The New Employment (Miscellaneous Provisions) Bill 2017

Aoife Walsh of TSA Consultants gives The Hardware Journal readers a briefing on the latest changes to the Employment Bill set to come into place in March 2019.

The new Employment (Miscellaneous Provisions) Bill 2017, when introduced, will affect many employers, particularly those in the retail, tourism, hospitality, fast food and catering sectors who may have a requirement for flexible general operative style roles in their team.

In December 2018 it was confirmed that the provisions of the bill would indeed become law as of March 1st 2019. Unions are lauding the new legislation, employers claim it is draconian and criminalises employers. Lawyers, depending on which ones you listen to, claim there are loopholes that unscrupulous employers can exploit which renders aspects of the legislation pointless.

Terms and Conditions

Within five days of commencement, the new bill imposes new obligations on the employer to present certain terms and conditions of employment to a new employee within 5 days of their commencement with possible penalisations of up to €5000 in fines or imprisonment of up to 12 months for employers who do not comply. Put simply, if you forget to give a new starter certain written terms of employment within five days you could be prosecuted as a criminal over it.

• The statement of terms will be required to contain;
• The full name of employer and employee.
• Address of employer.
• Expected duration of the contract if applicable.
• The rate of pay, pay reference period and method of calculation.
• The number of hours which the employer reasonably expects the employee to work – per normal working day and per normal working week.

Currently, the employer has eight weeks under employment legislation to give an expanded statement of terms and conditions, or contract of employment. Obviously, employers are going to have to find a fool-proof system of ensuring they meet this five-day deadline from March 1st 2019.

Banded Hours

This legislation also introduces the implementation of banded hours contracts, which will reflect the average hours actually worked over a ‘reference period’ of 12 months. Irrespective of what an employer’s contract says with regard to an employee’s hours, their custom and practice over the most recent 12 months can supersede this and an employee can claim to be
placed in the relevant one of eight different bands of weekly guaranteed hours (e.g. 3-6, 6-11, 11-16, etc). Employers and Managers who prepare rosters will have to be made aware of this to ensure they are comfortable with the roster they are providing and the downstream consequences of same.

• The suspension, lay-off or dismissal, or threat of any of the previously mentioned,
• Demotion or loss of opportunity for promotion.
• The transfer of duties, change of location of place of work, reduction in wages or change in working hours.
• Imposition or the administering of any discipline, reprimand or other penalty (including financial penalty, and coercion or intimidation.)

Zero Hour Contracts

Zero-hour contracts will be prohibited except for genuine casual work, emergencies or short-term relief absence. Where an employee is required to be available for a certain number of hours each week, and, if and when the employer requires the employee to be available, the hours shall be greater than zero. If an employee on a zero-hour contract is not requested by the employer to work the contracted hours within any given week, they are entitled to pay from the employer of either 15 hours or 25% of the hours stated on the contract, whichever is the lesser. The employee will be entitled to a minimum payment of three times the national minimum hourly rate of pay as stated by the National Minimum Wage Act unless the employee is put on a period of layoff or the employee themselves are not available due to sickness/injury leave.

Further protection

The new legislation proposes that employees will have protection against penalisation from an employer if they are found to have; invoked their rights as an employee, having in good faith opposed by lawful means an act that is unlawful, give evidence in any proceedings or give notice to do any of the above. This amendment does not apply to the Protected Disclosures Act 2014. Penalisation in this amendment refers to;

Commentary

This is a new piece of employment legislation that is going to have a real impact on many employers. This will be particularly true if employers do not proactively seek advice and consider the content of the law and make subtle changes to their day to day HR management to minimise the likely effects. This will not have the same fanfare that GDPR did in 2018, but
for small and medium Irish employers, this legislation has the potential to criminalise them for quite simple HR housekeeping failings and this is a cause for concern especially in a period where Brexit and other political factors are distracting in other ways.

If HAI members have any queries on this legislation, or indeed any aspects of their HR or Employment Law needs, please contact our office at any stage on 021 4634154.

This Business Support article featured in the January/February edition of The Hardware Journal.