National Minimum Wage Act 2000

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.