04 Mar Employment (Miscellaneous Provisions) Act 2018

The Employment (Miscellaneous Provisions) Act 2018 has amended a number of pieces of legislation that will impact on all employers, and it is not just about the use of zero hours contracts.

Firstly, the Terms of Employment Act 1994 is amended and it is a requirement of the new Act for employers to issue all employees a basic statement of minimum terms of employment, within five days of commencement. These are:

1. Full names of employer and employee.

2. Employer’s address and principal place of business.

3. Expected duration and end date of contract if it is intended to be temporary.

4. The rate or method of calculation of remuneration, and pay reference period as per the National Minimum Wage Act 2000.

5. Hours of work (both daily and weekly).

An employer who fails to issue accurate information in this regard may be subject to a summary conviction unless they can demonstrate that any error was clerical or made accidentally.

The Employment (Miscellaneous Provisions) Act 2018 has also further amended the 1994 Act by providing that an employee cannot be penalised for exercising their rights under the amendment. Up to four weeks compensation is available for penalisation, and also for failure to provide an accurate or no statement of terms of employment. The WRC can also make an order that the terms are provided.

However, it is still better practice that a full and comprehensive contract of employment detailing all relevant terms and conditions of employment is issued to new employees before they commence work. This should include clauses such as a probationary period, the right to lay off, deductions, retirement age etc.

Secondly, the Employment (Miscellaneous Provisions) Act 2018 gives powers to the WRC to subpoena witnesses in respect of unfair dismissal claims and to require them to attend hearings and produce documentation or information they may have in their control or possession. The fine for failure to comply with a subpoena may be €5,000 on conviction.

And then finally, the Employment (Miscellaneous Provisions) Act 2018 has amended the Organisation of Working Time Act 1997 by introducing the concept of banded hours contracts and now largely prohibits the use of zero hours contracts, unless the work concerned is genuine casual work for emergency cover or short-term relief work. The Act also provides that where an employer fails to give an employee work amounting to at least 25% of the time, that an employee is ordinarily required to work, the employee will be entitled to either 25% of their hours or 15 hours, whichever is less. The rate of pay that will apply will be at the rate of 3 times the National Minimum Wage or relevant ERO rate of pay.

The Employment (Miscellaneous Provisions) Act 2018 has also introduced a new concept under Section 18A of the Organisation of Working Time Act 1997, which allows employees to be placed on one of eight bands of working hours, if they can demonstrate that they have previously worked a specific number of hours over a 12 month reference period. The bands are:

A ( 3 – 6 hours)

B ( 6 – 11 hours)

C ( 11 – 16 hours)

D ( 16 – 21 hours)

E ( 21 – 26 hours)

F (26 – 31 hours)

G (31 – 36 hours)

H (36 hours +)

However, if a claim is successfully brought under this provision, the WRC has no authority to make a monetary award and can only order that the employee is placed on the correct band.

If you require further information on the implementation of the provisions of the Employment (Miscellaneous Provisions) Act 2018, please call Carmel Murphy on (071) 9642748 or email info@hrsolutions.ie.