REA agreements deemed unconstitutional
On May 9th 2013, the Supreme Court ruled that Part III of the 1946 Industrial Relations Action, which provided the legal basis for Registered Employment Agreements (REAs), is unconstitutional, having regard to the provisions of Article 15.2.1. of the Irish Constitution.
Collective Agreements are agreements concluded between an employer and worker representatives. Employers and workers in any sector or enterprise can agree minimum rates of pay and conditions of employment.
Up to this Supreme Court ruling, they could have the agreement registered with the Labour Court as a Registered Employment Agreement (REA).
REAs were legally binding to the employers and employees in the sector of employment to which the agreement applied.
The Minister for Jobs, Enterprise and Innovation had previously announced proposals to alter the system of REAs with changes to be introduced in line with other developments.
The ruling does not alter previously negotiated contracts and only applies to future contracts.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Read more at www.irishtimes.com >
Parental Leave
The EU (Parental Leave) Regulations 2013 (S.I. 81 of 2013) came into operation on 8 March 2013, amending the Parental Leave Acts 1998 to 2006. The Regulations made the following key changes to parental leave rights in Ireland:
Parental Leave entitlement increased to 18 weeks
The Parental Leave Acts provide parents, adoptive parents and persons in loco parentis, who have the required continuous service with their employer with the right to take unpaid leave to care for their children. The leave may be taken as a continuous block, or, if the employer agrees, it may taken over a period of time. The new Regulations increase the parental leave entitlement from 14 to 18 working weeks.
Leave for child suffering from long-term illness
Normally, parental leave must be taken before the child reaches 8 years of age, but leave can be taken to care for older children in certain limited circumstances, such as when a child has a disability. In such cases parental leave can be taken up until the child reaches 16 years, or the disability ceases, whichever first occurs. The new Regulations now extend the scope of this provision to allow for leave to be taken in respect of a child with a long-term illness until that child reaches 16 years, or the illness ceases, whichever first occurs.
Transfer of parental leave between parents limited to 14 weeks
Each parent has a separate entitlement to parental leave in respect of each child and there is no general right to transfer parental leave from one parent to another. However, in cases where both parents are employed by the same employer, either parent is entitled, subject to the consent of the employer concerned, to transfer all or part of their parental leave to the other parent. However, the new Regulations specify that the right to transfer parental leave is limited to 14 of the 18 working weeks.
Right to request change to working hours or patterns
The new Regulations also provide a statutory entitlement for employees returning from parental leave to request a change in their working hours or patterns for a set period of time. The request must be made not later than 6 weeks before the commencement of the proposed set period. The employer must consider, but is not required to grant, the request. When considering the request, the employer must have regard to the needs of the employer and the employee. The employer must then, within 4 weeks of receipt of the request, either (a) inform the employee in writing that the request has been refused, or (b) if the request is accepted, arrange for the employer and employee to sign an agreement confirming the proposed changes with the date of commencement, and duration of the changed working arrangements set out.
Other Important Aspects
Other noteworthy factors in addition to those above and those set out in the updated handbook section are as follows:
Social insurance contributions
- The Minister for Social Protection has previously introduced Regulations to ensure preservation of social insurance (PRSI) records for employees who take parental leave. The employer must write to the Records Update Section of Department of Social Protection, detailing the weeks not worked, so that the employee can get credited PRSI contributions for this time. Information about credited contributions and parental leave is contained on the Department’s website www.welfare.ie
Annual leave and public holidays
- While on parental leave, an employee must be regarded for employment rights purposes as still working. This means that annual leave is accrued while on parental leave. If annual holidays fall due during parental leave, they may be taken at a later time. A public holiday that falls while an employee is on parental leave and on a day which they would normally be working is added to their entitlement.
Amount of parental leave
- Where an employee has more than one child, parental leave is limited to 18 weeks in a 12-month period. This can be longer if the company agrees and parents of twins or triplets can take more than 18 weeks of parental leave in a year.
- The 18 weeks per child may be taken in one continuous period or in 2 separate blocks of a minimum of 6 weeks. There must be a gap of at least 10 weeks between the 2 periods of parental leave per child. However, if the employer agrees the leave can be separated into periods of days or even hours.
Other elements
- Generally an employee must have been working for the employer for a year before being entitled to parental leave. However if a child is very near the age threshold and an employee has been working for an employer for more than three months but less than one year they are entitled to pro-rata parental leave i.e. one week's leave for every month of employment completed.
- If an employee changes job and has already used part of their parental leave allowance they can use the remainder after one year's employment with the new employer provided the child is still under the qualifying age.
- Apart from a refusal on the grounds on non-entitlement, an employer may also postpone the leave for up to 6 months. This must be done before the confirmation document is signed. If the confirmation document is already signed, the leave cannot be postponed without further written agreement. Grounds for such a postponement may include lack of cover or the fact that other employees are already on parental leave. Normally, only one postponement is allowed, but it may be postponed twice if the reason is seasonal variations in the volume of work.
- Parental leave is to be used only to take care of the child concerned. If the parental leave is taken and used for another purpose The company is entitled to cancel the leave.
- Employers must keep records of all parental leave taken by their employees. These records must include the period of employment of each employee and the dates and times of the leave taken. Employers must keep these records for 8 years. If an employer fails to keep records they may be liable to a fine of up to €2000.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Changes to parental leave
The Minister for Justice, Equality and Defence Mr Alan Shatter, T.D., signed regulations extending parental leave from 14 weeks to 18 weeks on 8 March 2013. The changes give effect to EU Council Directive 2010/18/EU of 8 March 2010 which implements a revised Framework Agreement on parental leave concluded by the European Social Partners.
The Regulations also allow parents returning from back to work from parental leave to request a change in their working hours or pattern. Employers must consider such a request but are not required to grant it.
This new regulations apply to all children who currently qualify for parental leave – children under 8 years of age, or in the case of child with a disability or long term illness, under 16 years of age.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
EAT awards €17,000 for dismissal after refusal to sign new contract
The need for employers to be careful in amending employee contracts has been highlighted in a case recently before the Employment Appeals Tribunal where a dismissed employee was awarded €17,000 by the Tribunal which indicated that it accepted the evidence of the claimant; that she was dismissed due to the fact that she refused to sign a new contract of employment.
The claimant who worked mainly evening shifts, weekends and bank holidays indicated that when she arrived at work one day, she was informed that there were new contracts on a desk and that all staff were to sign them on that day. She indicated to her employer that she wished to speak to him about this, however he indicated that there was nothing to be talked about. Her main concern at that point was that she was losing her days off.
She indicated to the Tribunal that her employer told her that he would drive through the changes without changes and whether they were legal or illegal and that when other members of staff refused to sign the employer blamed the Claimant for this. She claimed that she was then excluded from management meetings, her hours of work were reduced and ultimately she was informed that her position was made redundant.
While the employer indicated that the dismissal was due to redundancy, the Tribunal did not accept that it was a Redundancy and awarded the Claimant €17,000 in damages for Unfair Dismissal as well as €820 under the Minimum Notice and Terms of Employment Acts.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Cases in Employment Appeals Tribunal take up to 83 weeks for Hearing
In recent figures issued to RTÉ news, the Department of Jobs, Enterprise and Innovation confirmed that the average waiting period for an unfair dismissals case at the Employment Appeals Tribunal is 75 weeks in Dublin and 83 weeks in the rest of the country.
At the start of 2013 there are just over 5,000 cases waiting to be listed for hearing resulting in both employers and workers have to wait around a year and a half for a hearing.
While the Department of Jobs Enterprise and Innovation noted that the EAT has increased the number of cases disposed of in recent years - with an additional 13% of cases handled in 2012, it identified that there are significant delays in issuing determinations - with the longest delay involving a case where a ruling post-hearing has been awaited for 104 weeks.
The department stressed that the EAT is independent in exercising its quasi-judicial function and that the minister has no direct involvement in its day to day operations.
The department said the tribunal aims to issue 80% of determinations within ten weeks of a hearing taking place.
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Employment Permits Bill
Legislation aimed at protecting undocumented migrant workers is being progressed as a priority by the Department of Jobs, Enterprise and Innovation.
The proposed legislation will address, amongst other matters, an important legal issue identified in a recent High Court decision. In August 2012, the High Court overturned a Rights Commissioner's award of over €91,000 in favour of a foreign national employed as a restaurant worker.
The Court found that the employee’s contract of employment was substantively illegal in the absence of the appropriate employment permit and that he was therefore not entitled to the award.
The proposed legislation will protect migrant workers whose employment in Ireland is unlawful by reason of not having a work permit. The Department recently confirmed that it is expected that the Bill will be published in the first quarter of this year.
Bright Contracts – Employment contracts and handbooks.
BrightPay – Payroll Software
Key changes to Parental Leave imminent following EU Directive
The Department of Justice and Equality has indicated that it intends to implement an EU Directive on Parental Leave in a Bill which will consolidate all family leave legislation (parental, maternity, adoptive, and carer’s leave). The Directive had been due to be implemented in March 2012 but member states were given an additional year if there were particular difficulties. It must be implemented no later than March 8th, 2013.
Under the EU Directive, [2010/18/EU], there is provision for four weeks’ parental leave for both mothers and fathers. The Directive, which applies to all workers including fixed-term, part-time and temporary agency workers, puts the framework agreement on parental leave agreed by the social partners at European level into EU law. It replaces a previous Directive [96/34/EC].
From the date of implementation, March 8th 2013, parents will both be entitled to four months’ parental leave in respect of a child (born to them or adopted) up to the age of eight. Member states may set the rules about how the leave is to be taken and this is likely to be included in legislation or regulation. The state may also set a minimum qualification period or length of service period but this cannot be more than one year. One of the four months entitlement will not be transferrable between the parents so as to encourage fathers to take the leave.
The Directive also gives parents returning to work after parental leave the opportunity to ask for a change in their working conditions. Employers will have to consider and respond to such requests, taking into account both employers' and workers' needs.
These changes, when implemented through legislation, will be updated in the Bright Contracts package and included in the updated Handbook. Existing users will be notified of the change and provided with an opportunity to update the handbook for existing employees, thereby keeping them up to date.
Current Position
Currently, Parental Leave provides for unpaid leave from work for parents to look after their young children to a maximum age of 8 years. In the case of an adopted child who is aged between 6 years and 8 years at the time of the adoption, the leave must be taken within 2 years of the adoption order, or if the child concerned has a disability, the leave must be taken before the child reaches 16 years of age or ceases to have that disability or any other disability (whichever occurs first).
All employees who have completed one year’s continuous service on the date the parental leave is due to commence are entitled to 14 weeks' unpaid parental leave. Parental leave may be taken as a continuous block of 14 weeks, or two blocks of six or more weeks with a minimum of 10 weeks between each block.
An employee must give written notice to The Company of their intention to take parental leave, not later than 6 weeks before the commencement of the leave. Employees may be required to provide evidence of his or her entitlement to parental leave. Once notification of the intention to take parental leave has been made, a confirmation document must be prepared which must include:
• The date on which the leave will commence
• The duration of the leave
• The manner in which the leave will be taken
• The signatures of employer and employee
Management may decide to postpone the parental leave, for up to 6 months, if satisfied that granting the leave would have a substantial adverse effect on the operation of the business.
During parental leave, your rights such as annual leave and public holiday entitlement, are preserved and continue to accrue as if you were not absent from work.
Parental leave may be terminated if there are reasonable grounds to believe that it is being used for a purpose other than taking care of the child concerned.
Summary of Changes in Directive
One purpose of the revised Directive is to seek to ensure that both parents take leave. The following changes are included:
• The right of working parents to parental leave is extended from 3 to 4 months for each child. This previous entitlement stood at 14 weeks per child. This entitlement is given to both parents of a child or an adopted child up to the age of 8 years. The leave is an individual right and should not be transferred from one parent to another. However, in order to encourage a more equal take up of leave by both parents, one of the months is non-transferrable. If only one parent takes the leave then it is limited to 3 months.
• The terms apply to all categories of workers including part-time, temporary and fixed term workers. The revised Directive allows Member States to maintain a qualification period of one year before an employee can apply for the leave. In the case of successive fixed term contracts with the same employer, the sum of these contracts must be taken into account for the purpose of calculating the qualifying period.
• Conditions of access, rules etc. for applying for the leave will be left up to each Member States. Member States can decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system.
• All forms of less favourable treatment are prohibited including dismissal on grounds of applying for or taking up parental leave.
• Governments, employers and unions will be obliged to assess and consider the specific needs of adopted children and children with a disability.
• Employees returning from parental leave shall (a) have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or relationship and (b) will have the right to ask for changes to their working hours and/or schedules for a limited period. Employers will be obliged to balance the needs of an employee as well as the business in considering such requests. Both parties will be encouraged to maintain contact during the period of parental leave and to arrange reintegration measures on return to work.
Under existing legislation in Ireland an employee is not entitled to be paid during parental leave. The revised Directive still leaves the matter of paid parental leave up to the individual Member States so is unlikely to change in Ireland.
Prosecutions by NERA result in fines of over €100,000 in first nine months of 2012
Figures contained in the NERA Quarterly Update, Issue 3, 2012 show that in the period January to September 2012, a total of 57 cases were referred by NERA to the Courts for prosecution. 46 convictions were recorded in cases heard by the Courts over the period resulting in fines of €102,000 being imposed and arrears of wages of over €37,700 being awarded to employees.
Over 10,000 complaints received by WRCS in first nine months of 2012
The Quarterly Update also highlights that Workplace Relations Customer Services (www.workplacerelations.ie), based in NERA, is now the single portal for all employment rights complaints.
In the first nine months of 2012, a total of 10,199 employment rights complaints were received by the WRCS. These are broken down as follows:
Employment Appeals Tribunal - 2,536
Early Resolution Service - 1
Equality Tribunal - 515
Labour Court - 376
NERA - 328
Rights Commissioners - 6,443
Workplace Inspections by NERA results in the recovery of over €650,000 in unpaid wages in first nine months of 2012
NERA carries out workplace inspections to ensure compliance with employment rights legislation. In the period January to September 2012 a total of 3,140 inspection cases were completed involving over 51,000 employees. The amount of unpaid wages recovered was €659,435.
For more detailed information go to www.employmentrights.ie
Information from NERA on Public Holiday Entitlement Christmas 2012
It’s that time of year when debates arise in many workplaces over entitlements to Public Holidays and appropriate payment for them. NERA, the employment rights body have helpfully set out guidance in relation to this festive challenge for all concerned. This guidance is set out below:
“Full-time workers have immediate entitlement to benefit for public holidays and part-time workers have entitlement to benefit when they have worked 40 hours in the previous 5 weeks.
Christmas Day, Stephens Day and New Year’s Day are public holidays. Christmas Eve is not a public holiday.
When a person works on either or both of these days they are entitled to be paid for each day in accordance with their agreed rates. In addition they also have an entitlement to benefit for each public holiday. This can be different for each public holiday and each employee depending on the individuals work pattern.
If the business is closed on the public holiday and an employee would normally be due to work then they get their normal days’ pay.
If the business is open and the employee works, they are entitled to either, paid time off or an additional days pay. This additional days’ pay is what was paid for the normal daily hours last worked before the public holiday.
If an employee is not normally rostered to work then they will be entitled to one fifth of their normal weekly wage.
If someone ceases to be employed during the week before a public holiday, having worked the four weeks preceding that week, they are entitled to benefit in respect of that public holiday
If a person is on temporary lay-off they are entitled to benefit for the public holidays that fall within the first thirteen weeks of layoff.”
Source: NERA Information Services
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
Labour Court Abolishes Three JLCs
The reform of the employment regulation arena has been continuing apace in the second half of 2012.
As indicated elsewhere on the Bright Contracts site, the Industrial Relations (Amendment) Act 2012 commenced on 1 August last. This Act amended the Industrial Relations Acts 1946 to 2004, and in particular in relation to Registered Employment Agreements, Joint Labour Committees and Employment Regulation Orders. It also amended the Employment Permits Act 2006, the Organisation of Working Time Act 1997, the Protection of Employees (Employers' Insolvency) Act 1984 and the Terms of Employment (Information) Act 1994.
On 2nd August 2012, the Minister for Jobs, Enterprise and Innovation, Mr. Richard Bruton T.D. applied to the Labour Court under Section 40 of the Industrial Relations Act 1946 for the abolition of the three Joint Labour Committees (JLC's) - Aerated Waters and Wholesale Bottling JLC, Clothing JLC and Provender Milling JLC. The Labour Court held an inquiry on Monday October 1st 2012 into the application. Any interested party was entitled to attend the inquiry and/or submit representations regarding the draft Orders to the Court in advance of the inquiry.
As stipulated in the legislation the Labour Court issued a notice that in exercise of the powers conferred on it by Section 40 of the Industrial Relations Act 1946, it had made three Orders entitled
- Aerated Waters and Wholesale Bottling (Abolition) Order 2012,
- Clothing (Abolition) Order 2012 and
- Provender Milling (Abolition) Order 2012.
The purpose of the Orders, which are effective from 12th October, 2012, is to abolish the Aerated Waters and Wholesale Bottling Joint Labour Committee, the Clothing Joint Labour Committee and the Provender Milling Joint Labour Committee.
The Orders have been published and copies may be purchased direct from the Government Publications Sale Office, Molesworth Street, Dublin 2, Ireland.
The remaining JLC’s as set out on the Labour Court Website cover the following categories:
- Agricultural Workers
- Catering (Dublin and Dun Laoghaire)
- Catering (Other)
- Contract Cleaning
- Hairdressing
- Hotels (Dublin and Dun Laoghaire)
- Hotels (Other excluding Cork)
- Law Clerks
- Retail Grocery and Allied Trades
- Security Industry
Further information can be read at www.djei.ie and www.labourcourt.ie
Bright Contracts – Employment contracts and handbooks
BrightPay – Payroll Software
