National Minimum Wage Act 2000

National Minimum Wage Act 2000


Number 5 of 2000


NATIONAL MINIMUM WAGE ACT 2000

REVISED

Updated to 1 September 2017


This Revised Act is an administrative consolidation of the National Minimum Wage Act 2000. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including National Shared Services Office Act 2017 (26/2017), enacted 26 July 2017, and all statutory instruments up to and including Education Support Centres (Appointment and Secondment of Directors) Regulations 2017 (S.I. No. 394 of 2017), made 1 September 2017, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 5 of 2000


NATIONAL MINIMUM ACT 2000

REVISED

Updated to 1 September 2017


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was passed.

Related legislation

National Minimum Wage Acts 2000 and 2015 : this Act is one of a group of Acts included in this collective citation, to be construed together as one ( National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 1(2)). The Acts in this group are:

National Minimum Wage Act 2000 (5/2000)

National Minimum Wage (Low Pay Commission) Act 2015 (22/2015) other than Part 3

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations.

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1994, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

Credit Guarantee (Amendment) Act 2016 (1/2016)

National Minimum Wage (Low Pay Commission) Act 2015 (22/2015)

Workplace Relations Act 2015 (16/2015)

Education and Training Boards Act 2013 (11/2013)

Social Welfare and Pensions Act 2011 (9/2011)

Financial Emergency Measures in the Public Interest Act (38/2010)

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010)

Prisons Act 2007 (10/2007)

Carer’s Leave Act 2001 (19/2001)

All Acts up to and including National Shared Services Office Act 2017 (26/2017), enacted 26 July 2017, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (S.I. No. 361 of 2017)

National Minimum Wage Order 2016 (S.I. No. 516 of 2016)

European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016)

National Minimum Wage Order 2015 (S.I. No. 442 of 2015)

Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015 (S.I. No. 419 of 2015)

Merchant Shipping (Maritime Labour Convention) (Accommodation, Recreational Facilities, Food, Catering and Ships' Cooks) Regulations 2014 (S.I. No. 374 of 2014)

National Minimum Wage Act 2000 (Section 11) (No. 2) Order 2011 (S.I. No. 331 of 2011)

Enterprise, Trade and Innovation (Alteration of Name of Department and Title of Minister) Order 2011 (S.I. No. 245 of 2011)

National Minimum Wage Act 2000 (Section 11) Order 2011 (S.I. No. 13 of 2011)

Enterprise, Trade and Employment (Alteration of Name of Department and Title of Minister) Order 2010 (S.I. No. 185 of 2010)

National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2006 (S.I. No. 667 of 2006)

National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2005 (S.I. No. 203 of 2005)

National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2003 (S.I. No. 250 of 2003)

National Minimum Wage Act, 2000 (National Minimum Hourly Rate of Pay) (No.2) Order 2000 (S.I. No. 201 of 2000)

National Minimum Wage Act, 2000 (Prescribed Courses of Study or Training) Regulations 2000 (S.I. No. 99 of 2000)

National Minimum Wage Act, 2000 (Commencement) Order 2000 (S.I. No. 96 of 2000)

National Minimum Wage Act, 2000 (National Minimum Hourly Rate of Pay) Order 2000 (S.I. No. 95 of 2000)

All statutory instruments up to and including Education Support Centres (Appointment and Secondment of Directors) Regulations 2017 (S.I. No. 394 of 2017), made 1 September 2017, were considered in the preparation of this revision.


Number 5 of 2000


NATIONAL MINIMUM WAGE ACT 2000

REVISED

Updated to 1 September 2017


ARRANGEMENT OF SECTIONS

PART I

Preliminary

Section

1.

Short title and commencement.

2.

Interpretation.

3.

Regulations.

4.

Laying of orders and regulations before Houses of Oireachtas.

5.

Non-application of Act.

6.

Expenses of Minister.

7.

Provisions in agreement or legislation to pay less than national minimum hourly rate of pay are void.

PART 2

Working Hours and Pay Reference Period

8.

Working hours of employee for pay reference period.

9.

Certain employees to provide record of working hours to employer.

10.

Pay reference period.

PART 3

National Minimum Hourly Rate of Pay

Declaration and Review of National Minimum Hourly Rate of Pay

10A.

Establishment of Low Pay Commission.

10B.

Duty of Commission.

10C.

Functions of Commission.

10D.

National minimum hourly rate of pay.

10E.

Funding and resources.

11.

National minimum hourly rate of pay.

12.

National economic agreement recommending national minimum hourly rate of pay.

13.

Labour Court may recommend national minimum hourly rate of pay where no national economic agreement.

Entitlement of Employee to Payment and Sub-minimum Rates

14.

Entitlement to minimum hourly rate of pay.

15.

Rates of pay during first 2 years of employment after entering employment after, or attaining, age of 18 years.

16.

Trainee rates.

17.

Pro-rata entitlement to minimum hourly rate of pay for less than full hour.

Calculation of Minimum Hourly Rate of Pay

18.

Calculations for purpose of this Part.

19.

Reckonable and non-reckonable pay components in calculating average hourly rate of pay.

20.

Method of calculating employee’s average hourly rate of pay.

21.

Payment of amount owed to employee on termination of employment.

PART 4

Records and Statement of Average Hourly Earnings

22.

Records

23.

Employee entitled to statement of average hourly rate of pay for pay reference period.

PART 5

Disputes about Entitlement and Enforcement

Hearing of Disputes

24.

Disputes about entitlement to minimum hourly rate of pay.

25.

Prohibition of reduction in hours of work of an employee without a concomitant reduction in duties or amount of work.

26.

[ Decision of adjudication officer under section 41 of Workplace Relations Act 2015]

Appeals

27.

Appeal against rights commissioner’s decision.

28.

Power of Labour Court in relation to evidence.

29.

[ Decision of Labour Court on appeal from decision referred to in section 26.]

30.

Referral or appeal to High Court on question of law.

31.

Referral of decision of rights commissioner to Labour Court for determination.

32.

Enforcement of determination of Labour Court.

Inspectors and Inspections

33.

Inspectors and their powers.

34.

Investigation of allegation or matter by inspector.

Offences and Enforcement

35.

Offence to refuse or fail to pay minimum hourly rate of pay.

36.

Prohibition of victimisation of employee by employer.

37.

Penalties and proceedings.

38.

Defence for employer in proceedings.

39.

Civil proceedings.

40.

Employee’s entitlements not affected by conditions of contract of employment contravening certain Acts.

PART 6

Miscellaneous

41.

Employer in financial difficulty.

42.

Act not to derogate from certain provisions of or under Industrial Relations Acts, 1946 to 1990.

43.

Repercussive claims.

44.

Amendment of section 3 of Terms of Employment (Information) Act, 1994.

45.

Amendment of section 39 of Organisation of Working Time Act, 1997.

46.

Change of ownership of business.

47.

Extension of Protection of Employees (Employers’Insolvency) Act, 1984.

48.

Service of documents.

49.

Provisions relating to winding-up and bankruptcy.

50.

Recovery of money due to employee.

SCHEDULE 1

SCHEDULE 2


Acts Referred to

Bankruptcy Act, 1988

1988, No. 27

Civil Service Regulation Act, 1956

1956, No. 46

Companies Act, 1963

1963, No. 33

Courts Act, 1981

1981, No. 11

Employment Equality Act, 1977

1977, No. 16

Industrial Relations Act, 1946

1946, No. 26

Industrial Relations Act, 1990

1990, No. 19

Industrial Relations Acts, 1946 to 1990

Industrial Training Act, 1967

1967, No. 5

Labour Services Act, 1987

1987, No. 15

Local Government Act, 1941

1941, No. 23

Maternity Protection Act, 1994

1994, No. 34

Minimum Notice and Terms of Employment Acts, 1973 to 1991

Organisation of Working Time Act, 1997

1997, No. 20

Payment of Wages Act, 1991

1991, No. 25

Parental Leave Act, 1998

1998, No. 30

Petty Sessions (Ireland) Act, 1851

14 & 15 Vict., c. 9

Protection of Employees (Employers’ Insolvency) Act, 1984

1984, No. 21

Protection of Employees (Employers’ Insolvency) Acts, 1984 to 1991

Redundancy Payments Acts, 1967 to 1991

Taxes Consolidation Act, 1997

1997, No. 39

Terms of Employment (Information) Act, 1994

1994, No. 5

Trade Union Act, 1941

1941, No. 22

Unfair Dismissals Act, 1977

1977, No. 10

Unfair Dismissals Acts, 1977 to 1993

Worker Protection (Regular Part-Time Employees) Act, 1991

1991, No. 5


Number 5 of 2000


NATIONAL MINIMUM WAGE ACT 2000

REVISED

Updated to 1 September 2017


AN ACT TO PROVIDE FOR THE DETERMINATION, DECLARATION AND REVIEW OF A NATIONAL MINIMUM HOURLY RATE OF PAY FOR EMPLOYEES, THE ENTITLEMENT OF EMPLOYEES TO REMUNERATION FOR EMPLOYMENT AT A RATE NOT LESS THAN OR CALCULATED BY REFERENCE TO THAT NATIONAL MINIMUM HOURLY RATE, THE CALCULATION OF EMPLOYEES’ ENTITLEMENTS, THE SETTLEMENT OF DISPUTES RELATING TO SUCH ENTITLEMENTS, THE ENFORCEMENT AND RECOVERY OF WAGES, THE IMPOSITION OF PENALTIES FOR BREACHES OF THIS ACT, THE AMENDMENT OF THE TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994, THE ORGANISATION OF WORKING TIME ACT, 1997, AND THE PROTECTION OF EMPLOYEES (EMPLOYERS’ INSOLVENCY) ACT, 1984, AND FOR RELATED PURPOSES. [31 st March, 2000]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations:

Modifications (not altering text):

C1

Functions transferred and “Minister for” and “Department of Jobs, Enterprise and Innovation” construed (1.09.2017) by Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (S.I. No. 361 of 2017), arts. 2, 3, 6-8, in effect as per art. 1(2), subject to transitional provisions in arts. 4, 5. Note that original “Minister for” and “Department of Enterprise, Trade and Employment” changed or functions transferred:

• to Minster for and Department of Enterprise, Trade and Innovation (2.05.2010) by Enterprise, Trade and Employment (Alteration of Name of Department and Title of Minister) Order 2010 (S.I. No. 185 of 2010); and

• to Minister for and Department of Jobs, Enterprise and Innovation (2.06.2011) by Enterprise, Trade and Innovation (Alteration of Name of Department and Title of Minister) Order 2011 (S.I. No. 245 of 2011).

...

2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Social Protection.

(2) References to the Department of Jobs, Enterprise and Innovation contained in any Act or any instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Social Protection.

3. (1) The functions vested in the Minister for Jobs, Enterprise and Innovation—

(a) by or under the Acts specified in Part 1 of the Schedule and the provisions of the Acts specified in Part 2 of the Schedule, and

(b) under the Regulations specified in Part 3 of the Schedule,

are transferred to the Minister for Social Protection.

(2) References to the Minister for Jobs, Enterprise and Innovation contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, on and after the commencement of this Order, be construed as references to the Minister for Social Protection.

...

SCHEDULE

PART 1

Acts of the Oireachtas

...

National Minimum Wage Act 2000 (No. 5 of 2000)

...

Editorial Notes:

E1

Collectively cited National Minimum Wage Acts 2000 and 2015 included in definitions of “employment enactment” and “relevant enactment” (1.08.2015) by Workplace Relations Act 2015 (16/2015), s. 2 and sch. 1 part 1 item 7, S.I. No. 338 of 2015, with the following effects:

• Authorised officers or inspectors under employment enactments deemed to be appointed under Workplace Relations Act 2015 (16/2015), s. 26(2) and subject to termination under s. 26(4).

• Powers of inspectors for purposes of relevant enactments defined in Workplace Relations Act 2015 (16/2015), s. 27.

• Workplace Relations Commission, an inspector or an adjudication officer authorised to disclose employer’s registered number or employee’s PPSN to enable Labour Court to perform functions under relevant enactments by Workplace Relations Act 2015 (16/2015) s. 31(5).

• Power of Workplace Relations Commission and official body to disclose information to each other concerning the commission of offence under relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 32.

• Power of Workplace Relations Commission and contracting authority to disclose information to each other concerning the commission of offence under employment enactment/ relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 33.

• Powers of Minister to prosecute under relevant enactments transferred to Workplace Relations Commission and references construed by Workplace Relations Act 2015 (16/2015), s. 37.

• Functions of EAT to hear claims under employment enactments transferred to Workplace Relations Commission and references to EAT construed by Workplace Relations Act 2015 (16/2015) s. 66(1), (2).

PART I

Preliminary

Short title and commencement.

1

1.—(1) This Act may be cited as the National Minimum Wage Act, 2000

(2) This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor, either generally or with reference to a particular purpose or provision, and different days may be so fixed for different purposes and different provisions.

Annotations:

Editorial Notes:

E2

Power pursuant to s. 1(2) exercised (1.04.2000) by National Minimum Wage Act, 2000 (Commencement) Order 2000 (S.I. No. 96 of 2000).

2. The 1st day of April, 2000 is hereby appointed as the day on which the National Minimum Wage Act 2000 (No. 5 of 2000) shall come into operation.

Interpretation.

2

2.—(1) In this Act, unless the context otherwise requires—

“contract of employment” means—

( a) a contract of service or apprenticeship, or

( b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for that person or a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether or not it is in writing;

F1 [ Act of 2015 means the National Minimum Wage (Low Pay Commission) Act 2015;

Commission means the Low Pay Commission established under section 10A (inserted by section 5 of the Act of 2015); ]

“employee” means a person of any age who has entered into, or works or has worked under, a contract of employment;

“employer”, in relation to an employee, means the person with whom the employee has entered into, or for whom the employee works or has worked under, a contract of employment, and includes a transferee of an undertaking referred to in section 46 ;

“functions” includes powers and duties;

“inspector” means a person appointed under section 33(1) as an inspector;

“Minister” means the Minister for Enterprise, Trade and Employment;

F2 [ national minimum hourly rate of pay means the rate of pay declared by order of the Minister under section 10D (inserted by section 8 of the Act of 2015); ]

“pay” means all amounts of payment, and any benefit-in-kind specified in Part 1 of F3 [ Schedule 1 ] , made or allowed by an employer to an employee in respect of the employee’s employment;

“pay reference period”, in relation to an employee, means the period selected under section 10 by his or her employer;

“premium” means any amount in excess of basic pay payable to an employee in respect of his or her work;

“prescribed” means prescribed by regulations made under this Act by the Minister;

“working hours” has the meaning assigned to it by section 8 .

(2) A reference in this Act to an employee of an employer shall be construed as a reference to an employee employed by that employer or to whom the employer is liable to pay wages and for that purpose a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956 ) shall be deemed to be an employee employed by the State or the Government and an officer or servant of a local authority for the purposes of the Local Government Act, 1941 , or of a harbour authority F4 [ or of a health board, or a member of staff of an education and training board ], shall be deemed to be an employee employed by the respective authority F4 [ or board ].

(3) In this Act—

( a) a reference to any other enactment shall, except to the extent that the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act,

( b) a reference to a section or Part is a reference to a section or Part of this Act, unless it is indicated that reference to some other enactment is intended,

( c) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

( d) a reference to F5 [ a Schedule ] is a reference to F5 [ a Schedule ] to this Act.

Annotations:

Amendments:

F1

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 4(a), commenced on enactment.

F2

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 4(b), commenced on enactment.

F3

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 10(a)(i), commenced on enactment.

F4

Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72 and sch. 6 item 29, S.I. No. 211 of 2013.

F5

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 10(a)(ii), commenced on enactment.

Modifications (not altering text):

C2

Functions transferred and “Minister for” and “Department of Jobs, Enterprise and Innovation” construed (1.09.2017) by Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (S.I. No. 361 of 2017), arts. 2, 3, 6-8, in effect as per art. 1(2), subject to transitional provisions in arts. 4, 5. Note that original “Minister for” and “Department of Enterprise, Trade and Employment” changed or functions transferred:

• to Minster for and Department of Enterprise, Trade and Innovation (2.05.2010) by Enterprise, Trade and Employment (Alteration of Name of Department and Title of Minister) Order 2010 (S.I. No. 185 of 2010); and

• to Minister for and Department of Jobs, Enterprise and Innovation (2.06.2011) by Enterprise, Trade and Innovation (Alteration of Name of Department and Title of Minister) Order 2011 (S.I. No. 245 of 2011).

...

2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Social Protection.

(2) References to the Department of Jobs, Enterprise and Innovation contained in any Act or any instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Social Protection.

3. (1) The functions vested in the Minister for Jobs, Enterprise and Innovation—

(a) by or under the Acts specified in Part 1 of the Schedule and the provisions of the Acts specified in Part 2 of the Schedule, and

(b) under the Regulations specified in Part 3 of the Schedule,

are transferred to the Minister for Social Protection.

(2) References to the Minister for Jobs, Enterprise and Innovation contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, on and after the commencement of this Order, be construed as references to the Minister for Social Protection.

...

SCHEDULE

PART 1

Acts of the Oireachtas

...

National Minimum Wage Act 2000 (No. 5 of 2000)

...

Regulations.

3

3.—(1) The Minister may make regulations prescribing such matters as may be prescribed under this Act by the Minister, and may make such other regulations as are necessary or expedient for the purpose of giving effect to this Act.

(2) Regulations made under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary.

Annotations:

Editorial Notes:

E3

Power pursuant to subs. (1) exercised (4.04.2000) by National Minimum Wage Act, 2000 (Prescribed Courses of Study or Training) Regulations 2000 (S.I. No. 99 of 2000).

Laying of orders and regulations before Houses of Oireachtas.

4

4.—Every order (other than an order made under section 1(2)) or regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the order or regulation is passed by either House within the next subsequent 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the order or regulation.

Non-application of Act.

5

5.F6 [ (1) ] This Act does not apply to the remuneration of a person who is—

( a) the spouse F7 [ , civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ], father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, step-son, step-daughter, grandson, grand-daughter, brother, sister, half-brother or half-sister of an employer, employed by the employer, or

( b) an apprentice within the meaning of or under the Industrial Training Act, 1967 , or the Labour Services Act, 1987.

F8 [ (2) This Act does not apply to any non-commercial activity or work engaged in by prisoners under the supervision of the governor or person in charge of the prison concerned, including

( a ) any cleaning or kitchen work or other work relating to the operation of the prison;

( b ) activity of an educational, training or work experience nature which is intended to prepare prisoners for their re-integration into society;

( c ) the production of goods or services which are

(i) sold or provided for the purpose of raising funds for charitable purposes or providing facilities for prisoners, or

(ii) disposed of or provided without charge or for a nominal charge. ]

Annotations:

Amendments:

F6

Renumbered (1.05.2007) by Prisons Act 2007 (10/2007), s. 37, S.I. No. 180 of 2007.

F7

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 170 and sch. part 5 item 20, S.I. No. 648 of 2010.

F8

Inserted (1.05.2007) by Prisons Act 2007 (10/2007), s. 37, S.I. No. 180 of 2007.

Expenses of Minister.

6

6.—Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be approved of by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Provisions in agreement or legislation to pay less than national minimum hourly rate of pay are void.

7

7.—(1) A provision in a contract of employment (whether made or entered into before or after the commencement of this section) is void in so far as it purports to exclude or limit the operation of any provision of this Act.

(2) A contract or agreement or an enactment in force immediately before the commencement of this section that provides for the entitlement to pay for an employee less favourable than that to be provided in accordance with this Act is hereby modified to the extent necessary to provide that the employee’s entitlement after the commencement of this section shall be not less favourable than that to be provided in accordance with this Act.

(3) Nothing in this section shall prevent the inclusion in a contract of employment of a provision more favourable to an employee than an entitlement in accordance with this Act.

PART 2

Working Hours and Pay Reference Period

Working hours of employee for pay reference period.

8

8.—(1) For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9 , “working hours”, in relation to an employee in a pay reference period, means—

( a) the hours (including a part of an hour) of work of the employee as determined in accordance with—

(i) his or her contract of employment,

(ii) any collective agreement that relates to the employee,

(iii) any Registered Employment Agreement that relates to the employee,

(iv) any Employment Regulation Order that relates to the employee,

(v) any statement provided by the employee’s employer to the employee in accordance with section 3(1) of the Terms of Employment (Information) Act, 1994,

(vi) any notification by the employee’s employer to the employee under section 17 of the Organisation of Working Time Act, 1997 ,

(vii) section 18 of the Organisation of Working Time Act, 1997 , or

(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,

or

( b) the total hours during which the employee carries out or performs the activities of his or her work at the employee’s place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,

whichever, in any case, is the greater number of hours of work.

(2) “Working hours” under this section shall include—

( a) overtime,

( b) time spent travelling on official business, and

( c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

but shall not include—

(i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

F9 [ (ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer s leave under the Carer s Leave Act, 2001, while laid-off, on strike or on lock-out , or time for which the employee is paid in lieu of notice, or ]

(iii) time spent on travelling between an employee’s place of residence and place of work and back.

Annotations:

Amendments:

F9

Substituted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 29, commenced on enactment.

Certain employees to provide record of working hours to employer.

9

9.—(1) Where an employee’s working hours are assessed as provided in section 8(1) (b) but are not normally controlled by his or her employer, the following shall apply:

( a) the employee shall keep a written record of his or her working hours during every day he or she is employed during a pay reference period;

( b) the employee shall give the record to his or her employer as soon as reasonably practicable after the end of the pay reference period;

( c) if the employee fails to comply with paragraph (b), the working hours of the employee shall be calculated in accordance with section 8(1) (a) and the employer shall notify the employee of that circumstance as soon as possible after the expiration of the period, but in any case not later than at the time of receipt by the employee of his or her pay for the working hours concerned.

(2) Subsection (1) does not apply to an employee whose average hourly rate of pay for the working hours concerned is likely to be not less than 150 per cent, or such other percentage as may be prescribed, of the national minimum hourly rate of pay.

(3) An employee who provides his or her employer with information in a record of working hours under this section that the employee knows to be false or misleading in a material respect shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

Pay reference period.

10

10.—An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.

PART 3

National Minimum Hourly Rate of Pay

Declaration and Review of National Minimum Hourly Rate of Pay

10A.

F10 [ Establishment of Low Pay Commission

10A. (1) There is hereby established a body to be known in the Irish language as An Coimisi ú n um P á Íseal or, in the English language, as the Low Pay Commission to perform the functions conferred on it by section 10C (inserted by section 7 of the Act of 2015).

(2) Subject to this Act, the Commission shall be independent in the performance of its functions.

(3) The provisions of Schedule 2 (inserted by section 10 of the Act of 2015) shall apply to the Commission. ]

Annotations:

Amendments:

F10

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 5, commenced on enactment.

Editorial Notes:

E4

The section heading is taken from the amending section in the absence of one included in the amendment.

10B.

F11 [ Duty of Commission

10B. The Commission in the performance of the functions assigned to it by section 10C shall make recommendations to the Minister regarding the national minimum hourly rate of pay that

(a) is designed to assist as many low paid workers as is reasonably practicable,

(b) is set at a rate that is both fair and sustainable,

(c) where adjustment is appropriate, is adjusted incrementally, and

(d) over time, is progressively increased,

without creating significant adverse consequences for employment or competitiveness. ]

Annotations:

Amendments:

F11

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 6, commenced on enactment.

Editorial Notes:

E5

The section heading is taken from the amending section in the absence of one included in the amendment.

10C.

F12 [ Functions of Commission

10C. (1) Without prejudice to the generality of section 10B, the Commission shall once each year

(a) examine the national minimum hourly rate of pay, and

(b) make a recommendation to the Minister respecting the national minimum hourly rate of pay.

(2) (a) A recommendation under this section shall be accompanied by a report on the matters considered when making the recommendation.

(b) A recommendation and report under this section shall be furnished to the Minister on or before the third Tuesday falling in July in the year to which the examination relates.

(3) When making a recommendation under subsection (1)(b), the Commission shall have regard to

(a) changes in earnings during the relevant period,

(b) changes in currency exchange rates during the relevant period,

(c) changes in income distribution during the relevant period,

(d) whether during the relevant period

(i) unemployment has been increasing or decreasing,

(ii) employment has been increasing or decreasing, and

(iii) productivity has been increasing or decreasing,

both generally and in the sectors most affected by the making of an order under section 10D (inserted by section 8 of the Act of 2015),

(e) international comparisons, particularly with Great Britain and Northern Ireland,

(f) the need for job creation, and

(g) the likely effect that any proposed order will have on

(i) levels of employment and unemployment,

(ii) the cost of living, and

(iii) national competitiveness.

(4) (a) If so requested by the Minister, the Commission shall examine and report its views and recommendations on such matters, related generally to the functions of the Commission under this Act, as are specified by the Minister in that request.

(b) A request under paragraph (a) shall

(i) be made not later than 2 months after this Act comes into operation and, thereafter, not later than 2 months after the beginning of each year,

(ii) be part of that year s work programme of the Commission, and

(iii) specify the period within which the Commission shall report its views and recommendations to the Minister.

(c) The Minister may extend the period specified under paragraph (b)(iii).

(5) The Commission shall once every 3 years report generally on the operation of this Act and, in particular, on the impact of any orders made under section 10D on low pay, income distribution and employment costs.

(6) When preparing a report under this section the Commission shall consult with such persons, including representatives of employers and employees, as it thinks appropriate.

(7) The Minister shall cause a copy of any report or recommendation furnished to him or her in accordance with this section to be laid before each House of the Oireachtas not later than 3 months after the receipt of that report or recommendation.

(8) The Commission shall have all such powers as are necessary or expedient for the performance of its functions.

(9) In this section relevant period means

(a) in the case of the first report furnished under subsection (2)(b), the period since the most recent making of an order under section 11 of the Principal Act, or

(b) in the case of a second or subsequent report furnished under subsection (2)(b), the period since the most recent making of an order under section 10D (inserted by section 8 of the Act of 2015). ]

Annotations:

Amendments:

F12

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 7, commenced on enactment.

Editorial Notes:

E6

The section heading is taken from the amending section in the absence of one included in the amendment.

10D.

F13 [ National minimum hourly rate of pay

10D. (1) Within 3 months of the date of receipt of a recommendation and report submitted to him or her under section 10C(2) and having considered the report and recommendation and having had regard to section 10C(3), the Minister shall

(a) by order declare a national minimum hourly rate of pay

(i) in the terms recommended by the Commission, or

(ii) in other terms,

or

(b) decline to make such an order.

(2) Where the Minister

(a) by order declares a national minimum hourly rate of pay in terms other than terms recommended by the Commission, or

(b) declines to make an order declaring a national minimum hourly rate of pay,

the Minister shall prepare and lay before both Houses of the Oireachtas a statement of his or her reasons for so doing.

(3) The national minimum hourly rate of pay declared by order under this section may include an allowance in respect of board and lodgings, board only or lodgings only at such rates as are specified in the order.

(4) Where the Commission fails to make a recommendation or submit the report required in accordance with section 10C(2)(b) the Minister may, by order, having had regard to section 10C(3), declare a national minimum hourly rate of pay. ]

Annotations:

Amendments:

F13

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 8, commenced on enactment.

Editorial Notes:

E7

Power pursuant to subs. (1) exercised (1.01.2017) by National Minimum Wage Order 2016 (S.I. No. 516 of 2016), in effect as per art. 1(2).

E8

Previous affecting provision: power pursuant to subs. (1) exercised (1.01.2016) by National Minimum Wage Order 2015 (S.I. No. 442 of 2015), in effect as per art. 1(2); superseded as per E-note above.

E9

Previous affecting provision: power pursuant to s. 11(1) exercised (1.07.2011) by National Minimum Wage Act 2000 (Section 11) (No. 2) Order 2011 (S.I. No. 331 of 2011); the order appears to have remained in effect between repeal (15.07.2015) of the enabling section and coming into effect (1.01.2016) of National Minimum Wage Order 2015 (S.I. No. 442 of 2015) by virtue of Interpretation Act 2005 (23/2005) s. 26(2)(d), and to be deemed to be made under this section; superseded as per E-note above.

E10

The section heading is taken from the amending section in the absence of one included in the amendment.

10E.

F14 [ Funding and resources

10E. (1) The Minister shall advance to the Commission out of moneys provided by the Oireachtas such amount or amounts as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of expenditure by the Commission in the performance of its functions.

(2) The Minister shall make available to the Commission such officers of the Minister and reasonable facilities and services as the Minister, after consultation with the Commission, may determine. ]

Annotations:

Amendments:

F14

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 9, commenced on enactment.

Editorial Notes:

E11

The section heading is taken from the amending section in the absence of one included in the amendment.

National minimum hourly rate of pay

11

11.F15 [ ]

Annotations:

Amendments:

F15

Repealed (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 3, commenced on enactment.

Editorial Notes:

E12

Application of regulations made under section restricted (20.08.2014) by Merchant Shipping (Maritime Labour Convention) (Accommodation, Recreational Facilities, Food, Catering and Ships Cooks) Regulations 2014 (S.I. No. 374 of 2014), reg. 18, in effect as per reg. 1(2); the provision appears to refer to s. 10D after repeal of section (15.07.2015) by virtue of Interpretation Act 2005 (23/2005) s. 26(2)(f).

E13

Previous affecting provision: power pursuant to subs. (1) exercised (1.07.2011) by National Minimum Wage Act 2000 (Section 11) (No. 2) Order 2011 (S.I. No. 331 of 2011); the order appears to have remained in effect between repeal of section (15.07.2015) and coming into effect (1.01.2016) of National Minimum Wage Order 2015 (S.I. No. 442 of 2015) by virtue of Interpretation Act 2005 (23/2005) s. 26(2)(d); superseded (1.01.2016) on coming into effect of National Minimum Wage Order 2015 (S.I. No. 442 of 2015).

E14

Previous affecting provision: power pursuant to subs. (1) exercised (1.02.2011) by National Minimum Wage Act 2000 (Section 11) Order 2011 (S.I. No. 13 of 2011); superseded as per E-note above.

E15

Previous affecting provision: power pursuant to section exercised (1.01.2007) by National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2006 (S.I. No. 667 of 2006); superseded as per E-note above.

E16

Previous affecting provision: power pursuant to section exercised (1.05.2005) by National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2005 (S.I. No. 203 of 2005); revoked (1.01.2007) by National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2006 (S.I. No. 667 of 2006).

E17

Previous affecting provision: power pursuant to section exercised (01.02.2004) by National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2003 (S.I. No. 250 of 2003); revoked (1.05.2005) by National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2005 (S.I. No. 203 of 2005).

E18

Previous affecting provision: power pursuant to section exercised (1.07.2000) by National Minimum Wage Act, 2000 (National Minimum Hourly Rate of Pay) (No. 2) Order 2000 (S.I. No. 201 of 2000); revoked (1.02.2004) by National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2003 (S.I. No. 250 of 2003).

E19

Previous affecting provision: power pursuant to section exercised (31.03.2000) by National Minimum Wage Act, 2000 (National Minimum Hourly Rate of Pay) Order 2000 (S.I. No. 95 of 2000); revoked (1.07.2001) by National Minimum Wage Act, 2000 (National Minimum Hourly Rate of Pay) (No. 2) Order 2000 (S.I. No. 201 of 2000).

National economic agreement recommending national minimum hourly rate of pay.

12

12.F16 [ ]

Annotations:

Amendments:

F16

Repealed (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 3, commenced on enactment.

Labour Court may recommend national minimum hourly rate of pay where no national economic agreement.

13

13.F17 [ ]

Annotations:

Amendments:

F17

Repealed (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 3, commenced on enactment.

Entitlement of Employee to Payment and Sub-minimum Rates

Entitlement to minimum hourly rate of pay.

14

14.—Subject to sections 17 and 18

( a) an employee who has attained the age of 18 years shall, subject to sections 15, 16 and 41, be remunerated by his or her employer in respect of the employee’s working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay, and

( b) an employee who has not attained the age of 18 years shall be remunerated by his or her employer in respect of the employee’s working hours in any pay reference period, at an hourly rate of pay that on average is not less than 70 per cent of the national minimum hourly rate of pay.

Annotations:

Editorial Notes:

E20

Subcontracted posted worker provided with remedy for breach of section (27.07.2016) by European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016), reg. 9(1)(a).

Rates of pay during first 2 years of employment after entering employment after, or attaining, age of 18 years.

15

15.—(1) Subject to subsection (2) and sections 16, 17 and 18, a person who—

( a) enters employment for the first time after attaining the age of 18 years, or

( b) having entered into employment before attaining the age of 18 years continues in employment on attaining that age,

shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at an hourly rate of pay that on average is not less than—

(i) in the case of an employee commencing employment for the first time after attaining the age of 18 years—

(I) in his or her first year after having commenced employment, 80 per cent, and

(II) in his or her second year after having commenced employment, 90 per cent,

(ii) in the case of an employee having entered into employment before attaining the age of 18 years and continuing in employment on attaining that age—

(I) in his or her first year after having attained the age of 18 years, 80 per cent, and

(II) in his or her second year after having attained that age, 90 per cent,

of the national minimum hourly rate of pay, notwithstanding that the employee, if he or she has changed his or her employer during the relevant period, may have been remunerated at a higher rate by the previous employer.

(2) In calculating a period of employment for the purpose of subsection (1) , any period of employment during which the employee had not attained the age of 18 years shall be ignored.

(3) An employer shall not be liable in a dispute with an employee to whom this section applies as to the applicable rate of pay for the employee if the employer took reasonable steps to obtain detailed information about the employee’s employment with any previous employer and paid the employee at an hourly rate in accordance with the information and this section.

(4) This section applies to an employee in circumstances described in subsection (1) (a) or (b) whether he or she entered employment, or continued in employment on attaining the age of 18 years, before or after the commencement of this section, but the employee’s entitlement to remuneration as provided for in subsection (1) shall be only in respect of any period remaining after the commencement of this section of the employee’s first and/or second year after so entering employment for the first time or, as the case may be, so attaining the age of 18 years and continuing in employment.

Annotations:

Editorial Notes:

E21

Subcontracted posted worker provided with remedy for breach of section (27.07.2016) by European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016), reg. 9(1)(a).

Trainee rates.

16

16.(1)—Subject to subsection (3) and sections 17 and 18, where an employee who has attained the age of 18 years undergoes a course of study or training authorised by the employer within the workplace or elsewhere during normal working hours, such courses or training to be prescribed in regulations made by the Minister, the employee shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at a rate of pay that on average is not less than the following percentages of the national minimum hourly rate of pay:

( a) in respect of the first one-third period (but not exceeding 12 months) of the total study or training period, 75 per cent;

( b) in respect of the second one-third period (but not exceeding 12 months) of the total study or training period, 80 per cent;

( c) in respect of the third one-third period (but not exceeding 12 months) of the total study or training period, 90 per cent. cent.

(2) For the purpose of subsection (1), where a one-third period exceeds 12 months, the next subsequent one-third period shall be deemed to commence on the expiration of the previous period of 12 months.

(3) This section extends to an employee who is undergoing a course of study or training authorised by his or her employer which is subsequently prescribed for the purposes of subsection (1) and who—

( a) had not attained the age of 18 years at the time of the prescribing of the course of study or training, or

( b) had attained the age of 18 years at the time of the commencement of the course of study or training (whether or not he or she commenced that course before or after the commencement of this section),

and the date by reference to which the one-third periods of the total study or training period shall be calculated for the purposes of subsection (1) as so extended is the date (before or after the commencement of this section) on which the employee’s period of study or training actually commenced, but the employee shall be entitled to remuneration at the relevant percentage of the national minimum hourly rate of pay, as provided for in subsection (1), only in respect of that part of such one-third period or periods remaining after the date on which—

(i) this section commenced,

(ii) the course of study or training was or is prescribed, or

(iii) the employee attained or attains the age of 18 years,

whichever is the later date.

(4) Subsection (1) does not apply to an employee who has already undertaken, before or after the commencement of this section, a course of study or training that is similar in purpose or content, while employed by the same or a different employer.

Annotations:

Editorial Notes:

E22

Subcontracted posted worker provided with remedy for breach of section (27.07.2016) by European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016), reg. 9(1)(a).

E23

Criteria for course of study or training prescribed for the purposes of section (4.04.2000) by National Minimum Wage Act, 2000 (Prescribed Courses of Study or Training) Regulations 2000 (S.I. No. 99 of 2000), reg. 3.

Pro-rata entitlement to minimum hourly rate of pay for less than full hour.

17

17.—The rate of pay that a person is entitled to in accordance with this Part shall be calculated pro-rata in respect of any time that is less than a full hour.

Calculation of Minimum Hourly Rate of Pay

Calculations for purpose of this Part.

18

18.—(1) Nothing in this Part prevents the deduction from any pay to which an employee is entitled in accordance with this Act, or the payment by an employee to an employer, of any amount permitted in accordance with section 5 of the Payment of Wages Act, 1991, or any other enactment or instrument made under an enactment.

(2) No such deductions shall be made or payment allowed for in calculating the hourly rate of pay of an employee for the purpose of determining under this Act whether the employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act.

Reckonable and non-reckonable pay components in calculating average hourly rate of pay.

19

19.—(1) Subject to section 18 , all the pay of an employee in a specific pay reference period shall be included in calculating the employee’s average hourly rate of pay in that period for the purposes of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in that period.

(2) Any payments or benefits-in-kind listed in Part 2 of the F18 [ Schedule 1 ] are not included as pay of an employee for the purposes of subsection (1) .

(3) The Minister may, by regulation, add an item to, delete an item from, or otherwise amend, the F18 [ Schedule 1 ] but only after consultation with such representatives of employers and employees in the State as the Minister considers appropriate.

(4) An employer shall not, for the purposes of this Act, change a payment or benefit-in-kind listed as a non-reckonable component of pay as set out in Part 2 of the F18 [ Schedule 1 ] so that its status becomes that of a reckonable component of pay as set out in Part 1 of the F18 [ Schedule 1 ] .

(5) For the purposes of this section, the amount, if any, that shall be allowed for board with lodgings, board only, and lodgings only in calculating the hourly rate of pay of an employee in a pay reference period shall be the amount declared as such under F19 [ section 10D ] .

Annotations:

Amendments:

F18

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 10(b)(i), commenced on enactment.

F19

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 10(b)(ii), commenced on enactment.

Method of calculating employee’s average hourly rate of pay.

20

20.—For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled under this Act in a pay reference period, the gross remuneration of the employee calculated in accordance with section 19 shall be divided by the total working hours of the employee in the pay reference period calculated under section 8 .

Payment of amount owed to employee on termination of employment.

21

21.—To avoid doubt, where the employment of an employee is terminated, the employee shall be paid at not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act in respect of the period commencing on the beginning of the pay reference period in which his or her employment was terminated and ending on the date of that termination.

PART 4

Records and Statement of Average Hourly Earnings

Records.

22

22.(1)—An employer shall keep, at the premises or place where his or her employee works or, if the employee works at 2 or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records as are necessary to show whether this Act is being complied with in relation to the employee and, subject to section 23 (5) , those records shall be retained by the employer for at least 3 years from the date of their making.

(2) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.

(3) Without prejudice to subsection (2), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the provision was complied with lies on the employer.

Employee entitled to statement of average hourly rate of pay for pay reference period.

23

23.—(1) Subject to subsection (2), 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.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20 , or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee’s request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

( a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of F20 [ Schedule 1 ] ,

( b) the working hours of the employee calculated in accordance with section 8 ,

( c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20 , and

( d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given to the employee.

(6) An employer who, without reasonable excuse, fails to comply with this section or a request under this section, or who provides false or misleading information to an employee in a statement under subsection (4) knowing it to be false or misleading, shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.

Annotations:

Amendments:

F20

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 10(c), commenced on enactment.

Editorial Notes:

E24

Fixed payment amount of €1,500 and form of fixed payment notice prescribed in relation to offence under section prescribed for purposes of Workplace Relations Act 2015 (16/2015), s. 36(1)(b) (1.10.2015) by Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2015 (S.I. No. 419 of 2015), regs. 3 and 4(3) and schedule.

E25

Provision made for fixed payment notice for offence under section (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 36, S.I. No. 410 of 2015.

PART 5

Disputes about Entitlement and Enforcement

Annotations:

Amendments:

F21

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13(a), (c), (d), S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

F22

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13(b), S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

Editorial Notes:

E26

Redress and appeal procedures for disputes as to entitlements under Act provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44 and sch. 5 part 3 item 4, sch. 6 part 1 item 13, sch. 6 part 2 item 13, S.I. No. 410 of 2015.

Hearing of Disputes

Disputes about entitlement to minimum hourly rate of pay.

24

24.F21 [ (1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee s entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee. ]

(2) F21 [ The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015 ]

( a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

( b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under section 35 .

(3) F22 [ ]

(4) An inspector shall advise F21 [ an adjudication officer ], on request by the F21 [ adjudication officer ], as to whether the inspector has investigated or is investigating an alleged under-payment the subject of the dispute.

(5) F22 [ ]

(6) F22 [ ]

(7) F22 [ ]

Annotations:

Amendments:

F21

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13(a), (c), (d), S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

F22

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13(b), S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

Prohibition of reduction in hours of work of an employee without a concomitant reduction in duties or amount of work.

25

25.—(1) Where an employee alleges that he or she is being prejudiced by a reduction in his or her hours of work without a concomitant reduction in duties or amount of work, because of an increased liability of the employer resulting from the passing of this Act or the declaration of a national minimum hourly rate of pay, and the employer, within 2 weeks of being so requested by the employee or the employee’s representative with the employee’s consent, does not restore the employee’s working hours to those obtaining immediately before the reduction, the employer and employee shall, for the purposes of section 24(1) , be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee F23 [ ].

(2) F23 [ ]

F24 [ (3) In proceedings under Part 4 of the Workplace Relations Act 2015 in respect of a matter that, by virtue of subsection (1), is a dispute for the purposes of section 24, it shall be presumed unless the contrary is proved on the balance of probabilities that any reduction in hours of work was for the purpose of avoiding the alleged increased liability referred to in subsection (1). ]

Annotations:

Amendments:

F23

Deleted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13(a), (b), S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

F24

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13(c), S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

F25 [ Decision of adjudication officer under section 41 of Workplace Relations Act 2015

26

26. (1) A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under section 41 of the Workplace Relations Act 2015 may contain

(a) a direction to the employer to pay to the employee

(i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and

(ii) reasonable expenses of the employee in connection with the dispute,

(b) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, or

(c) both such direction and such requirement, as the adjudication officer considers appropriate.

(2) An adjudication officer shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours. ]

Annotations:

Amendments:

F25

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 item 13, S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

Modifications (not altering text):

C3

References to “employee” and “employer” construed (27.07.2016) European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016), regs. 2(1) and 9(3)(b).

Interpretation

2. (1) In these Regulations— ...

“contractor”, in relation to a posted worker, shall be construed in accordance with Regulation 7;

...

“posted worker” means a worker who normally works in another Member State but, for a limited period, carries out his or her work in the State.

...

Presentation of complaint under Act of 2015

9. ...

(3) References to employee and employer in— ...

( b) section 26(1) of the Act of 2000,

...

shall, in so far as they relate to a complaint by a posted worker against a contractor under this Regulation, be construed as references to the posted worker and contractor, respectively.

Appeal against rights commissioner’s decision.

27

27.F26 [ ]

Annotations:

Amendments:

F26

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 12, S.I. No. 410 of 2015.

Power of Labour Court in relation to evidence.

28

28.F27 [ ]

Annotations:

Amendments:

F27

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 12, S.I. No. 410 of 2015.

F28 [ Decision of Labour Court on appeal from decision referred to in section 26

29

29. (1) A decision of the Labour Court under section 44 of the Workplace Relations Act 2015 on appeal from a decision of an adjudication officer referred to in section 26 shall either

(a) affirm the decision of the adjudication officer, or

(b) contain

(i) a direction to the employer to pay to the employee

(I) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and

(II) reasonable expenses of the employee in connection with the dispute,

(ii) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, or

(iii) both such direction and such requirement, as the Labour Court considers appropriate. ]

Annotations:

Amendments:

F28

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13, S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

Referral or appeal to High Court on question of law.

30

30.F29 [ ]

Annotations:

Amendments:

F29

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 12, S.I. No. 410 of 2015.

Enforcement

Referral of decision of rights commissioner to Labour Court for determination.

31

31.F30 [ ]

Annotations:

Amendments:

F30

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 12, S.I. No. 410 of 2015.

Enforcement of determination of Labour Court.

32

32.F31 [ ]

Annotations:

Amendments:

F31

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 12, S.I. No. 410 of 2015.

Inspectors and Inspections

Inspectors and their powers.

33

33.F32 [ ]

Annotations:

Amendments:

F32

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 12, S.I. No. 410 of 2015.

Investigation of allegation or matter by inspector.

34

34.—(1) Where an employee alleges that his or her employer has failed to remunerate the employee to an extent required in accordance with this Act, the employee or the employee’s representative with the consent of the employee, may request an inspector to investigate the allegation.

(2) An inspector may, on the request or on behalf of an employee under subsection (1), or of the inspector’s own motion if the inspector believes that an under-payment of pay to an employee has been made, investigate the allegation or matter and, where the investigation is on the request or behalf of an employee, advise the employee of the outcome of the investigation.

(3) Subject to subsection (5), an inspector shall, on the request for advice under section 39 by the Minister, investigate the matter on which the advice is sought and advise the Minister accordingly.

(4) Where after investigating an allegation or matter under this section an inspector is satisfied that an offence under this Act has been committed, or when so requested by the Minister, the inspector shall furnish a report on his or her investigation to the Minister.

(5) An inspector shall not investigate an allegation or matter—

( a) in relation to a dispute which has been referred to a rights commissioner under section 24 (and shall cease any investigation he or she has commenced on becoming aware of any such referral); or

( b) involving payments made or alleged entitlements arising more than 3 years before the date of the inspection or proposed inspection.

(6) A rights commissioner shall, at the request of an inspector, inform the inspector as to whether a particular dispute has been referred to the rights commissioner under section 24 .

F33 [ F34 [ (7) ] In this section inspector has the same meaning as it has in the Workplace Relations Act 2015. ]

Annotations:

Amendments:

F33

Inserted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 13, S.I. No. 410 of 2015, subject to transitional provisions in subs. (3).

F34

Substituted (8.02.2016) by Credit Guarantee (Amendment) Act 2016 (1/2016), s. 18, commenced on enactment.

Offences and Enforcement

Offence to refuse or fail to pay minimum hourly rate of pay.

35

35.—(1) An employer who refuses or fails to remunerate an employee for each working hour or part of a working hour in any pay reference period at an hourly rate of pay that on average is not less than the employee’s entitlement to the minimum hourly rate of pay in accordance with this Act shall be guilty of an offence.

(2) Where the employer charged is found guilty of an offence under this section, evidence may be given of any like contravention on the part of the employer in respect of any period during the 3 years immediately preceding the date of the offence.

(3) In proceedings against a person under subsection (1), it shall lie with the person to prove that he or she has paid or allowed pay of not less than the amount he or she was required to pay or allow in accordance with this Act.

Prohibition of victimisation of employee by employer.

36

36.—(1) An employer shall not cause or suffer any action prejudicial to an employee for the employee having—

( a) exercised or having proposed to exercise a right under this Act,

( b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or

( c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay.

(2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991 , were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly.

(3) Where an employee alleges he or she has suffered an action prejudicial to the employee in contravention of subsection (1) and the employer, within 2 weeks of being so requested by the employee or the employee’s representative with the employee’s consent, does not restore the employee to conditions of employment he or she enjoyed immediately before suffering the alleged prejudicial action, the employer and the employee shall, for the purposes of section 24 (1) , be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act, resulting in an alleged underpayment to the employee, and sections 24 to 32 (except section 24(2) ), with the necessary modifications, shall apply accordingly.

(4) A dispute cannot be referred to a rights commissioner in pursuance of subsection (3) if a period of 6 months (or such longer period not exceeding 12 months, as the rights commissioner may allow) has elapsed since the employer’s alleged prejudicial action referred to in subsection (1).

Penalties and proceedings.

37

37.—(1) A person guilty of an offence under this Act for which no penalty, other than under this section, is provided shall be liable—

( a) on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months, or to both the fine and the imprisonment, or

( b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years, or to both the fine and the imprisonment.

(2) If the offence of which a person was convicted is continued after conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding £200 or on conviction on indictment to a fine not exceeding £1,000.

(3) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person (as well as the body corporate) shall be guilty of an offence and be liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.

(4) Proceedings in relation to a summary offence under this Act may be prosecuted by the Minister.

(5) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this Act may be instituted within 12 months from the date of the discovery of the offence.

Defence for employer in proceedings.

38

38.—It shall be a defence in proceedings for an offence under this Act by an employer if the employer proves that he or she exercised due diligence and took reasonable precautions to ensure that this Act and any relevant regulations made under it were complied with by the employer and any person under his or her control.

Civil proceedings.

39

39.—(1) Where an employer has not paid to an employee an amount of pay to which the employee is entitled in accordance with this Act and, in respect of that amount no dispute has been referred to a rights commissioner under section 24 or allegation referred to an inspector under section 34 for investigation, and, in the opinion of the Minister, it is not reasonable in the circumstances to expect the employee, or the representative of the employee with the employee’s consent, to either refer a dispute or allegation, or to institute civil proceedings for the recovery of the amount, the Minister may request an inspector to advise the Minister whether or not, in the inspector’s opinion, civil proceedings should be instituted by the Minister on behalf and in the name of the employee.

(2) After considering the advice of an inspector requested under subsection (1), the Minister may, in his or her absolute discretion, institute or refrain from instituting civil proceeding in the name of the employee for the recovery of the amount.

(3) In proceedings under subsection (2) the employee shall not be liable for costs but the court before which the proceedings are brought may order that any costs that might otherwise have been awarded against the employee shall be paid by the Minister.

(4) The power given by subsection (2) shall not be in derogation of any right of an employee to institute civil proceedings on the employee’s own behalf.

Employee’s entitlements not affected by conditions of contract of employment contravening certain Acts.

40

40.—(1) Where a term or condition of the contract of employment concerned contravenes the Taxes Consolidation Act, 1997, or the Social Welfare Acts, the employee concerned shall, notwithstanding the contravention, be entitled to redress under this Act for any under-payment of an amount of pay to which he or she would otherwise be entitled under this Act.

(2) Where, in proceedings under this Act, it is shown that a term or condition of a contract of employment contravenes the Taxes Consolidation Act, 1997, or the Social Welfare Acts, the rights commissioner, the Labour Court, an inspector or the Circuit Court, as the case may be, shall notify the Revenue Commissioners or the Minister for Social, Community and Family Affairs, as may be appropriate, of the matter.

PART 6

Miscellaneous

Employer in financial difficulty.

41

41.—(1) The Labour Court may, in accordance with this section, exempt an employer from the obligation to pay an employee or number of employees entitlements otherwise payable to them in accordance with section 14 , not being entitlements to which section 14(b), 15 or 16 apply.

(2) An exemption under subsection (1) shall be for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.

(3) The Labour Court shall not exempt an employer under subsection (1) if the employer has previously ever been granted an exemption under that subsection.

(4) An employer or employer’s representative with the employer’s consent may, in the manner and form approved by the Labour Court, apply to the Labour Court for an exemption under subsection (1).

(5) On receiving an application under subsection (4) the Labour Court shall convene a hearing of parties to the application and shall give its decision on the application in writing to the parties.

(6) Before granting an exemption under subsection (1), the Labour Court must be satisfied that—

( a) where the employer employs more than one employee-

(i) the employer has entered into an agreement with the majority of the employees or the representative of the majority of the employees, or

(ii) there is a collective agreement covering the majority of the employees in respect of whom the exemption is sought,

whereby the employees or their representative consent to—

(I) the employer making the application, and

(II) abide by any decision on the application that the Labour Court may make,

( b) where the employer makes an application in respect of a single employee, the employer has entered into an agreement with the employee or the representative of the employee whereby the employee or his or her representative consents to the employer making the application and to abide by any decision on the application that the Labour Court may make,

and that, in either case, the employer cannot pay an entitlement under section 14 to an employee to whom the agreement relates due to the employer not having the ability to pay or being unlikely to be able to pay, to the extent that, if the employer were compelled to pay—

(i) the employee would be likely to be laid-off employment with the employer, or

(ii) the employee’s employment would be likely to be terminated.

(7) A decision of the Labour Court to exempt an employer under subsection (1) shall specify

( a) the name and employment positions occupied by employees to whom the exemption applies;

( b) the duration of the exemption; and

( c) the average hourly rate of pay to be paid to the employee or employees during the period of the exemption, and the employee or employees shall be entitled to be paid at not less than that rate accordingly.

(8) Where during the period of an exemption under this section a new employee replaces an employee to whom the exemption relates, the employer may pay the new employee the hourly rate of pay specified by the Labour Court in respect of the former employee and shall, as soon as practicable, notify the Labour Court in writing of the employment of the new employee.

(9) The Labour Court shall establish its own procedures for the hearing of applications, and in relation to incidental matters to be dealt with, under this section.

(10) The Labour Court shall maintain a register of all decisions under this section and shall make the register available for examination by members of the public at such place and reasonable times as it thinks fit.

(11) No appeal shall lie from a decision of the Labour Court under this section except to the High Court on a question of law.

(12) For the purposes of calculating an employee’s entitlement to a redundancy payment under the Redundancy Payments Acts, 1967 to 1991, any exemption under this section shall be ignored and the calculation made as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

(13) A payment in lieu of notice to an employee in accordance with the Minimum Notice and Terms of Employment Acts, 1973 to 1991, shall not have regard to any exemption under this section and the payment in lieu of notice shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

(14) A payment from the Social Insurance Fund in accordance with section 6(2)(a)(i) of the Protection of Employees (Employers’ Insolvency) Acts, 1984 to 1991, shall not have regard to any exemption under this section and any such payment shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

Act not to derogate from certain provisions of or under Industrial Relations Acts, 1946 to 1990.

42

42.— The provisions of this Act are in addition to and not in derogation of the Industrial Relations Acts, 1946 to 1990, or—

( a) Employment Regulation Orders, and the enforcement of such Orders, made under those Acts, or

( b) Registered Employment Agreements, and the enforcement of such Agreements, on the register under those Acts on the commencement of this section,

except that where a minimum hourly rate of pay in accordance with this Act is a greater amount than the minimum rate of pay prescribed under an Employment Regulation Order or such a Registered Employment Agreement, the employee’s entitlement to pay in accordance with this Act shall prevail.

Repercussive claims.

43

43.—(1) The Labour Relations Commission or the Labour Court shall not recommend in favour of or endorse a claim or a part of a claim for the improvement in the pay of an employee who has access to any of its services if in the view of the Labour Relations Commission or the Labour Court, as the case may be, the claim or part of the claim is based on the restoration of a pay differential between the employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

(2) The Labour Court shall not by Employment Regulation Order give effect to a proposal which could be submitted to it by a Joint Labour Committee under section 42 of the Industrial Relations Act, 1946 , or section 48 of the Industrial Relations Act, 1990, if, in the view of the Labour Court, the proposal is based on or partly on the restoration of a pay differential between an employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

(3) The Labour Court shall not register an employment agreement under section 27 of the Industrial Relations Act, 1946, or vary such an agreement under section 28 of that Act if, in the view of the Labour Court, the agreement or variation, or part of the agreement or variation, is based on or partly on the restoration of a pay differential between an employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

(4) No conciliation or arbitration scheme in the public sector shall recommend in favour or endorse a claim or a part of a claim for the improvement in the pay of an employee who is subject to the scheme if the claim or part of the claim is based on the restoration of a pay differential between the employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

Amendment of section 3 of Terms of Employment (Information) Act, 1994.

44

44.— Section 3(1) of the Terms of Employment (Information) Act, 1994 , is amended by the substitution of the following for paragraph (g):

“(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

( ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000 , request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,”.

Amendment of section 39 of Organisation of Working Time Act, 1997.

45

45.Section 39 of the Organisation of Working Time Act, 1997, is hereby amended by the insertion in the table to subsection (2) of the following after “Minimum Notice and Terms of Employment Acts, 1973 to 1991”:

“National Minimum Wage Act, 2000

Parental Leave Act, 1998”.

Change of ownership of business.

46

46.— Without prejudice to the generality of the European Communities (Safeguarding of Employee’s Rights on Transfer of Undertakings) Regulations, 1980 ( S.I. No. 306 of 1980), on the transfer of an undertaking within the meaning of those regulations the transferee shall become liable to an employee in the undertaking to whom this Act applies in respect of any matter under this Act, in the same manner and to the same extent as the transferor immediately before the transfer, as if the transferee has originally entered into the relevant contract of employment or other agreement with the employee.

Annotations:

Editorial Notes:

E27

The European Communities (Safeguarding of Employee’s Rights on Transfer of Undertakings) Regulations 1980 ( S.I. No. 306 of 1980) mentioned above were amended by European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) (Amendment) Regulations 2000 (S.I. No. 487 of 2000) and both were revoked and replaced (11.04.2003) by European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

Extension of Protection of Employees (Employers’ Insolvency) Act, 1984.

47

47.Section 6 of the Protection of Employees (Employers’ Insolvency) Act, 1984 , is hereby amended—

( a) in subsection (2)( a)—

(i) by the deletion of “and” from the end of subparagraph (x),

(ii) in subparagraph (xi), by the substitution for “Employment Equality Act, 1977.” of “Employment Equality Act, 1977,”, and

(iii) by the insertion of the following after subparagraph (xi):

“(xii) any amount which an employer is required to pay by virtue of the National Minimum Wage Act, 2000 , being an amount by reference to which proceedings have been instituted against the employer for an offence under section 35 of the National Minimum Wage Act, 2000, and

(xiii) any amount which an employer is required to pay by virtue of—

(I) a decision of a rights commissioner under section 26 of the National Minimum Wage Act, 2000, or

(II) a determination of the Labour Court under section 29 of the National Minimum Wage Act, 2000 ,

and made, in any case, not earlier than the commencement of the relevant period.”,

( b) in subsection (4)( c), by the insertion of the following after subparagraph (vi):

“(vii) A payment shall not be made under this section in respect of an amount to which a decision of a rights commissioner under section 26 of the National Minimum Wage Act, 2000, relates unless—

(I) in case an appeal from the decision to the Labour Court is brought under section 27 of that Act, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

(viii) A payment shall not be made under this section in respect of an amount to which a determination under section 29 of the National Minimum Wage Act, 2000 , relates unless—

(I) in case an appeal from the determination is brought to the High Court under section 30 of that Act, the appeal is withdrawn, or

(II) in case there is no appeal, the time for bringing an appeal has expired.”,

and

( c) in subsection (9), in the definition of “the relevant date”, by the substitution for “(x) or (xi) of subsection (2)( a)” of “(x), (xi) or (xiii) of subsection (2)( a)”.

Service of documents.

48

48.—(1) The service of a notice or other document on a person for the purpose of or in relation to a proceeding under this Act may be effected by delivering it to the person or by sending a copy by prepaid registered post in an envelope addressed to the person at his or her last known residence or place of business in the State.

(2) In the case of a company to which the Companies Act, 1963, applies, service may be effected by delivering the document to, or by sending it by registered prepaid post in an envelope addressed to the company at its registered office.

(3) In the case of a body corporate to which subsection (2) does not apply or an unincorporated body of persons, the service may be effected by sending a copy of the notice or other document by registered prepaid post in an envelope addressed to the body at any place in the State where the body conducts its business or in such other manner as an originating summons may be served on such a body under the Rules of the Superior Court.

Provisions relating to winding-up and bankruptcy.

49

49.—(1) There shall be included amoung the debts which, under section 285 of the Companies Act, 1963, are, in the distribution of the assets of a company being wound-up, to be paid in priority to all other debts, all arrears of pay payable under this Act by a company to an employee, and that Act shall have effect accordingly

(2) There shall be included amoung the debts which, under section 81 of the Bankruptcy Act, 1988 , are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all arrears of pay payable under this Act by the bankrupt or arranging debtor.

(3) Formal proof of the debts to which priority is given under subsection (1) or ( 2) shall not be required except in cases where it may otherwise be provided by rules or general orders made under the respective Act.

Recovery of money due to employee.

50

50.—(1) Without prejudice to section 39 , any amount of money due to an employee from his or her employer under or in accordance with this Act shall be recoverable by the employee as a simple contract debt in a court of competent jurisdiction and action for its recovery may be instituted and maintained on behalf of the employee by the employee’s trade union, if the employee is a member.

(2) Where in a prosecution for an offence under this Act it appears to a court that money is due by an employer to an employee, and the employer is convicted of that offence, the court may, if it is satisfied that the employer is liable to pay to his or her employee an amount of money, order, in addition to any penalty which it may impose pursuant to this Act, that the employer pay the amount to the employee.

F35 [ SCHEDULE 1 ]

Reckonable and Non-Reckonable Pay Components in Calculating Average Hourly Rate of Pay

Annotations:

Amendments:

F35

Substituted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 10(d), commenced on enactment.

PART 1 — RECKONABLE COMPONENTS

1.  Basic salary.

2.  Shift premium.

3.  Piece and incentive rates, commission and bonuses, which are productivity related.

4.  The monetary value of board with lodgings or board only or lodgings only, not exceeding the amount, if any, prescribed for the purposes of this item.

5.  The amount of any service charge distributed to the employee through the payroll.

6.  Any payments under section 18 of the Organisation of Working Time Act, 1997 (zero hour protection).

7.  Any amount in respect of any of the above items advanced in a previous pay reference period that relates to the specific pay reference period.

8.  Any amount in respect of any of the above items earned in the specific pay reference period and paid in the next pay reference period or, where section 9(1)(b) applies, paid in the pay reference period in which the record of working hours is received or due to be received by the employer or the pay reference period immediately after that.

PART 2 — NON-RECKONABLE COMPONENTS

1.  Overtime premium.

2.  Call-out premium.

3.  Service pay.

4.  Unsocial hours premium.

5.  Any amount distributed to the employee of tips or gratuities paid into a central fund managed by the employer and paid through the payroll.

6.  Public holiday premium, Saturday premium and Sunday premium, where any such holidays or days are worked.

7.  Allowances for special or additional duties including those of a post of responsibility.

8.  Any payment of expenses incurred by the employee in carrying out his or her employment, including travel allowance, subsistence allowance, tool allowance and clothing allowance.

9.  On-call or standby allowance.

10. Any payments for or in relation to a period of absence of the employee from the workplace, such as sick pay, holiday pay, payment for health and safety leave under the Maternity Protection Act, 1994 , or pay in lieu of notice, but not including a payment under section 18 of the Organisation of Working Time Act, 1997 (zero hour protection).

11. Any payment by way of an allowance or gratuity in connection with the retirement or resignation of the employee or as compensation for loss of office.

12. Pension contributions paid by the employer on behalf of the employee.

13. Any payment referable to the employee’s redundancy.

14. Any advance of a payment referred to in Part 1 of this Schedule in the specific pay reference period relating to a subsequent pay reference period.

15. Any payment-in-kind or benefit-in-kind, except board with lodgings, lodgings only or board only.

16. Any payment to the employee otherwise than in his or her capacity as an employee.

17. Any payment representing compensation for the employee, such as for injury or loss of tools and equipment.

18. An amount of any award under a staff suggestion scheme.

19. Any loan by the employer to the employee, other than an advance payment referred to in paragraph 7 in Part 1 of this Schedule.

F36 [ SCHEDULE 2

Low Pay Commission

Membership

1. (1) The Commission shall consist of a chairperson and 8 ordinary members, each appointed by the Minister.

(2) Of the ordinary members

(a) 3 shall be appointed from among persons who, in the opinion of the Minister, have an understanding of the interests of low paid workers, very good knowledge and experience of working on behalf of workers interests or representing workers, particularly low paid workers or a proven track record in an advocacy or representational role on behalf of low paid workers,

(b) 3 shall be appointed from among persons who, in the opinion of the Minister, have an understanding of the interests of employers, particularly small to medium-sized employers and those operating in traditionally low pay sectors, and who possess a good knowledge and understanding of the particular issues faced by Irish businesses, particularly in relation to labour costs and competitiveness, and

(c) 2 members shall be appointed from among persons who, in the opinion of the Minister have particular knowledge or expertise in relation to some or all of the following; economics, labour market economics, statistics and employment law and proven competence in analysing and evaluating economic research and statistical analysis.

(3) The Minister shall, in so far as is practicable, endeavour to ensure that among the members there is an equitable balance between men and women.

(4) Where there is a vacancy (however occasioned) in the membership of the Commission, the Minister shall, if it is reasonably practicable to do so, appoint a replacement before the end of the period of 6 months beginning on the day on which the vacancy arose.

Term of office

2. (1) The term of office of a member of the Commission is 3 years from the date of his or her appointment.

(2) A person may not be a member of the Commission for more than 2 consecutive terms of office but is otherwise eligible for reappointment.

Resignation and termination of office

3. (1) A member of the Commission may at any time resign from office by letter addressed to the Minister and the resignation shall take effect on the date specified in the letter or the date the letter is received by the Minister, whichever is the later.

(2) The Minister may remove a member of the Commission from office if, in the opinion of the Minister

(a) the member has become incapable through ill-health of effectively performing the functions of the office,

(b) the member has committed stated misbehaviour,

(c) the member has a conflict of interest of such significance that, in the opinion of the Minister, the member should cease to hold the office, or

(d) the removal of the member appears to be necessary for the effective performance by the Commission of its functions.

(3) A person shall be disqualified from holding and shall cease to hold office as a member of the Commission if he or she

(a) is adjudicated bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is convicted on indictment of an offence, or is convicted outside the State of an offence consisting of acts or omissions which would constitute an offence triable on indictment if done or made in the State,

(d) is convicted of an offence involving fraud or dishonesty,

(e) is, or is deemed to be, the subject of an order under section 160 of the Companies Act 1990 or a disqualification order within the meaning of Chapter 4 of Part 14 of the Companies Act 2014 ,

(f) is a person to whom a declaration under section 150 of the Companies Act 1990 applies, or

(g) is a restricted person within the meaning of Chapter 3 of Part 14 of the Companies Act 2014 .

(4) Where the Minister appoints a new member of the Commission because a member has died, resigned, been removed from office or become disqualified from holding office, the term of office of the new member shall be for a period of 3 years.

(5) Subject to such rules as the Commission may make regarding a quorum, the Commission may act despite one or more vacancies in its membership.

Remuneration and other terms and conditions of office

4. Each member of the Commission shall

(a) hold office on such terms (other than the payment of remuneration and allowances for expenses) as the Minister may determine, and

(b) be paid by the Minister such remuneration (if any) and allowances for expenses (if any) as the Minister with the consent of the Minister for Public Expenditure and Reform may determine.

Membership of Oireachtas, European Parliament or local authority

5. (1) Where a member of the Commission

(a) is nominated as a candidate for election to either House of the Oireachtas or the European Parliament,

(b) is nominated as a member of Seanad É ireann,

(c) is elected as a member of either House of the Oireachtas or the European Parliament,

(d) is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to that Parliament to fill a vacancy, or

(e) becomes a member of a local authority,

he or she shall thereupon cease to be a member of the Commission.

(2) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit in that House or who is a member of the European Parliament or of a local authority shall, while so entitled or such a member, be disqualified from becoming a member of the Commission.

Appearance before Oireachtas Committees

6. The chairperson of the Commission shall, whenever requested to do so, account for the performance of the functions of the Commission to a Committee of either House of the Oireachtas.

Procedure and quorum

7. Subject to this Act, the Commission shall regulate the procedures and business of the Commission, including the fixing of a quorum for meetings of the Commission. ]

Annotations:

Amendments:

F36

Inserted (15.07.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015) s. 10(e) and sch., commenced on enactment.