Spouses of highly-skilled workers from outside EEA to be given automatic labour market access
- Heather Humphreys
The spouses and partners of highly-skilled workers coming to Ireland from outside the EEA will now have immediate and full access to the Irish labour market without the need for an employment permit.
The new "streamlined" process was jointly announced today by Business Minister Heather Humphreys and Justice Minister Charlie Flanagan.
It affects the partners and spouses of those holding Critical Skills Employment Permits, which are designed to attract highly-skilled workers to fill high-demand vacancies where skills are not readily available in the Irish/EEA labour market, particularly in the IT sector.
One of the primary benefits of the Critical Skills Employment Permit is the option for the permit holder to apply for immediate family reunification, as well as the option for the dependent, spouse or partner to apply for a specific employment permit should they choose to work and if they find a job.
However, Ms Humphreys said the existing process was "administratively cumbersome and, in many cases, has acted as a barrier to these people securing work here", prompting inter-Departmental work to simplify it.
Mr Flanagan added: "While this scheme is primarily driven by the Department of Business, Enterprise and Innovation, it is also a prime example of proactive and positive engagement between two departments.
"Because of this work, the non-EEA spouses and partners of critical skills employment permit holders will no longer need an employment permit from the Department of Business, Enterprise and Innovation to work in Ireland.
"On arrival in the State, eligible spouses and de facto partners will be granted an immigration permission with automatic right to work. This will enable critical skills permit holders and their families to quickly become established and assist in their integration in society."
The Employment (Miscellaneous Provisions) Act comes into force on the 1st March 2019. The Acts main provisions make significant amendments to both the Terms of Employment (Information) Act 1994 and Organisation of Working Time Act 1997 by introducing minimum working hours, introducing employees having regularly worked hours incorporated into minimum working hours and requiring Employers to issue a mini-statement of terms within 5 days of someone commencing work.
An employer must, within 5 days of starting employment, give a new employee a statement of “core terms” in writing setting out the following:
This statement does not replace the need to issue a full statement of terms of employment within the first 2 months of employment. However, if the full statement is issued within the 5 day period there is no need to issue the mini-statement.
It will be an offence carrying a potential fine of up to €5,000/12 months imprisonment for an employer who fails to provide the core terms within one month or who deliberately misrepresents the required information given to the employee. The employer is allowed the defence that they exercised due diligence and took reasonable precautions to ensure compliance with the Act.
The Act amends the provisions of the Organisation of Working Time Act in relation to requiring that there must be a minimum number of hours on any contract unless it is work of a casual nature, an emergency or short-term relief.
The Act creates Banded hours, with 8 bands ranging as follows:-
A 3 – 6 hrs E 21 - 26 hrs
B 6 - 11 hrs F 26 - 31 hrs
C 11- 16 hrs G 31 - 36 hrs
D 16 - 21 hrs H 36 hrs and over
Employees will have recourse to request the band which reflects the average number of hours worked per week over a 12-month period, with recourse to the Workplace Relations if not applied on request.
The employer has 4 weeks in which to comply with a valid request. Any employee placed on a new band is entitled to work that for at least the following 12 months.
Am employer may refuse to comply with such a request where there is no evidence to support the claim, there were exceptional circumstances applying, there is a significant change in business circumstances or the hours worked were due to a temporary situation only and that has ceased.
The legislation will still allow employees/ers to operate on an “mutually available” basis whereby if an employee is not required to be available and they may refuse the work, then the provisions relating to minimum payments if work is not provided will not apply.
There is no statutory provision included to reduce the hours so an employer can only avail of their existing rights to reduce hours, such as short-time working /lay off, if provided for in the T&Cs and these usually apply to short term arrangements only.
An Employer who is found to have penalised an employee because they invoked a right under the Act will face a potential award of up to 2 years remuneration. Examples of penalisation would be changing their duties, suspension, lay off or dismissal demotion.
An employee may refer a dispute to adjudication in the Workplace Relations Commission, which may be appealed to the Labour Court.
We would recommend that you review your current terms and conditions documents and update them to reflect the changes in the law.
With effect from the 1st January 2019 the National Minimum Wage will be increased to €9.80 per hour for an experienced adult worker. The application and how to calculate minimum pay is detailed below.
The full rate is applicable to any employee who is at least 18 years of age except as detailed below;
|
Employee |
|
Minimum Hourly Rate of Pay |
|
|
|
2018 JANUARY 2019 |
|
Experienced adult worker |
|
€9.55 €9.80 * (100%) |
|
Under age 18 |
|
€6.69 €6.86 * (70%) |
|
First year from date of first employment over age 18 |
|
€7.64 €7.84 * (80%) |
|
Second year from date of first employment over age 18 |
|
€8.60 €8.82 * (90%) |
|
In structured training or study over age 18, undertaken in normal working hours |
|
|
|
1st one third period |
|
€6.94 €7.35 * (75%) |
|
2nd one third period |
|
€7.64 €7.84 * (80%) |
|
3rd one third period |
|
€8.60 €8.82 * (90%) |
|
NB. Each one third period must be at least one month and no longer than 12 months |
|
*per working hour |
An experienced adult worker is an employee who is not:
· under the age of 18 years,
· or in the first two years after the date of first employment over age 18,
· or a trainee undergoing structured training as defined by the Act.
The National Minimum Wage rate does not apply to the remuneration of a person who is;
Full time, part time, temporary or casual employees are all entitled to the national minimum wage for the following hours worked; All hours where an employee carries out an activity for an employer including;
Excluding;
· Time on standby/on call away from place of work
· Time on authorised leave/notice or absent from work
· Travelling from residence to work or to place of training
Where an employee’s hours of work are uncontrolled or unsupervised and their average pay would be not less than 150% of the minimum adult rate, they must maintain written records of hours worked and return these to the employer.
Structured Training must involve;
There must be an assessment and certification procedure or written confirmation that a course/training has been completed.
Reckonable pay means payments that are allowable in calculating an average hourly rate of pay under this Act. The following payments may be taken into account when determining average hourly rate of pay.
Note: overtime, call-out premium, service pay, weekend and public holiday premiums, unsociable hours premiums, tips or gratuities paid through the payroll and allowances for special or additional duties may not be included.
Pay Reference Period
The period of time over which you may calculate the average earnings (Pay Reference Period) may be a week, a fortnight and must not be longer than one month.
Employers are obliged to advise employees of the pay reference period they are selecting for calculations of minimum pay. Employees must be notified in writing as part of their Terms and Conditions of Employment.
An employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.
Employee Complaints
An employee may make a complaint to the Workpalce Relations Commission to investigate allegations of failure by the employer to pay the National Minimum wage.
Such a referral must be within 6 months from the date of receipt of a written statement or from the latest date the employer should have given a written statement.
Employees may not refer a complaint before requesting a written statement from their Employer.
Victimisation of Employees
No employer may victimise another employee for exercising their rights.
Any employee so victimised who cannot resolve the matter with their employer may refer the matter to the Workplace Relations Commission or where dismissed, under the Unfair Dismissals Act 1977-2007.
This update is provided by the MSS HR Support Service
For further details on this Update or about all our services please contact
Tel: 01 8870690 - Email: info@mssirl.ie
The Government has unveiled ‘First 5’, Ireland’s first ever cross-Departmental strategy to support babies, young children and their families. The ten-year plan will deliver:
1. A broader range of options for parents to balance working and caring
2. A new model of parenting support
3. New developments in child health, including a dedicated child health workforce
4. Reform of the Early Learning and Care (ELC) system and a new funding model
5. A package of measures to tackle early childhood poverty
In order to support children to spend more time with their parents, especially in the first year, First 5 sets out plans to develop a new parental leave scheme. This will deliver additional entitlements to existing paid leave for both fathers and mothers.
Minister Doherty said:
“I was particularly pleased to recently introduce a new parental benefit scheme which will allow both parents to access an additional two weeks leave in the first year of their child’s life. Over the coming years, it is the Government’s intention to extend this entitlement to 7 weeks per parent. This initiative allows us to respond to the vital need to support parents of young children and recognises the formative nature of the first year of a child’s life".
This leave will be in addition to the current leave arrangements in place around children for parents.
The current rate of Maternity Leave and Paternity Leave is €240 per week but following Budget 2019, this will increase to €245 per week from the week beginning 25th March 2019 and this will apply to the Parental Benefit.
The Government is intending to increase this to seven extra weeks over time. This scheme will be introduced in November 2019 after the necessary legislation is in place.
This update is provided by the MSS HR Support Service
For further details on this Update or about all our services please contact
Tel: 01 8870690-Email:info@mssirl.ie
The Parental Leave Act allows both Parents and persons acting in Loco Parentis (acting as a parent), unpaid leave for each child born or adopted for the purpose of taking care of the child, subject to certain conditions. Such leave does not interfere with any employment rights except superannuation.
Leave Entitlement: On completion of one year’s continuous service, an Employee may now, in line with the Amended Legislation, take 18 weeks Parental Leave. This leave may be taken in minimum continuous blocks of 6 weeks or, with the agreement of the Employer, in shorter blocks, or reduced working hours. Leave is not transferable between Parents unless both parents work for the same employer and it is with the agreement of the employer. Where the child is near the upper age limit and the Employee has more than 3 months service, Parental leave may be taken on a Pro-Rata basis. Except in the case of twins or triplets, Parental Leave is limited to 18 weeks in a 12-month period.
Qualifying Children: Children up to the age of 8 years or in the case of a child with disabilities or suffering from a long term illness up to the age of 16. Where an adopted child is between 6 and 8 years old at the time of adoption, then Parental Leave must be taken within two years of the adoption order.
Notice: Parents must give 6 weeks advance notice and arrangements agreed are recorded in the “Confirmation Document”, which must be prepared and signed 4 weeks prior to the Leave. Both parties, only, may change the terms agreed, once signed.
Employers may postpone leave where “it would have a substantial adverse effect on the employers business”. This may only be done once, except where the reason is due to “seasonal variations” in the business. In such cases it may be postponed twice. Where it is postponed, the Employer must state the reasons in a “Statement in Summary” Form no later than 4 weeks before commencement date, A postponement cannot exceed six months. Where such a postponement would take Parental Leave beyond the upper age limit of the child, the limits will not apply.
Purpose of Leave: The Parental Leave MUST be to take care of the child. Where an Employer discovers it is not being used for that purpose, then the Leave may be terminated by the giving of 14 days’ notice, in writing, stating the reasons. The Employee may make representations to the Employer within the first 7 days. In such cases, the Employee is not entitled to return to their position.
Sickness during Leave: Where an employee falls ill and they are unable to care for the child, leave may be suspended for the duration of the illness and will be regarded as sick leave.
Force Majeure Leave: Employees may take limited leave, WITH PAY, in the case of an injury to or an illness of a family member or a person in a relationship of domestic dependency, including same sex partners, and the presence of the Employee must be required where such a person is. Maximum leave is 3 days in 12 months / 5 days in 36 consecutive months. Employees availing of this leave should be requested to complete a form stating the reasons, as soon as is reasonably practicable after the leave has been taken.
Return to Work: Employees are entitled to return to the same or suitable alternative work on terms and conditions no less favorable than before. However, the Amended Legislation now places an obligation on employers to consider employee requests for changes to their working hours and/or patterns for a set period on return from Parental Leave
Employers must consider the needs of both the business and the employee when considering such requests.
Where the request is not granted, the employer must respond in writing to the employee as soon as possible, but no later than within 4 weeks after receipt to the request, advising that the request has been refused.
Where such changes are agreed, the employer must draft an Agreement setting out the following;
The agreement should then be signed by both the employee and the employer and a copy should be retained by both.
Before signing an agreement, an employee may decide in writing to revoke a request for such changes.
Disputes: Where there is a dispute in relation to Parental Leave the matter may be referred to a Rights Commissioner whose decision may be appealed to the Employment Appeals Tribunal, and on to the High Court on a point of law.
This legislation came into effect on 14th July 2003 and is intended to ensure that workers on fixed term contracts will not be treated less favourably than a comparable permanent worker.
Who is covered?
Any person on a fixed term contract (VETCH) but does not include an agency person working with a client, apprentices, trainee Guard or nursing or members of the Defense Forces.
What is a Fixed Term Contract Employee?
Any person under a contract to an employer where the end of the contract is determined by an objective condition - that is -
To what does it Apply?
Contract employees are entitled to be treated no less favourably than a comparable permanent worker in relation to all terms and conditions of employment. Except, in the case of a contract worker working less than 20% of the time of a comparable permanent worker, in relation to pensions.
What is a comparable permanent Worker?
A permanent employee not on a fixed contract is a comparable worker if -
In the case of a) and c) above one of the conditions must apply.
When can a Contract Employee be treated less favourably?
Employers may treat contract employees less favourably where they can prove objective grounds for such. An objective ground would be where the different treatment can be justified in that the difference in treatment does not relate to the status of the employee and is for the purpose of achieving a legitimate objective and is necessary to achieve that objective.
Pension - Please note as stated above where the contract employee worked 20% of the comparable employees time, this would be an objective reason for not applying pensions.
Entitlements based on hours worked
Where benefit is base don hours worked then a contract employee would be entitled to these benefits on a pro rata basis where they work lesser hours.
Can we renew Fixed Term Contracts?
Employers may renew fixed term contracts subject to below.
The employer must do so in writing no later than the date of renewal and must state the objective grounds for renewing the contract and the reason why no indefinite duration contract was offered.
FTC's commencing after 14th July 2003
Where a contract employee has been employed on two or more continuous fixed term contracts then the average duration may not exceed four years except where an objective ground is presented.
FTC's commencing before 14th July 2003
Where fixed term contract has been in existence for up to three years occurring before or after the date, the contract may be renewed for maximum of one year with the average duration not exceeding four years.
Employer Obligations
Employers must notify contract employees of permanent vacancies arising and also of training opportunities insofar as it is practical for contract employees to participate in them.
Employers should, insofar as is practicable, advise employee representatives as to fixed term contract workers in the undertaking.
Disputes
When an employee has a dispute with an employer regarding their entitlement on this legislation they may refer the matter to the Rights Commissioner. The Rights Commissioner may;
Appeals of a Rights Commissioner must be made within six weeks of communication to the Labour Court. Where the decision has not been implemented the employee may refer it to the Labour Court within six weeks of communication. In such cases the employer is precluded from attending the hearing or producing any new evidence to the Labour Court.
Appeals of the Labour Court are to the High Court whose decision shall be final and conclusive.
From the 1st August the Workplace Relations Act 2015 introduced an amendment to the Organisation of Working Time Act 1997 and has amended Sections; 19, 20, 23; which set down the annual leave entitlements for employees. This amendment has the potential to impact both employers and employees significantly.
Accrual of Annual Leave during Sick Leave
The amendments to Section 19, 20, 23 of the Organisation of Working Time Act 1997 have introduced a legal requirement for the accrual of annual leave entitlements for employees during periods of certified sick leave.
Employees are now entitled to accrue annual leave whilst out sick and to carry over the leave accrued beyond the 6 months of the subsequent leave year, (as was previously prescribed in the Act) up to 15 months.
This means that the annual leave may be taken by an employee, absent due to certified sickness, up to 15 months after the expiry of the leave year in which the annual leave was accrued.
It is notable that this entitlement to accrue annual leave during periods of certified illness applies only to statutory annual leave and not to any leave governed by contractual arrangements.
Employers will now need to take the following steps:-
Employees are not entitled to pay when they are on sick leave, thus an employer should not agree to do so if requested.
Once the 15 month period has expired an employee is no longer entitled to be paid holiday pay due for that period.
The General Data Protection Regulations (GDPR) are coming into force on the 25th May 2018. As a regulation, the GDPR will have a direct effect on the Irish law system, including the Data Protection Acts 1988 & 2003 and the Data Protection Directive 95/46/EC.
The GDPR focus is on standardising the European citizen’s right to data privacy, as well as emphasising transparency, security and accountability by data controllers.
Fines: The GDPR is providing data protection authorities with administrative fines which can turn out to be devastating for organisations. It allows fining for non-compliance of up to €20mln or 4% of total annual global turnover (whichever is greater) for the most serious breaches.
The new regulation will make it easier for individuals to request copies of data relating to them.
At the moment employees are liable to pay a fee of €6.35 and wait for up to 40 days, for the copies of the data to be supplied to them.
However under the GDPR, this request is now free of charge and an employer now has only 30 days to process the request.
An employer is now also required to provide an employee with additional information such as information on how long data is being stored and the right to have inaccurate data concerning them corrected.
Mandatory reporting of data breaches has also been introduced.
At the moment only some organisations are obliged to do this. Once the GDPR comes into force, all organisations will be obliged to report any data breaches to the Data Protection Commissioner within 72 hours.
Breaches that are required to be reported are those that are likely to bring harm to an individual. In addition any concerned individual needs to be informed about the breach also.
A failure to report it could result in a fine, as well as a fine for the breach itself.
Some companies will be required to appoint a Data Protection Officer. Such organisations include:
If your organisation is compliant under the existing law, your approach will be valid under GDPR.
The following are the main principles of Data Protection.We recommend that you make sure that your organisation is compliant with these, as this will vastly help you in the case of any inspection under GDPR:
The GDPR introduces a number of significant changes that every employer must be aware of and be sure to comply with, in order to avoid significant penalties.. We recommend that Employers;
Finally, here are a few questions to bring you one step closer to being compliant:
This update is provided by the MSS HR Support Service. For further details on the General Data Protection Regulations or on other HR services please email hr@mssirl.ie.
In a recent case, a book-keeper was awarded €12,000 from her former employer, a small retail company, for age discrimination, having forced her to retire at 66, despite there being no issues with her competence. Having worked for the Company for 12 years, the employee was forced by the company to retire at 66.
The Employee expressed a desire to remain in employment with the company and in response to this she was offered a fixed-term contract immediately following her retirement, an offer which she refused.
There was never a contract of employment/statement of terms issued to or signed by the employee, therefore it could not be argued that she had consented to the mandatory retirement age. Apparently the Company had previously tried to introduce them but the employer failed to do so when met with resistance from the employees.
The company’s contention was that the retirement age was necessary for the management of its business and also argued that there was an implied term and an oral contract with the employee that she would retire at 65 and that the setup of the Pension scheme in 2004 “clearly foresaw” a retirement age at 65.
On hearing the case, the Adjudication officer was satisfied that the claimant had established a Prima Facie case of Age Discrimination and the employer had failed to provide any objective justification for enforcing a retirement age.
The Adjudicator found that the employer’s explanation for justifying a retirement age was a “somewhat vague, anachronistic and unlawful view that it had the right to terminate employment at sixty five because it was traditional to do so. It (the company) seems have held this view honestly, in that it held the complainant in high regard as an employee and there was no element of any reflection on her conduct or competence.”
This case serves as an important reminder that employer’s must be able to demonstrate that they can objectively justify that the use of a retirement age achieves a legitimate aim for the Company or they face the threat of being found guilty of Age Discrimination. It also highlights that whilst having a retirement age in a contract or a Pension scheme does not automatically serve as a defence for Employers.
For further details on the Retirement Age or on other HR services please email hr@mssirl.ie.
