive hours;
• rest breaks while at work;
• a weekly rest break of 24 consecutive hours;
• maximum average night working of 8 hours;
• maximum hours of work for night workers engaged in work involving special hazards or a heavy physical or mental strain — an absolute limit of 8 hours in a 24 hour period.
5. The 48 hour working week comes into effect, generally, on 1 March, 1998. However, the Act contains transitional provisions. These provide that employees may work up to 60 hours per week from 1 March, 1998 to 28 February, 1999 and up to 55 hours per week from 1 March, 1999 to 29 February, 2000. The 48 hour week comes into effect in respect of all employees covered by the Act on 1 March, 2000. To work the maximum permitted hours during 1998 and 1999 an agreement must be reached between the parties which is approved of by the Labour Court. The Fifth Schedule to the Act details the procedures to be observed in implementing the transitional provisions (see also Guide to the Labour Court's Functions and Procedures for the purposes of the Act).
6. The specific provisions of the Act relating to rest times may be varied in certain circumstances —
• by Regulations,
• through legally binding collective agreements made under the Act and approved by the Labour Court,
• through registered employment agreements,
• through employment regulation orders, or
• as otherwise provided under the Act (e.g. emergencies, unforeseeable circumstances, certain shift changes, split shifts).
7. The circumstances in which the rest times and averaging periods for weekly working hours may be varied are as follows:—
(I) SECTION 6(1) OF THE ACT PROVIDES FOR CIRCUMSTANCES:
• Where Regulations* exempt certain activities from the rest breaks, daily and weekly rest periods set out in sections 11, 12 and 13 of the 1997 Act.
* See Annex to this Code — General Excemption Regulations ( S.I. No. 21 of 1998 )
• Where collective agreements providing for a similar exemption have been concluded by the parties and approved by the Labour Court. (Registered Employment Agreements and Employment Regulation Orders may also provide for the variation of rest periods, but not of working time provisions.)
In every case at (I) above where statutory rest times are varied the employer concerned must ensure that equivalent compensatory rest is made available to the employee.
(II) SECTION 6(2) OF THE ACT PROVIDES FOR CIRCUMSTANCES:
• Where shift workers who change shift and cannot avail themselves of the rest period are exempted (in respect of the daily and weekly rest periods).
• Where persons employed in activities...