Minister Doherty signs working time Regulations for the horse racing industry


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New Regulations give horse racing sector flexibility on working time rules while ensuring that workers are protected

Thursday, 20 December 2018: The Minister for Employment Affairs and Social Protection, Regina Doherty T.D., today announced that she has signed new Regulations that offer the possibility of derogations from some working time rules for certain activities in the horse racing industry.

The new Regulations – the EUROPEAN COMMUNITIES (ORGANISATION OF WORKING TIME) (GENERAL EXEMPTIONS) (AMENDMENT) REGULATIONS 2018 – come into effect immediately.  The Regulations clarify that the activities of the horse racing industry are included in the term ‘agriculture’ for the purposes of the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No. 21/1998) which were made under the Organisation of Working Time Act 1997. The 1997 Act transposed the EU Working Time Directive.

The Regulations will provide employers with some flexibility in the application of working time rules to staff working in the industry, subject to certain conditions and safeguards designed to ensure that workers are protected. It will mean that where these conditions are met, certain rest periods or breaks may be deferred until a later time, but the employee should receive those statutory breaks as soon as possible thereafter. Importantly, the Regulations will not change the existing rules in relation to maximum weekly working hours.
Minister Doherty said:

“I am very conscious of my responsibility to ensure that employees in the industry are fully protected in relation to their employment rights. In order to ensure a fair balance between the needs of both employees and employers, I have consulted with representatives of both employees and employers in the industry over the past year to arrive at an equitable solution – which I believe these Regulations reflect.” 

It is important to point out that neither the Directive nor the Organisation of Working Time Act 1997 provides a blanket derogation for workers employed within the agricultural sector. Rather, they permit a derogation from some of the obligations under the Directive for agricultural workers but only where the following criteria are met:

  • the workers are engaged in activities involving ‘the need for continuity of service or production’ or where there is ‘a foreseeable surge in activity’

  • the workers are required to be engaged wholly or mainly in performing the activities concerned, and

  • where an employer avails of a derogation, they must provide compensatory rest for the workers involved. This compensatory rest is to be provided immediately or as soon as possible after the time at which the statutory rest break falls due.

The Minister added:
“I would also like to acknowledge the role of the Workplace Relations Commission in overseeing compliance with employment legislation in the horse racing industry and the ongoing inspection activity that the WRC is currently undertaking. In this regard, the WRC has been working with Horse Racing Ireland to draw up guidance for employers in the sector to improve awareness of respective rights and responsibilities under employment law. I understand that the work on the joint guidance initiative has been progressing well and, in the context of this regulation, I have written to the WRC and Horse Racing Ireland urging them to bring this work to completion as soon as possible. This joint guidance will be important in ensuring increased levels of compliance with employment legislation generally in the sector and in this context I will be keeping the Regulations under review.”

Ends

Note for Editors

Background

  • In early  2018, a number of representations, including representations by the Minister for Agriculture, Food and the Marine, were made to the Minister for Employment Affairs and Social Protection identifying difficulties the horse racing industry is experiencing with the application of the Organisation of Working Time Act 1997 (the OWTA) in the sector. They asked the Minister to amend the OWTA in order to allow the horse racing industry avail of the derogations provided for in the EU Working Time Directive.
  • All of the derogations provided for in the EU Working Time Directive (the Directive) have been transposed in national legislation, with the exception of the Article 22 ‘Opt-out’ clause, which relates specifically to maximum weekly working hours* . The derogations are all limited in scope, applying to some of the requirements of the Directive, where the conditions set out in the Directive are met. ‘Compensatory rest’ is a key condition, which means that the employee must receive an equivalent rest period as soon as possible after they miss a statutory rest break.
  • Minister Doherty obtained the advice of the Attorney General in relation to the issues involved and the Regulations were drafted on the basis of this advice.

*The ‘Opt-out’ was an optional provision in Article 22 of the Directive. The Irish Government’s policy decision was not to transpose it into national law.

What is the purpose of the Regulations?

  • The Regulations (effective from 19 December 2018) provide that the term “agriculture” in the Schedule to the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No. 21 of 1998), includes, inter alia, “the caring for or the rearing or the breeding or training of racehorses” for the purpose of those Regulations. 
  • In essence, the Regulations provide that the limited derogations that are currently available to the agriculture sector under the Working Time Directive and the Organisation of Working Time Act/Regulations, should also be available to the horse racing sector, subject to the conditions laid down in the Directive and the transposing national legislation.

What impact will the Regulations have?

  • Neither the Directive nor the OWTA provides a blanket derogation for workers employed within the agricultural sector. Rather, they permit a derogation from some of the obligations under the Directive for agricultural workers but only where the following criteria are met:

    • the workers are engaged in activities involving ‘the need for continuity of service or production’ or where there is ‘a foreseeable surge in activity’
    • the workers are required to be engaged wholly or mainly in performing the activities concerned, and
    • where an employer avails of a derogation, they must provide compensatory rest for the workers involved. This compensatory rest is to be provided immediately or as soon as possible after the rest break foregone.

  • The derogations that the new Regulations allow an employer to avail of relate to daily rest periods, rests and intervals at work, weekly rest periods and nightly working hours (sections 11, 12, 13 and 16 of the OWTA respectively), subject to the conditions outlined above including compensatory rest being provided.
  • It is important to note that employers in the horse racing industry, while they may in certain circumstances be able to avail of the derogations listed above, are still subject to the other obligations set out in the OWTA. So, for example, employers will still be bound by the maximum weekly average of 48 working hours, by the requirement to provide information to an employee about working time and to provide employees with their allow annual leave and public holiday entitlements. Importantly, employers must maintain records in the required form to show compliance with the OWTA.
  • It is also important to point out that employers in the industry will still be subject to the rigours of all other employment statutes. For example, they will still be subject to inspections by the Workplace Relations Commission, be required to co-operate with the inspection process and be subject to the requirement to maintain records in relation to all relevant employment statutes.
  • The Court of Justice of the European Union has consistently ruled that any derogations from the Working Time Directive must be interpreted restrictively.

WRC inspection activity

  • The WRC has been engaged in inspection activity in the equine sector more broadly over the last year or more.  The Minister has clearly communicated to the industry that there should be no misunderstanding about the limited nature of the derogations that may be available under these new Regulations.
  • As part of its ongoing inspection activities in the equine sector more broadly, the WRC has been working with Horse Racing Ireland to draw up guidance for employers in the sector to improve awareness of respective rights and responsibilities under employment law.
  • In this respect, the Minister has written to the WRC and Horse Racing Ireland urging them to bring this work to completion as soon as possible. The joint guidance, when published, will be key for employers and employees in terms of understanding how the Regulations impact on their respective responsibilities and rights.

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Last modified:20/12/2018