The Organisation of Working Time Act was established in 1997 and sets out statutory rights for employees in regard to rest periods, maximum working time and holiday entitlements. The Act itself is very complex and coveres a multitude of issues that can arise in the employment relationship. In the first of a two-part posting we will look at some of the most notable items in this very important piece of legislation, ranging from who the Act applies to, Holiday entitlements, Public Holidays, Rest periods, Sunday Working and Night Working.
Who does the Act Apply to? The act applies to any person
- Working under a contract of employment or apprenticeship
- Employed through an employment agency (the party who pays the wages are responsible for the employee)
- In the service of the state including civil servant and employees of any local authority, health board, harbour authority or vocational education committee.
This very broad interpretation of the Act, allows scope to cover a wide array of workers in employment. In the second part of this post we will look at those who are exempt from the Act, or who may be covered by supplementary legislation. What are the Maximum Hours a Person Can Work Under the Act? Under Section 15 (1) the maximum hours an employee is permitted to work are set out. It states that employees are not permitted to work more than an average of 48 hours in a seven-day period, the average normally calculated over a four-month period, however with agreement this period can be extended to six months. For young workers (over the school leaver age but under 18 years of age) there is strict maximum working limit of eight working hours in any day and 40 working hours in any week. What are a Persons Holiday entitlements Under the Act? Part 3 of the Act, Section 19, deals with the provision of Annual Leave and the accrual of holidays for workers. It should be stated firstly that there is no qualifying period for holidays, all employees are entitled to paid holidays based on any hours they have worked. Section 19 (1) sets out the following three different ways to calculate holiday entitlements for workers;
- 4 working weeks in a leave year in which the employee works at least 1,365 hours
- 1/3 of a working week per calendar month that the employee works at least 117 hours.
- 8% of the hours an employee works in a leave year (maximum of 4 working weeks)
Method 1 sets out the general minimum entitlement of 4 working weeks, and for a full-time worker who works 5 days per week, this would translate to 20 working days in a leave year. Method 2 can be used where an employee is missing for part of the leave year, such as on long-term sick leave, absent due to strike action, or on temporary layoff. However if they have worked over 1,365 hours in the year they would be entitled to four working weeks in any case. The third method is applicable to any Part time worker that works less than 1,365 hours in year, however if the employees annual leave works out as less than a pro rata version of the full-time entitlement there may be an issue as the employee would hold protection under the Protection of Employees (Part time work) Act, 2001. In a scenario where all three are applicable then the employee will be entitled to the greater amount of leave. When calculating how many days’ holidays to which an employee may be entitled, employers should include all hours worked including time spent on annual leave, time spent on maternity leave, parental leave, force majeure leave or adaptive leave. Employees do not accrue annual leave while on sick leave, occupational injury, temporary lay-off or career break. The working week is not defined in the Act, however in the case of Irish Ferries -v- Seamens Union of Ireland (DWT0135) (2001) it was held that a working week can only be construed by referring to the number of days or hours encompassing each work cycle. An employee cannot offer a higher basic hourly rate to an employee with the payment for annual leave "rolled up" into this Composite Rate. the case of Kvaerner Cementation Ltd. -v- Treacy (DWT017) demonstrated this where the tribunal found against the employer and stated there is no reality in the proposition that a worker would squirm away a portion of their payment each week to cover the periods of annual leave where it would be unpaid. What are the provisions in relation to Public holidays? The Act also sets out the Public Holidays applicable to an employee under the act. Currently there are 9 public holidays in Ireland.
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New Year’s Day
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St. Patricks Day
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Easter Monday
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The first Monday in May
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The first Monday in June
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The first Monday in August
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The last Monday in October
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Christmas Day
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St. Stephens Day
Section 21 governs the entitlement to public holidays and states that employees other than part-time have an immediate entitlement to public holiday’s benefit. Part-time employees must have worked 40 hours in the five weeks ending on the day before the public holiday to qualify for the public holiday benefit. An interesting point to note is that if an employee ceases work with an employer during a week ending on the day before a public holiday the employer would be liable to pay the employee for that day (providing they have worked for the employer for the previous four working weeks), which was challenged in the case of Gazboro Ltd. -v- BATU (DWT9916) (1999). In looking at what payment an employee will receive for a public holiday it is the employer’s decision as to whether the employee gets;
- A paid day off on that day
- A paid day off within a month of that day
- An additional day of annual leave
- An additional days pay
An employer must let the employee know of their decision within 14 days of the public holiday or the employee has the right to a paid day off. What are the Daily & Weekly Rest Periods? The matter of rest periods are dealt with under the Act, in Part 2, Sections, 11, 12, & 13. Section 11 of the Act looks at the Daily Rest Period- Adult employees are entitled to get a rest period no less than 11 consecutive hours in each 24 hour period. It is 12 hours for young persons Section 12 looks at the issue of Rest breaks during work- Employees should get a break of at least 30 minutes in any work period exceeding 6 hours and a break of at least 15 minutes in any work period exceeding 4.5 hours. In the case of The Tribune Printing & Publishing Group -v- Graphical Print and Media Union (2004) 15 ELR 222. it was found that having a break at the end of the day did not statisfy the requirements under the act. Section 13 looks at Weekly Rest Periods – All adult employees should have at least 24 hours’ consecutive hours of rest in a seven-day period. Where an employer cannot give a 24 consecutive hour rest period in a seven-day period the employee should then be given two 24 hour of rest periods in the following seven days. What are the provisions Sunday working hours? Part 2, Section 14, of the Act deals with the matter of Sunday working. It states that an employee who is required to work on a Sunday shall be compensated by his or her employer:
- By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
- By otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
- By granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
- By a combination of two or more of the means referred to in the preceding paragraphs.
The Act does not state what the allowance should be but it is interesting to note that in the case of Group 4 Securitas -v- SIPTU (DWT996) the employees union applied for an increase in the sunday premium as it was not reasonable due to all circumstances, and this was not upheld by the tribunal as they were already in receipt of a Sunday Premium. The LRC has also set out a code of practice for Sunday working in the retail trade. How does the Act Address Nightly Working Hours? Section 16 of the Act deals with the matter of Night time workers. Night time- the period between midnight and 7 a.m. on the following day Night work- work carried out during night-time Night worker- an employee who normally works at least three of their daily working hours during the night-time and at least 50% of their annual working hours during the night For special category night workers, where a risk assessment indicated that the work involves special hazards or a heavy physical or mental strain, there is a limit of eight hours night work in any 24 hour period. For all other night workers the limit is an average of 48 hours per week calculate over a two month period. In the case of Northern Ireland High Court in R -V- Attorney General for Northern Ireland ex parte Burnes (1999) IRLR 315 it was tested as to what constituted a night worker, an d in this case a worker one week of each three-week cycle on the night shift. it was held they were not a night worker as they would need to be on the night shift predominately and the proportion of the applicants night work was so small they did not qualify for protection. Part 2 of the Guide to the Working Time Act will be available shortly and will cover the exemptions and differences between certain industries when interpreting the Act.
