Statutory Instrument

S.I. No. 494 of 2004

European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004

S.I. No. 494 of 2004

European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004

I, MICHEÁL MARTIN, Minister for Health and Children, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ), and for the purposes of giving effect to Council Directive 93/104/EC of 23 November 1993¹ as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000² insofar as it applies to the activities of doctors in training, hereby make the following Regulations:

Citation and commencement

1.         (1)       These Regulations may be cited as the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004.

(2)       These Regulations shall come into operation on 1 August 2004.

Interpretation

2.         (1)       In these Regulations --

“1997 Act” means the Organisation of Working Time Act 1997 (No. 20 of 1997);

“activities of a doctor in training” means the activities of a registered medical practitioner other than the activities of:

(a)    a hospital consultant,

(b)    a consultant psychiatrist, whether in hospital practice, practice in the community or both, and

(c)    any other person, not being a person in hospital practice or psychiatric practice, who is entitled to be registered in the Register of Medical Specialists under section 31 of the Medical Practitioners Act 1978 and who, in the performance of his or her duties as a registered medical practitioner, works without supervision in professional matters by any other person;

“consultant psychiatrist” means a registered medical practitioner who, by reason of his or her training, skill and experience in the specialty of psychiatry, is consulted by registered medical practitioners in relation to that specialty;

“Directive” means Directive 93/104/EC¹ or Directive 2000/34/EC² , as the context admits or requires, and a reference to the Directives is a reference to each of them;

“Directive 93/104/EC” means Directive 93/104/EC¹ of the Council of 23 November 1999 concerning certain aspects of the organisation of working time as amended by Directive 2000/34/EC;

“Directive 2000/34/EC” means Directive 2000/34/EC² of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive;

“employee” means an employee within the meaning of section 2(1) of the 1997 Act who is engaged in the activities of a doctor in training and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“hospital consultant” means a registered medical practitioner in hospital practice who, by reason of his or her training, skill and experience in a particular specialty, is consulted by registered medical practitioners in relation to that specialty;

“Minister” means the Minister for Health and Children;

“registered medical practitioner” has the meaning assigned to it by section 2 of the Medical Practitioners Act 1978 ;

“rest period” means any period which is not working time;

“working time” means any period during which an employee is working, at the employer’s disposal and carrying out the activity or duties of his or her work, including on-call duty performed by an employee where he or she is required to be physically present at his or her place of work,

and “work” shall be construed accordingly.

(2)       A word or expression that is used in both these Regulations and the 1997 Act has, unless the contrary intention appears, the meaning in these Regulations that it has in the 1997 Act.

(3)       A word or expression that is used in both these Regulations and the Directives has, unless the contrary intention appears, the meaning in these Regulations that it has in the Directives.

(4)       In these Regulations

(a)     a reference to a Regulation or a Schedule is a reference to a Regulation of, or a Schedule to, these Regulations unless it is indicated that reference to some other Regulations is intended,

(b)     a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended,

(c)     a reference to a section is a reference to a section of the 1997 Act unless it is indicated that a reference to some other enactment is intended,

(d)     a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.

Scope

3.         These Regulations apply to the activities of doctors in training.

Exemptions

4.         (1)       Subject to Regulation 5,

(a)     Regulation 6 shall not apply in relation to a shift worker when he or she changes shift and cannot take a daily rest period between the end of one shift and the start of the next one; and

(b)     Regulation 8 shall not apply to a shift worker when he or she changes shift and cannot take a weekly rest period between the end of one shift and the start of the next one.

(2)        In paragraph (1) of this Regulation:

“shift work” means any method of organising work in shifts whereby employees succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for employees to work at different times over a given period of days or weeks; and

“shift worker” means any employee whose work schedule is part of shift work.

(3)       Subject to Regulation 5, an employer shall not be obliged to comply with Regulations 6, 7 and 8 where due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise due to the occurrence of unusual and unforeseeable circumstances beyond the employer’s control, it would not be practicable for the employer to comply with the Regulation concerned.

Compensatory rest

5.         Where the application of any provision of these Regulations is excluded by Regulation 4 and an employee is accordingly required by his or her employer to work during a period which would otherwise be a rest period or a break, the employer shall:

(a)       ensure that the employee has available to himself or herself a rest period or break, as the case may be, that in all the circumstances can reasonably be regarded as equivalent to the first-mentioned rest period or break, or

(b)       if, in exceptional cases in which it is not possible for the employer, for reasons that can be objectively justified, to grant the employee such an equivalent rest period or break, the employer shall otherwise afford him or her such protection as may be appropriate in order to safeguard his or her health and safety.

Daily rest

6.         An employee is entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

Breaks

7.         (1)       An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2)       An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in paragraph (1).

(3)       A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in paragraph (1) or (2).

Weekly rest

8.         (1)       In this Regulation “daily rest period” means a rest period referred to in Regulation 6.

(2)       Subject to paragraph (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours and subject to paragraphs (4) and (5), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3)       An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in paragraph (2), grant to him or her, in the next following period of 7 days, two rest periods each of which shall be a period of at least 24 consecutive hours and, subject to paragraphs (4) and (5)--

(a)    if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b)    if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4)       If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under paragraph (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5)       The requirement in paragraph (2) or subparagraph (a) or (b) of paragraph (3) as to the time at which a rest period under this Regulation shall commence shall not apply in any case where, by reason of a provision of these Regulations the employee concerned is not entitled to a daily rest period in the circumstances concerned.

Maximum weekly working time

9.         (1)       An employer shall not permit an employee to work, in each period of 7 days more than an average of

(a)    58 hours, during the period 1 August 2004 to 31 July 2007;

(b)    56 hours, during the period 1 August 2007 to 31 July 2009; and

(c)    48 hours, from 1 August 2009 onwards

calculated over a period (hereafter in this Regulation referred to as a “reference period”).

(2)       Subject to paragraph (3), the reference period referred to in paragraph (1) is:

(a)      for the period from 1 August 2004 to 31 July 2007, 12 months and;

(b)      with effect from 1 August 2007, 6 months or such length of time as may be specified in any agreement made under paragraph (4).

(3)       Where an employee has worked for his employer for less than the reference period that would otherwise apply under paragraph (2), the reference period applicable is the period that has elapsed since the employee started work for his or her employer.

(4)       A collective agreement that for the time being has effect in relation to an employee and which stands approved of by the Labour Court under section 24 of the 1997 Act may, for objective or technical reasons or reasons concerning the organisation of work, modify the application of paragraph (2)(b) in relation to that employee by the substitution for the reference to 6 months of a different period, being a period not exceeding 12 months.

(5)       The days or months comprising a reference period shall, subject to paragraph (6), be consecutive days or months.

(6)       A reference period shall not include--

(a)    any period of annual leave granted to the employee concerned in accordance with the 1997 Act (save so much of it as exceeds the minimum period of annual leave required by that Act to be granted to the employee),

(b)    any period during which the employee was absent from work while on parental leave, force majeure leave or carer’s leave within the meaning of the Carer’s Leave Act 2001,

(c)    any absences from work by the employee concerned authorised under the Maternity Protection Act 1994 or the Adoptive Leave Act 1995 , or

(d)    any sick leave taken by the employee concerned.

Nightly working hours

10.       (1)        In this Regulation

“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;

“special category night worker” means a night worker as respects whom an assessment carried out by his or her employer pursuant to Regulation 6 of the Safety, Health and Welfare at Work (Night Work and Shift Work) Regulations 2000 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.

(2)   Without prejudice to Regulation 9, 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 employee in that period includes night work and the employee 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 Regulation 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 of the 1997 Act.

(3)       The days or months comprising a reference period shall, subject to paragraph (4), be consecutive days or months.

(4)       A reference period shall not include--

(a)    any rest period granted to the employee concerned under Regulation 8(2) (save so much of it as exceeds 24 hours),

(b)    any rest periods granted to the employee concerned under Regulation 8(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 the 1997 Act (save so much of it as exceeds the minimum period of annual leave required by that Act to be granted to the employee),

(d)    any period during which the employee was absent from work while on parental leave, force majeure leave or carer’s leave within the meaning of the Carer’s Leave Act 2001,

(e)    any absences from work by the employee concerned authorised under the Maternity Protection Act 1994, or the Adoptive Leave Act 1995 , or

(f)    any sick leave taken by the employee concerned.

Records

11.       (1)       Section 25 of the 1997 Act is amended by substituting

(a)    “Act and, where applicable, the Activities of Doctors in Training Regulations” for “Act” where it appears in subsection (1), and

(b)    “Act or the Activities of Doctors in Training Regulations” for “Act” where it appears in subsection (4).

(2)       The records to be maintained under section 25(1) shall, in the case of an employee to whom these Regulations apply, contain the following particulars and documents:

(a)    the name of each employee concerned, the number known as the Personal Public Services (PPS) number that has been assigned to him or her and a brief statement (which may be by reference to any form of job description or classification used by the employer concerned but which, in any event, should include his or her medical specialty and stage of training) of his or her duties as an employee; and

(b)    a copy, as appropriate, of the statement provided to each employee concerned in accordance with the provisions of the Terms of Employment (Information) Act 1994 (No. 4 of 1994), or any order or regulation made under that Act, that relates to him or her,

(c)    in the case of each employee, his or her normal schedule of, and actual,

(i)    daily hours of work and rest,

(ii)    rest breaks,

(iii)   hours of night work,

(iv)   weekly hours of work and rest,

(v)    hours on-call on-site,

(vi)   hours on-call off-site,

(vii)  periods of release from the activities or duties of his or her work for the purpose of engaging in training activities including study and examination leave; and

(d)    in the case of each employee,

(i)    any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave,

(ii)    any additional day’s pay referred to in section 21(1)(d) of the 1997 Act;

and those records shall be retained for at least three years from the date of their making.

(3)       Each record under paragraph (1) shall generally be in such form as will enable an inspector understand the particulars contained therein without difficulty.

(4)       An employer shall, on request, make available:

(a)    to an employee a copy of records required to be kept under this Regulation which relate to that employee, and

(b)    to the Minister a copy of records required to be kept under this Regulation

provided that in the case of information in a non-legible form, a copy of the information or of extracts from it in permanent legible form shall be made available to an employee or the Minister, as the case may be.

(5)       The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 ( S.I. No. 473 of 2001 ) shall not apply to the employer of an employee to whom these Regulations apply.

Other Amendments to the 1997 Act

12.       The 1997 Act is amended as follows:

(a)        in section 2(1),

(i)     by inserting before the definition of “annual leave” the following:

“the Activities of Doctors in Training Regulations” means the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004 ( S.I. No. 494 of 2004 );”

(ii)    by substituting “this Act and the Activities of Doctors in Training Regulations” for “this Act” where it appears in the definition of “employee”,

(b)        in section 8, by substituting “Act or the Activities of Doctors in Training Regulations” for “Act” in each place where it appears,

(c)        in section 24(1), by inserting after “the First Schedule” the following:

“or in regulation 9(4) or 10(2) of the Activities of Doctors in Training Regulations”,

(d)        in section 24(4)(a), by inserting after “section 5, 15 or 16” the following:

“or regulation 9(4) or 10(2) of the Activities of Doctors in Training Regulations”,

(e)        in section 26(1), by substituting “Act or the Activities of Doctors in Training Regulations” for “Act” where it appears,

(f)        in section 27(1)(a), by inserting after paragraph (a) the following paragraph:

“(aa) any of the following regulations of the Activities of Doctors in Training Regulations, namely, regulations 5 to 10”,

(g)        in section 33, by substituting “Act or the Activities of Doctors in Training Regulations” for “Act” where it appears, and

(h)        in section 37,

(i)     by substituting “Act or the Activities of Doctors in Training Regulations” for “Act” in each place where it appears, and

(ii)    by inserting after the words “the commencement” the words “or coming into operation”.

Amendment of the Safety, Health and Welfare at Work (Night Work and Shift Work) Regulations 2000

13.       The Safety, Health and Welfare at Work (Night Work and Shift Work) Regulations 2000 ( S.I. No. 11 of 2000 ) are amended as follows:

(a)        in Regulation 3(1), by inserting after the definition of “Principal Regulations” the following:

“Activities of Doctors in Training Regulations” means the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004 ( S.I. No. 494 of 2004 );”

(b)        in Regulation 4(1), by substituting “the 1997 Act or the Activities of Doctors in Training Regulations apply” for “the 1997 Act applies”, and

(c)        in Regulation 6(1), by inserting after “section 16(2)(a) of the 1997 Act” the following:

“and Regulation 10(2)(a) of the Activities of Doctors in Training Regulations”.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation of the Instrument)

These Regulations implement those provisions of Directive 2000/34/EC² of the European Parliament and of the Council which bring the activities of doctors in training within the scope of Council Directive 93/104/EC¹ concerning certain aspects of the organisation of working time.

These Regulations prescribe maximum hours of work and minimum hours of rest for those persons engaged in the activities of doctors in training. Between 1 August 2004 and 31 July 2007, an employer cannot require a person engaged in the activities of doctors in training to work for more than 58 hours a week, averaged over a maximum 12 month reference period. Between 1 August 2007 and 31 July 2009, an employer cannot require such a person to work for more than 56 hours a week, averaged over a maximum 6 month reference period. A 48-hour average working week is due to be introduced from 1 August 2009.

These Regulations require employers to keep records of each employee’s hours of work, rest and such other records in the form prescribed by Regulation 11 of these Regulations.

These Regulations amend certain provisions of the Organisation of Working Time Act 1997 (the “1997 Act”) to apply them to the activities of doctors in training. In particular, the powers of inspectors under section 8 of the 1997 Act are extended to cover the activities of doctors in training. A person engaged in the activities of doctors in training may present a complaint to a Rights Commissioner, under Part IV of the 1997 Act, that his or her employer has contravened a relevant provision of these Regulations. Similarly, the provisions of the 1997 Act which provide for appeals from and enforcement of the recommendations of Rights Commissioners are applied to persons engaged in the activities of doctors in training.

These Regulations amend the Safety, Health and Welfare at Work (Night Work and Shift Work) Regulations 2000 ( S.I. No. 11 of 2000 ) (the “2000 Regulations”) to apply them to the activities of doctors in training. The 2000 Regulations give effect to the safety and health protection provisions of Article 9 of Directive 93/104/EC¹ .

¹ OJ No. L 307, 13.12.1993 p. 18.

² OJ No. L 195, 01.08.2000 p. 41.

¹ OJ No. L 307, 13.12.1993 p. 18.

² OJ No. L 195, 01.08.2000 p. 41.

¹ OJ No. L 307, 13.12.1993 p. 18.

²OJ No. L 195, 01.08.2000 p. 41.

² OJ No. L 195, 01.08.2000 p. 41.

¹ OJ No. L 307, 13.12.1993 p. 18.

¹ OJ No. L 307, 13.12.1993 p. 18.