The Employment (Miscellaneous Provisions) Bill 2017 - does it go too far?Posted in : Supplementary Articles ROI on 10 July 2018
The Bill proposes various changes to employment legislation including amendments to the Terms of Employment Information Act, the Organisation of Working Time Act, the Unfair Dismissals legislation, the Workplace Relations Act and the National Minimum Wage Act. There are 19 Articles and 6 Parts to the Bill. The Bill has been introduced to help stabilise working conditions for employees. The provisions include:
- employers will be obliged to provide certain terms of employment within 5 days
- employers will be obliged to pay minimum payments where employees are called into work and sent home (this may be 3 times the minimum hourly rate that they normally receive)
- zero hours contracts will be prohibited except for genuine casual work, emergencies or short-term relief absence
- banded hours contracts will be available to help employees whose actual hours do not reflect their contracted hours
The current proposed bands are :
A = From 3 hours or more to less than 6 hours
B = From 6 hours or more to less than 11 hours
C = From 11 hours or more to less than 16 hours
D = From 16 hours or more to less than 21 hours
E = From 21 hours or more to less than 26 hours
F = From 26 hours or more to less than 31 hours
G = From 31 hours or more to less than 36 hours
H = From 36 hours or more
Employees will be able to request banded hours contracts from their employers looking back at their average hours over a specific reference period. The reference period started at 18 months in the initial draft. It has been dropped to 12 months and it is now being debated whether it should be dropped to 6 months.
The Bill strengthens anti-penalisation protections for employees seeking to enforce their rights under the legislation against their employers. The standard that should be used in proving penalisation is currently being debated.
Another hotly debated provision is the proposal that available hours will have to be offered to part-time employees in the first instance. This could be extremely onerous and difficult for employers to implement. This provision really has IBEC hopping up and down.
The Bill will also bring strong penalties for employers who do not comply with its provisions. These include
- Awards to employees who are not issued with the core employment terms in writing within 5 days of starting employment
- Fines of up to €5,000
- Anti-penalisation awards of up to two years’ salary
- Fixed penalty notices
- Imprisonment of up to 12 months
- Potential for personal liability for senior employees and directors where they have consented or connived in non-compliance in respect of certain offences
More recently, Deputy Willie O'Dea has proposed that Part 7 be introduced into the Bill. This part could have a significant impact on organisations using contractors to provide services and those working in the gig economy. The proposed Part 7 will make it a criminal offence for an employer to incorrectly designate an employee as self-employed. The proposed amendment also includes the relevant factors to be considered when determining whether a person is truly self-employed or is, in reality, an employee. With more and more organisations and people moving into the gig economy this will certainly have far-reaching implications for both the organisations and individuals using these modern and flexible working structures.
Minister Regina Doherty, the Minister for Employment Affairs and Social Protection, intends to have the Bill enacted before the Dail takes their summer break in mid-July. Not long to go so! We will keep you posted on the progress of the Bill. What is clear is that whatever form the legislation takes at enactment stage, employers will need to adjust their current practices to comply.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.