S.I. No. 507/2006 - European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006

S.I. No. 507 of 2006

European Communities (Organisation of Working Time)(Mobile Staff in Civil Aviation) Regulations 2006

I, Martin Cullen, Minister for Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Council Directive No. 2000/79/EEC of 27 November 2000, hereby make the following Regulations:

Citation

1 These Regulations may be cited as the European Communities (Organisation of Working Time)(Mobile Staff in Civil Aviation) Regulations 2006.

Definitions

2 In these Regulations -

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

“block flying time” means the time between an aircraft first moving from its parking place for the purpose of taking off until it comes to rest on the designated parking position and until all engines are stopped;

“crew member” means a person employed to act as a member of the cabin crew or flight crew on board a civil aircraft;

“Competent Authority” means the Irish Aviation Authority the body established under the Irish Aviation Authority Act 1993 who will be the Competent Authority for the purpose of these Regulations;

“Directive” means Council Directive No. 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA);

“Employer” means an employer of mobile staff in civil aviation

“Minister” means the Minister for Transport;

“mobile staff in civil aviation” means crew members on board a civil aircraft;

and “mobile staff” shall be construed accordingly;

“working time” means any period during which a crew member 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 a crew member where he or she is required to be physically present at his or her place of work,

and “work” shall be construed accordingly;

Interpretation

3 In these Regulations -

1) Working time should be looked at without prejudice to any future Community legislation on flight and duty time limitations and rest requirements and in conjunction with national legislation on this subject which should be taken into consideration in all related matters.

2) A word or expression that is used in both these Regulations and the Directive has unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

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

4) These Regulations set down minimum requirements for the protection of workers and are without prejudice to more favourable requirements set down by other legislation or in standards or guidelines set by the Irish Aviation Authority or agreed by employers and crew members.

5) 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.

6) 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.

7) 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

4 These Regulations apply to mobile staff in civil aviation.

Annual Leave

5 (1) Mobile staff in civil aviation are entitled to paid annual leave of at least four working weeks in a leave year.

(2) The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

6 Without prejudice to Regulation 5, mobile staff in civil aviation shall be given days free of all duty and standby, which are notified in advance, consisting of at least 96 local days in each calendar year, which may include any rest periods required by law, and at least seven local days in each calendar month, which may include rest periods required by law.

Health Assessments

7 (1) (a) Mobile staff in civil aviation are entitled to a health assessment before their assignment and thereafter at regular intervals.

(b) The employer shall ensure that the health assessment referred to in Regulation 7(1)(a) of these Regulations is available to Mobile Staff in civil aviation free of charge.

(c) The health assessment referred to in Regulation 7(1)(a) of these Regulations shall comply with medical confidentiality.

(2) (a) A crew member suffering from health problems recognised as being connected with the fact that he or she also works at night will be transferred whenever possible to mobile or non-mobile day work to which they are suited.

(b) For the purposes of Regulation 7(2)(a), night work shall be determined by reference to the time to which the crew member is acclimatized.

Protection of Health and Safety

8 (1) Mobile staff in civil aviation will have safety and health protection appropriate to the nature of their work as specified in the Safety, Health and Welfare at Work Act 2005 .

(2) Adequate protection and prevention services or facilities with regard to the safety and health of mobile staff in civil aviation will be available at all times.

Adaptation of Work to the Workers

9 Where an employer intends to organize work according to a certain pattern, the employer will take account of the general principle of adapting work to the worker.

10 Information concerning specific working patterns of mobile staff in civil aviation shall be provided to the Competent Authority, if it so requests.

Working Time

11 (1) The maximum annual working time for any crew member shall not exceed 2,000 hours in which the block flying time shall be limited to 900 hours.

(2) The maximum annual working time for mobile staff in civil aviation shall be spread as evenly as practicable throughout the year.

Records

12 (1) An employer of mobile staff in civil aviation shall maintain a record of each crew member's working patterns.

(2) Such records shall be in such form, if any, as may be prescribed by the Minister following consultation with the Irish Aviation Authority. Until such time as the Minister so prescribes, an employer shall keep such records in such form as will include all the information necessary for the effective monitoring of these Regulations.

(3) An employer shall retain the records referred to in this Regulation at the premises or place from which the activities that the crew member is employed to carry on are principally directed or controlled.

(4) An employer shall retain the records referred to in this Regulation for a period of at least three years from the date of their making.

(5) An employer shall, on request, make available in a legible form

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

(b) to an inspector authorised pursuant to Regulation 13 a copy of records required to be kept under this Regulation, and

Inspectors

13 (1) In this Regulation “inspector” means a person appointed under paragraph (2).

(2) The Competent Authority may appoint in writing such and so many persons as it sees fit to be inspectors for the purposes of these Regulations.

(3) Every inspector shall be furnished by the Competent Authority with a certificate of his or her appointment and, on applying for admission to any premises or place for the purpose of these Regulations, shall, if requested by a person affected, produce a certificate or a copy thereof to that person.

(4) An inspector may for the purposes of these Regulations do all or any of the following things -

a) subject to the provisions of these Regulations, enter at all reasonable times any premises or place where he or she has reasonable grounds for supposing that a crew member is employed or from which he or she has reasonable grounds for supposing the activities that a crew member is employed to carry on are directed or controlled (whether generally or as respects particular matters),

b) make such examination or enquiry as may be necessary for ascertaining whether the provisions of these Regulations are complied with in respect of any crew member the activities of whom are directed or controlled from such premises or place,

c) require the employer of any crew member or any representative of such

d) employer to produce to him or her any records which such employer is required to keep and inspect and take copies of entries in such records in a permanent legible form,

e) require any person whom he or she has reasonable cause to believe to be or to have been a crew member or the employer of any crew member to furnish such information as the inspector may reasonably request,

f) examine with regard to any matters under these Regulations any person whom he or she has reasonable cause to believe to be or to have been an employer or a crew member and require him or her to answer such questions (other than questions tending to incriminate him or her) as the inspector may put relative to those matters and to sign a declaration of the truth of the answers.

(5) An inspector shall not, other than with the consent of the occupier, enter a private dwelling (other than a part of the dwelling used as a place of work unless he or she has obtained a warrant from the District Court under paragraph (8) authorising such entry.

(6) Where an inspector in the exercise of his or her powers under this Regulation is prevented from entering any premises an application may be made under paragraph (8) authorising such entry.

(7) An inspector, where he or she considers it necessary to be so accompanied, may be accompanied by a member of the Garda Síochána when exercising any powers conferred on an inspector by this Regulation.

(8) A judge of the District Court if satisfied on the sworn information of an inspector that there are reasonable grounds for suspecting that information required by an inspector under this Regulation is held on any premises or any part of any premises, the judge may issue a warrant authorising an inspector accompanied by other inspectors or a member of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production, if so requested, of the warrant, to enter the premises (if need be by reasonable force) and exercise all of the powers conferred on an inspector under this Regulation.

(9) A person who-

(a) obstructs or impedes an inspector in the exercise of any of the powers conferred on an inspector under this Regulation,

(b) refuses to produce any record which an inspector lawfully requires him or her to produce,

(c) produces or causes to be produced or knowingly allows to be produced to an inspector, any record which is false or misleading in any material respect knowing it to be so false or misleading,

(d) gives to an inspector any information which is false or misleading in any material respect knowing it to be so false or misleading, or

(e) fails to comply with any lawful requirement of an inspector under paragraph (4)

shall be guilty of an offence.

Offences

14 (1) Any person who fails to comply with any of the relevant requirements set out in regulations 8, 9, 10, 11(1), 12, and 13 of these Regulations shall be guilty of an offence.

(2) A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €5,000.

(3) Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in that capacity, that person shall also be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(4) If the contravention in respect of which a person is convicted of an offence under these Regulations is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable, on summary conviction, to a fine not exceeding €2,500.

(5) Proceedings for an offence under these Regulations may be brought and prosecuted by the Minister.

(6) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851 proceedings for an offence under these Regulations may be instituted within 12 months from the date of the offence.

(7) In any proceedings for an offence under these Regulations, it is a defence for the defendant to show that he has taken all reasonable steps to ensure compliance with these Regulations.

Complaints to Rights Commissioner

15 (1) A crew member, or any trade union of which the crew member is a member with the consent of the crew member, may present a complaint to a rights commissioner that the crew member's employer has contravened any provision of these Regulations in relation to the crew member and, if the crew member or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties concerned.

(2) A decision of a rights commissioner under paragraph (1) shall do one or more of the following -

(a) declare that the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the crew member compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the crew member's employment and the references in this Regulation to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3) A rights commissioner shall not entertain a complaint under this Regulation if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

(4) Notwithstanding paragraph (3), a rights commissioner may entertain a complaint under this Regulation presented to him or her after the expiration of the period referred to in paragraph (3) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

(5) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(6) A copy of a notice under paragraph (5) shall be given to the other party concerned by the rights commissioner.

(7) Proceedings under this Regulation before a rights commissioner shall be conducted otherwise than in public.

(8) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commission under paragraph (1).

(9) The Minister may by Regulations provide for any matters relating to proceedings under this Regulation that the Minister considers appropriate.

16 (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under Regulation 15 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal, affirming, varying or setting aside the decision and shall communicate the determination to the parties.

(2) An appeal under this Regulation shall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under paragraph (4) and stating the intention of the party concerned to appeal against the decision

(3) A copy of a notice under paragraph (2) shall be given by the Labour Court to the other party concerned as soon as may be after the receipt of the notice by the Labour Court.

(4) The following matters, or the procedures to be followed in relation to them shall be determined by the Labour Court, namely -

(a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this Regulation,

(b) the times and places of hearings of such appeals,

(d) the publication and notification of determinations of the Labour Court

(e) the particulars to be contained in a notice under paragraph (2), and

(f) any matters consequential on, or incidental to, the foregoing matters.

(5) The Minister may, at the request of the Labour Court refer a question of law arising in proceedings before it under this Regulation to the High Court for determination by the High Court and the determination of that Court shall be final and conclusive.

(6) A party to proceedings before the Labour Court under this Regulation may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.

(7) Section 39(17) of the Redundancy Payments Act, 1967 , shall apply in relation to proceedings before the Labour Court under these Regulations as it applies to matters referred to the Employment Appeals Tribunal under that section with -

(a) the substitution in that provision of references to the Labour Court for references to the Tribunal,

(b) the deletion in paragraph (d) of that provision of “registered”, and the substitution in paragraph (e) of that provision of “a fine not exceeding €2,000” for “fine not exceeding twenty pounds”.

(8) Where a decision of a rights commissioner in relation to a complaint under these Regulations has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the crew member concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid) make a determination to the like effect as the decision.

(9) The bringing of a complaint before the Labour Court under paragraph (8 shall be effected by giving to the Labour Court a notice in writing containing such particulars (if any) as may be determined by the Labour Court.

(10) The Labour Court shall publish, in such manner as it thinks fit, particulars of any determination made by it under subparagraphs (a), (b), (c), (e) and (f) of paragraph (4) (not being a determination as respects a particular appeal under this Regulation) and paragraph (9).

17 (1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under Regulation 16 within 6 weeks from the date on which the determination is communicated to the parties, the Circuit Court shall, on application to it in that behalf by-

(a) the crew member concerned,

(b) with the consent of the crew member, any trade union of which the crew member is a member, or

(c) the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances,

without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to carry out the determination in accordance with its terms.

(2) The reference in paragraph (1) to a determination of the Labour Court is a reference to such a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought it has been abandoned and the reference to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as references to the date of such abandonment.

(3) The Circuit Court may, in an order under this Regulation, if in all the circumstances it considers it appropriate to do so, where the order relates to the payment of compensation, direct the employer concerned to pay to the crew member concerned interest on the compensation at the rate referred to in section 22 of the Courts Act, 1981 in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(4) An application under this Regulation to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, business or occupation.

Expenses of the Minister

18 The expenses incurred by the Minister in the administration of these Regulations shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

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

19. 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 “Directive” the following:

“Mobile Staff in Civil Aviation Regulations” means the European Communities (Organisation of Working Time)(Mobile Staff in Civil Aviation) Regulations 2006 (S.I. No [ ] of 2006)

b) in Regulation 4(1), by substituting “the 1997 Act or the Activities of Doctors in Training Regulations or the Mobile Staff in Civil Aviation Regulations apply” for the “1997 Act or the Activities of Doctors in Training Regulations apply”

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

“and Regulation 7(2) of the Mobile Staff in Civil Aviation Regulations”

GIVEN under my Official Seal

This 29 day of September 2006

Martin Cullen

Minister for Transport

EXPLANATORY NOTE

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

These Regulations implement the provisions of Council Directive 2000/79/EC concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Worker's Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA).