The New Act – Evolution in Employment Law

Enactment of the Employment (Miscellaneous Provisions) Act, 2018

The Minister for Employment Affairs and Social Protection has heralded the Employment (Miscellaneous Provisions) Act, 2018 (the “new Act”), which is law as of today, as a “game changer for thousands of employees across the country”.

As an employee, how aware are you of this legislation?

As an employer, are you aware of your obligations?

Terms of employment

Within 5 days of commencement of employment, an employer is required to notify the employee in writing of the following:-

• Full names of the employer and the employee;
• The address of the employer in the State;
• The expected duration of the contract in the case of a temporary contract, or the end date if the contract is a fixed term contract;
• The rate or method of calculation of the employee’s remuneration and the pay reference period;
• The number of hours which the employer reasonably expects the employee to work per normal working day, and, per normal working week.

This is in addition to the other terms of employment required to be given to the employee under the Terms of Employment (Information) Act, 1994 (the “1994 Act”) within the existing 2 month period.

Should an employer fail to provide this information without reasonable cause within one month of the commencement of the employee’s employment, or provides information which is false and/or misleading, whether deliberately or recklessly, the employer will be guilty of an offence and is liable on conviction to a Class A fine or imprisonment not exceeding 12 months or to both.

Employees, who must have one month’s continuous service and who do not receive statements of their core terms of employment are entitled to bring a claim before the Workplace Relations Commission. If successful, the employee may be awarded up to 4 weeks’ remuneration.

Anti-penalisation

The new Act has introduced anti-penalisation provisions for any employee who invoke their rights under the 1994 Act.

Prohibition on zero hour contracts in certain circumstances

An amendment has been made to section 18 of the Organisation of Working Time Act, 1997 prohibiting zero hour contracts save for the following circumstances:

• Where the work is casual in nature;
• Where the work is done in emergency circumstances;
• Short term relief work to cover routine absences for that employer.

Minimum payments

Minimum payments have been provided for under the new Act for certain employees who are required to be available for work but are not called in.

In the event of an employer failing to require an employee to work at least 25% of their contracted hours in a week or to at least 25% of those hours for which work is of the type the employee is required to make himself available to do has been done for the employer, the employee is entitled to be paid for 25% of the contracted hours or 15 hours, whichever is the lesser. The new Act prescribed a minimum payment for these hours calculated at 3 times the national minimum hourly rate of remuneration or 3 times the minimum hourly rate established by an employment regulation order. Certain specified caveats are provided for employers.

Banded Hours

The new Act introduces provisions in relation to those employees whose contracts of employment do not reflect the reality of the hours habitually worked by them. If an employee believes that they are entitled to be placed in a band of weekly working hours, they can make such a request in writing to their employer who has 4 weeks in which to consider matters. Reasonable defences have been provided for in the new Act permitting a employer to refuse an employee’s request. Recourse lies with the Workplace Relations Commission where a claim is disputed or refused

These provisions will not apply to those employers who have entered into a banded hour arrangement by agreement following collective bargaining.

The bands of weekly working hours set out in the new Act are:-

Amendment to Unfair Dismissals Act, 1977

The Workplace Relations Commission can now compel witnesses to attend a hearing to give evidence, or provide relevant documentation, in relation to cases taken pursuant to the Unfair Dismissals Act, 1977 as amended. Should a prospective witness fail or refuse to comply, he/she will be guilty of an offence and shall be liable on summary conviction to a Class E fine.

Amendment to National Minimum Wage Act, 2000

The new Act simplifies the national minimum wage rates payable to young employees based on age, with trainee rates now abolished. An employee under 18 is to be paid an hourly rate of €6.86 whilst an employee aged 18 years is to be paid an hourly rate of €7.84. An employee aged 20 or over must receive the full national minimum wage which is currently set at €9.80.

This article is not intended to convey any legal advice and is for general guidance only. Should you wish to obtain specific legal advice on your entitlements or obligations pursuant to the new Act, please contact Cathy Donald in our office.

Employment Law

Cathy Donald