Dáil Éireann Debate, Wednesday - 16 January 2013
386. Deputy Clare Daly asked the Minister for Jobs, Enterprise and Innovation if a derogation from the working time directive 48 hours is in place, on what specific grounds is that derogation in place and when will such derogation from the working time directive expire. [57902/12]
View answerThe Organisation of Working Time Act 1997, which transposed the EU Working Time Directive, provides that an employee shall not work more than an average of 48 hours a week, averaged generally over 4 months. For employees whose work is subject to seasonality or a foreseeable surge in activity, or where employees are directly involved in ensuring continuity of service or production, the averaging period is 6 months. The averaging period can be extended to up to 12 months for employees who have entered into a collective agreement providing for such a reference period, and provided the collective agreement is approved by the Labour Court.
The intention of a derogation is to retain the principles set out in a directive, while allowing flexibility in their application. The Working Time Directive provides for three derogations from the 48-hour average working week.
The 48-hour working week came into effect, generally, on 1 March 1998. However, in order to provide time for adjustment for those who had been working longer hours prior to that, the Fifth Schedule to the Organisation of Working Time Act 1997 provided for a transitional arrangement (which expired in February 2000) in relation to average weekly working hours for the two years following the commencement of the Act. This arrangement provided that, in the first year following commencement of the Act, an employee could work up to an average of 60 hours a week, and in the second year an employee could work up to an average of 55 hours a week. Certain conditions were attached to this transitional arrangement which provided that the written consent of the employee was required to agree to work these transitional hours. Also, any such agreement had to be approved by the Labour Court. This transitional arrangement derived from a limited application of Article 18(1)(b)(i) of the original Working Time Directive (now Article 22(1) of the consolidated Directive, i.e. Directive 2003/88/EC) which provided that an employee could voluntarily work longer than 48 hours per week. Unlike national law, the Directive did not set an expiry date for this derogation.
The Directive also provides for other limited circumstances where the maximum average weekly working time of 48 hours may be derogated from. These circumstances include where an individual controls their own working hours or where an individual is a family employee working on a farm or in a private house. These provisions were transposed by Section 3(2)(b) and Section 3(2)(c) of the Organisation of Working Time Act 1997. There is no expiry provision for these particular derogations.
Also, with regard to Doctors-in-training, amendments to the original Working Time Directive provided for a derogation which would phase-in the maximum 48-hour average working week over a transitional period of five years from 1 August 2004. This provision was transposed into Irish legislation by Regulations promulgated by the Minister for Health by way of Statutory Instrument No. 494 of 2004 - the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004 (as amended). These Regulations implemented a phased reduction from an average of 58 weekly working hours during the period 1 August 2004 to 31 July 2007, to 56 hours during the period 1 August 2007 to 31 July 2009, and to an average of 48 hours from 1 August 2009 onwards.
