Section 2 is a standard provision setting out definitions. The Bill amends the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act, 1997.
It is important to remember that the existing definitions relating to "contract of employment", "employee" and "employer" in both Acts will apply to this Bill. It is necessary to repeal certain sections of existing legislation to improve on them in this Bill.
Section 3 repeals certain terms of employment listed in section 3(1) of the Terms of Employment (Information) Act 1994. These terms are inserted into section 3(1A) of the same Act by section 7, so that they are required to be provided within five days of commencement of employment. Section 3(b) repeals section 16 of the National Minimum Wage Act 2000 so that section 18 of this Bill will replace it.
Section 4 is an amendment the Minister for Business, Enterprise and Innovation requested on behalf of the WRC. Currently, adjudication officers of the WRC do not have powers to compel witnesses to attend a hearing to give evidence in cases taken under the Unfair Dismissals Act 1977. The WRC has powers of witness compellability under other employment rights legislation and the intention is to remedy this situation and to put unfair dismissals legislation on the same footing. When the Terms of Employment (Information) Act was enacted in 1994, the WRC did not exist.
Section 5 enters the definition of the WRC into that Act.
Section 6 removes the exclusion of employees who normally work less than eight hours per week in order that such employees will be entitled to receive the written statements of their terms of employment that will be required under the amended 1994 Act. This is to protect employees on low-hour contracts so that they too will be entitled to receive the essential aspects of the employment relationship in writing shortly after starting work for a new employer. The Terms of Employment (Information) Act 1994 provides that employees have to be a month in continuous employment of the employer before a case can be pursued under the Act. That remains the case in this Bill. This provision acts as a deterrent against frivolous or vexatious complaints.
Section 7 amends section 3 of the 1994 Act to require that an employer shall provide employees with a written statement containing the following five core terms of employment within five days of the commencement of employment; the full names of the employer and the employee; the address of the employer; the duration of the contract, where temporary or fixed term; the rate or method of calculation of the employee’s pay; and the number of hours the employer reasonably expects the employee to work on a daily and weekly basis. This is an important element of the Bill and is designed to ensure that employees are much better informed of the crucial terms of employment at a much earlier stage. This provision is a significant change, which is designed to ensure employees have much greater clarity and predictability about their daily and weekly hours of work. It is not acceptable for employers to provide contracts of employment that are so vague about an employee’s hours of work as to be completely meaningless.
Section 8 deals with posted workers. It amends section 4 of the 1994 Act to require that an employer must provide employees who are required to work outside the State for a period longer than one month, with the written statement containing the aforementioned five essential terms of employment prior to their departure.
Section 9 sets out matters relating to existing contracts of employment. The section amends section 6 of the 1994 Act to provide that where an existing employee requests an employer to provide the written statement containing the five core terms of employment the employer must do so within two months.
Section 10 is the offence provision. It introduces an offence for an employer who fails to provide the statement of core terms of employment required under section 7 within one month of commencement of employment. This section also makes it an offence for an employer who deliberately or recklessly provides false or misleading information to an employee as part of the statement of core terms of employment. For example, an employer who gives a false name so that an employee cannot litigate against that employer will be deemed to have committed an offence under this provision. It is important this section also provides for appropriate defences for employers, namely that they exercised due diligence and took reasonable precautions to ensure the Act was complied with. The ultimate sanction for employers who fail to provide a written statement of core terms of employment or who deliberately misrepresent what is on this day 5 statement is a class A fine up to €5000 or imprisonment not exceeding 12 months, or both. However, a WRC inspector may issue a fixed payment notice in lieu of prosecution for less egregious offences. The fixed payment imposed will be less than the court fine. The purpose of creating this offence provision is to promote better work practices and provide greater clarity around the essential elements of the employment relationship for both the employer and the employee. At the start of the employment relationship, every employee should be entitled to know basic information such as who their employer is, how much they will get paid and what is reasonably expected from them with regard to the normal length of the working day or week. It should not be too difficult for employers to provide this kind of information.
Section 11 inserts a new section 6C in the 1994 Act which prohibits the penalisation of an employee for exercising their rights under the Act. This is a new departure. An anti-penalisation provision never existed in the 1994 Act. Penalisation is broadly defined in the section and includes threats of penalisation. It is important employees believe they can exercise their rights under the Act without any repercussions. This is all the more important in the case of vulnerable employees.
Section 12 provides that an employee must remain in the employment for one month before he or she is entitled to seek redress under the Act. It also provides that an employee cannot proceed with a case against an employer that has been prosecuted for the same contravention if it involves the same employee and the same facts. This is to prevent double jeopardy for employers. There is a similar provision in section 24 of the National Minimum Wage Act 2000.
Section 13 amends the Organisation of Working Time Act 1997 to provide for the insertion of relevant definitions. I will table a Government amendment on Committee Stage to delete the definition of "employment regulation order", as it is defined in that Act.
Section 14 amends section 5 of the Organisation of Working Time Act which relieves an employer from complying with the new banded hours provisions in exceptional circumstances or an emergency.
Section 15 replaces the existing section 18 in the Organisation of Working Time Act with a new section 18, which has two effects. It prohibits zero-hours contracts in most circumstances. The UL study found the use of zero-hour contracts is not extensive in Ireland. However, we want to ensure that remains the position. Such contracts will be prohibited in most circumstances except where they are essential to allow employers to provide cover in emergencies, to cover short-term routine absences or if the work is genuinely casual. The section also introduces a new minimum payment of three times the hourly rate of the national minimum wage or three times the minimum rate set down in an employment regulation order, ERO, to compensate workers if they are called into work but do not receive the expected hours of work. For example, if an employer calls an employee into work but then decides they are not needed, that employee would be entitled to three times the hourly minimum wage. This is to discourage the unscrupulous practice of calling in more employees than one needs and giving the ones who show up first the work. Under this new legislation, they will get meaningful compensation for that error.