NCHDs (Doctors in Training) and European Working Time Directive – Court of Justice Hearing Case 2014/00897 – C-87/14 European Commission -v- Ireland
NCHDs (Doctors in Training) and European Working Time Directive – Court of Justice Hearing
Case 2014/00897 – C-87/14 European Commission -v- Ireland
The Department of Health welcomes the judgement of the European Court of Justice.
The Court has recognised in its judgement that protected training time, that is where the NCHD is engaged in educational and training activities and is not available to the employer for work purposes, does not constitute working time. This part of the judgment will support the achievement of EWTD compliance. It will be incorporated into the detailed implementation plan, currently being prepared by the HSE, for achievement of compliance with the 48 hour maximum average working week requirement.
The Department is pleased that the Court did not accept that the duration of the reference period used in Ireland for the purposes of calculating the average working week infringes the Directive. Pursuant to the Collective Agreement made between the HSE and the IMO in January 2010, this period may extend to 12 months in certain circumstances.
The Department is also pleased that the Court recognised that the legal framework in Ireland, resulting from the legislation transposing the Working Time Directive for Doctors in Training (the 2004 Regulations), is clear and applicable and that this legislation has to be taken into account when assessing the provisions relating to ‘hours of work’ in the employment contracts of NCHDs.
The Government, the Department and the HSE are committed to achieving full compliance with the 48 hour requirement as soon as possible. Attainment of full EWTD compliance will require reconfiguration of some services across hospitals groups and the completion of the capital projects in train relating to paediatrics and maternity. Notwithstanding the recruitment of nearly 750 additional NCHDs over the past four years, there are difficulties in recruiting and retaining certain categories of NCHDs and in attracting them to smaller hospitals where the nature of the work does not support a sufficient number of training posts.
The HSE has been focused on progressing compliance and substantial progress has been achieved. In the latter half of 2014 and the first quarter of 2015 Ireland has consistently recorded compliance levels in excess of 95% for many of the requirements of the Directive including the granting of daily breaks and daily, weekly and fortnightly rest periods. There has also been significant improvement in relation to the 48 hour maximum average working week requirement. Compliance has improved from 33% in 2011 to 69% in the first quarter of 2015 and the most recent monthly data for May shows compliance above 70%. Consistent with this improvement, data from the HSE also shows that average working hours for NCHDs have reduced considerably, falling from 60 hours a week in 2009 to 54 hours per week in 2012 and to 51 hours at the end of 2014.
While the judgement followed a referral by the Commission, there is ongoing positive engagement with the Commission on the matter. This engagement and the progress made to date were acknowledged by the Commission when it presented its case to the Court of Justice. There will be further engagement between the Irish authorities and the Commission in the autumn when the details of the judgment have been worked into the HSE’s plans for achieving full compliance.
There is also ongoing engagement between health service management and the IMO following the agreement reached at the LRC in 2013 that provided for a National Verification and Implementation Group to monitor progress and to implement measures to achieve compliance.