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 acknowledges that the EWTD has not been fully implemented but good progress has been made in doing so. The Court of Justice heard the case on Wednesday, 4th March 2015. A full judgment by the Court is expected before the summer.
Minister for Health Leo Varadkar said: ‘We are committed to the full implementation of the EWTD. As a demonstration of that commitment, we have hired 400 additional NCHDs in the last two years and are close to eliminating shifts of longer than 24 hours. Reducing average working times to 48 hours or less per week remains a challenge, particularly in smaller hospitals.
‘It’s important to acknowledge that this is an opinion, not a final judgment. Agreement was reached with the IMO in the High Court settlement of 2010, that protected training time did not count as working time. However, that position is now in question pending the final judgment by the European Court of Justice,’ Minister Varadkar concluded.
Attainment of compliance will require reconfiguration of some services. The new Hospital Group structures will support this. Implementation of the recommendations of the MacCraith report in relation to doctor recruitment and retention is also important.
The HSE and voluntary hospitals have been working intensively to advance implementation of the European Working Time Directive. The HSE is focused on advancing implementation of the Directive and significant progress has been made in respect of NCHDs. Data from the HSE shows that the average number of working hours for NCHDs was 60 hours a week in 2009, 54 hours per week in 2012 and, at the end of 2014, had reduced to 51 hours per week.
Intensive negotiations conducted at the Labour Relations Commission in September and October 2013 resulted in agreement on a joint approach, involving hospital management, the IMO and NCHDs to achieve EWTD compliance, with an immediate focus on eliminating shifts in excess of 24 hours. Data for the 4th Quarter 2014 shows 95% compliance with this target.
Currently, the HSE is close to full compliance with all of the provisions of the Directive apart from compliance with the 48 hour week, which stands at 68% at the end of January 2015.
There is ongoing positive engagement on the matter with the European Commission. The most recent meeting took place on 11th March 2015. It is intended that there will be a follow up meeting when the Court has delivered its Judgement.
The EU Commission formally referred Ireland to the Court of Justice for non compliance with the provisions of the above Directive on 17th February 2014, having taken this decision on 20th November 2013. The IMO had submitted complaints to the Commission in respect of the working hours of NCHDs.Prior to the referral Ireland had engaged with the Commission and significant progress was made in relation to a number of the rest requirements of the Directive. However, the Commission was not satisfied with the pace of change.
One particular issue in dispute is the extent to which ‘protected training time’ – a few hours per week – counts as working time (or not). A High Court Settlement Agreement in January 2010 between the Irish Medical Organisation (IMO) and the HSE provides that such time does not count as ‘working time’, given that the NCHD would not be available to or at the disposal of the employer during such periods. The Department remains hopeful that its position in relation to ‘protected training time’ not counting for work purposes will be upheld.