Written Answers - Pay and Conditions of Work.
Jim Mitchell
Question:
101
Mr. J. Mitchell
asked the
Tánaiste and Minister for Enterprise, Trade and Employment
if, in the circumstances of a situation (details supplied), a person hired nominally by contract is entitled to accumulated annual leave and bank holiday pay; the other entitlement she has; the way in which these can be enforced; the action the Department can take to assist in cases such as this; and if she will make a statement on the matter.
[12969/01]
An employee's eligibility for labour law protection depends on the individual's employment status. Under recent employment legislation, that is the Organisation of Working Time Act, 1997, "employee" means "a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment.". "Contract of employment" means "(a) a contract of service or apprenticeship and (b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third party, whether or not the third party is a party to the contract."
Labour law regulates aspects of the employer-employee relationship where persons are employed under a contract of service or apprenticeship, including persons on fixed-term and fixed-purpose contracts. As a rule, persons engaged under a contract for services are regarded as, in effect, self-employed and, as such, would fall outside the scope of labour law protection. In cases of dispute or doubt, determination as to whether any individual falls within the scope of labour law protection is a matter for the relevant adjudicative authority, for example, rights commissioner, employment appeals tribunal, or, as appropriate, the courts, in the light of the circumstances of a particular case. In this regard, the nature of the contract between the parties would be a central consideration.
Where an employee is employed under a contract of service, the Terms of Employment (Information) Act, 1994, provides for written statements of terms of employment. Section 3(1) of the Act provides as follows:
An employer shall, not later than two months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment . . .
Section 3(1)(a) to (m) sets out the particulars required in that statement.
Under the Organisation of Working Time Act, 1997, section 19, an employee is entitled to annual leave calculated as follows: (a) four working weeks in a leave year in which he or she works at least 1,365 hours unless it is a leave year in which he or she changes employment; or (b) one-third of a working week for each month in the leave year in which he or she works 117 hours; or (c) 8% of the hours he or she works in a leave year but subject to a maximum of four working weeks.
The 1997 Act also provides that employees are entitled to nine public holidays during the leave year. The employer determines that an employee is entitled, in respect of a public holiday, to one of the following four alternatives: (a) a paid day off on that day; (b) a paid day off within a month of that day; (c) an additional day of annual leave; (d) an additional day's pay.
If an employer refuses to grant an employee his/her annual leave or public holiday entitlement, the employee may refer a complaint to a rights commissioner for redress.
Responsibility for the enforcement of other aspects of labour law legislation administered by my Department rests with the Rights Commissioner Service of the Labour Relations Commission, the Labour Court, the Employment Appeals Tribunal and my labour inspectors. Full details of the remedies available to employees in cases of employer default, which vary under individual pieces of legislation, may be obtained by contacting the employment rights information unit of my Department at (01) 631 3131 or on Lo-call 1890 220222, where staff will be happy to assist. A full range of information leaflets is also available on request or by logging into my Department's website at www.entemp.ie.
