The Employment (Miscellaneous Provision) Act

January 31, 2019

The Employment (Miscellaneous Provisions) Act comes into force on the 1st March 2019. The Acts main provisions make significant amendments to both the Terms of Employment (Information) Act 1994 and Organisation of Working Time Act 1997 by introducing minimum working hours, introducing employees having regularly worked hours incorporated into minimum working hours and requiring Employers to issue a mini-statement of terms within 5 days of someone commencing work.

Mini-statement of Terms:

An employer must, within 5 days of starting employment, give a new employee a statement of “core terms” in writing setting out the following:

the names of the employer and employee
the address of the employer
in the case of a temporary contract, the expected duration of the contract and in the case of Fixed Terms work the date the contract expires
the rate or method of calculation of the employee pay and the pay reference period
the number of hours the employer reasonably expects the employee to work

This statement does not replace the need to issue a full statement of terms of employment within the first 2 months of employment. However, if the full statement is issued within the 5 day period there is no need to issue the mini-statement.

It will be an offence carrying a potential fine of up to €5,000/12 months imprisonment for an employer who fails to provide the core terms within one month or who deliberately misrepresents the required information given to the employee. The employer is allowed the defence that they exercised due diligence and took reasonable precautions to ensure compliance with the Act.

Zero Hour Contracts:

The Act amends the provisions of the Organisation of Working Time Act in relation to requiring that there must be a minimum number of hours on any contract unless it is work of a casual nature, an emergency or short-term relief.

Working Hours:

The Act creates Banded hours, with 8 bands ranging as follows:-

A 3 – 6 hrs E 21 - 26 hrs

B 6 - 11 hrs F 26 - 31 hrs

C 11- 16 hrs G 31 - 36 hrs

D 16 - 21 hrs H 36 hrs and over

Employees will have recourse to request the band which reflects the average number of hours worked per week over a 12-month period, with recourse to the Workplace Relations if not applied on request.

The employer has 4 weeks in which to comply with a valid request. Any employee placed on a new band is entitled to work that for at least the following 12 months.

Am employer may refuse to comply with such a request where there is no evidence to support the claim, there were exceptional circumstances applying, there is a significant change in business circumstances or the hours worked were due to a temporary situation only and that has ceased.

The legislation will still allow employees/ers to operate on an “mutually available” basis whereby if an employee is not required to be available and they may refuse the work, then the provisions relating to minimum payments if work is not provided will not apply.

Reduction of Hours:

There is no statutory provision included to reduce the hours so an employer can only avail of their existing rights to reduce hours, such as short-time working /lay off, if provided for in the T&Cs and these usually apply to short term arrangements only.

Penalisation:

An Employer who is found to have penalised an employee because they invoked a right under the Act will face a potential award of up to 2 years remuneration. Examples of penalisation would be changing their duties, suspension, lay off or dismissal demotion.