Implications of the Employment (Miscellaneous Provisions) Act 2018

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Introduction

The Employment Miscellaneous Provisions Act 2018 came into effect on March 4th 2019 with the aim of improving the security and predictability of working hours for employees on insecure contracts and those working variable hours. This short summary, by Brendan McGinty, Managing Partner, Stratis Consulting, highlights some of the key provisions and practical implications for employers.

Key
Provisions

The Act address
the following five key issues:

  • Prohibiting zero hours contracts, except in limited cases of genuine casual work or emergency cover or short-term relief work for that employer. Zero hours contracts need to be distinguished from casual work arrangements, in so far as casual work involves no mutuality of obligation (i.e. the employee is under no obligation to accept an assignment and there will be no negative consequences for the worker arising from his/her refusal.);
  • Ensuring that workers are better informed about their employment arrangements and to receive written notification of five core terms of employment within 5 calendar days of commencement of employment. These are:
    1. Names of employer and employee;
    2. Address of the employer (actual and registered office);
    3. Expected duration of employment if a temporary contract or end date if a fixed term contract;
    4. Rate or method of calculation of pay and pay reference period for purposes of the National Minimum Wage Act, 2000, and;
    5. Number of hours which the employer reasonably expects the employee to work (per normal day and per normal week); – Strengthening the provisions around minimum payments where employees are required to be available for work but are not called in or are sent home early;
  • Strengthens anti-penalisation provisions to give protection from detrimental treatment for employees who try to invoke a right under the legislation;
  • Ensuring that workers on low hour contracts who consistently work more than their contracted hours are entitled to be placed in a band of hours that reflects the reality of the hours they have worked over an extended period. There are 8 bands ranging from 2-6 hours and then moving in 5-hour bands up to 36 hours and over.

Steps
for Employers to Take

The following are
some advices for employers in managing these changes:

  • Review recruitment processes, template
    contracts and any offer letters in use to ensure they contain the 5 core terms
  • Ensure new hires receive, a statement
    of the core terms within 5 days. Alternatively, contracts of employment
    incorporating the existing information requirements under the 1994 Act and the
    new requirements could be issued before commencement of employment or within
    five calendar days of commencement;
  • A re-issue of existing contracts for
    those employed prior to the 04.03.19 is not necessary but employers should note
    that existing staff may request a compliance statement with the Act;
  • Review records regularly to ensure
    that specified contract hours actually reflect the hours being worked;
  • Accurate working time records will be
    needed to respond to an employee request to be placed in a band of hours;
  • Employers should be clear on their own
    process for dealing with a request for ‘banded hours’; –
  • Employers should be mindful that a
    genuine attempt to reduce an employee’s hours of work, having been placed on a
    band of hours or to revert back to the original contracted hours could give
    rise to allegations of penalisation;
  • Employers should ensure contracts and
    work practices do not fall foul of the ‘zero hours’ prohibition;
  • In the case of contractual
    arrangements for ‘casual work’, for these to be genuine, workers must be
    completely free to turn down offers of work without any consequences for them.

Finally,
employers should also note that the issue of bogus self-employment also
received considerable attention in the Oireachtas debates on the Employment
(Miscellaneous Provisions) legislation. The issue has been considered by the
Joint Committee on Employment Affairs and Social Protection since November
2018. It is now being addressed separately and the Minister for Employment Affairs
and Social Protection has amongst other measures, proposed the establishment of
a stand-alone body with enhanced resources to investigate claims of false
self-employment more efficiently.

Brendan McGinty Managing Partner Stratis Consulting E: [email protected] M: +353 87 2433038

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