Organisation of Working Time Act 1997

FIFTH SCHEDULE

Transitional Provisions in relation to section 15 (1)

Section 15 (2) .

1. In respect of the period of 12 months beginning on the commencement of this Schedule, subsection (1) of section 15 shall have effect as if in that subsection there were substituted for “an average of 48 hours, that is to say an average of 48 hours”, “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”, and the said subsection (1) (other than paragraphs (a), (b) and (c) thereof) as it has effect in respect of the said period, by virtue of this paragraph, is set out in the Table to this paragraph.

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—

2. In respect of the next period of 12 months immediately following the period of 12 months referred to in paragraph 1, subsection (1) of section 15 shall have effect as if in that subsection there were substituted for “an average of 48 hours, that is to say an average of 48 hours”, “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”, and the said subsection (1) (other than paragraphs (a), (b) and (c) thereof) as it has effect in respect of the said period, by virtue of this paragraph, is set out in the Table to this paragraph.

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—

3. The conditions referred to in subsection (1) of section 15 (as that subsection has effect by virtue of paragraph 1 or 2) are:

( 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.

4. (1) In this paragraph—

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.

5. The Labour Court shall determine the procedures to be followed by a person in making an application under paragraph 4 (2), by the Labour Court in considering any such application or otherwise performing any of its functions under this Schedule and by persons generally in relation to matters falling to be dealt with under this Schedule.

6. The Labour Court shall publish, in such manner as it thinks fit, particulars of the procedures referred to in paragraph 5.

7. The Labour Court shall establish and maintain a register of collective agreements and notices standing approved of by it under this Schedule and such a register shall be made available for inspection by members of the public at all reasonable times.

8. An employee shall not be subjected to any detriment by his or her employer where he or she refuses to give his or her consent in writing to the entering into of a collective agreement or the giving of a notice under this Schedule in relation to him or her.

9. (1) An employer shall, if requested by an employee to have such an assessment carried out in relation to him or her, cause to be carried out an assessment as to the effects, if any, on the health of the employee by reason of his or her working, in each period of 7 days, more than an average of 48 hours calculated over the relevant reference period concerned.

(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.

Annotations:

Editorial Notes:

E138

The National Authority for Occupational Safety and Health was renamed the Health and Safety Authority (1.09.2005) by Safety, Health and Welfare at Work Act 2005 (10/2005), s. 32(1)(a), S.I. No. 328 of 2005.