S.I. No. 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001

I, Tom Kitt, Minister of State at the Department of Enterprise, Trade and Employment, in exercise of the powers conferred on me by sections 7 and 25 of the Organisation of Working Time Act, 1997 (No. 20 of 1997), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 305 of 1997 ), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 ( S.I. No. 330 of 1997 ), hereby make the following regulations:

Citation and commencement.

1.      These Regulations may be cited as the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001, and shall come into operation on the 1^st day of November 2001.

Interpretation.

2.      (1)      In these Regulations —

“the Act” means the Organisation of Working Time Act, 1997 (No. 20 of 1997), and “inspector” means an inspector within the meaning of section 8 of the Act.

(2)      A reference in these Regulations to a section is a reference to a section of the Act unless it is indicated that reference to some other enactment is intended.

(3)      A reference in these Regulations to a Regulation or the Schedule is to a Regulation of, or the Schedule to, these Regulations unless it is indicated that a reference to some other enactment is intended.

(4)      A reference in these Regulations to a paragraph or subparagraph is to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended.

Form of records under section 25(1).

3.      The records required to be kept under section 25(1) shall contain the following particulars and documents —

(a)      the name and address of each employee concerned, the number known as the Revenue and Social Insurance 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) of his or her duties as an employee,

(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. 5 of 1994), or any order or regulation made under that Act, that relates to him or her,

(c)                (i)      the days and total hours worked in each week by each employee concerned,

(ii)      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,

(iii)      any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and

(d)      a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section),

and shall generally be in such form as will enable an inspector to understand the particulars contained in them without difficulty.

4.      (1)      Where no clocking in facilities are in place in a work place a form to record the days and hours worked in each week by each employee shall be kept by the employer in the form set out in the Schedule entitled Form OWT 1 or in a form substantially to like effect.

(2)      Notwithstanding the obligation to keep records imposed on the employer by paragraph (1), where the employer and employee agree, an employee may —

(a)      complete the Form OWT 1, as set out in the Schedule or a form substantially to like effect, and

(b)      present the completed form to his or her employer for counter-signature and retention by the employer in accordance with paragraph (1).

(3)      The Form OWT 1 should be made available at all reasonable times for inspection by an inspector.

Exemption from section 25(1).

5.      (1)      For the purposes of these Regulations and subject to paragraph (2), the following classes of employer are exempt, by virtue of section 25(2), from the obligation to keep records of rest breaks —

(a)      employers who have electronic record-keeping facilities such as flexi-time or clocking-in facilities, and

(b)      employers who have manual as opposed to electronic record-keeping facilities and who are required to keep records in accordance with Regulation 4.

(2)      The exemption under paragraph (1) shall only apply to an employer if he or she complies with the following conditions —

(a)      the employer notifies in writing each employee of the rest periods and breaks referred to in sections 11, 12 and 13 or, in case of the non-application of one or more of those sections (by virtue of regulations referred to in section 4(3), a collective agreement or a registered employment agreement referred to in section 4(5), or an employment regulation order referred to in section 4(6)) of the terms of such regulations, collective agreement, registered employment agreement or employment regulation order and, in particular, of the requirement contained in section 6(1),

(b)      the employer puts in place, and notifies in writing each employee of procedures whereby an employee may notify in writing the employer of any rest period or break referred to in sections 11, 12 and 13 of the Act to which such employee is entitled and was not able to avail himself or herself of on a particular occasion and the reason for not availing of such rest period or break,

and

(c)      the employer keeps —

(i)      a record of having notified each employee of the matters provided for in paragraph (a),

(ii)      a record of having notified each employee of the procedures provided for in paragraph (b), and

(iii)      records of all notifications made to him or her by each employee in accordance with those procedures.

(3)     A notification made to an employer by an employee under paragraph 2(b) shall be made within 1 week of the day on which the rest period referred to in that paragraph became due to, but was not availed of by, the employee. Where such notification is duly made the employer, having regard to the circumstances pertaining to the work of the employee and to the employee's health and safety interests, shall, as soon as possible, make available to the employee such rest period or break as is equivalent to the rest period or break which had been due to, but had not been availed of by, the employee. Failure by an employee to avail of such equivalent rest period or break offered by an employer shall not constitute a breach on the part of the employer under the Act or these Regulations.

Form of records under Regulation 5.

6.      Any record that an employer is required to keep under Regulation 5 shall contain like particulars to those specified in Regulation 3(a) and shall generally be in such form as will enable an inspector to understand the particulars contained in it without difficulty.

7.      An employer who fails to keep records under these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1,900 (£1,496.37).

SCHEDULE

FORM OWTI

ORGANISATION OF WORKING TIME ACT, 1997

AN ROINN FIONTAR TRADÁLA AGUS FOSTAÍOCHTA-DEPARTMENT OF ENTERPRISE, TRADE AND EMPLOYMENT PLEASE COMPLETE THIS FORM IN BLOCK CAPITALS

* NUMBER OF HOURS WORKED BY EMPLOYEE PER DAY AND PER WEEK

I DECLARE THAT THE ABOVE INFORMATION IN RELATION TO DAILY AND WEEKLY HOURS WORKED IS CORRECT

SIGNATURE OF EMPLOYER:______________________________________________________________

SIGNATURE OF EMPLOYEE:______________________________________________________________

* NO. OF HOURS WORKED EXCLUDES MEAL BREAKS AND REST BREAKS

EXPLANATORY NOTE

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

The main purpose of these Regulations is to require employers, pursuant to the Organisation of Working Time Act, 1997 , to keep:

(a)  a record of the number of hours worked by employees (excluding meals and rest breaks) on a daily and weekly basis;

(b)  a record of leave granted to employees in each week by way of annual leave or in respect of a public holiday and payment made in respect of that leave;

(c)  a weekly record of the notification of the starting and finishing times of employees.

The Regulations also require that an employer keep a copy of the statement provided to each employee under the provisions of the Terms of Employment (Information) Act, 1994 .

The Regulations also provide for exemptions, subject to certain conditions, in relation to the keeping by employers of records of rest breaks and rest periods of employees under the Organisation of Working Time Act, 1997 .