Amendments to the Working Time Regulations 1998

On 4 July 2003, the Government approved the Working Time (Amendment) Regulations 2003, which may have a major impact on employers in the transport sector. The Regulations come into effect on 1 August 2003.

In summary these Regulations:

• Remove the general exemption relating to the transport sector
• Bring within the working time regime all non-mobile workers in the transport sector.
• Establish that only mobile workers (drivers, pilots, crew, seafarers etc) are now exempt either fully or in part from certain provisions in the Working Time Regulations 1998 ("the 1998 Regulations").

In more detail...

The Regulations make changes to the 1998 Regulations in two main areas:

• The amendment and removal of existing exemptions
• The amendment of existing provisions in relation to enforcement and offences

1 Excluded Sectors

1.1 All non-mobile workers are afforded the protection of the 1998 Regulations and will be entitled to an average working week of no more than 48 hours, the protection currently afforded to those defined as night-workers, 20 days paid leave per year and rest breaks.

1.2 Regulation 18 of the 1998 Regulations currently provides that the Regulations do not apply to the following sectors of activity - air, rail, road, sea, inland waterway and lake transport; sea fishing; other work at sea; the activities of doctors in training or members of the armed forces or emergency services (where their activities conflict with the Regulations).

1.3 Regulation 18 of the 1998 Regulations which currently define those excluded sectors is replaced in its entirety.

1.4 Amended Regulation 18 applies differing levels of exclusion to various sectors as follows

(a) Workers onboard:

• a sea-going ship which is registered in a Member State and engaged in commercial maritime;
• a sea-going fishing vessel or

• certain ships and hovercraft on inland waterways remain excluded in full from the Regulations.

B) With the exception of Young Workers the following workers remain excluded from protection under the 1998 Regulations:

• mobile workers (e.g. crew members) employed on board civil aircraft
• workers in the armed forces or emergency services (where their activities conflict with the Regulations);
• doctors in training (NB. exempt only until 31 July 2004. Additional provisions are added to phase out the current exemptions for doctors in training).

Young workers in these sectors will benefit from protection only in relation to weekly and daily rest periods and health assessments in relation to night work.

C) Workers performing mobile road transport activities (i.e. drivers) remain excluded from protection under the 1998 regulations, except in relation to:

• entitlement to 4 weeks paid annual leave; and
• health assessments for workers transferring to or undertaking night work.

Young workers in this sector are also entitled to weekly and daily rest periods.

1.5 Regulation 24A is added to the 1998 Regulations to deal with those remaining mobile workers who are not caught by the excluded sectors defined in new Regulation 18. Regulation 24A does not apply to young workers. Regulation 24A provides that these workers are excluded from the provisions of the 1998 Regulations relating to night work and rest breaks. Instead these workers are entitled to "adequate rest". "Adequate rest" means that a worker has regular rest periods, the duration of which expressing the units of time which are sufficiently long and continuous to ensure that as a result of fatigue or other irregular working patterns, the worker does not cause injury to himself, to fellow workers or to others and does not damage his health either in the short or long-term.

1.6 The Amendment Regulations alter the "special cases" covered by Regulation 21. Regulation 21 provides for exemption from provisions relating to night-work and rest breaks in a defined range of special cases. Those special cases are listed in Regulation 21. In addition to those workers covered by "special cases", the

Amendment Regulations add those workers:

• engaged in the carriage of passengers on regular urban transport services;
• engaged in rail transport where his activities are intermittent and he spends time working on board trains and all his activities are linked to transport timetables and to ensure the continuity and regularity of traffic.

1.7 The Amendment Regulations replaced the 17 week reference period a reference period of 52 weeks in relation to workers employed on off-shore installation.

1.8 Additional provisions are added to phase out the current exemptions for doctors in training.

2 Enforcement and Offences

2.1 The Amendment Regulations substitute the existing provisions in relation to enforcement and offences, replacing them with a new set of regulations which are substantially the same but contain a few additions specifically relevant to the transport sector:

• The 1998 Regulations now provide for enforcement by the Civil Aviation Authority and the Vehicle and Operator Services Agency in addition to the HSE and local authorities. The new Schedule 3 is added to the 1998 Regulations which provides for enforcement through inspectors retained by both the Civil Aviation Authority and the Vehicle and Operator Services Agency. The powers of those inspectors are also set out in Schedule 3.
• The 1998 Regulations are amended to allow a mobile worker who has been refused "adequate rest" to seek redress through an employment tribunal.