On 7 December 2017 the Minister for Employment Affairs and Social Protection, Regina Doherty, published the Employment (Miscellaneous Provisions) Bill 2017 (the “Bill”). The Bill seeks to provide a greater degree of certainty and protection for employees with precarious working hours through a variety of measures. Unless otherwise stated, the new provisions apply to employees who have been in continuous service for more than one month.
Terms of Employment:
Section 6 of the Bill states that all employees shall be provided, within five days of commencing work, with a written statement from their employer containing five key terms of their engagement: the full names of employer and employee, the address of the employer, the expected duration or expiry date of their employment, the method of calculating pay and the number of hours they are reasonably expected to work per day and per week.
Failure to provide this statement within one month or deliberately misleading or giving false information to the employee will be an offence under Section 9 of the Bill. Ten other terms must still be provided to the employee within two months under Section 3 of the Terms of Employment (Information) Act 1994. For practical purposes, all information due to an employee should be furnished simultaneously within five days of the employee’s start date.
Prohibition of Zero-Hour Contracts:
The Organisation of Working Time Act, 1997 will be amended by Section 14 of the Bill, with the effect that employers will no longer be able to engage employees on a zero-hour contract in most circumstances. Although a contract requiring a worker to make themselves available must offer more than zero hours per week, no minimum number of hours has been directed. This prohibition will apply in all cases apart from genuinely casual work, emergency situations or short-term relief work.
To prevent the practice of calling employees in to work but not providing them with work or compensation in lieu, a minimum-floor payment is introduced by Section 14 of the Bill. If an employee has not worked at all in a week or has worked less than 25% of their contract hours, they will be entitled to a minimum payment. The payment shall be calculated as the pay that the employee would have received had they worked the lesser of (i) 15 hours (ii) 25% of their normal contract hours or (iii) 25% of the work done for the employer that week.
That minimum payment must be three times the National Minimum Wage or three times the minimum rate set out in an Employment Regulation Order (in force for the time being) and must be provided on each occasion that this occurs. Employers have a potential defence if the practice was unavoidable due to exceptional or emergency circumstances. Section 14 does not apply to on-call work.
Section 15 of the Bill introduces a system of banded hours where an employee’s contract does not reflect the number of hours actually worked. An employee may submit a written request to their employer to review their average hours and for a change of band if appropriate. The request must be substantiated by reference to a continuous 18 month period of work and a request may not be submitted before this period has elapsed.
The employee’s request must be granted within two months and the employee is entitled to remain within that band for a minimum of 18 months. An employer may refuse a change of bands if there is no evidence to support the request, where there have been significant adverse changes to the business during the period or where the average hours were due to a temporary working situation that no longer exists.
Penalisation of Employees:
Employees seeking to invoke their employment rights under the Bill will have strong protections against penalisation. Under Section 10, ‘penalisation’ is defined as any act or omission by an employer affecting an employee to their detriment, including suspension, dismissal, demotion, loss of opportunity, reduction in wages or working hours, change of working location, disciplinary action, coercion or intimidation.
Section 11 provides that where an employee successfully makes a complaint to the Workplace Relations Commission in relation to a contravention of their rights, he/she may be entitled to compensation in an amount that an adjudication officer considers just and equitable in the circumstances, but not exceeding four weeks’ remuneration.
The Bill has long been awaited and is expected to progress through the legislative process early in the New Year.
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