“A” Typical Employment – Game Changing Legislation to take effect from March 2019

 “A” Typical Employment – Game Changing Legislation to take effect from March 2019

The much debated Employment (Miscellaneous Provisions) Act 2018 will take effect from 1 March 2019 and will bring about significant change.

What’s New About This Act?

The Oireachtas’ aim in rolling out this legislation is to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours. Those sectors that regularly use casual, temporary and zero working hours contracts will be particularly affected by this legislation. Such sectors include the recruitment sector, retail, health and care sectors, tourism and hospitality, education, fast food, to name a few.

Key New Employer Obligations

Employers are now obliged to provide a written statement to employees outlining their basic terms of employment within 5 days of the commencement of their employment. This statement must include information on “the number of hours which the employer reasonably expects the employee to work” both per day and per week. Failure to provide such information or the provision of false or misleading information is a criminal offence punishable by a class A fine (up to €5,000) and/or 12 months imprisonment.

Take home for employers: Employment audits are key as it is a statutory defence for an employer to demonstrate that it exercised due diligence and took reasonable precautions to ensure compliance.

Zero Hour Contracts

These contracts are now prohibited except in situations of genuine casual employment and where they are essential to provide cover in emergency situations or to cover short term absence.

Minimum Payments

Onerous new obligations

If an employer requires an employee as a matter of contract to be available for a certain number of hours per week and/or on an “as needs basis”, that employee is entitled to at least 25% of the contracted hours or where work of the type which the employee is required to make himself/ herself available to do has been done for the employer in that week, at least 25% of the hours for which such work has been done in that week (“the 25% figure”). In the event that the employee is not provided with such work, he/she is entitled to be paid in respect of that 25% figure or for a total of 15 hours work (whichever is the lesser). The rate of pay to be applied in respect of these hours is three times the national minimum wage or three times the minimum hourly rate specified in any applicable employment regulation order.

Banded Hours

Responding to significant concern raised in relation to the situation where an employee is unaware at the commencement of a week’s work as to what hours they are required to work, the new Act amends previous legislation to allow employees to request to be placed in a band of weekly working hours which corresponds to the average number of hours worked per week by that employee in the 12 months preceding the request.

The new legislation provides for bands of weekly working hours in table format and these are as follows:

Band ABand BBand CBand D
1 -10 hours11-24 Hours25 – 34 Hours35 Hours and Over

 

Steps to Follow When You Receive A Request for Banded Hours:

1. Assess whether the request for banded hours is well founded.

2. If satisfied the request for banded hours is well founded, provide the employee with average weekly working hours which fall within the appropriate band within four weeks.

Case Study:

As employee who works an average of four hours per week for the twelve months preceding the request must be provided with between three and six hours of work a week. This obligation applies unless:

  • There is no evidence to support the employee’s claim
  • There have been significant adverse changes to the business
  • Due to exceptional circumstances or an emergency it would not be practical for the employer to comply
  • The average hours worked were affected by a temporary situation that no longer exists

Employees have recourse to the Workplace Relations Commission (“WRC”) in the event that they dispute an employer’s position. The WRC has the jurisdiction and power to order that the employee be placed in the appropriate band. Significantly, the WRC cannot order compensation for any breach, meaning that the cost for the employer is in fact in the exposure, to hours worked and potentially to a Workplace Relations Commission inspection.

Anti-Penalisation

The Act contains anti-penalisation provisions for employees who seek to invoke their rights under the legislation.

What Do Employers Need To Do No

1. Conduct an audit of casual workers’ contracts and check that the wording of the working hours provisions in the contract are in line with the Act.

2. Role out systems to ensure that employees receive copies of their written terms and conditions of employment within the five-day limit in order to avoid criminal sanctions.

3. Amend your record keeping systems to include adequate and comprehensive records of hours worked by employees in casual employment in order to assess validity for banded hours in accordance with the Act, to assess minimum payment obligations and to satisfy any requirements of an Inspector during a Workplace Relations inspection.

For further information on any issue raised in this article please contact the team at Crowley Solicitors at 021 428 9560 or at nwalsh@crowleysolicitors.ie.

Niamh Walsh

January 2019

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Legal advice should always be taken before acting on any of the matters discussed.

2019-02-07T16:40:20+01:00