Trade unions representing residential staff who care for children, homeless people and people with disabilities have lodged a formal complaint with the European Commission over excessive working hours. IMPACT and SIPTU say health employers are in breach of EU and Irish working time legislation, with residential care staff routinely expected to work 63-hour weeks. The legal maximum is 48 hours.
In their official complaint to the Commission, the unions cite management’s continuing breaches of the 1993 EU Working Time Directive, as well as its failure to implement decade-old European Court of Justice (ECJ) rulings on working time.
The issue centres on the substantial hours that workers spend on-call while they are in situ at residential facilities over night. Health employers do not treat these hours as working time for pay purposes, or when calculating the time that can be legally worked. As a result, staff are expected to work excessive hours – many work 63-hour weeks – and receive a ‘sleepover’ allowance of just €5.40 an hour, which is well below the statutory minimum of €8.65.
The unions want staff to work a maximum of one ‘sleepover’ a week on average. If possible, they say this should be worked as part of the 39 hours set out in residential care workers’ contracts. Unions are also arguing that any work beyond 39 hours, including so-called ‘sleepovers,’ should be paid as overtime. They say it is usual for staff to be actively working to provide care during some or all of the so-called ‘sleepover’ period.
IMPACT national secretary Louise O’Donnell said the current situation was illegal and untenable. “It is neither fair on the staff nor sustainable for the service. It’s not unusual for staff to work a full shift, then work an interrupted overnight ‘sleepover,’ before immediately coming on shift again in the morning. This is not safe for staff or the vulnerable clients they serve,” she said.
SIPTU health division organiser Paul Bell said the unions were determined to press their case. “Managers are ordering staff to work as many as seven sleepovers a fortnight, in flagrant breach of Irish and EU working time laws and for less than the minimum wage. It’s an insult to the staff and the people they serve,” he said.
The unions point to the 2002 European Court of Justice ‘SIMAP’ judgment, which ruled that all time spent on-call must be regarded as working time if a worker is required to be at their place of employment. In these situations, the court also ruled that workers should be paid overtime “where appropriate.” The following year, the ECJ’s ‘Jaeger’ judgment confirmed that this was the case even if workers could sleep when their services were not required.
The unions say management is also flouting the Irish Organisation of Working Time Act, which put the EU legislation into Irish law. It says staff should not work more than an average of 48 hours in any seven-day period, as well as setting statutory requirements for rest periods and breaks.
Management accept they are in breach of working time legislation, but extensive talks on the issue last year came to nothing. The unions subsequently referred the matter to the Labour Court, which earlier this month directed the parties to return to Labour Relations Commission-facilitated talks to try and resolve the issues no later than 31st May.