WHAT TO KEEP AN EYE OUT FOR…
Update on the Employment (Miscellaneous) Provisions Bill 2017
As of September 2017, the Department of Employment Affairs and Social Protection have taken over responsibility for employment legislation.
The objective of the Employment (Miscellaneous Provisions) Bill 2017 is to: “provide for a requirement that employers provide employees with certain terms of employment within a certain period after commencing employment; to impose sanctions for certain offences; to further provide for a minimum payment due to employees in certain circumstances; to prohibit contracts specifying zero as the contract hours in certain circumstances and to provide for the introduction of banded contract hours; to further provide for prohibition of penalisation and for those purposes to amend the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997; to amend the Workplace Relations Act 2015; and to provide for related matters”
The first stage of the Bill was debated in the Oireachtas just before Christmas. Significant provisions of the Bill for employers include measures to address the Zero Hours issue - these contracts will be generally prohibited as follows:
The Organisation of Working Time Act of 1997 is amended by the substitution of the following section for section 18:
S.14. “Prohibition of zero hours working practices in certain circumstances and minimum payment in certain circumstances: Prohibition of zero hour contracts: Such contracts will be prohibited in all circumstances except where they are essential to allow employers to provide cover in emergency situations or to cover short-term absences. This flexibility is required in particular in residential care settings, e.g. where a member of staff must accompany a resident in the care facility to hospital at short notice and an appropriate substitute worker can be called in to cover, and in the education sector, e.g. where a school maintains a panel of substitute teachers to be available to cover absences where a regular member of the teaching staff is out on sick leave.”
Other significant provisions affecting employers include paying minimum amounts when Employees are called into work at short notice etc.
S.14 ‘’Enhanced minimum payment for employees called in to work: this introduces a new minimum payment of 3 times the hourly rate of the National Minimum Wage or 3 times the minimum rate set down in an Employment Regulation Order (ERO), to compensate workers if they are called in to work but do not receive the expected hours of work. For example, if an employer calls in an employee into work but then decides they are not needed, that employee would be entitled to three times the minimum wage (€27.75 (3 x €9.25)) every time that occurs.
Section 15 inserts a new Section 18A in the Organisation of Working Time Act 1997. It introduces a new right for employees, who habitually work more hours each week than is provided for in their contract of employment, to request to be placed in a band of weekly working hours that better reflects the reality of the hours they have worked over an extended period.’’
No date has been confirmed at time of writing for the second stage of the Bill.
Solas Employee Awarded €20K in age discrimination case
The State's further education and training authority, Solas, has been ordered to pay €20,000 to an employee after it was found to have discriminated against him on the grounds of age by the Workplace Relations Commission.
The agency has also been criticised by the WRC for failing to take a complaint of ageism seriously, given that it itself has conducted research on the problem of age discrimination. It has been instructed to conduct a review of its employment policies and procedures to ensure that they comply with equality legislation.
The case centred on interviews that were held for the post of Assistant Manager at the Limerick Training Centre four years ago. The centre is now run by the local Education and Training Board but at the time was run by Solas. A 60-year-old employee was asked at his interview: "Do you not think at this stage that you should be taking it easier?"
Dave Barry took the case because he believed the question was a breach of equality legislation. In his submission, Mr Barry said he interpreted the question as a reference to his age, and felt the interview panel thought that he should not be going for promotion with five years left to his then compulsory retirement age. He also said he believed the question made assumptions about his ability to do the job based on his age.
Solas denied the question had been asked. In its submission to the WRC, it said Mr Barry had been asked: "What motivates you to take on this role at this stage in your career?" It said the question was not ageist because Mr Barry's capacity in regard to age was not the intent. It said the interview panel was experienced and that the person who had asked the question also trained interviewers in interviewing skills.
In its ruling, the WRC criticised what it called Solas's "attempt to misrepresent the situation". It said it found Mr Barry to be "a compelling witness", and it "fully accepted" that the question was asked in the way he suggested.
In the ruling, Solas came in for particular criticism given its role as the State's further education and training authority. The WRC pointed out that Solas had itself conducted research that showed that being older was one of the barriers towards participating in further education and training. It said for this reason the organisation should be even more conscious of avoiding age-discriminatory practices towards its own employees.
It said while the person who had asked the question was not an employee of Solas, no other member of the interview panel had intervened, and that Solas had subsequently failed to take Mr Barry's complaint seriously.
SIPTU defers Section 39 workers' strike after WRC talks
The threatened strike by health and social care workers, in so-called Section 39 bodies such as hospices and intellectual disability services, has been averted after agreement was reached on a pay restoration process for such staff.
Around 6,000 employees belonging to SIPTU had already voted overwhelmingly for a one-day strike on 14 February over the failure of their employers to restore their pay in line with restoration for public servants.
Under the agreement, the Health Service Executive will carry out an initial review of Section 39 bodies to establish which agencies actually have a pay link to the public service, with an interim report to be completed by the end of March. In a statement, SIPTU said the agreed process would see pay restoration commence on a phased basis in 2018.
However, the HSE stressed that there were conditions around the timing of the commencement of actual payments. It noted that the WRC document says that where Section 39 organisations are shown to have the financial capacity to make pay restoration themselves, without adversely impacting on service provision, "they should proceed to do so as soon as possible and where feasible in this financial year". The process will be overseen by the WRC.
SIPTU Health Division Organiser Paul Bell said the agreement delivers a viable process for a structured and transparent pay restoration mechanism. He said that, in light of the substantial progress that had been made, SIPTU had agreed to defer the strike action for six weeks. But he said the ball was now in the management court to play their part in bringing about pay restoration, particularly in bodies with outstanding Labour Court recommendations in favour of workers.
Mr Bell noted that another crucial development had been a recent Dáil concession, by Minister for Health Simon Harris, that the pay restoration process "will come with a bill that ultimately will need to be met".
The review will examine, initially on a self-assessment basis, whether and to what extent reductions in pay rates were applied during the economic crisis in each relevant organisation. It will then examine whether and to what extent restoration of those pay reductions has happened.
Finally, it will "identify the financial implications for each organisation, taking account of all sources of funding associated with addressing the issues identified and propose an appropriate plan for phased resolution in each case".
Minister for Health Simon Harris welcomed the agreement, adding that it was important that they now have a process to address the issues. He said he was very pleased that services would not now be disrupted, and thanked the unions for their engagement.
The Section 39 employers acknowledge that, in many such bodies, pay was cut in line with public service austerity measures, even though Section 39 workers do not count as public servants. The employers in question argue that their austerity block funding cuts from the Department of Health and the HSE have not been restored to permit pay restoration.
For their part, the Department of Health and the HSE say they have sought additional funding for the pay restoration, but the Department of Public Expenditure and Reform has not given them increased funding to permit increases.
The Government contended that up to 2,224 agencies of varying sizes could be affected by any move to restore pay, at a significant cost to the exchequer, a figure disputed by SIPTU.
As of September 2017, the Department of Employment Affairs and Social Protection have taken over responsibility for employment legislation.
The objective of the Employment (Miscellaneous Provisions) Bill 2017 is to: “provide for a requirement that employers provide employees with certain terms of employment within a certain period after commencing employment; to impose sanctions for certain offences; to further provide for a minimum payment due to employees in certain circumstances; to prohibit contracts specifying zero as the contract hours in certain circumstances and to provide for the introduction of banded contract hours; to further provide for prohibition of penalisation and for those purposes to amend the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997; to amend the Workplace Relations Act 2015; and to provide for related matters”
The first stage of the Bill was debated in the Oireachtas just before Christmas. Significant provisions of the Bill for employers include measures to address the Zero Hours issue - these contracts will be generally prohibited as follows:
The Organisation of Working Time Act of 1997 is amended by the substitution of the following section for section 18:
S.14. “Prohibition of zero hours working practices in certain circumstances and minimum payment in certain circumstances: Prohibition of zero hour contracts: Such contracts will be prohibited in all circumstances except where they are essential to allow employers to provide cover in emergency situations or to cover short-term absences. This flexibility is required in particular in residential care settings, e.g. where a member of staff must accompany a resident in the care facility to hospital at short notice and an appropriate substitute worker can be called in to cover, and in the education sector, e.g. where a school maintains a panel of substitute teachers to be available to cover absences where a regular member of the teaching staff is out on sick leave.”
Other significant provisions affecting employers include paying minimum amounts when Employees are called into work at short notice etc.
S.14 ‘’Enhanced minimum payment for employees called in to work: this introduces a new minimum payment of 3 times the hourly rate of the National Minimum Wage or 3 times the minimum rate set down in an Employment Regulation Order (ERO), to compensate workers if they are called in to work but do not receive the expected hours of work. For example, if an employer calls in an employee into work but then decides they are not needed, that employee would be entitled to three times the minimum wage (€27.75 (3 x €9.25)) every time that occurs.
Section 15 inserts a new Section 18A in the Organisation of Working Time Act 1997. It introduces a new right for employees, who habitually work more hours each week than is provided for in their contract of employment, to request to be placed in a band of weekly working hours that better reflects the reality of the hours they have worked over an extended period.’’
No date has been confirmed at time of writing for the second stage of the Bill.
Solas Employee Awarded €20K in age discrimination case
The State's further education and training authority, Solas, has been ordered to pay €20,000 to an employee after it was found to have discriminated against him on the grounds of age by the Workplace Relations Commission.
The agency has also been criticised by the WRC for failing to take a complaint of ageism seriously, given that it itself has conducted research on the problem of age discrimination. It has been instructed to conduct a review of its employment policies and procedures to ensure that they comply with equality legislation.
The case centred on interviews that were held for the post of Assistant Manager at the Limerick Training Centre four years ago. The centre is now run by the local Education and Training Board but at the time was run by Solas. A 60-year-old employee was asked at his interview: "Do you not think at this stage that you should be taking it easier?"
Dave Barry took the case because he believed the question was a breach of equality legislation. In his submission, Mr Barry said he interpreted the question as a reference to his age, and felt the interview panel thought that he should not be going for promotion with five years left to his then compulsory retirement age. He also said he believed the question made assumptions about his ability to do the job based on his age.
Solas denied the question had been asked. In its submission to the WRC, it said Mr Barry had been asked: "What motivates you to take on this role at this stage in your career?" It said the question was not ageist because Mr Barry's capacity in regard to age was not the intent. It said the interview panel was experienced and that the person who had asked the question also trained interviewers in interviewing skills.
In its ruling, the WRC criticised what it called Solas's "attempt to misrepresent the situation". It said it found Mr Barry to be "a compelling witness", and it "fully accepted" that the question was asked in the way he suggested.
In the ruling, Solas came in for particular criticism given its role as the State's further education and training authority. The WRC pointed out that Solas had itself conducted research that showed that being older was one of the barriers towards participating in further education and training. It said for this reason the organisation should be even more conscious of avoiding age-discriminatory practices towards its own employees.
It said while the person who had asked the question was not an employee of Solas, no other member of the interview panel had intervened, and that Solas had subsequently failed to take Mr Barry's complaint seriously.
SIPTU defers Section 39 workers' strike after WRC talks
The threatened strike by health and social care workers, in so-called Section 39 bodies such as hospices and intellectual disability services, has been averted after agreement was reached on a pay restoration process for such staff.
Around 6,000 employees belonging to SIPTU had already voted overwhelmingly for a one-day strike on 14 February over the failure of their employers to restore their pay in line with restoration for public servants.
Under the agreement, the Health Service Executive will carry out an initial review of Section 39 bodies to establish which agencies actually have a pay link to the public service, with an interim report to be completed by the end of March. In a statement, SIPTU said the agreed process would see pay restoration commence on a phased basis in 2018.
However, the HSE stressed that there were conditions around the timing of the commencement of actual payments. It noted that the WRC document says that where Section 39 organisations are shown to have the financial capacity to make pay restoration themselves, without adversely impacting on service provision, "they should proceed to do so as soon as possible and where feasible in this financial year". The process will be overseen by the WRC.
SIPTU Health Division Organiser Paul Bell said the agreement delivers a viable process for a structured and transparent pay restoration mechanism. He said that, in light of the substantial progress that had been made, SIPTU had agreed to defer the strike action for six weeks. But he said the ball was now in the management court to play their part in bringing about pay restoration, particularly in bodies with outstanding Labour Court recommendations in favour of workers.
Mr Bell noted that another crucial development had been a recent Dáil concession, by Minister for Health Simon Harris, that the pay restoration process "will come with a bill that ultimately will need to be met".
The review will examine, initially on a self-assessment basis, whether and to what extent reductions in pay rates were applied during the economic crisis in each relevant organisation. It will then examine whether and to what extent restoration of those pay reductions has happened.
Finally, it will "identify the financial implications for each organisation, taking account of all sources of funding associated with addressing the issues identified and propose an appropriate plan for phased resolution in each case".
Minister for Health Simon Harris welcomed the agreement, adding that it was important that they now have a process to address the issues. He said he was very pleased that services would not now be disrupted, and thanked the unions for their engagement.
The Section 39 employers acknowledge that, in many such bodies, pay was cut in line with public service austerity measures, even though Section 39 workers do not count as public servants. The employers in question argue that their austerity block funding cuts from the Department of Health and the HSE have not been restored to permit pay restoration.
For their part, the Department of Health and the HSE say they have sought additional funding for the pay restoration, but the Department of Public Expenditure and Reform has not given them increased funding to permit increases.
The Government contended that up to 2,224 agencies of varying sizes could be affected by any move to restore pay, at a significant cost to the exchequer, a figure disputed by SIPTU.
