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

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Citation, commencement and extent

1.—(1) These Regulations may be cited as the Cross-border Railway Services (Working Time) Regulations 2008 and come into force on 27th July 2008.

(2) These Regulations extend to Great Britain only.

Interpretation

2.  In these Regulations—

“collective agreement” means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992(1), the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;

“cross-border worker” means any worker who is a member of a train crew and who is assigned to interoperable cross-border services for more than one hour on a daily shift basis;

“driver” means a cross-border worker in charge of operating a traction unit;

“employer”, in relation to a cross-border worker, means the person by whom the worker is (or where the employment has ceased, was) employed;

“employment”, in relation to a cross-border worker, means employment under the worker’s contract, and “employed” is to be construed accordingly;

“inspector” means a person appointed under paragraph 1 of Schedule 2;

“interoperable cross-border services” are services through the tunnel system, as defined by section 1(7) of the Channel Tunnel Act 1987(2), in respect of which at least two network safety requirement certifications are required, as stipulated by Article 10(2)(b) and (4) of Directive 2004/49/EC of the European Parliament and the Council of 29th April 2004(3);

“leave year” for a cross-border worker is the year beginning on—

(a)

such date as is provided for in a relevant agreement, or

(b)

if there are no provisions of a relevant agreement which apply, on 1 January;

“relevant agreement”, in relation to a cross-border worker, means—

(a)

a workforce agreement which applies to the worker,

(b)

any provision of a collective agreement which forms part of a contract between the worker and the worker’s employer, or

(c)

any other agreement in writing which is legally enforceable as between the worker and the employer;

“relevant training” means work experience provided pursuant to a training course or programme, training for employment, or both, other than work experience or training—

(a)

the immediate provider of which is an educational institution or a person whose main business is the provision of training, and

(b)

which is provided on a course run by that institution or person;

“rest period” means any period which is not working time;

“week” means a period of seven days which starts at such time as is determined for the purposes of these Regulations by a relevant agreement, or in default of such a determination at midnight at the beginning of Monday;

“workforce agreement” means an agreement between an employer and workers employed by the employer or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied; and

“working time”, in relation to a cross-border worker, means—

(a)

any period during which the worker is working, at the employer’s disposal and carrying out the worker’s activities or duties,

(b)

any period during which the worker is receiving relevant training, and

(c)

any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement.

Daily rest

3.—(1) A cross-border worker is entitled in each 24 hour period to a rest period that is a minimum number of consecutive hours (“a daily rest period”).

(2) In the case of a daily rest period that can be taken at the cross-border worker’s normal place of residence (“a daily rest period at home”) the minimum period is twelve hours, but this is subject to paragraphs (3) and (4).

(3) Once a week a daily rest period at home may be reduced by the employer of a cross-border worker to a minimum period of nine hours, but this is subject to paragraph (7).

(4) If a daily rest period at home is reduced by the employer below twelve hours, the minimum period for the next daily rest period at home is increased by the number of hours, including any part of an hour, by which the earlier period was less than twelve hours.

(5) In the case of a daily rest period that cannot be taken at the cross-border worker’s normal place of residence (“a daily rest period away from home”) the minimum period is eight hours.

(6) When there is a daily rest period away from home the cross-border worker is entitled to work that is scheduled to enable the worker to take the next daily rest period as a daily rest period at home.

(7) If a daily rest period at home is scheduled to be between two daily rest periods away from home, the daily rest period at home must not be reduced under paragraph (3) below ten hours.

Break for sole driver

4.—(1) Where there is only one driver and the driver’s scheduled daily working time is six or more hours the driver is entitled to a break, but this paragraph and paragraphs (2) to (4) are subject to paragraphs (5) to (7).

(2) The minimum length of the scheduled break must be 30 minutes, but this is subject to paragraph (3).

(3) In the case of a driver whose daily scheduled working time is more than eight hours the minimum length of the scheduled break must be 45 minutes.

(4) At least 15 minutes of the break must be scheduled to be between the third and sixth hour of the working time.

(5) If a train service is delayed the time and duration of a driver’s entitlement to a break under this regulation may be adapted during the working day.

(6) If possible under the timetable for the train service the total time of the adapted break entitlement must be at least equal to the minimum scheduled break entitlement under the relevant paragraph of this regulation.

(7) The time and duration of the break entitlement must be sufficient to ensure the effective recuperation of the worker.

Breaks for drivers

5.—(1) A driver who is not entitled to a break under regulation 4 but whose scheduled daily working time is more than six hours is entitled to a break, but this paragraph and paragraphs (2) and (3) are subject to paragraph (4).

(2) The details of the break to which a driver is entitled under paragraph (1), including its duration and the terms on which it is granted, must be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement.

(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes.

(4) The employer of a driver may require the driver to work during a period that would, but for this paragraph, be a time when the driver is entitled to a break under this regulation; and when a driver is required to do so—

(a)the employer must wherever possible allow the driver to take an equivalent period of compensatory rest, and

(b)in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, the employer must afford the driver such protection as may be appropriate to safeguard the driver’s health and safety.

Breaks for other workers

6.—(1) A cross-border worker who is not a driver and whose scheduled daily working time is more than six hours is entitled to a break.

(2) The minimum length of the scheduled break must be 30 minutes.

Weekly rest

7.—(1) A cross-border worker is entitled every week to an uninterrupted rest period of 24 hours (a “rest day”) in addition to the minimum daily rest entitlement under regulation 3 and any days taken as part of the worker’s entitlement to annual leave.

(2) A cross-border worker is entitled to 104 rest days each leave year, but this paragraph and paragraphs (3) and (5) are subject to paragraph (6).

(3) A cross-border worker is entitled each leave year on at least 24 occasions to take a rest day that is immediately followed by another rest day (a “two-day rest period”), but this is subject to paragraph (4).

(4) If there are more than two consecutive rest days, each rest day only counts towards one two-day rest period.

(5) A cross-border worker is entitled each leave year on at least twelve occasions to take a two-day rest period over a week-end, so that the period includes a part or the whole of a Saturday and a part or the whole of a Sunday.

(6) Paragraphs (2), (3) and (5) apply only to a person who is a cross-border worker throughout a complete leave year that begins after 26th July 2008, but this is subject to paragraphs (8) to (11).

(7) If a leave year of a person who was a cross-border worker on 27th July 2008 begins before that date, but has not ended by that date, the entitlements under paragraphs (2), (3) and (5) apply proportionately to the relevant part year, but this is subject to paragraphs (10) and (11).

(8) If a person’s employment as a cross-border worker begins after 26th July 2008 and part way through a leave year, the entitlements under paragraphs (2), (3) and (5) apply proportionately to the relevant part year, but this is subject to paragraphs (10) and (11).

(9) The “relevant part year” means—

(a)in paragraph (7), the period beginning on 27th July 2008 and ending when the leave year ends; and

(b)in paragraph (8), the period beginning on the date that the person’s employment as a cross-border worker begins and ending when the leave year ends.

(10) If applying paragraphs (2), (3) and (5) proportionately would, but for this paragraph, result in an entitlement to a number of rest days or a number of two-day rest periods that is not a whole number, the entitlement is to the number rounded to the nearest whole number, but if the number is exactly half-way between the two nearest whole numbers the number is rounded up.

(11) Paragraphs (7) and (8) apply only if the person is a cross-border worker throughout the relevant part year.

Driving time

8.—(1) Between two daily rest periods taken in accordance with regulation 3 a driver’s scheduled driving time must not exceed—

(a)in the case of a shift that is scheduled to include at least three hours of night time, eight hours; and

(b)in any other case, nine hours.

(2) In any period of two weeks a driver’s scheduled driving time must not exceed 80 hours.

(3) The employer of the driver must take all reasonable steps to ensure that this regulation is complied with.

(4) In this regulation—

“night time” means a period which—

(a)

is not less than seven hours,

(b)

includes the period between midnight and 5 am, and

(c)

is determined for the purposes of this regulation by a relevant agreement, or, in default of such a determination, the period which is between 11 pm and 6 am; and

“scheduled driving time” means the time scheduled for the driver to be in charge of the traction unit, excluding the scheduled time to prepare or shut down the unit, but including any scheduled interruptions when the driver is to remain in charge.

Records

9.—(1) The employer of a cross-border worker must—

(a)keep records which are adequate to show whether these Regulations are being complied with in respect of that worker, including information as to actual hours worked; and

(b)retain those records for at least one year after the end of the period covered by those records.

(2) The employer of a cross-border worker must, upon request, provide to—

(a)a cross-border worker, or (as the case may be)

(b)the Office of Rail Regulation,

a copy of the records retained in accordance with paragraph (1) in respect of that cross-border worker.

Enforcement

10.—(1) It is the duty of the Office of Rail Regulation to make adequate arrangements for the enforcement of regulations 8(3) and 9.

(2) The provisions of Schedule 2 apply in relation to the enforcement of regulations 8(3) and 9.

Offences

11.—(1) An employer of a cross-border worker who fails to comply with regulation 8(3) or regulation 9 is guilty of an offence.

(2) The provisions of paragraph (3) apply where an inspector is exercising or has exercised any power conferred by Schedule 2.

(3) It is an offence for a person–

(a)to contravene any requirement imposed by the inspector under paragraph 2 of Schedule 2;

(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 2 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 2;

(f)to make a statement which the person 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) is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(5) A person guilty of an offence under paragraph (3) is liable to the penalty prescribed in relation to that provision by paragraphs (6), (7) or (8) as the case may be.

(6) A person guilty of an offence under paragraph (3)(a), (b) or (d) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7) A person guilty of an offence under paragraph (3)(c) is liable—

(a)on summary conviction, to imprisonment for a term not exceeding three months, or a fine not exceeding the statutory maximum;

(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 paragraph (3)(e) or (f), is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment—

(i)if the offence is under paragraph (3)(e), to imprisonment for a term not exceeding two years or a fine or both;

(ii)if the offence is under paragraph (3)(f), to a fine.

(9) The provisions set out in regulations 12 to 16 apply in relation to the offences provided for in paragraphs (1) and (3).

Offences due to fault of other person

12.  Where the commission by any person of an offence is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

Offences by bodies corporate

13.—(1) Where an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of that offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, the preceding paragraph apply in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

Restriction on institution of proceedings in England and Wales

14.  Proceedings for an offence must not, in England and Wales, be instituted except by an inspector or by or with the consent of the Director of Public Prosecutions.

Prosecutions by inspectors

15.—(1) An inspector, although not of counsel or a solicitor, may prosecute before a magistrate’s court proceedings for an offence under these Regulations if authorised in that behalf by the Office of Rail Regulation.

(2) This regulation does not apply to Scotland.

Power of court to order cause of offence to be remedied

16.—(1) Where a person is convicted of an offence in respect of any matters which appear to the court to be matters which it is in the person’s power to remedy, the court may, in addition to or instead of imposing any punishment, order the person, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying the matters.

(2) The time fixed by an order under paragraph (1) may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

(3) Where a person is ordered under paragraph (1) to remedy any matters, that person shall not be liable under these Regulations in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2).

Remedies

17.—(1) A cross-border worker may present a complaint to an employment tribunal that his employer has refused to permit the worker to exercise any right the worker has under regulations 3 to 7.

(2) An employment tribunal may not consider a complaint under this regulation unless it is presented—

(a)before the end of the period of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period extending over more than one day, the date on which it should have been permitted to begin);

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where the period within which a complaint must be presented in accordance with paragraph (2) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004(4), the period within which the complaint must be presented is the extended period rather than the period in paragraph (2).

(4) Where an employment tribunal finds a complaint under paragraph (1) well-founded, the tribunal—

(a)must make a declaration to that effect, and

(b)may make an award of compensation to be paid by the employer to the cross-border worker.

(5) The amount of the compensation is to be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a)the employer’s default in refusing to permit the worker to exercise the worker’s right, and

(b)any loss sustained by the worker which is attributable to the matters complained of.

Restrictions on contracting out

18.—(1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of these Regulations, save in so far as these Regulations provide for an agreement to have that effect, or

(b)to preclude a person from bringing proceedings under these Regulations before an employment tribunal.

(2) Paragraph (1) does not apply to—

(a)any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996(5) (conciliation); or

(b)any agreement to refrain from instituting or continuing proceedings under regulation 17, if the conditions regulating compromise agreements under these Regulations are satisfied in relation to the agreement.

(3) For the purposes of paragraph (2)(b) the conditions regulating compromise agreements under these Regulations are that—

(a)the agreement must be in writing,

(b)the agreement must relate to the particular complaint,

(c)the cross-border worker must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on the worker’s ability to pursue the worker’s rights before an employment tribunal,

(d)there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or a professional body, covering the risk of a claim by the cross-border worker in respect of loss arising in consequence of the advice,

(e)the agreement must identify the adviser, and

(f)the agreement must state that the conditions regulating compromise agreements under these Regulations are satisfied.

(4) A person is a relevant independent adviser for the purposes of paragraph (3)(c)—

(a)if the person is a qualified lawyer,

(b)if the person is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union, or

(c)if the person works at an advice centre (whether as an employee or as a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.

(5) But a person is not a relevant independent adviser for the purposes of paragraph (3)(c)—

(a)if the person is employed by or is acting in the matter for the employer or an associated employer,

(b)in the case of a person within paragraph (4)(b), if the trade union is the employer or an associated employer, or

(c)in the case of a person within paragraph (4)(c), if the cross-border worker makes a payment for the advice received from the adviser.

(6) In paragraph (4)(a), “qualified lawyer” means—

(a)as respects England and Wales, a barrister (whether in practice as such or employed to give legal advice), a solicitor who holds a practising certificate, or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)(6); and

(b)as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practicing certificate.

(7) A person is to be treated as being a qualified lawyer within paragraph (6)(a) if the person is a Fellow of the Institute of Legal Executives employed by a solicitors’ practice.

(8) For the purposes of paragraph (5) any two employers are to be treated as associated if—

(a)one is a company of which the other (directly or indirectly) has control; or

(b)both are companies of which a third person (directly or indirectly) has control;

and “associated employer” is to be construed accordingly.

Amendments to legislation

19.  Schedule 3 has effect.

Signed by authority of the Secretary of State

Tom Harris

Parliamentary Under Secretary of State

Department for Transport

25th June 2008

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