ORGANISATION OF WORKING TIME ACT, 1997

28.—A decision of the Labour Court under section 44 of the Workplace Relations Act 2015 on appeal from a decision of an adjudication officer referred to in subsection (3) of section 27 shall affirm, vary or set aside the decision of the adjudication officer.]

29. Enforcement of determinations of Labour Court.

29.—F33[…]

30. Evidence of failure to attend before or give evidence or produce documents to Labour Court.

30.—F34[…]

31. References to rights commissioner by Minister.

31.—F35[…]

32. Provisions in relation to outworkers who are employees.

32.—(1) An employer who employs any outworkers shall keep, in the prescribed form, a register in which he or she shall cause to be entered prescribed particulars in respect of each such worker for the time being employed by him or her.

• (2) The Minister may, by regulations, prohibit an employer from employing outworkers to do a specified class or classes of work unless the employer complies with specified conditions in respect of the employment of the outworkers to do the said work.

• (3) An employer who—

• (a) fails to comply with subsection (1), or

• (b) fails to comply with any condition specified in regulations under subsection (2) in respect of the employment by him or her of an outworker to do work of a class specified in such regulations,

shall be guilty of an offence.

33. Prohibition on double employment.

33.—(1) An employer shall not employ an employee to do any work in a relevant period during which the employee has done work for another employer, except where the aggregate of the periods for which such an employee does work for each of such employers respectively in that relevant period does not exceed the period for which that employee could, lawfully under this F36[Act or the Activities of Doctors in Training Regulations], be employed to do work for one employer in that relevant period.

• (2) In subsection (1) “relevant period” means a period of—

• (a) 24 hours,

• (b) 7 days, or

• (c) 12 months.

• (3) Whenever an employer employs an employee in contravention of subsection (1), the employer and the employee shall each be guilty of an offence.

• (4) Where an employer is prosecuted for an offence under this section it shall be a good defence for him or her to prove—

• (a) that he or she neither knew nor could by reasonable enquiry have known that the employee concerned had done work for any other employer in the period of 24 hours, 7 days or 12 months, as the case may be, in respect of which the prosecution is brought, or

• (b) that he or she neither knew nor could by reasonable enquiry have known that the aggregate of the periods for which the employee concerned did work in the said period of 24 hours, 7 days or 12 months, as the case may be, exceeded the period for which he or she could lawfully be employed to do work for one employer in the said period of 24 hours, 7 days or 12 months, as the case may be.

34. Penalties, proceedings, etc.

34.—(1) A person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding £1,500.

• (2) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in that capacity, that person shall also be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

• (3) If the contravention in respect of which a person is convicted of an offence under this Act is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable, on summary conviction, to a fine not exceeding £500.

• (4) Proceedings for an offence under section 8 or a further offence, in relation to such an offence, under subsection (3) may be brought and prosecuted by the Minister.

• (5) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.

35. Codes of practice.

35.—(1) In this section

“code of practice” means, in relation to a section of this Act, a code that provides practical guidance as to the steps that may be taken for the purposes of complying with the section;

“the Commission” means the Labour Relations Commission.

• (2) The Commission may and, at the request of the Minister, shall, prepare a code of practice for the purposes of any section of this Act (other than section 6 (2)) or, in the case of a request by the Minister, a section of this Act (other than section 6 (2)) specified in the request.

• (3) 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).

• (4) In preparing a code of practice referred to in subsection (2) or (3), the Commission shall invite such organisations representative of employers, such organisations representative of employees, and such other bodies, as the Commission considers appropriate to make submissions, whether orally or in writing, to it in relation to the proposed code of practice and shall have regard to any such submissions made to it, in response to the invitation, by such organisations or bodies.

• (5) The Commission shall submit a copy of a code of practice prepared by it under this section to the Minister who may—

• (a) by order declare the code (which shall be scheduled to the order) to be a code of practice, or

• (b) make such modifications to the code as he or she considers appropriate and declare the code as so modified (which shall be scheduled to the order) to be a code of practice,

for the purposes of the section or sections concerned of this Act.

• (6) The Minister may, at the request of the Commission or of his or her own volition after consultation with the Commission, by order—

• (a) amend or revoke a code of practice, the subject of an order under subsection (5) or this subsection (and the code of practice shall, in case it is amended by the order, be scheduled, in its amended form, to the order),

and

• (b) declare, accordingly, the code of practice, as appropriate—

• (i) to be no longer a code of practice,

or

• (ii) in its form as amended by the order, to be a code of practice,

for the purposes of the section or sections concerned of this Act,

and

• (c) revoke, as the case may be, the order concerned under subsection (5) or the previous order concerned under this subsection.

• (7) A failure by a person to observe a code of practice under this section shall not of itself render that person liable to any civil or criminal proceedings.

• (8) In any proceedings under this Act before a court, the Labour Court or a rights commissioner, a code of practice for the time being declared under subsection (5) or (6) to be a code of practice for the purposes of one or more sections of this Act shall be admissible in evidence and any provision of the code which appears to the court, the Labour Court or rights commissioner, as the case may be, to be relevant to any question arising in the proceedings shall be taken into account by it, him or her in determining that question.

36. Provisions in relation to Protection of Young Persons (Employment) Act, 1996.

36.—(1) In this section “the Act of 1996” means the Protection of Young Persons (Employment) Act, 1996.

• (2) Nothing in the preceding sections of this Act shall prejudice the provisions of the Act of 1996.

• (3) The obligation of an employer under section 15 of the Act of 1996 to keep the records referred to in that section at the place where the young person or child concerned is employed shall, if the young person or child is employed by the employer at 2 or more places, be construed as an obligation to keep the said records at the place from which the activities that the young person or child is employed to carry on are principally directed or controlled.

• (4) Subsection (2) of section 22 of the Act of 1996 is hereby amended by—

• (a) the insertion in paragraph (a) after “work” of “or from which he or she has reasonable grounds for supposing the activities that an employee is employed to carry on are directed or controlled (whether generally or as respects particular matters)”, and

• (b) the insertion in paragraph (b) after “place” of “or any employee the activities aforesaid of whom are directed or controlled from any such premises or place”.

37. Voidance of certain provisions.

37.—Save as expressly provided otherwise in this F37[Act or the Activities of Doctors in Training Regulations], a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement F38[or coming into operation] of the provision concerned of this F37[Act or the Activities of Doctors in Training Regulations]) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this F37[Act or the Activities of Doctors in Training Regulations].

38. Amendment of section 51 of Safety, Health and Welfare at Work Act, 1989.

38.—

39. Powers of rights commissioner, Employment Appeals Tribunal or Labour Court in certain cases.

39.—(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

• (2) A decision (by whatever name called) of a relevant authority under this Act or an enactment F40[or statutory instrument] referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

TABLE

Adoptive Leave Act, 1995
Maternity Protection Act, 1994
Minimum Notice and Terms of Employment Acts, 1973 to 1991
F41[National Minimum Wage Act, 2000
Parental Leave Act, 1998]
Payment of Wages Act, 1991
Protection of Employees (Employers’ Insolvency) Acts, 1984 to 1991
Protection of Young Persons (Employment) Act, 1996
Redundancy Payments Acts, 1967 to 1991
Terms of Employment (Information) Act, 1994
Unfair Dismissals Acts, 1977 to 1993
F42[Parental Leave Act 1998
Protection of Persons Reporting Child Abuse Act 1998
European Communities (Protection of Employment) Regulations 2000 (S.I. No. 488 of 2000)
Carer’s Leave Act 2001
Protection of Employees (Part-Time Work) Act 2001
European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
Protection of Employees (Fixed-Term Work) Act 2003]

• (3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

• (4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment F43[or statutory instrument] referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment F44[or statutory instrument] in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

• (a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

• (b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment F45[or statutory instrument] and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment F46[or statutory instrument] within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

• (5) References in subsection (4) to the institution of proceedings in respect of any matter under an enactment F47[or statutory instrument] referred to in subsection (2), or the Table thereto, shall be construed as including references to the presentation of a complaint, or the referral of a dispute, in respect of the said matter, to the relevant authority concerned.

40. Alternative means of claiming relief in cases of non-compliance with Part III.

40.—(1) As respects a failure to comply with any provision of Part III in relation to an employee, the employee or, with the consent of the employee, any trade union of which the employee is a member may, in lieu of presenting a complaint in respect of such a failure under section 27, include in proceedings to be instituted by him or her or it in respect of any matter under an enactment referred to in the Table to section 39 (2) a claim for relief in respect of such a failure and where such a claim is included the following provisions shall have effect:

• (a) subject to the provisions of this section, the provisions of the said enactment (hereafter in this section referred to as “the relevant enactment”) shall, with any necessary modifications, apply in like respects to the said claim (hereafter in this section referred to as “the holidays claim”) and the procedures to be followed in respect of it (including procedures in respect of appeals) as they apply to the proceedings otherwise under the enactment,

• (b) the relevant authority that hears the said proceedings may grant the same relief in respect of the holidays claim as a rights commissioner may grant under section 27 (3) in respect of such a claim and in so far as the grant of such relief consists of or includes the making of a requirement on the employer concerned to pay compensation to the employee the limit specified in section 27 (3) in relation to compensation under that provision shall, in lieu of any limit specified in the relevant enactment in relation to compensation that may be required to be paid under that enactment, apply in relation to such compensation.

• (2) Notwithstanding subsection (1) (a)—

• (a) any provision of the relevant enactment requiring proceedings under that enactment to be instituted within a specified period shall not apply to such proceedings in so far, but only in so far, as they relate to the holidays claim,

• (b) subsections (4) and (5) of section 27 shall apply to the hearing of the holidays claim by the relevant authority concerned as they apply to the hearing of a complaint under section 27 by a rights commissioner.

• (3) In this section “relevant authority” has the same meaning as it has in section 39.

• (4) References in this section to the institution of proceedings in respect of any matter under an enactment referred to in the Table to section 39 (2) shall be construed in accordance with subsection (5) of section 39.

41. Increase of penalties under certain enactments.

41.—F48[…]

FIRST SCHEDULE Transitional Provisions in relation to Annual Leave Entitlements

Section 19.

“each working week reference” means, in relation to section 19(1), each reference in that section to 4 working weeks;

“percentage reference” means, in relation to section 19(1), the reference in paragraph (c) of that section to 8 per cent.

• (a) in relation to the leave year 1996, as if—

• (i) for each working week reference there were substituted a reference to 3 working weeks and for the percentage reference there were substituted a reference to 6 per cent., and

• (ii) for paragraph (b) of that section there were substituted the following:

• “(b) the number of working weeks obtained by the formula

X×Y,
4

where ‘X’ and ‘Y’ have the meaning assigned to them by paragraph 3 of the First Schedule,”,

• (b) in relation to the leave year 1997, as if—

• (i) for each working week reference there were substituted a reference to 3 working weeks and one day and for the percentage reference there were substituted a reference to 6.4 per cent., and

• (ii) for paragraph (b) of that section there were substituted the following:

• “(b) the number of working weeks obtained by the formula

4×X×Y,
15

where ‘X’ and ‘Y’ have the meaning assigned to them by paragraph 3 of the First Schedule,”,

• (c) in relation to the leave year 1998, as if—

• (i) for each working week reference there were substituted a reference to 3 working weeks and 3 days and for the percentage reference there were substituted a reference to 7.2 per cent., and

• (ii) for paragraph (b) of that section there were substituted the following:

• “(b) the number of working weeks obtained by the formula

3×X×Y,
10

where ‘X’ and ‘Y’ have the meaning assigned to them by paragraph 3 of the First Schedule,”.

• (a) a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 provides that the said subparagraphs shall not apply in relation to the employee, or

• (b) the employee is employed in a class of activity which for the time being is specified in regulations made by the Minister to be a class of activity in relation to which the said subparagraphs shall not apply.

SECOND SCHEDULE Public Holidays

Section 2.

• (a) Christmas Day,

• (b) St. Stephen’s Day,

• (c) St. Patrick’s Day,

• (d) Easter Monday, the first Monday in May, the first Monday in June and the first Monday in August,

• (e) the last Monday in October,

• (f) the 1st day of January,

• (g) any other day or days prescribed for the purposes of this paragraph.

• (a) the Church holiday falling in the same year immediately before the public holiday, or

• (b) the Church holiday falling in the same year immediately after the public holiday or, if the public holiday is a day which is a public holiday by virtue of paragraph 1 (b), the 6th day of January next following,

by giving to the employee concerned notice of his or her intention to do so not less than 14 days before the Church holiday (where that holiday is before the public holiday) or before the public holiday (where that holiday is before the Church holiday or, as the case may be, the said 6th day of January).

• (a) the 6th day of January, except when falling on a Sunday,

• (b) Ascension Thursday,

• (c) the Feast of Corpus Christi,

• (d) the 15th day of August, except when falling on a Sunday,

• (e) the 1st day of November, except when falling on a Sunday,

• (f) the 8th day of December, except when falling on a Sunday,

• (g) any other day or days prescribed for the purposes of this paragraph.

THIRD SCHEDULE Entitlement under section 21 in respect of Public Holidays: Exceptions

Section 21 (5).

Each of the following are the cases mentioned in section 21 (5) of absence by the employee concerned from work immediately before the relevant public holiday:

FOURTH SCHEDULE Enactments Repealed

Section 9.

Number and Year	Short Title	Extent of Repeal
(1)	(2)	(3)
No. 2 of 1936	Conditions of Employment Act, 1936.	The whole Act.
No. 42 of 1936	Night Work (Bakeries) Act, 1936.	The whole Act.
No. 4 of 1938	Shops (Conditions of Employment) Act, 1938.	The whole Act.
No. 2 of 1942	Shops (Conditions of Employment) (Amendment) Act, 1942.	The whole Act.
No. 12 of 1944	Conditions of Employment Act, 1944.	The whole Act.
No. 25 of 1973	Holidays (Employees) Act, 1973.	The whole Act.
No. 6 of 1981	Night Work (Bakeries) (Amendment) Act, 1981.	The whole Act.
No. 5 of 1991	Worker Protection (Regular Part-Time Employees) Act, 1991.	Section 4.

FIFTH SCHEDULE Transitional Provisions in relation to section 15 (1)

Section 15 (2).

TABLE

• (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours or, if the conditions specified in paragraph 3 of the Fifth Schedule are fulfilled, an average of 60 hours, that is to say an average of 48 or, as the case may be, 60 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

TABLE

• (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours or, if the conditions specified in paragraph 3 of the Fifth Schedule are fulfilled, an average of 55 hours, that is to say an average of 48 or, as the case may be, 55 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

• (a) in a case where the employee concerned is an employee in respect of whom a body that holds a negotiation licence under the Trade Union Act, 1941, or an excepted body, within the meaning of that Act (being in either case a body that stands recognised by the employer concerned for the purpose of negotiations concerning the pay or other conditions of employment of the category of employees to whom the employee belongs) has entered into a collective agreement with the employer providing that the provisions of this Schedule shall apply to the employee and—

• (i) the employee has consented in writing to such an agreement being entered into in relation to him or her (the giving of such consent having been preceded by an explanation to the employee, in everyday language, by the said body of the statutory consequence that the giving of such consent will have for him or her),

• (ii) the employee is named in the agreement, and

• (iii) the agreement stands approved of by the Labour Court under paragraph 4,

• (b) in a case where no body of the kind referred to in subparagraph (a) stands recognised by the employer concerned for the purpose of negotiations concerning the pay or other conditions of employment of the category of employees to whom the employee concerned belongs, a notice in writing has been given to the Labour Court by the employer concerned of his or her intention to apply the provisions of this Schedule to the employee and—

• (i) the employee has consented in writing to such a notice being given in relation to him or her (the giving of such consent having been preceded by an explanation to the employee, in everyday language, by the employer of the statutory consequence that the giving of such consent will have for him or her),

• (ii) the employee is named in the notice, and

• (iii) the notice stands approved of by the Labour Court under paragraph 4.

“agreement” means a collective agreement referred to in paragraph 3 (a);

“notice” means a notice referred to in paragraph 3 (b).

• (2) On an application being made in that behalf by any of the parties thereto, the Labour Court, may, subject to this paragraph, approve of an agreement.

• (3) On receipt by it of a notice, the Labour Court may, subject to this paragraph, approve of the notice.

• (4) The Labour Court shall not approve of an agreement or a notice unless—

• (a) it is satisfied that—

• (i) in the case of an agreement—

• (I) it has been concluded in a manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned,

and

• (II) it is in such form as appears to the Labour Court to be suitable for the purposes of its being approved of under this paragraph,

and

• (ii) the employees to whom the agreement or notice relates freely gave their consent in writing to the entering into of the agreement or, as the case may be, the giving of the notice in relation to them,

and

• (b) neither the safety nor the health of the said employees will, in its opinion after such consultation, if any, as it considers necessary with the National Authority for Occupational Safety and Health, be adversely affected by the application of the provisions of this Schedule to them (and for this purpose the Court shall have regard to its power under subparagraph (5) to attach conditions to the grant of the approval).

• (5) The Labour Court may attach conditions to the grant of an approval under this paragraph, being conditions the attachment of which the Court, after consultation with the National Authority for Occupational Safety and Health, considers necessary to ensure the safety or health of the employees concerned in consequence of the application of the provisions of this Schedule to them, and such conditions may, notwithstanding anything in the preceding provisions of this Schedule, include a condition (“a time condition”) requiring the employees concerned or a specified class of the employees concerned to work not more than a specified average of hours in a reference period concerned, being an average that is more than 48 hours but less than 60 or, as the case may be, 55 hours.

• (6) The Labour Court may amend or revoke any condition attached to the grant of an approval under this paragraph.

• (7) Where one or more conditions stand attached to the grant of an approval under this paragraph—

• (a) in the case of a time condition, the reference in subsection (1) of section 15 (as it has effect by virtue of paragraph 1 or 2) to 60 or, as the case may be, 55 hours shall, as respects the employees to whom the condition relates, be construed as a reference to the number of hours specified in the condition,

• (b) in the case of any other condition or conditions, the reference in the said subsection (1) (as it has effect by virtue of either of the said paragraphs) to conditions under paragraph 3 of this Schedule shall, as respects the employees to whom the condition or conditions relate, be construed as including references to that condition or those conditions.

• (8) The Labour Court may withdraw its approval of an agreement or notice under this paragraph where it is satisfied that there are substantial grounds for so doing.

• (2) An employer shall not be obliged to comply with a request under this paragraph by an employee if that request is made before a reasonable length of time has elapsed since a previous such request has been made of the employer by the employee, being a request that has been complied with.

SIXTH SCHEDULE Text of Council Directive

Section 2.

COUNCIL DIRECTIVE 93/104/EC of 23 November 1993

concerning certain aspects of the organization of working time

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 118a thereof,

Having regard to the proposal from the Commission^(1),

In cooperation with the European Parliament^(2),

Having regard to the opinion of the Economic and Social Committee^(3),

Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers;

Whereas, under the terms of that Article, those directives are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium sized undertakings;

Whereas the provisions of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work^(4) are fully applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provisions contained therein;

Whereas the Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the European Council held at Strasbourg on 9 December 1989 by the Heads of State or of Government of 11 Member States, and in particular points 7, first subparagraph, 8 and 19, first subparagraph, thereof, declared that:

‘7. The completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. This process must result from an approximation of these conditions while the improvement is being maintained, as regards in particular the duration and organization of working time and forms of employment other than open-ended contracts, such as fixed-term contracts, part-time working, temporary work and seasonal work.

Whereas the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations;

Whereas this Directive is a practical contribution towards creating the social dimension of the internal market;

Whereas laying down minimum requirements with regard to the organization of working time is likely to improve the working conditions of workers in the Community;

Whereas, in order to ensure the safety and health of Community workers, the latter must be granted minimum daily, weekly and annual periods of rest and adequate breaks; whereas it is also necessary in this context to place a maximum limit on weekly working hours;

Whereas account should be taken of the principles of the International Labour Organization with regard to the organization of working time, including those relating to night work;

Whereas, with respect to the weekly rest period, due account should be taken of the diversity of cultural, ethnic, religious and other factors in the Member States; whereas, in particular, it is ultimately for each Member State to decide whether Sunday should be included in the weekly rest period, and if so to what extent;

Whereas research has shown that the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of work organization and that long periods of night work can be detrimental to the health of workers and can endanger safety at the workplace;

Whereas there is a need to limit the duration of periods of night work, including overtime, and to provide for employers who regularly use night workers to bring this information to the attention of the competent authorities if they so request;

Whereas it is important that night workers should be entitled to a free health assessment prior to their assignment and thereafter at regular intervals and that whenever possible they should be transferred to day work for which they are suited if they suffer from health problems;

Whereas the situation of night and shift workers requires that the level of safety and health protection should be adapted to the nature of their work and that the organization and functioning of protection and prevention services and resources should be efficient;

Whereas specific working conditions may have detrimental effects on the safety and health of workers; whereas the organization of work according to a certain pattern must take account of the general principle of adapting work to the worker;

Whereas, given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organization of working time in certain sectors or activities which are excluded from the scope of this Directive;

Whereas, in view of the question likely to be raised by the organization of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers;

Whereas it is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry; whereas, as a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods,

HAS ADOPTED THIS DIRECTIVE:

SECTION I

SCOPE AND DEFINITIONS

Article 1

Purpose and scope

• (a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and

• (b) certain aspects of night work, shift work and patterns of work.

Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:

• (a) on the one hand, any worker, who, during night time, works at least three hours of his daily working time as a normal course; and

• (b) on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned:

• (i) by national legislation, following consultation with the two sides of industry; or

• (ii) by collective agreements or agreements concluded between the two sides of industry at national or regional level;

SECTION II

MINIMUM REST PERIODS—OTHER ASPECTS OF THE ORGANIZATION OF WORKING TIME

Article 3

Daily rest

Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.

Article 4

Breaks

Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.

Article 5

Weekly rest period

Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.

If objective, technical or work organization conditions so justify, a minimum rest period of 24 hours may be applied.

Article 6

Maximum weekly working time

Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

Article 7

Annual leave

SECTION III

NIGHT WORK-SHIFT WORK-PATTERNS OF WORK

Article 8

Length of night work

Member States shall take the measures necessary to ensure that:

For the purposes of the aforementioned, work involving special hazards or heavy physical or mental strain shall be defined by national legislation and/or practice or by collective agreements or agreements concluded between the two sides of industry, taking account of the specific effects and hazards of night work.

Article 9

Health assessment and transfer of night workers to day work

• (a) night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals;

• (b) night workers suffering from health problems recognized as being connected with the fact that they perform night work are transferred whenever possible to day work to which they are suited.

Article 10

Guarantees for night-time working

Member States may make the work of certain categories of night workers subject to certain guarantees, under conditions laid down by national legislation and/or practice, in the case of workers who incur risks to their safety or health linked to night-time working.

Article 11

Notification of regular use of night workers

Member States shall take the measures necessary to ensure that an employer who regularly uses night workers brings this information to the attention of the competent authorities if they so request.

Article 12

Safety and health protection

Member States shall take the measures necessary to ensure that:

Article 13

Pattern of work

Member States shall take the measures necessary to ensure that an employer who intends to organize work according to a certain pattern takes account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time.

SECTION IV

MISCELLANEOUS PROVISIONS

Article 14

More specific Community provisions

The provisions of this Directive shall not apply where other Community instruments contain more specific requirements concerning certain occupations or occupational activities.

Article 15

More favourable provisions

This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.

Article 16

Reference periods

Member States may lay down:

The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average;

If the minimum weekly rest period of 24 hours required by Article 5 falls within that reference period, it shall not be included in the calculation of the average.

Article 17

Derogations

• (a) managing executives or other persons with autonomous decision-taking powers;

• (b) family workers; or

• (c) workers officiating at religious ceremonies in churches and religious communities.

2.1. from Articles 3, 4, 5, 8 and 16:

• (a) in the case of activities where the worker’s place of work and his place of residence are distant from one another or where the worker’s different places of work are distant from one another;

• (b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

• (c) in the case of activities involving the need for continuity of service or production, particularly:

• (i) services relating to the reception, treatment and/or care provided by hospitals or similar establishments, residential institutions and prisons;

• (ii) dock or airport workers;

• (iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;

• (iv) gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;

• (v) industries in which work cannot be interrupted on technical grounds;

• (vi) research and development activities;

• (vii) agriculture;

• (d) where there is a foreseeable surge of activity, particularly in:

• (i) agriculture;

• (ii) tourism;

• (iii) postal services;

2.2. from Articles 3, 4, 5, 8, and 16:

(a)in the circumstances described in Article 5 (4) of Directive 89/391/EEC;

• (b) in cases of accident or imminent risk of accident;

2.3. from Articles 3 and 5:

• (a) in the case of shift work activities, each time the worker changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one;

• (b) in the case of activities involving periods of work split up over the day, particularly those of cleaning staff.

Member States in which there is no statutory system ensuring the conclusion of collective agreements or agreements concluded between the two sides of industry at national or regional level, on the matters covered by this Directive, or those Member States in which there is a specific legislative framework for this purpose and within the limits thereof, may, in accordance with national legislation and/or practice, allow derogations from Articles 3, 4, 5, 8 and 16 by way of collective agreements or agreements concluded between the two sides of industry at the appropriate collective level.

The derogations provided for in the first and second subparagraphs shall be allowed on condition that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection.

Member States may lay down rules:

—for the application of this paragraph by the two sides of industry, and

—for the extension of the provisions of collective agreements or agreements concluded in conformity with this paragraph to other workers in accordance with national legislation and/or practice.

However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.

Before the expiry of a period of seven years from the date referred to in Article 18 (1) (a), the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this paragraph and decide what action to take.

Article 18

Final provisions

• (b) (i) However, a Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

—no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in point 2 of Article 16, unless he has first obtained the worker’s agreement to perform such work,

—no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work,

—the employer keeps up-to-date records of all workers who carry out such work,

—the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours,

—the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in point 2 of Article 16.

Before the expiry of a period of seven years from the date referred to in (a), the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this point (i) and decide on what action to take.

• (ii) Similarly, Member States shall have the option, as regards the application of Article 7, of making use of a transitional period of not more than three years from the date referred to in (a), provided that during that transitional period:

—every worker receives three weeks’ paid annual leave in accordance with the conditions for the entitlement to, and granting of, such leave laid down by national legislation and/or practice, and

—the three-week period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

• (c) Member States shall forthwith inform the Commission thereof.

The Commission shall inform the European Parliament, the Council, the Economic and Social Committee and the Advisory Committee on Safety, Hygiene and Health Protection at Work thereof.

Article 19

This Directive is addressed to the Member States.

Done at Brussels, 23 November 1993.

For the Council

The President

M. SMET

Footnotes