Contract Waiver (Organisation of Working Time Act, 1997 shall not apply)

ligerdub · 19-06-2016 08:38PM #1

Hello all,

I've been offered a role by a small company. The role, salary and people were all fine. I'm happy with that so far.

The problem lies with the hours, and how some discussions were dealt with.

I was originally told verbally, and subsequently in the contract, that the hours were essentially 42.5 hrs per week standard (+ 5 unpaid hours for lunch).

This was beyond what I was willing to sign up for on those terms.

I was then told that this was an error and that the hours were 40 hrs pw (+5 lunch).

There are also disclaimers in the contract noting the following:

Part II of the Organisation of Working Time Act, 1997 shall not apply
to your employment. For the avoidance of any doubt, by entering into this Agreement you acknowledge that the following provisions of the Organisation of Working Time Act 1997 do not apply to your employment:
(a) Daily Rest Periods;
(b) Rests and Intervals at Work;
(c) Weekly Rest Period;
(d) Sunday Working Time; and
(e) Maximum Weekly Working Hours.

Between the waiver above and the confusion about working hours I'm in 2 minds if I can commit to this. Am I overthinking this/is this normal?

seamus · 19-06-2016 08:41PM

Only certain industries/types of work are exempt from certain parts of that act.

What role is it?

ligerdub · 19-06-2016 08:43PM

Finance.

notharrypotter · 19-06-2016 11:49PM

seamus wrote: »

Only certain industries/types of work are exempt from certain parts of that act.

Part II of the Organisation of Working Time Act, 1997 shall not apply
to your employment. For the avoidance of any doubt, by entering into this Agreement you acknowledge that the following provisions of the Organisation of Working Time Act 1997 do not apply to your employment:
(a) Daily Rest Periods;
(b) Rests and Intervals at Work;
(c) Weekly Rest Period;
(d) Sunday Working Time; and
(e) Maximum Weekly Working Hours.

If your role is not in an exempted category can they actually propose a contract which would violate the law?

ligerdub · 20-06-2016 01:16AM

notharrypotter wrote: »

If your role is not in an exempted category can they actually propose a contract which would violate the law?

This is a concern for me, and more to the point, that they've included it in the contract suggests it's something that is there for a reason.

davo10 · 20-06-2016 01:27AM

Will you be self employed working on a fixed term contract by any chance?

ligerdub · 20-06-2016 08:39AM

davo10 wrote: »

Will you be self employed working on a fixed term contract by any chance?

No it's a permanent role in an employee capacity.

1hnr79jr65 · 20-06-2016 08:41AM

ligerdub wrote: »

No it's a permanent role in an employee capacity.

Maybe you should query this with citizens information.

I may be wrong on the following, far as i am aware you can't sign away constitutional rights unless in the exemption group.

You need to clarify if you are in the exemption group and if you can be forced to sign such a clause.

davo10 · 20-06-2016 08:44AM

ligerdub wrote: »

No it's a permanent role in an employee capacity.

Your contract cannot deny you your legal entitlements under the OWTA.

ligerdub · 20-06-2016 10:13AM

davo10 wrote: »

Your contract cannot deny you your legal entitlements under the OWTA.

ok thanks a lot.

and indeed to everyone else

seamus · 20-06-2016 11:11AM

Although you're in finance, depending on the industry of the employer, they may have legal exemptions from parts of the OWTA.

However, this would not need you to sign any waiver, it just applies.

I would query with them under what regulations the waiver is covered. That is, where the law states that a person has a right, the law must also state the circumstances in which that right can be waived. If the law does not provide the ability to waive a right, then it can't legally be waived.

Chances are the contract has been drafted up by someone like me who writes good legalese, but hasn't a clue in reality. The owner probably believes he's covered, and nobody he's hired has seen fit to argue it with him.

ligerdub · 20-06-2016 12:06PM

seamus wrote: »

Although you're in finance, depending on the industry of the employer, they may have legal exemptions from parts of the OWTA.

However, this would not need you to sign any waiver, it just applies.

I would query with them under what regulations the waiver is covered. That is, where the law states that a person has a right, the law must also state the circumstances in which that right can be waived. If the law does not provide the ability to waive a right, then it can't legally be waived.

Chances are the contract has been drafted up by someone like me who writes good legalese, but hasn't a clue in reality. The owner probably believes he's covered, and nobody he's hired has seen fit to argue it with him.

I sense you're right about the last section. Having spoken to them about it they mentioned it's in all their contracts and that they were advised by their lawyers to include it. They are quite a small company so to be fair to them I expect they are following legal advice and don't have incentive to question if this is important or not.

My use of word waiver is probably misguided as you suggest yes.

As it turns out the original hours stated in the contract are correct. The shorter working hours were something suggested to me in error by the recruiter.

I've decided to wish them well but turn down the offer.

Contract Waiver (Organisation of Working Time Act, 1997 shall not apply)

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