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
- Close relatives of the employer
- 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:
- Experienced adult worker-€8.65 per hour
- Under age 18-€6.06 per hour
- 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
- 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
- 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.
- 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
- 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:
- Refer a complaint to a Rights Commissioner or
- 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).