Main changes to employment laws under the the Employment (Miscellaneous Provisions) Act 2018

What are the key changes to employment law under the Employment (Miscellaneous Provisions) Act, 2018?

The Employment (Miscellaneous Provisions) Act, 2018 (the Act) is not a standalone piece of legislation. It introduces new rights and protections for workers in precarious employment by amending the following five existing pieces of employment legislation:

1. Unfair Dismissals Acts, 1977 – 2015;
2. Organisation of Working Time Act 1997;
3. Terms of Employment (Information) Acts 1994 – 2014;
4. National Minimum Wage Act, 2000; and
5. Workplace Relations Act, 2015.

 

1. Amendment of the Unfair Dismissals Acts, 1977 – 2015

Under the Act, unfair dismissals legislation is amended to permit adjudication officers to subpoena witnesses to give evidence at Workplace Relations Commission (WRC) hearings. In operation, this will only have an impact on employers that are defending a claim that has reached hearing stage in the WRC.  

1. Amendments to the Organisation of Working Time Act 1997 (OWTA)

Prohibition on zero hour contracts save in specific limited circumstances

The Act prohibits zero-hour contracts.

Section 18 of the OWTA is replaced by a new section 18 under the Act which is titled “Prohibition of Zero Hours Working Practices in Certain Circumstances and Minimum Payment in Certain Circumstances”.

The prohibition on zero hour contracts is subject to two exceptions:

 

1. work done in emergency circumstances; or
2. short-term relief work to cover routine absences for the employer.

Update to minimum payments for employees who are required to be available to work but are not called into work

 

The payment mechanism that applied to zero hour employees under the OWTA (25% of the contract hours or 15 hours whichever is less) is not changed. The Act introduces an additional requirement on employers to make sure that any minimum payments owed to employees who are not required to work are not less than three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay set by an applicable employment regulation order. Minimum payments are payable “on each occasion” during a week that an employee is required to be available but not called into work.

Right to be placed in a band of hours

 

The new section 18A of the OWTA aims to protect employees whose contractual hours do not accurately reflect the actual number of hours they habitually work. Section 18A affords employees the right to request to be placed in a band of hours which accurately reflects the actual hours worked by the employee over a 12-month reference period. You should note that a continuous period of employment which has been in place immediately before the Act came into force is reckonable towards the 12-month reference period.

 

The relevant bands of hours are set out below.  

 

Band	From	To
A	3 hours	6 hours
B	6 hours	11 hours
C	11 hours	16 hours
D	16 hours	21 hours
E	21 hours	26 hours
F	26 hours	31 hours
G	31 hours	36 hours
H	36 hours and over

 

You may refuse a request to be placed in a band of hours in the following circumstances:

1. where there is no evidence to support the employee’s claim in relation to the hours worked in the reference period;
2. where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period;
3. due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident) the consequences of which could not have been avoided despite the exercise of all due care, or otherwise due to the occurrence of unusual and unforeseeable circumstances beyond the employer’s control; or
4. where the average hours worked by the employee were affected by a temporary situation that no longer exists.

 

1. Amendments to the Terms of Employment (Information) Acts 1994 – 2014 (TE(I) Acts)

Provide employees with five core terms of employment in writing within five days of employment commencing

 

Existing position

 

Under the TE(I) Acts, you are required to confirm 15 core terms of employment in writing within two months of employment commencing. Employees are entitled to bring a claim in the WRC if you fail to provide the relevant statement of main terms. A successful claim by an employee can lead to an award of compensation not exceeding four weeks’ remuneration.

Position under the Act

Under the Act, you are now required to notify employees in writing of five core terms of employment within five days of employment commencing.

The five core terms are as follows:

1. full names of employer and employee;
2. address of employer (principal place of business or registered office);
3. the expected duration of a temporary contract of employment or the date on which a fixed-term contract expires;
4. the method of calculating pay and the pay reference period for the purposes of the National Minimum Wage Act 2000; and
5. the number of hours which the employer “reasonably expects” the employee to work both per normal working day and per normal working week.

 

The requirement to provide a statement of the five core terms is not an alternative to the obligation to provide a statement of main terms under the TE(I) Acts but an additional requirement. The statement of five core terms must be included in the statement of main terms or provided in addition to it.

 

Criminal and personal liability of directors

The introduction of criminal liability for failing to provide the statement of five core terms is a controversial aspect of the Act. If you fail to provide the statement of core terms within one month of employment commencing, you will be committing a criminal offence. Fines on summary conviction of up to €5,000, or imprisonment of up to twelve months or both are set out under the Act.

Company directors, managers, secretaries or other officers may also be found individually liable for a corporate employer’s failure to provide a statement of core terms.

1. Amendment to National Minimum Wage Act, 2000

Job entrant rules replaced under Employment (Miscellaneous Provisions) Act, 2018

From commencement of the Act, sub-minimum rates of pay will change and will be linked to the age of the employee and not their work experience.  

Under the new Act, employees who have not yet attained the age of 18 will receive 70% of the national minimum wage hourly rate of pay, employees aged 18 will receive 80% of the national minimum wage hourly rate of pay and employees aged 19 will receive 90% of the national minimum wage hourly rate of pay. All employees aged 20 and over are entitled to receive the maximum national minimum wage hourly rate of pay.

1. Workplace Relations Act, 2015

The amendments to the Workplace Relations Act, 2015 are required to reflect the changes the Act has made to the four other pieces of employment legislation.