Employment (Miscellaneous Provisions) Act 2018


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Employment (Miscellaneous Provisions) Act 2018

Background
The Employment (Miscellaneous Provisions) Act 2018 (the 2018 Act) was signed by the President on 25 December 2018, having completed its passage in the Oireachtas on 19 December. The Act will come into force on 4 March 2019. It makes a small number of significant changes to employment rights legislation.

The 2018 Act is in response to the commitment in the current Programme for Government to “address the problems caused by the increased casualization of work and to strengthen the regulation of precarious work”.

The key objective of the Act is to improve the security and predictability of hours of work for those on insecure contracts and those working variable hours.

 

What legislation is being amended by the 2018 Act?
To achieve the key objective of the 2018 Act, changes are being made to the following pieces of legislation, details of which are set out at “What are the Key Changes” beneath:

  • Terms of Employment (Information) Act 1994 
  • Organisation of Working Time Act 1997
  • Workplace Relations Act 2015 

In addition to the above, the opportunity is being taken to make changes to the two other pieces of legislation (listed beneath). While these changes are not core to the main focus of the Act, they are being facilitated in this Act. The changes being made to the National Minimum Wage Act are particularly significant for certain employers. Details of these changes are set out at “Other Changes” beneath.

  • Unfair Dismissals Act 1997
  • National Minimum Wage Act 2000 

What are the key changes?

1. Changes to the Terms of Employment (Information) Act 1994 

Statement of terms of employment
 
  The “Day 5” statement: The employer must notify the employee in writing, within five days of commencement of employment, of the following core terms of employment:

1.     the full names of the employer and the employee;

2.     the address of the employer;

3.     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;
 
4.     the rate or method of calculation of the employee’s pay;
 
5.     the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week. 

The other terms of employment required to be given to the employee under the Terms of Employment (Information) Act 1994 will continue to be required within the existing two month period.

New offences
Two new offences are being introduced.

  • An employer who, without reasonable cause, fails to provide an employee with the Day 5 statement within one month of commencement of employment will be guilty of an offence. 
  • An employer who deliberately or recklessly provides false or misleading information as part of the Day 5 statement will be guilty of an offence.

 
Claims to the Workplace Relations Commission (WRC)

Employees who do not receive statements of their core terms of employment within time can bring a claim to the WRC and be awarded up to four weeks’ remuneration. An employee must have one month’s continuous service with that employer before they are entitled to bring the claim.

Protection against penalisation
The Employment (Miscellaneous Provisions) Act 2018 introduces new provisions (a new section 6C in the 1994 Act) to protect employees against penalisation for invoking their rights under the 1994 Act. Currently there is no penalisation provision under the 1994 Act.  

The new provisions provide that an employer shall not penalise or threaten penalisation for

(i)      Invoking any right under the Act
(ii)     Opposing in good faith an action that is unlawful under this Act (e.g. refusing to conspire in falsifying contracts of employment)
(iii)    Giving evidence in any proceedings under this Act (e.g. being a witness for somebody else pursuing a case under the Act in the WRC or Labour Court)
(iv)    Giving notice of the intention of doing any of the above.

It is presumed unless the contrary is proved that the employee pursuing a penalisation case to the WRC or Labour court has acted reasonably and in good faith.  

Penalisation is defined broadly in the new legislation to mean any detriment to the employee’s terms and conditions of employment including:

(a) suspension, lay-off or dismissal or the threat of suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in
wages or change in working hours,
(d) imposition or the administering of any discipline, reprimand or
other penalty (including a financial penalty), and
(e) coercion or intimidation.

An employee who believes they have been penalised for invoking a right under the 1994 Act (as amended) may pursue a case to the WRC. The maximum redress that a WRC Adjudication Officer can award under this provision is four weeks’ remuneration.

2. Changes to the Organisation of Working Time Act 1997

Prohibition on Zero Hour Contracts

 Section 18 of the Organisation of Working Time Act 1997 (OWTA) is amended to prohibit zero hour contracts except in the following circumstances:

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

 

Minimum compensation payment in certain circumstances
The 2018 Act amends Section 18 of the OWTA to provide that the existing compensation payment will be subject to a new minimum payment of three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay set out in an Employment Regulation Order (if one exists and for as long as it remains in force). This new minimum payment will be payable on each occasion an employee, to whom section 18 applies, is called in to work but does not receive the expected hours of work. 

Banded Hours provisions
The 2018 Act introduces a new right for employees whose contract of employment does not reflect the reality of the hours they habitually work. Such employees will be entitled to request to be placed in a band of hours that better reflects the hours they have worked over a 12 month reference period.

How will the Banded Hours provision work?
An employee will request in writing to be placed in the relevant band of hours. The employer has four weeks to consider the request. The section provides reasonable defences for employers to refuse an employee’s request for any one of the following reasons:
  
a.       the facts do not support the employee’s claim,
 
b.       significant adverse changes have impacted on the business (e.g. loss of an important contract),

c.       emergency circumstances (e.g. business has had to close due to flooding), or

d.       where the hours worked by the employee were due to a genuinely temporary situation (e.g. cover for another employee on maternity leave).

Where the claim is disputed or refused the employee can refer it to the Workplace Relations Commission (WRC) for mediation or adjudication. If the Adjudication Officer finds in the employee’s favour the redress will be that they are placed in the appropriate band of hours. No other form of redress is available. An appeal against an Adjudication Officer’s decision will be to the Labour Court.

Exemption for collective agreements

The section will not apply to an employer who has entered into a banded hour arrangement through an agreement by collective bargaining with their employees. This is to recognise that in some sectors, the retail sector in particular, banded hours arrangements have been agreed between the employer and employees and have been working well. The new provisions will not interfere with these arrangements or with any such agreements that are collectively bargained in the future.  

It is important to remember that an employer is not obliged to offer hours of work in a week where the employee was not expected to work or when the business is not open.  

Current employees will not have to wait 12 months after commencement of this provision to seek to be placed on a band of hours. From 4 March 2019, an employee who believes their contract does not reflect the hours they have consistently worked over the previous 12 months of service with their employer may request to be placed by that employer in a band of hours that better reflects the hours they have worked regularly.

The bands of hours set out in the 2018 Act are:

                    Band

From

To

A

3 hours or more

Less than six hours

B

6 hours or more

Less than 11 hours

C

11 hours or more

Less than16 hours

                        D

16 hours or more

Less than 21 hours

E

21 hours or more

Less than 26 hours

F

26 hours or more

Less than 31 hours

G

31 hours or more

Less than 36 hours

H

36 hours or over

 

 
3. Changes to the Workplace Relations Act 2015  

Fixed payment notices
Section 19 of the 2018 Act amends the definition of “relevant offence” in section 36(5) of the Workplace Relations Act 2015 to include an offence under the new section 6B in the Terms of Employment (Information) Act 1994. This will allow an inspector of the WRC to issue a fixed payment notice, as an alternative to initiating prosecution proceedings, where the inspector has reasonable grounds for believing that a person has committed an offence, i.e. by not providing the written statement of core terms of employment within the prescribed time or by deliberately or recklessly providing false or misleading information as part of the statement. 

Other Changes

What other employment statutes are being amended by the 2018 Act  

1. Changes to the Unfair Dismissals Act 1997

At present, Adjudication Officers of the WRC do not have powers to compel witnesses to attend a hearing to give evidence in relation to cases taken under the Unfair Dismissals Act 1977 (the UD Act).  The WRC has powers of witness compellability under other employment rights legislation and the amendment to Act will remedy this anomaly. The amendment provides that the evidence that a witness gives at an Unfair Dismissal hearing at the WRC or Labour Court is privileged. It further provides that a witness who is compelled to attend the hearing or provide relevant information, and does not do so, is liable to prosecution.  

2. Changes to the National Minimum Wage Act 2000

The National Minimum Wage Act currently provides for lower national minimum wage rates for young people and trainees.  The 2018 Act is providing for changes to these rates, as follows:  

1. It is simplifying the rates based on age and experience to simple, age-based rates, and

2.It is abolishing the use of trainee rates.

The effect of these changes is set out in the tables below.

  Hourly Rates of Pay (National Minimum Wage Acts, 2000 & 2015)

 

Hourly Rates of Pay (National Minimum Wage Acts, 2000 & 2015)


Category of employee

Hourly Rate
01/01/2019

Category of Employee
(from 4 March 2019)

Hourly Rate
(Age-related from 4 March 2019)

Experienced Adult Worker

€9.80

Experienced Adult Worker

€9.80

Under 18 years

€6.86

Under 18

€6.86

In the first year after the date of first employment over 18 years

€7.84

Aged 18

€7.84

In the second year after the date of first employment over 18 years

€8.82

Aged 19

€8.82

From March, a person who commences employment for the first time at age 20 or over must receive the full NMW rate of €9.80.

Training Rates*

 

From 4 March 2019 the Training rates will be abolished (rates applicable will be age based, as above, or full rate of €9.80.

First one third period

€7.35

Second one third period

€7.84

Third one third period

€8.82

*For training or study undertaken in normal working hours over 18 years. 

Last modified:22/02/2019