Employment Misc. Provisions Act 2018

Background

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

What legislation is being amended by the new Act?

Changes are being made to the following Acts, 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, there are significant changes to two other pieces of legislation (listed beneath). 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

Written statement of terms of employment : The "Day 5" statement:

With effect from 4 March 2019, an employer must notify each new 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.

Full written terms of employment, required to be given to the employee under the Terms of Employment (Information) Act 1994, continue to be required and must be given within the two months from the commencement of employment.

Existing employees may also make a written request to an employer for a "Day 5" statement. Upon receipt of a written request, an employer must issue a "Day 5" statement within 2 months of the date of the request.

Complaints to the Workplace Relations Commission (WRC)

Employees who either

• do not receive statements of their core terms of employment within 5 days or
• who receive a statement that is deliberately false or misleading

may refer a complaint to the WRC.

Where a complaint is upheld, an employee may be awarded compensation not exceeding four weeks’ remuneration.

An employee must have at least one month’s continuous service with that employer before they are entitled to refer a complaint to the WRC.

Employee protection against penalisation

The Employment (Miscellaneous Provisions) Act 2018 introduces new provisions to protect employees against penalisation for invoking their rights under the Terms of Employment and Information Act 1994.

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

1. Invoking any right under the Act
2. Opposing in good faith an action that is unlawful under this Act (e.g. refusing to conspire in falsifying contracts of employment)
3. 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)
4. Giving notice of the intention of doing any of the above.

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

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

An employee who believes they have been penalised for invoking a right under the 1994 Act (as amended) may refer a complaint to the WRC.

Where a complaint is upheld, an employee may be awarded compensation not exceeding four weeks’ remuneration.

2. Changes to the Organisation of Working Time Act 1997

Changes regarding 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 payment in certain circumstances

The new Act amends Section 18 of the OWTA to introduce a new minimum payment entitlement, in certain circumstances.

This new minimum payment will be payable on each occasion an employee, to whom section 18 applies, is called in to work and does not receive the expected hours of work.

The minimum payment on each occasion above, will be 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 for that sector and for as long as it remains in force).

The already existing method of payment (at least 25% of the contract hours or 15 hours) continues to apply overall.

Banded Hours provisions

The new Act introduces a new right for employees whose contract of employment or statement of terms does not reflect the reality of the hours they habitually work.

Where this is the case, employees are 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 may 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:

1. the facts do not support the employee’s claim,
2. significant adverse changes have impacted on the business (e.g. loss of an important contract)
3. emergency circumstances (e.g. business has had to close due to flooding), or
4. 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 request is disputed or refused, the employee can refer a complaint to the WRC.

If the complaint is upheld, the employer will be obliged to place the employee on the appropriate band of hours.

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 new provision does not oblige an employer to offer hours of work in a week where the employee was not expected to work or when the business is not open.

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 e.g. in the retail sector in where banded hours arrangements have been agreed between the employer and employees.

The new provisions will not interfere with these arrangements or with any such agreements that are collectively bargained in the future.

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

3. Changes to the Workplace Relations Act 2015

Fixed payment notices

Where a WRC Inspector encounters non-compliance in relation to the 5 Day statement obligations and where the inspector has reasonable grounds for believing that an employer person has committed an offence. an inspector may issue a fixed payment notice as an alternative to initiating prosecution proceedings.

New criminal offences

The new Act also creates the following criminal offences.

(i) 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.

(ii) An employer who deliberately or recklessly provides false or misleading information as part of the Day 5 statement will be guilty of an offence.

A person convicted of an offence under the new Act may be fined (maximum fine €5,000) or imprisoned for a term not exceeding 12 months, or both.

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

Under the new Act wage rates for employees under 18 and those over 18 have been simplified and will be solely based on age. Trainee rates of pay have been abolished.