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.