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Employment (Miscellaneous Provisions) Bill 2017: Second Stage (Continued)

Wednesday, 14 February 2018

Dáil Éireann Debate
Vol. 965 No. 5

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  6 o’clock

(Speaker Continuing)

[Deputy Regina Doherty: Information on Regina Doherty Zoom on Regina Doherty]  Section 6 amends section 3 of the 1994 Act to require that an employer must provide employees with a written statement containing the following five core terms of employment within five days of the commencement of employment. They are the full names of the employer and the employee, the address of the employer, the duration of the contract where it is temporary or fixed-term, the rate or method of calculation of the employee's pay and the number of hours the employer reasonably expects the employee to work in a normal working day and a normal working week. This provision is a key element of the Bill and has been designed to ensure employees will be much better informed of their core terms of employment at a much earlier stage. Currently, employers are required to provide terms of employment within two months of commencement of employment. Furthermore, the amended section includes a new requirement that the written statement must include the number of hours which the employer reasonably expects the employee to work in a normal working day and in a normal working week. This is a significant change which has been designed to ensure employees will have much greater clarity and predictability about their daily and weekly hours of work. The remainder of the required terms of employment will continue to be provided within the current two-month period.

Section 7 deals with posted workers. It amends section 4 of the 1994 Act to require that an employer must provide employees who are required to work outside the State for a period of not less than one month with the written statement containing the aforementioned five core terms of employment required prior to their departure.

Section 8 sets out matters relating to existing contracts of employment. The section amends section 6 of the 1994 Act to provide that where an existing employee requests an employer to provide the written statement containing the five core terms of employment, the employer must do so within two months.

Section 9 introduces an offence for an employer who fails to provide the written statement of core terms of employment required within one month of commencement of employment. This section also makes it an offence for an employer who deliberately provides false or misleading information to an employee as part of the statement of core terms of employment. This section also provides for appropriate defences for employers. Creating an offence provision is to act as a deterrent against employers who fail to respect the most basic rights of employees. Where the WRC inspectorate pursues a prosecution under this section, it is proposed that the director general of the WRC will not be permitted to progress a complaint with the same facts by referring it to an adjudication officer. This is to avoid the same matter being pursued through two separate arms of the WRC at the same time and is consistent with the approach taken under section 34 of the National Minimum Wage Act 2000. The ultimate sanction for employers who fail to provide a written statement of core terms of employment or who deliberately misrepresent what is on this "Day 5" statement is a class A fine, which is currently €5,000, or imprisonment not exceeding 12 months or both. However, the Bill also provides in section 17 that a WRC inspector may issue a fixed-payment notice in lieu of prosecution for less egregious offences under this section of the Bill.

Section 10 introduces an anti-penalisation provision into the 1994 Act. Penalisation is broadly defined in the section and includes threats of penalisation. It is important that employees believe they can exercise their rights under the Act without any repercussions. This is a new measure. Currently, there is no penalisation provision under the Act. If an employee believes he or she has been penalised for asking for a written statement of terms of employment or invoking any right under the Act, they may pursue a case to the adjudication division of the WRC.

Section 11 provides that an employee cannot seek redress unless the employee has been in continuous service of the employer for more than one month and provided that the employer has not been prosecuted for an offence under the 1994 Act with regard to the same matter. This is to avoid frivolous and vexatious complaints.

Part 3 amends the Organisation of Working Time Act 1997. Section 12 amends the 1997 Act to provide for the insertion of a number of relevant definitions, namely, "adjudication officer", "collective bargaining" and "employment regulation order".

Section 13 amends section 5 of the 1997 Act so as to relieve an employer from complying with the new "banded hours" provisions in exceptional circumstances, for example, emergency or unusual and unforeseeable situations beyond the employer's control.

Section 14 replaces the existing section 18 in the Organisation of Working Time Act with a new section 18, which prohibits zero-hour practices in most circumstances. It provides that zero-hour practices are allowed in the following limited circumstances: in cases of genuine casual work, emergencies or short-term relief work to cover routine absences. In situations where employees are called into work but sent home without work, there will be a new minimum payment of three times the national minimum wage, hourly rate, or three times the minimum hourly rate in an employment regulation order. Employment regulation orders currently apply in the security and contract cleaning sectors. Employees who are "on call" will continue to be excluded from this minimum payment. The focus here is on low-paid employees. I want to ensure that where low-paid employees are called in to work but sent home again without work, they get a reasonable compensation payment. For example, if an employer calls an employee into work but then decides they are not needed, that employee would be entitled to three times the minimum wage, which is €28.65, every time that occurs. This is to discourage the unscrupulous practice of calling employees into work and then sending them home without work or more meaningful compensation.

Section 15 inserts a new section 18A into the Organisation of Working Time Act 1997. The new section deals with banded hours. It introduces a new right for employees who habitually work more hours each week than is provided for in their contract of employment to request to be placed in a band of weekly working hours that better reflects the reality of the hours they have worked over an extended period. It also acts as a protection for employees from employers who flex up and down hours in an unfair way as a means of exercising control over employees. A reference period of 18 months is provided for the purpose of the section. While there was a range of views among stakeholders as to how long this reference period should be, a period of 18 months is sufficiently long to allow for the normal peaks and troughs of businesses, including those subject to seasonal fluctuations.

The section provides reasonable defences for employers to refuse an employee's request where the facts do not support the employee's claim; significant adverse changes have impacted on the business, for example, the loss of a contract or a very large client; emergency circumstances, for example, where the business has had to close due to flooding or other event; and where the hours worked by the employee were due to a genuinely temporary situation, for example, cover for another employee on maternity leave.

Where the claim is disputed or refused, the employee can refer it to the WRC for adjudication. Where the adjudication officer finds in the employee's favour, the redress will be that they are placed in the appropriate band of hours. There is no provision for any other compensation because I believe this will avoid any vexatious or frivolous claims with regard to this new provision. An appeal against an adjudication officer's decision will be to the Labour Court, as applies in other employment rights cases. Enforcement of a WRC or Labour Court decision will be by way of a District Court order.

The section will not apply to an employer who has entered into a banded-hour arrangement through an agreement by collective bargaining with its employees. I recognise that in some sectors, the retail sector in particular, banded-hour arrangements have been agreed between the employer and employees and have been working well. I am sure Deputies will agree that we should not interfere with these arrangements.

Section 16 replaces the existing section 26 of the Organisation of Working Time Act 1997 to strengthen the protection against penalisation of employees who wish to invoke their rights under the Act. It updates the current penalisation provision to extend the range of circumstances where an employee can claim adverse treatment. If an adjudication officer finds that an employee has been penalised under the Act, they may award up to two years of gross salary.

Part 4 amends the Workplace Relations Act 2015. Section 17 allows an inspector of the WRC to issue a fixed-payment notice where the inspector has reasonable grounds for believing a person has committed an offence, that is by not providing the written statement of core terms of employment within the prescribed time or by deliberately providing false or misleading information as part of the statement. The WRC already issues such fixed-payment notices in respect of certain other employment law offences. These notices are an effective way of securing compliance with the relevant provisions and are an efficient alternative to prosecution.

I take the opportunity to advise the House that I propose to bring forward on Committee Stage an amendment to the Minimum Wage Act 2000. I have recently received recommendations from the Low Pay Commission with regard to the sub-minima rates of the national minimum wage and I am pleased to say that the Government yesterday agreed my proposal to accept these recommendations. The recommendations are to abolish the existing training rates which are rarely used and to simplify the existing age and experience-based sub-minima rates.


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