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.
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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.
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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
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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
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Bright Contracts is category finalist in Meath Business and Tourism Awards
We attended the awards ceremony last night in the Pillo Hotel in Ashbourne. It was a great night of mingling with the best of businesses and it’s great to see how Irish businesses are thriving across all sorts of industries. We were delighted to be nominated for the ‘Best New Business’ award.
The judging panel had great things to say about Bright HR.
Even though we didn’t leave the stage in victory, we came away with a nicely framed memento and it’s already been taken off Paul’s hands and is hanging on the office wall!
Hopefully we will take the top prize in the future as we continue to spread the word about Bright Contracts across Ireland and beyond!
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Grievance Procedures must contain right to refer a grievance to a third party industrial relations institution. – Labour Court
A contention by a company that there is no requirement for the company's grievance procedure to contain a provision requiring a referral to an external independent third party was rejected by the Labour Court in a recent recommendation, LCR20406.
Having considered the submission of both parties, the Court recommended that the company’s grievance procedure should be amended to include the right to refer a grievance to a third party industrial relations institution. This is consistent with the procedure set out in the Bright Contracts Handbook.
The matter was referred by their union to the Labour Court on behalf of workers who had many years of employment with the company.
They claimed that the Company had unilaterally withdrawn their right to avail of the State's industrial relations machinery and demanded the reversal of what they described as a unilateral change to their terms and conditions of employment.
At the Labour Court hearing the company had rejected the Union's claim that its grievance procedure was incomplete. They argued that the company's grievance procedure was an internal process that complied with all normal business standards and that there is no requirement for the Company's grievance procedure to contain a provision requiring a referral to an external independent third party.
The Labour Court, in outlining its recommendation, stated the following:
“Having considered the submission of both parties the Court recommends that the Grievance Procedure should be amended to include the right to refer a grievance to a third party industrial relations institution. The Court so recommends.”
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Read more at www.labourcourt.ie >
Employment Appeals Tribunal rules in relation to company handbook and contract of employment
The Employment Appeals Tribunal recently upheld a previous recommendation of the Rights Commissioner in favour of the employer in a case where the former employee claimed that the company handbook and employment contract were invalid by virtue of the employer's correct title not being present on the handbook and contract.
The documents did not refer to the limited company status of the employer but did contain the employer's trade name and was signed by the employee.
The EAT found that the employer had fulfilled their obligations and found in their favour.
Bright Contracts – Employment contracts and handbooks
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Read more at www.eatribunal.ie >
Work on the JLC reviews and the Codes of Practice is underway – Minister Bruton
Speaking at an Employment Law Association of Ireland Conference titled: “Current Fundamental Issues in Employment Law” on 28 September 2012, the Minister for Jobs, Enterprise and Innovation, Richard Bruton confirmed that work on the review of JLC’s and key Codes of Practice is underway.
During the course of an address that dealt with a wide range of issues, Minister Bruton addressed the fact that the Industrial Relations (Amendment) Act 2012 was enacted on 24 July 2012 and commenced on 1 August 2012. He highlighted that
- the Act provides for a radical overhaul of the system in order to make it fairer and more responsive to changing economic circumstances and labour market conditions.
- it reinstates a robust system of protection for low paid and vulnerable workers in these sectors in the aftermath of the 2011 High Court ruling in the John Grace Fried Chicken case.
- it provides for more wide-ranging measures required to strengthen the legal framework for EROs and REAs in light of legislative deficiencies identified in the High Court judgment.
- it provides that reviews of the JLCs will be carried out by the Labour Court, as soon as practicable after its commencement. The outcome of these reviews will inform the Labour Court as to whether any JLC should be maintained in its current form, amalgamated with another JLC or its establishment order amended.
Minister Bruton also indicated that he has has asked the Labour Court to begin the abolition of three JLCs that had been identified as no longer fulfilling a function in the Duffy-Walsh Report.
He has also asked the Labour Relations Commission to begin work on two Codes of Practice.
- The first on Sunday Working, will provide guidance to employers, employees and their representatives in sectors covered by EROs, on arrangements that may be put in place to comply with the options specified in the Organisation of Working Time Act, 1997.
- The second will address the standardisation of benefits in the nature of pay – including overtime and how and when it becomes payable – across sectors covered by JLCs.
The Minister confirmed his understanding that preparatory work on the JLC reviews and the Codes of Practice is underway.
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