New Employment Regulation Order for Contract Cleaners, November 2016

contract-cleaner-employment-regulation-order

A new Employment Regulation Order for contract cleaners will come into force 55 days from 1st November, 2016.

This order provides for 3 pay increases over 3 years and other matters such as charges for uniforms.

The rate of pay will be as follows:

€10.05 from 1st December, 2016 or 60 days after signing of the order, whichever is later;

€10.40 from 1st December, 2017, and €10.80 from 1st December, 2018.

It also makes some changes re:

  • Annual holidays
  • Terms of employment
  • Other conditions of employment
  • Sick pay procedure
  • Maternity leave
  • Bullying/harassment
  • Dismissal
  • Rosters
  • Overtime
  • Payment of wages.

You can read the full statutory instrument here: statutory instrument 548 of 2016.

6 Claims Part Time or Fixed Term Workers Can Bring to the WRC

part time worker

Are you a part time worker?

Or are you on a fixed term contract? Set out below you will find 6 complaints which can be brought to the Workplace Relations Commission, depending on whether you are a part timer, or fixed termer, or both.

The purpose of the legislation-Protection of Employees (Part Time Work) Act, 2001 and Protection of Employees (Fixed Term Work), 2003-is to provide protection to workers like you.

Part-Time Work

  1. Are you a part-time employee and have, in respect of your conditions of employment been treated less favourably than a comparable full-time employee?

Section 9(1) of the Protection of Employees (Part-Time Work) Act 2001 states that a part-time employee shall not be treated in a less favourable manner than a comparable full-time employee.

Fixed-Term Work

  1. Are you a fixed-term employee and have, in respect of your conditions of employment, been treated less favourably than a comparable permanent employee?

Section 6(1) of the Protection of Employees (Fixed-Term Work) Act 2003 that a fixed-term employee shall not be treated in a less favourable manner than a comparable permanent employee.

  1. Did your employer fail to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration?

Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 provides that where an employer proposes to renew a fixed-term contract, the employee must be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration at the latest by the date of the renewal.

  1. Has your employer contravened the legal provisions in relation to the number of successive fixed-term contracts that can be issued to you?

Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 states that when a fixed-term employee has completed 3 years of continuous employment with the employer the contract may only be renewed on one further occasion and cannot exceed a term of 1 year.

  1. Has your employer failed to inform you (a fixed-term employee) of opportunities for

(a) permanent employment, or

(b) appropriate training opportunities

Section 10 (1) of the Protection of Employees (Fixed-Term Work) Act 2003 states that an employer must inform fixed-term employees of relevant vacancies which become available to ensure that they have the same opportunity to secure a permanent position as other employees

The employer must also facilitate access of fixed-term employees to appropriate training opportunities to enhance their skills.

  1. Did your employer fail to provide to your representative information about fixed-term work?

Section 11(2) of the Protection of Employees (Fixed-Term Work) Act 2003 states that as far as practicable, employers shall consider providing information to employees’ representatives about fixed-term work in the undertaking.

Interns in the Workplace in Ireland-6 Tips for Internships and the Key Issues

interns-in-workplace

You either love them or hate them.

What’s one person’s great opportunity to gain some valuable experience is another’s exploitation of the vulnerable, needy, and naive.

Regardless of your view, this piece will look at the legal aspects of internships.

Well known internships in Ireland include the JobBridge scheme and various FAS initiatives. Both of these internship schemes are specifically excluded from the rigours of employment law in Ireland.

But the internship offered by a private business or company has no such protection. It is this type of internship that I am writing about here.

The first important thing to understand is what an internship is and what is an intern.

Well, there is no statutory definition. And the key point for an employer to consider is whether their “intern” will actually be considered to be an employee with all of the employment law rights that flows from that.

An intern is someone who is engaged in a business or profession to observe and gain experience of a particular role, business, or industry. Many internships are unpaid, many are badly paid, and many may have the payment of “expenses” (eg for travel) to the intern.

The terms and conditions of internships vary widely from business to business but for an employer one of the most important things is whether the intern could be considered to be an employee or not..

Probably the most important factor in establishing whether an intern is an employee or not is whether he/she works or merely observes-work v education as it were.

If he/she works then he/she may well be an employee and be entitled to be paid, holidays, rest breaks, and so forth.

Elsewhere on this site you can read about the tests that are used to indicate whether someone is an employee or not.

But the vital thing to know is that regardless of what the parties say, a Court or tribunal will look at the facts of each individual situation and decide whether it is a contract of service (employee) or contract for services (independent contractor).

The same sort of analysis will be used if there is a dispute with the internship.

The National Minimum Wage Act, 2000 defines a contract of employment very broadly as follows:

contract of employment” means—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for that person or a third person (whether or not the third person is a party to the contract),
whether the contract is express or implied and, if express, whether or not it is in writing;

Accordingly it is clear that even though it has not yet been tested in Ireland, an intern could well successfully claim to be entitled to be paid under this legislation, provided he/she can show that he/she was an employee.

If the intern can show that he/she was an employee, not only will he/she have the right to be paid but he will gain the full protection of various employment law legislation governing holidays, rest breaks, anti discrimination, equality of opportunity etc.

TIPS FOR TAKING ON INTERNS:

  1. Be fair and transparent in how you take them on. It reflects well on your company and is just the decent thing to do.
  2. Consider having a written agreement, setting out the terms of the internship. This document would set out the parties expectations for the internship, what sort of training and feedback will be given, whether and to what extent there will be mentoring, and so on. Most importantly, this document would state that the intern is not an employee but that the purpose of the internship is for the intern to learn about the company, industry, or specific job/role and that the intern will not be paid. However paying reasonable and necessary expenses of the internship should be considered.
  3. An internship should be short; the longer it is the more likely it is to involve the intern working and being considered, at least in the eyes of the law, an employee.
  4. There should be some thought put into how the intern is to learn and whether he will shadow existing employees in various roles in order to learn..
  5. Even though the intern is not an employee, it is good practice to ensure he has been given a copy of the company’s staff handbook and its most important policies and procedures. Of particular importance here would be health and safety and dignity at work..
  6. If the business/company is going to discharge expenses of the intern eg travel expenses these should be vouched..

Regardless of your views on internships, they can be incredibly useful for the business and the intern.

Following the tips above means that both parties know what the ground rules are and make the engagement more beneficial and meaningful for intern and business/company.

If any of the issues raised above impact you contact us.

Part Time Workers Employment Rights in Ireland-What Employers and Employees Need to Know

part-time-work-ireland

Part time workers are a major feature of the Irish workplace. And they used to have little or no protection from exploitation or abuse.

Not any more.

The Protection of Employees (Part-Time Work) Act, 2001 offers a considerable degree of protection to part time and casual workers.

The principle goals of this legislation are to prevent discrimination against part time workers and to improve the quality of part time working conditions.

In addition the Code of Practice on Access to Part Time Work (SI 8/2006) seeks to encourage promotion of part time work including helping employees access part time work by more encouraging workplace policies by employers in respect of access.

While the code of practice is not mandatory should such a code of practice exist in the workplace this will be admissible as evidence in any Court or hearing of a dispute between employer and employee.

Employers who fail to recognise this change are leaving themselves open to successful claims from employees through the Rights Commissioner service within 6 months of the alleged contravention and prosecution from NERA.

Any clause in an employment contract which seeks to exclude any aspect of the Protection of Employees (Part-Time Work) Act, 2001 will be void (section 14).

The act protects all part time employees including apprentices and defines a part time worker as “an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her”.

“Normal hours of work” is broadly the average number of hours worked per day over a reference period.

A “comparable full time employee” is defined in the act by compliance with various conditions set out in the act.

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—
(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

“Conditions of employment” are also defined in the act and principally concern remuneration/pay.

No Less Favourable Treatment

The principle thrust of the act is that part time employees, like fixed term workers, are to be treated no less favourably than their full time counterparts unless that favourable treatment can be justified on an objective ground (objective justification).

This is a similar situation to fixed term workers who can be treated less favourably on objective grounds. Treating employees less favourably on objective grounds is only acceptable where the considerations surrounding the treatment

  • Have nothing to do with the fact that the employee is part time
  • The purpose is for a legitimate objective
  • The treatment is necessary and appropriate for that purpose.

See section 12 of the Act.

The Act provides though that an objective ground for less favourable treatment may be easier to justify for casual part time work but not “part time” per se. ((2) For the avoidance of doubt, a ground which does not constitute an objective ground for the purposes of section 9 (2) may be capable of constituting an objective ground for the purposes of section 11 (2).)

Section 15 of the Act provides that the employee shall not be penalised for making a complaint or invoking a right under the Act.

 Principle of Proportionality

When applying entitlements to part time employees on a pro rata basis it is important to note that the entitlement in question must be capable of being given on a pro rata basis.

The rate will depend on the number of hours worked by the part timer as a proportion of the hours worked by a full time employee.

Part Time Workers and Overtime

A provision whether in a collective agreement or in terms and conditions of employment whereby part-time workers do not receive overtime until they have completed the standard number of hours under which a comparable full time worker could be entitled to claim overtime is not unfavourable treatment and is not discriminatory.

Curry v Boxmore Plastics Ltd addressed this issue in the Labour Court.

However Abbott Ireland Ltd. v SIPTU is authority for the proposition that part time workers are entitled to a shift premium in respect of hours which were “unsocial” and “family unfriendly”.

Casual Part Time Employees

A casual part time employee is a part time worker who works on a casual basis.

This generally means that the casual part time worker is one who has worked with the employer for less than 13 weeks and that employment could not be regarded as seasonal or regular or he/she is recognised as such in an approved collective agreement (Section 11 of the Protection of Employees (Part Time Work) Act 2001).

Prohibition on penalisation

Section 15 of the 2001 Act prohibits the employer from penalizing the employee for making a complaint under the Protection of Employees (Part-Time Work) Act, 2001.

Redress for Part Time Workers

The redress for part time workers is the same as for fixed term workers

(2) A decision of a rights commissioner under subsection (1) shall do one or more of the following—
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment,

Decisions of the Rights Commissioner service can be appealed to the Labour Court.

As can be seen from the above, a part time worker can be awarded up to 2 years remuneration if (s)he brings a successful claim.

Therefore even an employee working only 20 hours a week on minimum wage can cost the employer a lot of money if (s)he is successful in bringing a claim for unlawful less favourable treatment.