S.I. No. 377/2009 - European Communities (Working Conditions of Mobile Workers Engaged In Interoperable Cross-border Services In the Railway Sector) Regulations 2009

1. “interoperable cross-border services”: cross-border services for which at least two safety certificates as stipulated by Directive 2001/14/EC are required from the railway undertakings;

2. “mobile worker engaged in interoperable cross-border services”: any worker who is a member of a train crew, who is assigned to interoperable cross-border services for more than one hour on a daily shift basis;

3. “working time”: any period during which the worker is at work, at the employer’s disposal and carrying out his or her activities or duties, in accordance with national laws and/or practice;

4. “rest period”: any period which is not working time;

5. “night time”: any period of not less than seven hours, as defined by national law, and which must include in any case the period between midnight and 5 a.m.;

6. “night shift”: any shift of at least three hours’ work during the night time;

7. “rest away from home”: daily rest which cannot be taken at the normal place of residence of the mobile worker;

8. “driver”: any worker in charge of operating a traction unit;

9. “driving time”: the duration of the scheduled activity where the driver is in charge of the traction unit, excluding the scheduled time to prepare or shut down that traction unit, but including any scheduled interruptions when the driver remains in charge of the traction unit.

Clause 3

Daily rest at home

Daily rest at home must be a minimum of 12 consecutive hours per 24-hour period.

However, it may be reduced to a minimum of nine hours once every seven-day period. In that case, the hours corresponding to the difference between the reduced rest and 12 hours will be added to the next daily rest at home.

A significantly reduced daily rest shall not be scheduled between two daily rests away from home.

Clause 4

Daily rest away from home

The minimum daily rest away from home shall be eight consecutive hours per 24-hour period.

A daily rest away from home must be followed by a daily rest at home1

.

1 The parties agree that negotiations on a second consecutive rest away from home as well as compensation for rest away from home could take place between the social partners at railway undertaking or national level as appropriate. At European level, the question of the number of consecutive rests away from home as well as compensation for the rest away from home will be renegotiated two years after signature of this Agreement.

It is recommended that attention should be paid to the level of comfort of the accommodation offered to staff resting away from home.

Clause 5

Breaks

(

a

) Drivers

If the working time of a driver is longer than eight hours, a break of at least 45 minutes shall be taken during the working day.

Or

When the working time is between six and eight hours, this break shall be at least 30 minutes long and shall be taken during the working day.

The time of day and the duration of the break shall be sufficient to ensure an effective recuperation of the worker.

Breaks may be adapted during the working day in the event of train delays.

A part of the break should be given between the third and the sixth working hour.

Clause 5(

a

) shall not apply if there is a second driver. In that case, the conditions for granting the breaks shall be regulated at national level.

(

b

) Other on-board staff

For other on-board staff, a break of at least 30 minutes shall be taken if the working time is longer than six hours.

Clause 6

Weekly rest period

Any mobile worker engaged in interoperable cross-border services is entitled, per seven-day period, to a minimum uninterrupted weekly rest period of 24 hours plus the 12 hours’ daily rest period referred to in Clause 3 above.

Each year, every mobile worker shall have 104 rest periods of 24 hours, including the 24-hour periods of the 52 weekly rest periods,

including

—12 double rest periods (of 48 hours plus a daily rest of 12 hours) including Saturday and Sunday,

and

—12 double rest periods (of 48 hours plus a daily rest of 12 hours) without the guarantee that this will include a Saturday or Sunday.

Clause 7

Driving time

The driving time, as defined in Clause 2, shall not exceed nine hours for a day shift and eight hours for a night shift between two daily rest periods.

The maximum driving time over a two-week period is limited to 80 hours.

Clause 8

Checks

A record of daily working hours and rest periods for the mobile workers shall be kept to allow monitoring of compliance with the provisions of this Agreement. Information on actual working hours must be available. This record shall be kept in the undertaking for at least one year.

Clause 9

Non-regression clause

The implementation of this Agreement shall not constitute in any case valid grounds for reducing the general level of protection afforded to mobile workers engaged in interoperable cross-border services.

Clause 10

Follow-up to the Agreement

The signatories shall follow up the implementation and application of this Agreement in the framework of the Sectoral Dialogue Committee for the railways sector, established in accordance with Commission Decision 98/500/EC.

Clause 11

Evaluation

The parties shall evaluate the provisions of this Agreement two years after its signing in the light of initial experience in the development of interoperable cross-border transport.

Clause 12

Review

The parties shall review the above provisions two years after the end of the implementation period laid down in the Council Decision putting this Agreement into effect.

Brussels, 27 January 2004.

On behalf of the CER

Giancarlo Cimoli

President

Johannes Ludewig

Executive Director

Francesco Forlenza

Chairman of the Group of Human Resources Directors

Jean-Paul Preumont

Social Affairs Adviser

On behalf of the ETF

Norbert Hansen

Chairman of the Railway Section

Jean-Louis Brasseur

Vice-Chairman of the Railway Section

Doro Zinke

General Secretary

Sabine Trier

Political Secretary

GIVEN under my Official Seal,

7 September 2009

NOEL DEMPSEY,

Minister for Transport.

EXPLANATORY NOTE

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

The purpose of these Regulations is to give effect to Directive 2005/47/EC of the European Parliament and of the Council of 18 July 2005. The Directive provides for an agreement between the Community of the European Railways (CER) and the European Transport Worker’s Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross border rail services.

1 OJ No. L.195, 27.7.2005, p. 15.

1 The parties agree that negotiations on a second consecutive rest away from home as well as compensation for rest away from home could take place between the social partners at railway undertaking or national level as appropriate. At European level, the question of the number of consecutive rests away from home as well as compensation for the rest away from home will be renegotiated two years after signature of this Agreement.

10. (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 9 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 mobile worker concerned,

(

b

) with the consent of the mobile worker, any trade union of which the mobile worker is a member, or

(

c

) the Minister, if he or she 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 mobile worker 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.

SCHEDULE 1 Agreement concluded by the European Transport Workers’ Federation (ETF) and the Community of European Railways (CER) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services

HAVING REGARD TO

—the development of rail transport, which requires the modernisation of the system and the development of trans-European traffic and thus interoperable services;

—the need to develop safe cross-border traffic and protect the health and safety of the mobile workers engaged in interoperable cross-border services;

—the need to avoid competition based solely on differences in working conditions;

—the importance of developing rail transport within the European Union;

—the idea that these aims will be met by creating common rules on minimum standard working conditions for mobile workers engaged in interoperable cross-border services;

—the conviction that the number of such workers will increase over the coming years;

—the Treaty establishing the European Community, and in particular Articles 138 and 139(2) thereof;

—Directive 93/104/EC (amended by Directive 2000/34/EC), and in particular Articles 14 and 17 thereof;

—the Convention on the law applicable to contractual obligations (Rome, 19 June 1980);

—the fact that Article 139(2) of the Treaty provides that agreements concluded at European level may be implemented at the joint request of the signatories by a Council decision on a proposal from the Commission;

—the fact that the signatories hereby make such a request,

THE SIGNATORIES HAVE AGREED AS FOLLOWS

Clause 1

Scope

This Agreement shall apply to mobile railway workers assigned to interoperable cross-border services carried out by railway undertakings.

The application of this Agreement is optional for local and regional cross-border passenger traffic, cross-border freight traffic travelling no further than 15 kilometres beyond the border, and for traffic between the official border stations listed in the Annex.

It is also optional for trains on cross-border routes which both start and stop on the infrastructure of the same Member State and use the infrastructure of another Member State without stopping there (and which can therefore be considered national transport operations).

As regards mobile workers engaged in interoperable cross-border services, Directive 93/104/EC shall not apply to those aspects for which this Agreement contains more specific provisions.

Clause 2

Definitions

For the purposes of this Agreement, the following definitions apply

S.I. No. 377 of 2009

EUROPEAN COMMUNITIES (WORKING CONDITIONS OF MOBILE WORKERS ENGAGED IN INTEROPERABLE CROSS-BORDER SERVICES IN THE RAILWAY SECTOR) REGULATIONS 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

22

nd September

, 2009.

I, NOEL DEMPSEY, 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. 2005/47/EC of 18 July 2005 1

, hereby make the following regulations

Citation.