The Organisation of Working Time Act, 1997, is causing many difficulties for business. The legislation is complex and it poses particular problems for companies employing fewer than 50 people, according to IBEC, the employer's federation.

The Act brought the 48-hour working week into effect on March 1st last, although transitional provisions permit employees to work up to 60 hours a week until February 28th, 1999, and up to 55 hours a week until February 29th, 2000. This is subject to agreement between the parties and the Labour Court's approval. Ms Maria Cronin, senior divisional executive at IBEC, told The Irish Times that although companies want to comply with the legislation, it can be difficult to grasp what the Act means. She believes a definitive interpretation may have to come through a court ruling. A key area of concern for IBEC is the exclusion from the legislation of workers who define their own working time. Ms Cronin says there is confusion as to what this means. It needs to be clarified whether this means only senior managers or if other employees who have freedom to determine their own working time are also excluded from the legislation.

Clarification could be achieved by amending the Act to exclude managerial and supervisory grades or by the group set up to monitor the Act issuing guidelines without delay, she says. There is also the issue of double employment. Ms Cronin says the legislation places an "inferred responsibility" on employers to take steps to ascertain if an employee is exceeding the maximum 48-hour working week. For example, an employee could work 40 hours in his main employment but work a further 12 hours doing a part-time weekend job.

She believes the Act should be amended to exclude employers' responsibility to police the Act's provisions on double employment. This poses particular problems at present, especially with casual employees.

It could be a plausible defence that the employer "didn't or couldn't have known by reasonable enquiry" if an employee exceeded the 48 hours' maximum working week. But it is not clear what employers have to do and it simply is not practical for employers to police double employment, she says.

Record-keeping with regard to the Act is also posing problems for businesses. When the guidelines are issued, they should not put onerous administrative pressures on companies. This is a matter of particular concern to smaller companies, as is the length of time it is taking to issue the guidelines, she says.

IBEC is very concerned that Roadstone was served with strike notice when it tried to introduce the 48-hour week, in accordance with its statutory duty.

Although the Labour Court ruled in the company's favour and the strike notice was lifted, the union seemed to be saying: "Fine, we'll take reduced hours, but we want our present income maintained," she says.

Such an approach would have enormous cost implications for business. By implementing the 48-hour working week, employers should not be penalised, she says.

ISME chairman, Mr Seamus Butler, says the "survival of SMEs generally depends on flexibility" and some companies, especially in sectors like food at Christmas can need to work in excess of 48 hours a week.

Moreover, some employees, especially young couples saving to buy a house, want to maximise their income but the Act "restricts that right", he says. But the rights of owner-managers or professionals like doctors or self-employed solicitors are not restricted: "They can work as long as they want. But if you're a PAYE employee the Act says you can't work more than 48 hours a week. It seems to infringe their right."

Mr Butler says he doesn't think employers want to force anybody to work overtime. "But occasions do arise and this lack of flexibility can lead in the end to loss of competitiveness," he says.

It behoves SMEs, regardless of statute law, to treat employees well. If employees do not want to work overtime, they cannot be forced to do so.

"But in a small company, very often it's a one-to-one relationship with employees and that flexibility that may have been there in the past has been taken out by the Act," he says.

ISME feels the Act "places an unnecessary restriction on SMEs" and it would welcome if companies with fewer than 50 employees were excluded from it.

"We weren't consulted about it and we didn't negotiate it. It was foisted on us," Mr Butler said.