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| EU WORKING TIME DIRECTIVE |
European Commission and European Court of Justice
A detailed European Commission report was published in 20103 on the implementation by Member States of the Working Time Directive and it was noted that “Ireland has transposed the Directive regarding the public service but has excluded the armed forces and police.” An ECJ judgement found that a blanket derogation by the Spanish Government4 in respect of its armed forces amounted to a failure to adequately transpose the Directive. Moreover, the ECJ interprets the normal activities of armed forces as falling within the scope of the 2003 WTD. According to the Court of Justice’s rulings (Jaeger and SIMAP cases)5 all on-call time at the workplace must be fully counted as working time for the purpose of the Directive. This has obvious implications for DF personnel on duty, be it Regimental, EOD, Prison or otherwise.
The Defence Forces routinely conduct military activities such as operations and exercises outside the prescribed working time limits. In addition, members may be deployed overseas on tours of duty where Management has argued that it would not be feasible or desirable to work within the confines of the Directive.
3 Report from the Commission... on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time (‘The Working Time Directive’), [2010]
4 Commission of the European Communities v Kingdom of Spain, Case C-132/04.
Failure of a Member State to fulfil obligations - Social policy - Protection of the safety and health of workers - Armed forces and police.
5 Jaeger, Case C-151/02 (Doctors on-call in hospitals; Ger- many); SIMAP, Case C-303/98 (Doctors in primary health care teams; Spain)
The Attorney General (AG) has advised the Defence Organisation that considering the EC reports and ECJ case law, there is “no scope for a wholesale exemption from these Directives”. Certain activities of the Defence Forces would be exempt from the WTD, i.e. those that “can be justified by an absolute necessity to ensure effective protection of the community or those that genuinely cannot be planned in advance.” The AG noted that the Defence Forces have an obligation to ensure the health and safety of workers involved in such activities in so far as possible.
The AG advised that subject to compensatory rest being provided, WTD Article 17 (3) derogations could apply to many of the Defence Force activities that are not considered exempt. Such derogations6 could be made from the requirement for a daily rest period of 11 hours, rest breaks, uninterrupted weekly rest period of 35 hours, length of night work and reference periods. All activities that are not exempt from the WTD must comply with the 48-hour working week averaged over a reference period of not more than 6 months.
6 According to the Department of Defence (2015), Article 17 (3) specific activities deemed relevant to the Defence Forces include:
17.3 (a) – activities where the worker’s place of work and place of residence are distant from one another, including offshore work;
17.3 (b) – security and surveillance activities requiring a per- manent presence in order to protect property or persons e.g. security guards;
17.3 (c) – activities involving the need for continuity of service; 17.3 (f) – unusual and unforeseeable circumstances beyond the employer’s control or exceptional events whose consequences could not be avoided;
17.3 (g) – in cases of accident or imminent risk of accident.
32 | | WINTER ‘18 |