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The time is nighWhat does it cover?Entitlements and limits: enforcementAdapting work to the workerWorking to the limitGive us a breakModifications and restrictionsMinimum holiday rightsWhat about the workers?
General The Government takes up the full range of opportunities to modify or restrict the application of the Directive, although it does not demonstrate how it has 'had due regard for the general principles of the protection of health and safety of workers', as it is required to do by the Directive. The two main categories in the Regulations are those relating to 'unmeasured working time' and to other particular activities.
These 'derogations' exclude the operation of provisions on daily and weekly rest, breaks, weekly working time and night work.
Each of them is subject to the requirement that the worker be provided with 'equivalent periods of compensatory rest'.
It is particularly important that this is complied with in order to achieve the health and safety objectives of the Directive. However, the Regulations make no provision for the length of this rest, when it must be granted, or any obligation specifically to identify the periods allotted as compensatory rest.
Only in 'exceptional cases in which it is not possible for objective reasons to grant such a period of rest' can this obligation be avoided. The Government says that these circumstances will be 'rare, but self-evident'. This is unacceptably vague: the Regulations should spell out the detailed position and should also specify what is required of the 'adequate protection' to be afforded to those workers.
Workers are given the right to complain to tribunals if they are denied compensatory rest or adequate protection, but not in relation to the limits on maximum weekly work or night work.
Unmeasured working time (Regulation 18) The Government correctly focuses on the fact that this derogation only applies where the specific characteristics of the work activity mean that working time is not measured or predetermined, or is determined by the workers themselves. The key is the characteristics of the activity, not the arrangements made by the employer.
This means that the derogation may apply to some activities of workers without necessarily applying to the whole of their employment.
The Regulations 'copy out' the examples of the type of workers most likely to be affected: managing executives; people with autonomous decision-making powers; family workers and clergy officiating at religious ceremonies(which suggests that these categories - including clergy - should otherwise be covered by the legislation).
'Other special cases' (Regulation 19) Once again the Government 'copies out' the categories listed in the Directive [see panel below].
The significant aspect of the proposed Regulations is the specific focus on the activities of the workers concerned, rather than the activities of the sector or industry as a whole.
To take a particular example, a hospital worker will only be affected by the derogation where her/his own activities 'involve the need for continuity of service or production', not merely because the activities of the hospital as a whole must be carried on continuously.
There are also specific provisions in Regulation 20 to deal with the situation where workers change from one shift to another, without the normal rest break in between.
Note: All focus on the activities of the individual worker.
a) Activities mean that either work and residence or different places of work are distant from each other.
b) Working as security guard or caretaker where a permanent presence is necessary.
c) Worker's activities involve need for continuity of service or production, particularly:
hospitals, residential institutions, prisons
docks or airports
press, radio, television, film production
postal and telecommunications
civil protection services
gas, water and electricity
household refuse collection and incineration
where work cannot be interrupted on technical grounds
research and development
agriculture.
d) Where there is a foreseeable surge of activity, for example agriculture, tourism, postal services.
e) Where there are unforeseeable circumstances beyond the employer's control or an accident or imminent risk of accident.