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The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972[1] in relation to measures relating to the organisation of working time[2], in exercise of the powers conferred on her by that provision hereby makes the following Regulations - 1. These Regulations may be cited as the Working Time (Amendment) Regulations 2003. These Regulations, with the exception of regulation 7, shall come into force on 1st August 2003. Regulation 7 shall come into force on 1st August 2004. 2. The Working Time Regulations 1998[3] shall be amended as provided below. 3. In paragraph (1) of regulation 2 (interpretation) -
4.
For regulation 18 (excluded sectors) substitute the following -
18. - (1) These Regulations do not apply -
(b) to workers on board a sea-going fishing vessel; or (c) to workers on board a ship or hovercraft employed by an undertaking which operates services for passengers or goods by inland waterway or lake transport.
(2) Regulations 4(1) and (2), 6(1), (2) and (7), 7(1) and (6), 8, 10(1), 11(1) and (2), 12(1), 13 and 16 do not apply -
(b) to workers to whom the European Agreement on the organisation of working time of mobile staff in civil aviation concluded on 22nd March 2000 and implemented by Council Directive 2000/79/EC of 27th November 2000[6] applies; or (c) to the activities of workers who are doctors in training.
(3) Paragraph (2)(c) has effect only until 31st July 2004.
5.
In regulation 21 (other special cases) -
(b) in sub-paragraph (c)(i) after "hospitals or similar establishments" insert "(including the activities of doctors in training)"; (c) after sub-paragraph (c)(vii) add the following -
(d) after paragraph (e) add the following paragraph -
(ii) he spends his working time on board trains; or (iii) his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.".
6.
After regulation 24, insert -
24A. - (1) Regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply to a mobile worker in relation to whom the application of those regulations is not excluded by any provision of regulation 18. (2) A mobile worker, to whom paragraph (1) applies, is entitled to adequate rest, except where the worker's activities are affected by any of the matters referred to in regulation 21(e). (3) For the purposes of this regulation, "adequate rest" means that a worker has regular rest periods, the duration of which are expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, he does not cause injury to himself, to fellow workers or to others and that he does not damage his health, either in the short term or in the longer term.".
7.
After regulation 25, insert -
25A. - (1) Paragraph (1) of regulation 4 is modified in its application to workers who are doctors in training as follows -
(b) for the reference to 48 hours there is substituted a reference to 56 hours with effect from 1st August 2007 until 31st July 2009.
(2) In the case of workers who are doctors in training, paragraphs (3)-(5) of regulation 4 shall not apply and paragraphs (3) and (4) of this regulation shall apply in their place.
(b) in any other case, any period of 26 weeks in the course of his employment.
(4) Where a doctor in training has worked for his employer for less than 26 weeks, the reference period applicable in his case is the period that has elapsed since he started work for his employer."
8.
After regulation 25A, insert -
25B. - (1) In the case of workers employed in offshore work, paragraphs (3)-(5) of regulation 4 shall not apply and paragraphs (2) and (3) of this regulation shall apply in their place. (2) Subject to paragraph (3), the reference period which applies in the case of workers employed in offshore work is -
(b) in any other case, any period of 52 weeks in the course of his employment.
(3) Where a worker employed in offshore work has worked for his employer for less than 52 weeks, the reference period applicable in his case is the period that has elapsed since he started work for his employer."
9.
Regulation 26 is hereby revoked.
28. - (1) In this regulation, regulations 29-29E and Schedule 3 -
(b) in relation to Wales, a county council or a county borough council; (c) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[10];
(b) any installation on land (including the foreshore and other land intermittently covered by water), any offshore installation, and any other installation (whether floating, or resting on the seabed or the subsoil thereof, or resting on other land covered with water or the subsoil thereof) and (c) any tent or movable structure;
(b) regulation 24, in so far as it applies where regulation 6(1), (2) or (7) is modified or excluded, and (c) regulation 24A(2), in so far as it applies where regulations 6(1), (2) or (7) is excluded;
(b) the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR) of 1st July 1970, and (c) the United Kingdom domestic driver's hours code, which is set out in Part VI of the Transport Act 1968[12];
(b) while and to the extent that they remain in force, the provisions of the Acts mentioned in Schedule 1 to the 1974 Act and which are specified in the third column of that Schedule and the regulations, orders or other instruments of a legislative character made or having effect under a provision so specified; and
(2) It shall be the duty of the Executive to make adequate arrangements for the enforcement of the relevant requirements except to the extent that -
(b) the Civil Aviation Authority is made responsible for their enforcement by paragraph (5); or (c) VOSA is made responsible for their enforcement by paragraph (6).
(3) Where the relevant requirements apply in relation to workers employed in premises in respect of which a local authority is responsible, under the Health and Safety (Enforcing Authority) Regulations 1998[13], for enforcing any of the relevant statutory provisions, it shall be the duty of that authority to enforce those requirements.
(b) to prevent or attempt to prevent any other person from appearing before the inspector or from answering any question to which the inspector may by virtue of paragraph 2(2)(e) of Schedule 3 require an answer; (c) to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as is modified on appeal); (d) intentionally to obstruct the inspector in the exercise or performance of his powers or duties; (e) to use or disclose any information in contravention of paragraph 8 of Schedule 3; (f) to make a statement which he knows to be false or recklessly to make a statement which is false, where the statement is made in purported compliance with a requirement to furnish any information imposed by or under these Regulations.
(4) An employer guilty of an offence under paragraph (1) shall be liable -
(b) on conviction on indictment, to a fine.
(5) A person guilty of an offence under paragraph (3) shall be liable to the penalty prescribed in relation to that provision by paragraphs (6), (7) or (8) as the case may be.
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.
(8) A person guilty of an offence under any of the sub-paragraphs of paragraph (3) not falling within paragraphs (6) or (7) above, shall be liable -
(b) on conviction on indictment -
(ii) if the offence is not one to which the preceding sub-paragraph applies, to a fine.
(9) The provisions set out in regulations 29A-29E below shall apply in relation to the offences provided for in paragraphs (1) and (3).
11.
In regulation 30 (remedies), omit "or" at the end of paragraph (1)(a)(ii) and, for paragraph (1)(a)(iii), substitute -
(iv) regulation 25(3), 27A(4)(b) or 27(2); or".
12.
After Schedule 2, insert - Appointment of inspectors 1. - (1) Each enforcement authority may appoint as inspectors (under whatever title it may from time to time determine) such persons having suitable qualifications as it thinks necessary for carrying into effect these Regulations within its field of responsibility, and may terminate any appointment made under this paragraph. (2) Every appointment of a person as an inspector under this paragraph shall be made by an instrument in writing specifying which of the powers conferred on inspectors by these Regulations are to be exercisable by the person appointed; and an inspector shall in right of his appointment under this paragraph -
(b) be entitled to exercise the powers so specified only within the field of responsibility of the authority which appointed him.
(3) So much of an inspector's instrument of appointment as specifies the powers which he is entitled to exercise may be varied by the enforcement authority which appointed him.
(b) to take with him a constable if he has reasonable cause to apprehend any serious obstruction in the execution of his duty; (c) without prejudice to the preceding sub-paragraph, on entering any premises by virtue of paragraph (a) above to take with him -
(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;
(d) to make such examination and investigation as may in any circumstances be necessary for the purpose mentioned in sub-paragraph (1) above;
(ii) any other books, records or documents which it is necessary for him to see for the purposes of any examination or investigation under paragraph (d) above;
(g) to require any person to afford him such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred on him by this paragraph;
(3) No answer given by a person in pursuance of a requirement imposed under sub-paragraph (2)(e) above shall be admissible in evidence against that person or the husband or wife of that person in any proceedings.
(b) has contravened one or more of these Regulations in circumstances that make it likely that the contravention will continue or be repeated,
he may serve on him a notice (in this Schedule referred to as "an improvement notice") stating that he is of that opinion, specifying the provision or provisions as to which he is of that opinion, giving particulars of the reasons why he is of that opinion, and requiring that person to remedy the contravention or, as the case may be, the matters occasioning it within such period (ending not earlier than the period within which an appeal against the notice can be brought under paragraph 6) as may be specified in the notice.
(b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk; (c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of these Regulations, state that he is of that opinion, specify the regulation or regulations as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and (d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.
(4) A direction contained in a prohibition notice in pursuance of sub-paragraph (3)(d) above shall take effect -
(b) if the notice so declares, immediately.
Provisions supplementary to paragraphs 3 and 4
(b) may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter.
(3) Where an improvement notice or a prohibition notice which is not to take immediate effect has been served -
(b) the period so specified may be extended or further extended by an inspector at any time when an appeal against the notice is not pending.
Appeal against improvement or prohibition notice
(b) in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).
(4) One or more assessors may be appointed for the purposes of any proceedings brought before an employment tribunal under this paragraph.
(b) "the recipient", in relation to any relevant information, means the person by whom that information was so obtained or to whom that information was so furnished, as the case may be.
(2) Subject to the following sub-paragraph, no relevant information shall be disclosed without the consent of the person by whom it was furnished.
(b) without prejudice to paragraph (a) above, disclosure by the recipient of information to any person for the purpose of any function conferred on the recipient by or under any of the relevant statutory provisions or under these Regulations; (c) without prejudice to paragraph (a) above, disclosure by the recipient of information to -
(ii) a constable authorised by a chief officer of police to receive it; or
(d) disclosure by the recipient of information in a form calculated to prevent it from being identified as relating to a particular person or case.
(4) In the preceding sub-paragraph any reference to the Commission, a government department or an enforcement authority includes respectively a reference to an officer of that body or authority (including in the case of an enforcement authority, any inspector appointed by it), and also, in the case of a reference to the Commission, includes a reference to -
(b) an officer of a body which is so performing any such functions; and (c) an adviser appointed in pursuance of section 13(1)(d) of the 1974 Act.
(5) A person to whom information is disclosed in pursuance of sub-paragraph (3) above shall not use the information for a purpose other than -
(b) in the case of information given to an officer of a body which is a local authority, the purposes of the body in connection with the relevant statutory provisions or any enactment whatsoever relating to working time, public health, public safety or the protection of the environment; (c) in the case of information given to a constable, the purposes of the police in connection with these Regulations, the relevant statutory provisions or any enactment whatsoever relating to working time, public health, public safety or the safety of the State.
(6) A person shall not disclose any information obtained by him as a result of the exercise of any power conferred by paragraph 2 of this Schedule (including in particular any information with respect to any trade secret obtained by him in any premises entered by him by virtue of any such power) except -
(b) for the purposes of any legal proceedings; or (c) with the relevant consent.
In this sub-paragraph "the relevant consent" means the consent of the person who furnished it, and, in any other case, the consent of a person having responsibilities in relation to the premises where the information was obtained.
(b) information with respect to any action which he has taken or proposes to take in or in connection with those premises in the performance of his functions;
and, where an inspector does as aforesaid, he shall give the like information to the employer of the first-mentioned persons.
(This note is not part of the Regulations) These Regulations implement Council Directive 2000/34/EC (OJ No. L195, 1.8.2000, p. 41). That Directive amends Council Directive 93/104/EC so that the provisions of the 1993 Directive, which concerned certain aspects of the organisation of working time, now apply to sectors and activities which were previously excluded from the scope of the 1993 Directive. Council Directive 93/104/EC was implemented by the Working Time Regulations 1998 ("the 1998 Regulations") and these Regulations amend the provisions of the 1998 Regulations. Regulation 3 amends regulation 2 of the 1998 Regulations to define " fishing vessel", "mobile worker", "offshore work" and "ship ". Regulation 4 substitutes a new regulation 18 of the 1998 Regulations to disapply wholly or partially the provisions of the 1998 Regulations for certain workers. The 1998 Regulations are disapplied in their entirety in the case of workers to whom Council Directive 1999/63/EC applies (seafarers); workers on board sea-going fishing vessels and workers on certain ships and hovercraft on inland waterways. In the case of workers in the armed forces or emergency services (where their activities conflict with the Regulations), workers covered by Council Directive 2000/79/EC (crew members on board civil aircraft) and doctors in training certain provisions are disapplied. The relevant provisions are the weekly working time and night work limits; the daily, weekly and in-work rest periods; the entitlement to paid annual leave; the right to a health assessment if a night worker and pattern of work protection for certain categories of worker. In the case of doctors in training the disapplication only has effect until 31st July 2004. In the case of mobile workers covered by the Road Transport Directive 2002/15/EC fewer provisions are disapplied; these are, the weekly working time and night work limits; the daily, weekly and in-work rest periods and pattern of work protection for certain categories of worker. Regulation 5 amends regulation 21 by adding to the list of special cases to which the night work limits and daily, weekly and in-work rest provisions do not apply in various circumstances, subject to the workers receiving compensatory rest. One additional special case is where the worker is engaged in the carriage of passengers on regular urban transport services. Another is where the worker works in rail transport and his activities are intermittent, he spends time working on board trains, or his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic. Regulation 6 inserts a new regulation 24A in the 1998 Regulations, which excludes mobile workers from night work restrictions and rest entitlements. Instead, these workers are entitled to "adequate rest" as defined in paragraph 24A(3). Regulation 7 inserts a new regulation 25A in the 1998 Regulations, which provides for the 48-hour working time limit for doctors in training to be phased in over a period ending on 31 July 2009. Regulation 7 also replaces the 17-week reference period for doctors in training with a period of 26 weeks from 1 August 2004. Regulation 8 inserts a new regulation 25B in the 1998 Regulations, which provides for a 52-week reference period for workers employed in offshore work. Regulation 9 revokes regulation 26. Regulation 10 substitutes new regulations 28-29E concerning enforcement and offences. These essentially replicate the provisions contained in the 1998 Regulations but provide for enforcement by the Civil Aviation Authority and the Vehicle and Operator Services Agency in addition to the Health and Safety Executive and local authorities. Regulation 11 amends regulation 30 of the 1998 Regulations entitling mobile workers to seek redress through an employment tribunal where an employer has refused to allow adequate rest. Regulation 12 inserts a new Schedule 3, which provides for the enforcement authorities to enforce through inspectors and sets out the powers of the inspectors. A Regulatory Impact Assessment (RIA) of the costs and benefits of these Regulations to business, and a Transposition Note explaining how certain of the amendments provided for give effect to Council Directive 2000/34/EC have been placed in the libraries of both Houses of Parliament. Copies of the RIA and Transposition Note are available to the public from the Employment Relations Directorate, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET, and are also accessible at the Directorate's website: www.dti.gov.uk/er Notes: [1] 1972 c. 68.back [3] S.I. 1998/1833, amended by S.I. 2002/3128 and other instruments not relevant to these Regulations.back [5] OJ No. L 167, 2.7.99, p. 33.back [6] OJ No. L 302, 1.12.00, p. 57.back [7] OJ No. L 080, 23.3.02, p. 35.back [11] OJ No. L 370, 31.12.85, p. 1-7.back
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