Organisation of Working Time Act 1997
Nightly working hours.
16.—(1) In this section—
“night time” means the period between midnight and 7 a.m. on the following day;
“night work” means work carried out during night time;
“night worker” means an employee—
(a) who normally works at least 3 hours of his or her daily working time during night time,
and
(b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year.
(2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—
(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,
(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
(i) 2 months, or
(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.
(3) In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under section 28 (1) of the Safety, Health and Welfare at Work Act, 1989, in relation to the risks attaching to the work that the night worker is employed to do indicates that that work involves special hazards or a heavy physical or mental strain.
(4) The days or months comprising a reference period shall, subject to subsection (5), be consecutive days or months.
(5) A reference period shall not include—
(a) any rest period granted to the employee concerned under section 13 (2) (save so much of it as exceeds 24 hours),
(b) any rest periods granted to the employee concerned under section 13 (3) (save so much of each of those periods as exceeds 24 hours),
(c) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),
F12[(cc) any period during which the employee was absent from work while on parental leave, force majeure leave F13[, leave for medical care purposes, domestic violence leave or an approved flexible working arrangement within the meaning of the Parental Leave Act 1998] or carer’s leave within the meaning of the Carer’s Leave Act, 2001.]
(d) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or
(e) any sick leave taken by the employee concerned.
Annotations
Amendments:
F12
Substituted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 28(b), commenced on enactment.
F13
Inserted (3.07.2023) by Work Life Balance and Miscellaneous Provisions Act 2023 (8/2023), s. 36(b), S.I. No. 341 of 2023.
Modifications (not altering text):
C16
Application of section restricted (27.07.2022) by European Union (Organisation of Working Time in Inland Waterway Transport) Regulations 2022 (S.I. No. 392 of 2022), reg. 3(3).
Scope
3. (1) These Regulations shall apply to workers employed on board a craft operated within the State in the commercial inland waterway transport sector.
(2) Inland waterway transport operators shall not be considered workers within the meaning of these Regulations, even if they have the status of workers in their own undertaking.
(3) Sections 11, 12, 13, 15, 16, 19 and 25 of the Organisation of Working Time Act, 1997 (No. 20 of 1997) do not apply to workers employed on board a craft operated in the commercial inland waterway transport sector.
C17
Application of section restricted (1.10.2015) by Organisation of Working Time (Non-Application of Certain Provision to Persons Performing Mobile Road Transport Activities) Regulations 2015 (S.I. No. 342 of 2015), reg. 3.
Non-application of Act
3. Sections 11, 12, 13, 15 and 16 of the Act do not apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC.
C18
Application of section restricted (1.01.2005) by Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 (S.I. No. 817 of 2004), reg. 6.
6. Mobile Workers are exempted from the application of sections 11, 12, 13 and 16 of the Act.
C19
Application of section restricted (1.03.1998) by Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 (S.I. No. 52 of 1998), reg. 3 and sch. as amended (3.12.2009) by Organisation of Working Time (Exemption of Civil Protection Services) (Amendment) Regulations 2009 (S.I. No. 478 of 2009) .
Exemptions
3. The persons employed in each of the classes of activity specified in the Schedule to these Regulations are, as respects the carrying out of the duties involved in that activity, hereby exempted from the application of sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997 (No. 20 of 1997).
Schedule
1. The activity of a person employed in a prison or place of detention, being an activity that involves the maintenance of security in that prison or place of detention or the control or care of prisoners and which cannot be carried on within the normal rostering schedules applicable to that prison or place of detention.
2. The activity of a person employed by a fire authority in the position commonly known as retained fire fighter.
3. The activity of a person, other than a member of the Garda Síochána, employed as an authorised officer (within the meaning of the Air Navigation and Transport Acts, 1950 to 1988, and any enactment amending or extending those Acts).
4. The activity of a person employed by Dublin Port Company as a member of its harbour police.
[5. The activities of—
(a) persons employed by the Irish Coast Guard, and
(b) other persons (including contractors of the Irish Coast Guard) carrying out an activity in support of the emergency service of the Irish Coast Guard,not being an activity of a clerical nature.]
Editorial Notes:
E94
Compliance notice procedure in respect of subs. (2) provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 28(17) and sch. 4, S.I. No. 410 of 2015.
E95
Requirement for employer to carry out assessment for purposes of subs. (2)(a) imposed (1.11.2007) by Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007), reg. 155.
E96
Previous affecting provision: requirement for employer to carry out assessment for purposes of subs. (2)(a) imposed (25.01.2000) by Safety, Health and Welfare At Work (Night Work and Shift Work) Regulations 2000 (S.I. No. 11 of 2000), reg. 6; revoked (1.11.2007) by Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007), reg. 3(1)(s).
E97
Previous affecting provision: requirement for employer to carry out assessment for purposes of subs. (2)(a) imposed (1.02.1999) by Safety, Health and Welfare At Work (Night Work and Shift Work) Regulations 1998 (S.I. No. 485 of 1998), reg. 5; revoked (25.01.2000) by Safety, Health and Welfare At Work (Night Work and Shift Work) Regulations 2000 (S.I. No. 11 of 2000), reg. 2.
E98
Previous affecting provision: new para. (5)(cc) inserted (30.12.1998) by Parental Leave Act 1998 (30/1998), s. 25(4), commenced as per s. 1(2); substituted as per F-note above.
E99
Previous affecting provision: application of section restricted (30.01.1998) by Organisation of Working Time (Exemption of Transport Activities) Regulations 1998 (S.I. No. 20 of 1998), reg. 3 and sch.; revoked (1.01.2005) by Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 (S.I. No. 817 of 2004), reg. 5.