Written Answers. - Workers' Rights.

Jan O'Sullivan

Question:

43 Ms O'Sullivan asked the Tánaiste and Minister for Enterprise, Trade and Employment the steps which are being taken to ensure that Irish employers comply with the recent decision of the European Court of Justice that if employers require their workers to work overtime it must be made clear in the contract of employment; and if she will make a statement on the matter. [7116/01]

It has always been the position under Irish employment law, and contract law generally, that an employer may not introduce a new term into, or alter a term of the contract of a employment without the consent of the employee concerned. The recent decision of the European Court of Justice, simply affirms the historic Irish position. Accordingly, I am satisfied that Irish employment rights legislation fully complies with the European Court of Justice ruling.

All terms and conditions of employment in excess of statutory entitlements are determined by a legally enforceable agreement between the employer and the employee whether directly, or indirectly by representatives of employers/ employees. Any term of an employment contract which relates to overtime, or work beyond normal hours, is subject to agreement by the parties to the contract. An employee, like any party to a contract, has the right to institute and pursue proceedings in the courts in respect of his or her contractual rights.

However, if a dispute arises in relation to overtime, it is open to the parties to settle it between themselves, or avail of the State's industrial relations dispute resolution machinery, provided for under the Industrial Relations Acts. In the event of a failure to resolve the issue between the parties at this juncture, the issue may be referred to the Labour Relations Commission for investigation under the Industrial Relations Acts. In addition, if an employer to whom the Organisation of Working Time Act applies, insists on the employee working more than the maximum average 48 hours per week provided for under the Organisation of Working Time Act, the employee may refer the matter to the Rights Commissioner Service of the Labour Relations Commission for redress under that Act.
Notwithstanding the above general rights under contract law, and the industrial relations facilities for the resolution of disputes in relation to the employment contract, section 3(1)(i) of the Terms of Employment Act, 1994 imposes an obligation on employers to give to their employees a statement in writing containing certain categories of agreed terms, including any terms or conditions relating to hours of work, including overtime. This statement must be given within two months of commencement of employment to those employees who commenced employment since 16 May 1994, when the Act came into operation, and within two months of requesting their terms for those employees in employment prior to that date. An employee may pursue his or her axiomatic right by way of complaint to a rights commissioner, and appeal to the Employment Appeals Tribunal. The District Court has jurisdiction to make enforcement orders in respect of a determination of the tribunal in this regard. The 1994 Act does not apply to a person who is normally required to work for an employer for less than eight hours a week or who has been in the continuous service of the employer for less than one month.
Furthermore, the Organisation of Working Time Act, 1997 provides that prior notice of at least 24 hours before the first day in which additional hours are to be worked must be given by the employer to the employee of any additional hours which the employer requires the employee to work in any week and which the employer may from time to time decide in accordance with the contract of employment. This right may be pursued on complaint to a rights commissioner and appeal to the Labour Court. The Circuit Court has jurisdiction to make an order enforcing the determination of the Labour Court in this regard.