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.

12 Pay Related Employment Claims Employers and Employees Should Know About

non-payment-of-wages

Are you an employer?

Employee?

Complaints can be made by employees in respect of pay to the Workplace Relations Commission (WRC).

Here are 12 you should be aware of, with the relevant legislation underneath:

 

  1. I do not receive the National Minimum rate of pay

Section 14 of the National Minimum Wage Act, 2000 is the relevant law.

 

  1. I am not given compensation for working on a Sunday

See section 14(1) of the Organisation of Working Time act, 1997.

 

  1. I do not get a payslip

Section 4 of the Payment of Wages act, 1991.

 

  1. My payslip does not show the gross wages payable and/or the amount of any deductions.

Section 4 of the Payment of Wages act, 1991.

 

  1. My employer has made an unlawful deduction from my wages.

Section 5 of the Payment of Wages act, 1991.

 

  1. My employer has not paid me or has paid me less than the amount due to me.

Section 5 of the Payment of Wages act, 1991.

 

  1. My employer pays me by a method other than that legally prescribed.

Section 2 of the Payment of Wages act, 1991.

 

  1. My employer is not keeping statutory employment records.

A wide range of employment legislation provides for this eg Organisation of Working Time Act, 1997.

 

  1. I did not receive my paid holiday/annual leave entitlement.

Section 19 and 20 Organisation of Working Time Act, 1997.

 

  1. I have not received my Public Holiday entitlements.

Section 21 and 22 Organisation of Working Time Act, 1997.

 

11. I did not receive the appropriate payment in lieu of notice of termination of my

Section 7 Minimum Notice and Terms of Employment Act, 1973.

 

  1. I did not receive a statement of my average hourly rate of pay.

Section 23, National Minimum Wage Act, 2000.

 

In addition to going to the WRC with a complaint an employee can always go to the Civil Courts and sue for breach of contract, depending on the circumstances.

 

Minimum Wage Rates in Ireland-the Minimalist Guide to the National Minimum Wage Act, 2000

minimum wage rates ireland

There’s a real sting in the tail of the legislation which provides for minimum rates of pay-the National Minimum Wage Act, 2000.

That sting is that breaches of the Act are criminal offences which are punishable with hefty fines and/or prison sentences.

The National Minimum Wage Act, 2000 provides for a minimum hourly rate of pay.

That minimum wage, since July 2011, is €8.65 per hour for an experienced adult worker.

An experience adult worker, for the purposes of the Act, is an employee who is not: (i) under age 18 or (ii) in the first two years after the date of first employment over age 18, or (iii) a trainee undergoing a course that satisfies the conditions set out in S.I. No. 99 of 2000.

All employees, including full time, part time, casual, and temporary are covered by the act with the exception of

  1. Close relatives of the employer
  2. Certain apprentices.

Employees who are paid by piece rate rather than hourly rate are still entitled to the minimum wage.

Also, in some industries different rates apply by virtue of employment regulation orders and registered employment agreements.

Here are the minimum hourly rates:

  1. Experienced adult worker-€8.65 per hour
  2. Under age 18-€6.06 per hour
  3. In the first year after the date of first employment over age 18, whether or not the employee changes employer during the year-€6.92 per hour
  4. In the second year after the date of first employment over age 18, whether or not the employee changes employer during the year-€7.79
  5. In a course of training or study over age 18, undertaken in normal working hours-1st one third period: €6.49 per hour; 2nd one third period:€6.92; 3rd one third period:€7.79 per hour.

NB Each one third period must be at least one month and no longer than twelve months.

  1. Experienced adult worker named by the Labour Court in granting a temporary exemption to an employer from paying €8.65 per working hour-the Labour Court will decide how much should be paid

Only work experience obtained after reaching the age of 18 is counted for the rates above.

It is a criminal offence for an employer to pay less than these rates.

The fact of an employee moving from one employer to another does not affect his entitlements.

Every employer must choose a pay reference period for each employee; this s can be a week, a fortnight, or a month but not longer than a month. The average hourly rate of pay is calculated by reference to this pay reference period.

When calculating the average hourly pay the working hours includes overtime worked and any time spent on standby.

The pay to be included in the calculation of the hourly rate of pay includes:

  • Basic pay
  • Shift premium
  • Commission, bonuses, piece and incentive rates
  • €7.73 per day in respect of board and lodgings
  • €4.60 per day in respect of board (entitlement to meals during the day)
  • €3.15 per day in respect of lodgings

Pay which is not included in the calculation includes:

  • An overtime premium
  • A call-out premium
  • Service pay
  • Unsocial hours premium
  • Tips/gratuities paid by the employer from a central fund controlled by the employer
  • Public holiday premium, Saturday and Sunday premium
  • Expenses
  • On-call or standby allowance
  • Pension contributions paid by the employer.

This list is non-exhaustive but I hope you have a clear idea of how the hourly rate of pay is calculated.

Statement of average hourly pay

An employee is entitled to a written statement from an employer detailing his/ her reckonable pay, working hours, average hourly rate of pay and statutory minimum hourly rate of pay entitlement under the Act, in a pay reference period or periods, within the previous twelve months.

However, if the employee has earned an average hourly rate of reckonable pay of €12.98 or over in the specific pay reference period, the employer is not obliged to supply the employee with the written statement.

Employer not able to pay?

The employer can be granted an exemption by the Labour Court from paying €8.65 per hour. In order to obtain it he must show that he would likely terminate the employment of an employee or put the employee on lay-off.

The employer must have the consent of an employee or at least the consent of the majority of employees affected to apply to the Labour Court for a temporary exemption.

An employer is not entitled to be granted a second temporary exemption by the Labour Court and may not apply for a temporary exemption in respect of an employee being paid a lower hourly rate of pay than €8.65.

Remedies for the employee

There are 2 courses of action open to the employee if he is not being paid the minimum wage:

  1. Refer a complaint to a Rights Commissioner or
  2. Make a complaint to NERA (National Employment Rights Authority)

The employee must choose, though, as he cannot take both routes with the same complaint.

Records and burden of proof

An employer must keep all records that are necessary to show whether this Act is being complied with in relation to an employee, for at least three years from the date any record is made.

In any dispute about national minimum wage entitlements, the onus is on the employer to prove that the law has been complied with. To enable the employer to do this, records will be required.

Records will also be required to show a NERA inspector that the law is being complied with if necessary.

It is a criminal offence to fail to comply with the obligations of the National Minimum Wage Act, 2000, and this applies to

  • record keeping,
  • failure to pay the minimum wage,
  • failure to give a written statement of average hourly pay within 4 weeks of being requested by the employee,
  • obstructing a NERA inspector.

New Minimum Wage Rates, January, 2016

The minimum wage in Ireland was increased on 1st January, 2016 to €9.15 per hour. This wage rate applies to all employees, regardless of whether part time, full time, temporary, or casual.

However, some employees are excluded:

  • close relatives of the employer
  • apprentices, other than hairdressing apprentices.

Minimum Wage Rates

Experienced adult worker: €9.15 per hour
Under 18 years: €6.41 per hour
In the first year after the date of first employment over age 18: €7.32 per hour
In the second year after the date of first employment over age:18 €8.24 per hour

In a course of training or study over age 18, undertaken in normal working hours
1st third period: €6.86
2nd third period: €7.32
3rd third period: €8.24

See statutory instrument 99/2000 in relation to Prescribed Courses of Study or Training.

See also the National Minimum Wage act, 2000.

New Minimum Wage, January, 2017

From 1st January, 2017 the new minimum wage is €9.25 (refer to statutory instrument 516 of 2016).

Important High Court Decision About The 6 Month Time Limit in Payment of Wages, Act 1991

payment-of-wages-high-court-decision

The decision in a recent High Court case-Health Service Executive v John McDermott [2014] IEHC 331-is an important one.

Mr. McDermott was a medical consultant who brought a claim against the HSE under the Payment of Wages Act, 1991 to the Rights Commissioner Service, and then on appeal to the Employment Appeals Tribunal.

Ultimately the HSE brought an appeal to the High Court on a point of law because the HSE claimed that McDermott’s claim was statute barred. The background was as follows:

Background

Salary increases due to McDermott on foot of his contract of employment were not paid from 1st June, 2009 onwards because the Minister for Health and Children did not sanction the increase.

McDermott referred his claim to the Rights Commissioner service on 16th June, 2011, and his claim was that he had not been paid his lawful entitlements between January 1st, 2011 and 30th June, 2011.

The HSE claimed at both the Rights Commissioner and EAT hearings-as a preliminary issue-that the claim was statute barred as it arose from the Minister’s decision of 2009 and this was when the cause of action arose, and it was outside the 6 month time limit allowed.

Section 6 (4) of the Payment of Wages Act, 1991 states that:

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.

The Rights Commissioner decided that he had jurisdiction to hear a complaint in respect of contraventions of the Act within the 6 months from 30th December, 2010 to 29th June, 2011.

McDermott was unsuccessful in his claim-but not on the time/statute barred issue-and appealed the decision to the EAT.

The HSE then raised again the question of the claim being statute barred but the EAT agreed with the Rights Commissioner and decided that a new cause of action arises with each and every contravention and that the employee has 6 months from each contravention-a rolling time limit, as it were.

The HSE then appealed the case to the High Court on this point of law: that the claim was statute barred as it was brought outside the 6 months from the date on which the cause of action arose-2009 when the Minister did not sanction the payment.

Justice Hogan in the High Court identified that the key to this case was what the words- on the date of the contravention to which the complaint relates-meant.

He went on to state that the important question was the “date of the contravention to which the complaint relates” and therefore it is critical how the employee frames his complaint.

To elaborate on this point, Justice Hogan stated:

“If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time“.

“if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4).”

Justice Hogan also noted that a rolling time limit was not unusual in the law.

Decision

Justice Hogan decided that the EAT was correct in deciding that the complaint in “the present case related to a period of time (January, 2011 to June, 2011) which was presented to the Rights Commissioner on 16th June, 2011, within the six months time limit in respect of this particular complaint”, and was not time barred.

He dismissed the HSE appeal and referred the case back the EAT for the substantive issue to be decided.

Employees-the Facts You Should Know About Employers’ Insolvency

employers-insolvency

Employers’ insolvency.

Disaster for you as an employee.

An employer’s insolvency causes huge problems for employees, especially in relation to arrears of pay, holiday pay, sick pay, and notice entitlements.

The insolvency can fall into one of a number of categories e.g. has a receiver, liquidator, or examiner been appointed?

The appointment of an examiner or a receiver does not immediately terminate the employment relationship.

The appointment of an official or provisional liquidator may lead to termination but not in all circumstances.

So how are employees protected in a situation of an insolvent employer? Who pays arrears in wages, holiday pay, and other pay related entitlements?

The Protection of Employees (Employers’ Insolvency) Act 1984 provides that employees may claim for arrears in pay, holiday pay, pay in lieu of statutory notice entitlements, and certain other employment related entitlements from an Insolvency Payment Scheme.

The scheme also covers awards made to employees for unfair dismissal, minimum wage, working time, discrimination, and certain unpaid pension and Prsa contributions.

These claims are generally made through the receiver or liquidator, depending on the circumstances, who processes them through the Insolvency Payments Section of the Department of Social Protection.

Redundancy Payments

If the employer is unable to pay statutory redundancy payments the Redundancy Payments Scheme will pay out. This is a different scheme from the Insolvency Payments Scheme even though both are funded from the Social Insurance Fund.

Insolvency Payment Scheme

For an employer to be covered by the Insolvency Payment Scheme he must be insolvent as defined in the Protection of Employees (Employers’ Insolvency) Act 1984.

The 4 broad categories are
1. bankruptcy
2. liquidation
3. receivership
4. deceased insolvent employer

However an employer that ceases trading but does not go into official liquidation is not covered. The employer must become insolvent within the terms of the Act.

Payments Made Under the Scheme

There are limits in respect of payments for sick pay, holiday pay, pay in lieu of statutory notices, and arrears of pay. The maximum weekly rate is 600 euro per week with a maximum of 8 weeks.

Generally the Scheme only covers entitlements arising in the 18 months prior to insolvency or termination of employment.

The payments are taxable with PAYE and PRSI being deducted by the receiver or liquidator.

If a claim is disallowed the employee may make a claim to the Employment Appeals Tribunal. This appeal is supposed to be made within 6 weeks of the decision although the EAT can extend this at its discretion.

A payment made to an employee under the Insolvency Payments Scheme does not prevent an employee from making a claim to the Redundancy Payments Scheme.