The Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008

Regulation 2

SCHEDULE 1 N.I. Workforce Agreements

1.  An agreement is a workforce agreement for the purposes of these Regulations if the following conditions are satisfied— N.I.

(a) the agreement is in writing;

(b) it has effect for a specified period not exceeding five years;

(c) it applies either—

(i) to all of the relevant members of the workforce, or

(ii) to all of the relevant members of the workforce who belong to a particular group;

(d) the agreement is signed—

(i) in the case of an agreement of the kind referred to in sub-paragraph (c)(i), by the representatives of the workforce, and in the case of an agreement of the kind referred to in sub-paragraph (c)(ii) by the representatives of the group to which the agreement applies (excluding, in either case, any representative not a relevant member of the workforce on the date on which the agreement was first made available for signature), or

(ii) if the employer employed 20 or fewer workers on the date referred to in sub-paragraph (d)(i), either by the appropriate representatives in accordance with that sub-paragraph or by the majority of the workers employed by him;

(e) before the agreement was made available for signature, the employer provided all the workers to whom it was intended to apply on the date on which it came into effect with copies of the text of the agreement and such guidance as those workers might reasonably require in order to understand it fully.

Commencement Information

I1 Sch. 1 para. 1 in operation at 1.10.2008, see reg. 1(1)

2.  In this Schedule— N.I.

• “a particular group” is a group of the relevant members of a workforce who undertake a particular function, work at a particular workplace or belong to a particular department or unit within their employer’s business;

• “relevant members of the workforce” are all of the workers employed by a particular employer, excluding any worker whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement;

• “representatives of the workforce” are workers duly elected to represent the relevant members of the workforce;

• “representatives of the group” are workers duly elected to represent the members of a particular group, and representatives are “duly elected” if the election at which they were elected satisfied the requirements of paragraph 3 of this Schedule.

Commencement Information

I2 Sch. 1 para. 2 in operation at 1.10.2008, see reg. 1(1)

3.  The requirements concerning elections referred to in paragraph 2 are that— N.I.

(a) the number of representatives to be elected is determined by the employer;

(b) the candidates for election as representatives of the workforce are relevant members of the workforce, and the candidates for election as representatives of a group are members of the group;

(c) no worker who is eligible to be a candidate is unreasonably excluded from standing for election;

(d) all the relevant members of the workforce are entitled to vote for representatives of the workforce, and all the members of a particular group are entitled to vote for representatives of the group;

(e) the workers entitled to vote may vote for as many candidates as there are representatives to be elected;

(f) the election is conducted so as to secure that—

(i) so far as is reasonably practicable, those voting do so in secret, and

(ii) the votes given at the election are fairly and accurately counted.

Commencement Information

I3 Sch. 1 para. 3 in operation at 1.10.2008, see reg. 1(1)

Regulation 10

SCHEDULE 2 N.I. Enforcement

Appointment of inspectors N.I.

1.—(1) The Executive 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 in right of the inspector’s appointment under this paragraph—

(a) be entitled to exercise only such of those powers as are so specified; and

(b) be entitled to exercise the powers so specified only within the field of responsibility of the Executive.

(3) So much of an inspector’s instrument of appointment as specifies the powers which the inspector is entitled to exercise may be varied by the Executive.

(4) An inspector shall, if so required when exercising or seeking to exercise any power conferred on the inspector by these Regulations, produce the inspector’s instrument of appointment or a duly authenticated copy of it.

Commencement Information

I4 Sch. 2 para. 1 in operation at 1.10.2008, see reg. 1(1)

Powers of inspectors N.I.

2.—(1) Subject to the provisions of paragraph 1 and this paragraph, an inspector may, for the purpose of carrying into effect these Regulations within the field of responsibility of the Executive, exercise the powers set out in sub-paragraph (2).

(2) The powers of an inspector referred to in sub-paragraph (1) are the following, namely—

(a) at any reasonable time (or, in a situation which in the inspector’s opinion is or may be dangerous, at any time) to enter any premises which the inspector has reason to believe it is necessary for the inspector to enter for the purpose mentioned in sub-paragraph (1);

(b) to take with the inspector a constable if the inspector has reasonable cause to apprehend any serious obstruction in the execution of his duty;

(c) without prejudice to head (b), on entering any premises by virtue of head (a) to take with the inspector—

(i) any other person duly authorised by the Executive and

(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);

(e) to require any person whom the inspector has reasonable cause to believe to be able to give any information relevant to any examination or investigation under head (d) to answer (in the absence of persons other than a person nominated by the inspector to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of the person’s answers;

(f) to require the production of, inspect, and take copies of or of any entry in—

(i) any records which by virtue of these Regulations are required to be kept, and

(ii) any other books, records or documents which it is necessary for the inspector to see for the purposes of any examination or investigation under head (d);

(g) to require any person to afford the inspector 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 the inspector by this paragraph;

(h) any other power which is necessary for the purpose mentioned in sub-paragraph (1).

(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.

(4) Nothing in this paragraph shall be taken to compel the production by any person of a document of which the person would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court.

Commencement Information

I5 Sch. 2 para. 2 in operation at 1.10.2008, see reg. 1(1)

Improvement notices N.I.

3.  If an inspector is of the opinion that a person—

(a) is contravening one or more of these Regulations;

(b) has contravened one or more of these Regulations in circumstances that make it likely that the contravention will continue or be repeated,

the inspector may serve on the person a notice (in this Schedule referred to as “an improvement notice”) stating that the inspector is of that opinion, specifying the provision or provisions as to which the inspector is of that opinion, giving particulars of the reasons why the inspector 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.

Commencement Information

I6 Sch. 2 para. 3 in operation at 1.10.2008, see reg. 1(1)

Prohibition notices N.I.

4.—(1) This paragraph applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of these Regulations apply or will, if the activities are so carried on, apply.

(2) If as regards any activities to which this paragraph applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Schedule referred to as “a prohibition notice”).

(3) A prohibition notice shall—

(a) state that the inspector is of that opinion;

(b) specify the matters which in the inspector’s opinion give or, as the case may be, will give rise to that risk;

(c) where in the inspector’s opinion any of those matters involves or, as the case may be, will involve a contravention of any of these Regulations, state that the inspector is of that opinion, specify the regulation or regulations as to which the inspector is of that opinion, and give particulars of the reasons why the inspector 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 head (b) and any associated contraventions of provisions so specified in pursuance of head (c) have been remedied.

(4) A direction contained in a prohibition notice in pursuance of sub-paragraph (3)(d) shall take effect—

(a) at the end of the period specified in the notice; or

(b) if the notice so declares, immediately.

Commencement Information

I7 Sch. 2 para. 4 in operation at 1.10.2008, see reg. 1(1)

Provisions supplementary to paragraphs 3 and 4 N.I.

5.—(1) In this paragraph “a notice” means an improvement notice or a prohibition notice.

(2) A notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions—

(a) may be framed to any extent by reference to any approved code of practice; and

(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—

(a) the notice may be withdrawn by an inspector at any time before the end of the period specified in the notice in pursuance of paragraph 3 or paragraph 4(4) as the case may be; and

(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.

Commencement Information

I8 Sch. 2 para. 5 in operation at 1.10.2008, see reg. 1(1)

Appeal against improvement or prohibition notice N.I.

6.—(1) In this paragraph “a notice” means an improvement or a prohibition notice.

(2) A person on whom a notice is served may within 21 days from the date of its service appeal to an industrial tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

(3) Where an appeal under this paragraph is brought against a notice within the period allowed under sub-paragraph (2), then—

(a) in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;

(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.

Commencement Information

I9 Sch. 2 para. 6 in operation at 1.10.2008, see reg. 1(1)

Power to indemnify inspectors N.I.

7.  Where an action has been brought against an inspector in respect of an act done in the execution or purported execution of these Regulations and the circumstances are such that the inspector is not legally entitled to require the Executive to indemnify the inspector, the Executive may, nevertheless, indemnify the inspector against the whole or part of any damages and costs or expenses which the inspector may have been ordered to pay or may have incurred, if the Executive is satisfied that the inspector honestly believed that the act complained of was within the inspector’s powers and that the inspector’s duty as an inspector required or entitled the inspector to do it.

Commencement Information

I10 Sch. 2 para. 7 in operation at 1.10.2008, see reg. 1(1)

Restrictions on disclosure of information N.I.

8.—(1) In this paragraph—

“the 1978 Order” means the Health and Safety at Work (Northern Ireland) Order1978(1);

“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;

“relevant information” means information obtained by an inspector in pursuance of a requirement imposed under paragraph 2(2)(e) or (f); and

“relevant statutory provisions” means—

(a)

the provisions of the 1978 Order and any regulations made under powers contained in that Order; and

(b)

while and to the extent that they remain in force, the provisions of the 1978 Order mentioned in Schedule 1 to the 1978 Order and which are specified in the third column of that Schedule and the regulations, orders and other instruments of a legislative character made or having effect under a provision so specified.

(2) Subject to sub-paragraph (3), no relevant information shall be disclosed without the consent of the person by whom it was furnished.

(3) Sub-paragraph (2) shall not apply to—

(a) disclosure of information to the Executive, or a government department;

(b) without prejudice to head (a), 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 head (a, disclosure by the recipient of information to a constable authorised by the Chief Constable 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 sub-paragraph (3) any reference to the Executive or a government department includes respectively a reference to an officer of that body (including in the case of the Executive, any inspector appointed by it), and also, in the case of a reference to the Executive, includes a reference to—

(a) a person performing any functions of the Executive on its behalf by virtue of Article 15(1)(a) of the 1978 Order;

(b) an officer of a body which is so performing any such functions; and

(c) an adviser appointed in pursuance of Article 15(1)(c) of the 1978 Order.

(5) A person to whom information is disclosed in pursuance of sub-paragraph (3) shall not use the information for a purpose other than—

(a) in a case falling within sub-paragraph (3)(a), a purpose of the Executive or a government department in question in connection with these Regulations or with the relevant statutory provisions, as the case may be;

(b) 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 the person as a result of the exercise of any power conferred by paragraph 2 (including in particular any information with respect to any trade secret obtained by the person in any premises entered by the person by virtue of any such power) except—

(a) for the purposes of the person’s functions;

(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.

(7) Notwithstanding anything in sub-paragraph (6) an inspector must, in circumstances in which it is necessary to do so for the purpose of assisting in keeping persons (or the representatives of persons) employed at any premises adequately informed about matters affecting their health, safety and welfare or working time, give to such persons or their representatives the following descriptions of information, that is to say—

(a) factual information obtained by the inspector as mentioned in sub-paragraph (6) which relates to those premises or anything which was or is in the premises or was or is being done in them; and

(b) information with respect to any action which the inspector has taken or proposes to take in or in connection with those premises in the performance of the inspector’s functions;

and, where an inspector does this, the inspector must give the same information to the employer of the persons employed at the premises.

(8) Notwithstanding anything in sub-paragraph (6), a recipient who has obtained such information as is referred to in sub-paragraph (6) may furnish to a person who appears to the recipient to be likely to be a party to any civil proceedings arising out of any accident, occurrence, situation or other matter, a written statement of the relevant facts observed by the recipient in the course of exercising any of the powers conferred by paragraph 2.

Commencement Information

I11 Sch. 2 para. 8 in operation at 1.10.2008, see reg. 1(1)

Regulation 19

SCHEDULE 3 N.I. Amendments to Legislation

1.  In Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996(2) (conciliation)— N.I.

(a) at the end of the second paragraph numbered (o) omit “or”, and

(b) before the full stop in paragraph (p) insert—

• “, or

  (q)

  under regulation 17 of the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008”.

Commencement Information

I12 Sch. 3 para. 1 in operation at 1.10.2008, see reg. 1(1)

2.—(1) The Employment Rights (Northern Ireland) Order 1996(3) is amended as follows. N.I.

(2) In Article 68A(5)(b) (right not to suffer detriment: working time cases) before the full stop insert—

• “; and

  (c)

  the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008”.

(3) In Article 132A(2)(b) (working time cases) before the full stop insert—

• “; and

  (c)

  the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008”.

(4) In Article 135(4)(d) (fairness in dismissal: assertion of statutory right) for “or the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004” substitute—

• “, the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008”.

Commencement Information

I13 Sch. 3 para. 2 in operation at 1.10.2008, see reg. 1(1)

3.  In the Employment (Northern Ireland) Order 2003(n) at the end of each of the following Schedules(4)— N.I.

(a) Schedule 2 (tribunal jurisdictions to which Article 17 applies for adjustment of awards for non-completion of statutory procedure);

(b) Schedule 3 (tribunal jurisdictions to which Article 19 applies for complaints where the employee must first submit a statement of grievance to employer); and

(c) Schedule 4 (tribunal jurisdictions to which Article 27 applies in relation to proceedings where the employer has failed to give a statement of employment particulars),

there is inserted—

• “Regulation 17 of the Cross-border Railways Services (Working Time) Regulations (Northern Ireland) 2008 (breach of regulations)”.

Commencement Information

I14 Sch. 3 para. 3 in operation at 1.10.2008, see reg. 1(1)

4.  In regulation 18 of the Working Time Regulations (Northern Ireland) 1998(5) (excluded sections) there is inserted at the end— N.I.

“(5) Regulation 24 does not apply to workers to whom the Cross-border Railways Services (Working Time) Regulations (Northern Ireland) 2008 apply.”.

Commencement Information

I15 Sch. 3 para. 4 in operation at 1.10.2008, see reg. 1(1)

(1)

S.I. 1978/1039 (N.I. 9)

(2)

S.I. 1996/1921 (N.I. 18)

(3)

S.I. 1996 /1919 (N.I. 16); Article 68A was inserted by regulation 31 (1) of the Working time Regulations (Northern Ireland) 1998 (S.R.) 1998 No. 386)(ìthe 1998 Regulationsî) and amended by the Employment Relations (Northern Ireland) Order 1999, S.I. 1999/2790 (N.I. 9), article 20(3) and Schedule 9; Articles 132A and 135(4)(d) were inserted by regulation 32(1) and (2) of the 1998 Regulations, respectively. Those Articles were amended by paragraph 4 of Schedule 2 to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, S.I. 2003/3049 and by paragraph 3 of Schedule 2 to the Fishing Vessels (Working Time; Sea fishermen) regulations 2004 S.I. 2004/1713

(4)

S.I. 2003/2902 (N.I. 15); Schedules 2, 3 and 4 have been amended on a number of occasions to list additional jurisdictions

(5)

S.R. 1998 No. 386; regulation 18 was substituted by the Working Time (Amendment No. 2) Regulations (Northern Ireland) 2003, S.R. No. 330: there are other amending instruments but none are relevant.