The Organisation of Working Time Act and Veterinary Practice. What does it mean for 24 hour cover?
Legal Background
The Organisation of Working Time Act 1997 was implemented in response to European Council Directive 93/104/EC and outlines, on health and safety grounds, the minimum requirements for setting out working time in Ireland. Its aim is to protect employees from adverse effects on their health and welfare cause by working excessively long hours or having disruptive working patterns. Briefly, the Act’s key provisions are daily rest periods, weekly rest periods, maximum working week, paid annual leave and record keeping. This article considers the definition of working time from an “on call” point of view in veterinary practice and discusses the obligations on practice principles to comply with their legal obligations.
Definition of working time and what that means in a 24-hour on-call world
Working time is defined in section 2 of the Organisation of Working Time Act as “any time that the employee is at his or her place of work or at his or her employer’s disposal, and carrying on or performing the activities or duties of his or her work, and “work” shall be construed according”. Rest period is described in the Directive as “any period which is not working time”. In 2000 the European Court of Justice was asked to define the meaning of working time under the Directive in a case where Spanish doctors were “on call” in a hospital setting (SIMAP case). The ruling in this landmark case held that time spent on call by the doctors was to be regarded as working time in situations where the doctors were physically present in the hospital, whether actively working or not, but time spent on call by doctors who were not present at their place of work, but merely “contactable at all times”, should not be considered as working time. The court pointed out that “in the scheme of the Directive, working time is placed in opposition to rest periods, the two being mutually exclusive”. It went on to clarify that doctors who were merely contactable at all times were able to “manage their time with fewer constraints and pursue their own interests” and therefore fell within the requirements for rest, health and safety for the purpose of the Directive. From a veterinary point of view, therefore, vets and veterinary nurses who are on call overnight while in their own homes are not working under this definition. If, however, they are required to leave their home to see an animal they are defined as working. Employers should consider this when calculating daily rest periods. Clarification of all on call requirements for veterinary employees should ideally be expressed in the contract of employment.
How should employers comply with the requirements to ensure minimum rest periods for their employees?
Minimum rest periods include daily rests, weekly rests, the requirement for Sunday work and maximum weekly hours of work. Under Irish employment and health and safety law, an employer is obliged to ensure that his/her employees take a minimum amount of rest from work. In cases where employees choose to breach minimum rest periods, the employer is nonetheless responsible and liable for the health and safety of that employee, and will be found liable in the Labour Court.
Daily Rest Period
Section 11 of the Act states that employees are entitled to “a rest period of no less than 11 consecutive hours in each 24 hour period” of work. It is important for employers to consider the impact of this statutory provision when requesting workers to provide 24 hour cover. It is recommended that on call working time in veterinary practice be allocated between all veterinary staff equally. In reality, the practicalities of this in large animal practice during the busy spring season pose a significant problems for the practice owners. As it stands in Ireland, there are no exceptions or exemptions made for vets in this position. The only veterinary practitioner who is exempt from the statutory daily rest obligations is the employer, to whom the Directive does not apply. Where practices are owned by veterinary practitioners this allows some leeway for on call, as the employer can carry more of the burden. Where practices are owned by non-vets, the employers are under more financial pressure to ensure that sufficient veterinary staff is available to cover 24-hour on-call during the busy season.
Requirements for breaks during the working day
Workers are prohibited from working more than 4 ½ hours without a 15 minute break, or from working more than 6 hours without a 30 minute break. From a practical point of view, these requirements are minimal and easily achievable. Again, it is an employer’s responsibility to ensure that his/her employee is getting adequate periods of rest during the working day.
Requirement for adequate rest in a 7 day period
Section 13 of the Act entitles an employee to a rest period of 24 consecutive hours in each 7 day period, and the 24 hour rest period must be immediately preceded by an 11 hour daily rest period. At the discretion of the employer (and ideally with the agreement of the employee and contained within the terms of the employment contract) two rest periods of 24 hours each can be taken consecutively within the second 7 day period of a 14 day period, and must be immediately preceded by an 11 hour daily rest period. Under exceptional circumstances, and where conditions justify it, the 24 hour or 48 hour periods of rest need not be immediately preceded by an 11 hour daily rest period. Unless the contract of employment states otherwise, a weekly rest period should be on a Sunday. This stipulation originated in the Directive, however, the European Court of Justice has ruled that sufficient evidence has not been advanced to explain why Sunday rest is more closely linked to the health and safety of employees than rest taken on any other day of the week. Notwithstanding this, the presumption still remains part of Irish law on cultural, religious, societal and family grounds.
How is a maximum working week defined in law?
The organisation of Working Time Act 1997 directly implements Article 6 of the Directive and states that an employee shall not be permitted by his employer to work more than an average of 48 hours during the course of a week. These terms of employment are mandatory on employers and strict liability applies. This does not mean that an employee cannot work more than 48 hours in a week. It refers to the average numbers of hours per week calculated over a statutory reference period. In the case of most employment situations in Ireland, including veterinary practice, this reference period is 4 months. For persons working in agriculture and tourism, among others, the reference period is 6 months. A period of 12 months can apply where conditions are regulated pursuant to a collective agreement approved by the Labour Court. It is worth considering whether the supply of veterinary services to farmers during the busy period should be included in the category of “activities where there is a foreseeable surge in activity, particularly agriculture, tourism, postal services” as outlined under Article 17 of the Directive which allows for applications to be made by Member States for the granting of derogations in certain cases, or whether the service could fall under the definition of the term “agriculture”. This question was recently tested in the Labour Court when Aidan O’Brien lost an appeal regarding breaches of the Organisation of Working Time Act. The question arose as to whether employees at his stud farm and stables fell into the exempted category of workers in agriculture who were therefore eligible to have their 48 hour working week averaged over a period of 6 months as opposed to a 4 month period. In this case the Labour Court defined the meaning of agriculture as it applies to the Organisation of Working Time Act and as set out in the Industrial Relations (Amendment) Act 2015 as “(1) the production of animals, including the production of meat and other animal produce intended for human consumption, (2) the sorting and packing of meat and animal produce, (3) the production, storing and packing of crops, including fruit and vegetables, intended for human or animal consumption on farm, and (4) horticulture including market gardening, garden nurseries and nursery grounds”. It was held that the business outlined in this case fell outside this definition for the purposes of the Act. While this case is not directly applicable in a veterinary workplace setting, it provides an indication of the Labour Court’s unwillingness to stretch the interpretation and the rules on breaches of the Act. Currently under Irish Law there are no exemptions granted to vets to allow for increased working hours beyond what is awarded to all other employees. The practicalities of this for small rural practices mean that breaches of the Act are difficult to avoid at certain times of the year.
How does this compare to application of the Working Time Directive in veterinary practice in the UK?
While Irish veterinary employers are regularly under pressure to comply with Organisation of Working Time Act provisions and simultaneously abide by the Veterinary Council of Ireland Codes of Professional Conduct to provide 24 hour service to the general public (outlined in Chapter 2 of the Codes), conditions are not quite as difficult in the UK because of how the Directive is applied. Part 26 of the RCVS Codes of Professional Conduct sets out the standards for working time for British vets. It states that where the nature of the veterinary service provided relates to agriculture, and the activities involve the need for continuity of production, then the provisions set out for rest breaks in the Directive may be excluded. In particular, it says that it is possible for an employer to contractually agree with his/her veterinary employees that they will provide cover and that this will not be a breach of the rest provisions of the Working Time Regulations 1998 (UK). These differences exist because the UK sought and were granted special derogations from the Working Time Directive for the purpose of gaining exemptions and “opt-out” clauses for employers of veterinary practitioners and nurses in farm animal practice. The comparison between the implementation of the Working Time Directive in neighbouring countries is interesting from the point of view of obligations placed on practice owners/employers in Ireland and the UK. From a management perspective, the derogations awarded under the Directive in the UK make it less burdensome on UK employers to comply with health and safety law. It is worth considering whether the current obligations placed on vets who own large animal practices in Ireland are unrealistic and unachievable given the differences in structure between practices in Ireland and in the UK. On the other hand it must be argued that the Irish Government’s inactivity in seeking derogations for Irish vets sets a higher standard for employee health and safety and working conditions in general, and that maintenance of working time standards at this level was intentional and consistent with the intention of the Directive.
While the current implementation of the Working Time Directive is intended to maintain the highest standards of health and welfare in the workplace, it is evident, from an Irish veterinary practice owner’s point of view, that a fairer balance could be struck; an option which allows for realistic, compliant management of large animal practice during the busy season and which nonetheless protects the health and welfare of the employees during these times.
Relevant sources of Information
Organisation of Working Time Act 1997 available at: http://www.irishstatutebook.ie/eli/1997/act/20/enacted/en/html
Working Time Directive of the EU available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32003L0088
VCI Codes of Professional Conduct available at: https://www.vci.ie/Publications/Code-of-Professional-Conduct/Code-of-Professional-Conduct-Veterinary-Practition
RCVS Codes of Professional Conduct available at: https://www.rcvs.org.uk/setting-standards/advice-and-guidance/code-of-professional-conduct-for-veterinary-surgeons/
