1.—(1) This Act may be cited as the Organisation of Working Time Act, 1997.

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

2.—(1) In this Act—

F1["the Activities of Doctors in Training Regulations" means the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004 (S.I. No. 494 of 2004);]

F2["adjudication officer" means an adjudication officer appointed under section 40 of the Workplace Relations Act 2015;]

“annual leave” shall be construed in accordance with section 19;

“collective agreement” means an agreement by or on behalf of an employer on the one hand, and by or on behalf of a body or bodies representative of the employees to whom the agreement relates on the other hand;

F2["collective bargaining" shall be construed in accordance with the Industrial Relations Acts 1946 to 2015.]

“contract of employment” means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for 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 it is oral or in writing;

“the Council Directive” means Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time⁽¹⁾, the text of which (other than the second sentence of Article 5) is, for convenience of reference, set out in the Sixth Schedule;

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of F3[this Act and the Activities of Doctors in Training Regulations], 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 Government, as the case may be, and an officer or servant of a local authority for the purposes of the F4[Local Government Act 2001 (as amended by the Local Government Reform Act 2014),] or of a harbour authority, health board or F5[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, board or committee, as the case may be;

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

F6["employment regulation order" means an employment regulation order within the meaning of Part IV of the Industrial Relations Act 1946;]

“lay-off” has the meaning assigned to it by the Redundancy Payments Act, 1967;

“leave year” means a year beginning on any 1st day of April;

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

“outworker” means an employee who is employed under a contract of service to do work for his or her employer in the employee’s own home or in some other place not under the control or management of the employer, being work that consists of the making of a product or the provision of a service specified by the employer;

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

“public holiday” shall be construed in accordance with the Second Schedule;

“registered employment agreement” has the meaning assigned to it by section 25 of the Industrial Relations Act, 1946;

“rest period” means any time that is not working time;

“short-time” has the meaning assigned to it by the Redundancy Payments Act, 1967;

“working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work,

and “work” shall be construed accordingly.

(2) A word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive.

(3) In this Act—

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

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

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment (including this Act).

3.—(1) Subject to subsection (4), this Act shall not apply to a member of the Garda Síochána or the Defence Forces.

(2) Subject to subsection (4), Part II shall not apply to—

(a) a person engaged in—

(i) sea fishing,

(ii) other work at sea, or

(iii) the activities of a doctor in training,

(b) a person—

(i) who is employed by a relative and is a member of that relative’s household F7[or is employed by the person’s civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], and

(ii) whose place of employment is a private dwelling house or a farm in or on which he or she and the relative F7[or civil partner] reside, or

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

(3) The Minister may, after consultation with any other Minister of the Government who, in the opinion of the Minister, might be concerned with the matter, by regulations exempt from the application of a specified provision or provisions of this Act persons employed in any specified class or classes of activity—

(a) involving or connected with the transport (by whatever means) of goods or persons, or

(b) in the civil protection services where, in the opinion of the Minister and any other Minister of the Government in whom functions stand vested in relation to the service concerned, the inherent nature of the activity is such that, if the provision concerned were to apply to the said person, the efficient operation of the service concerned would be adversely affected.

(4) The Minister may, after consultation with any other Minister of the Government who, in the opinion of the Minister, might be concerned with the matter, by order provide that a specified provision or provisions of this Act or, as the case may be, of Part II shall apply to a specified class or classes of person referred to in subsection (1) or (2) and for so long as such an order remains in force the said provision or provisions shall be construed and have effect in accordance with the order.

(5) The reference in subsection (4) to an order in force shall, as respects such an order that is amended by an order in force under section 7 (4), be construed as a reference to the first-mentioned order as so amended.

(6) In this section “relative”, in relation to a person, means his or her spouse, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, grand-daughter, step-son, step-daughter, brother, sister, half-brother or half-sister.

4.—(1) Without prejudice to section 6, section 11 or 13 or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11 or 13 or, as the case may be, both those sections.

(2) Without prejudice to section 6, sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day.

(3) Subject to subsection (4), the Minister may by regulations exempt from the application of section 11, 12, 13, 16 or 17 any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice to section 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(4) Where the Minister proposes to make regulations under subsection (3), the Minister shall consult with such persons as he or she considers to be representative of the employers and employees who, in the opinion of the Minister, are likely to be affected by the proposed regulations.

(5) Without prejudice to section 6, if—

(a) a collective agreement that for the time being stands approved of by the Labour Court under section 24, or

(b) a registered employment agreement,

provides that section 11, 12 or 13 shall not apply in relation to the employees to whom the agreement for the time being has effect, or a specified class or classes of such employees, section 11, 12 or 13, as the case may be, shall not apply in relation to those employees or the said class or classes of such employees.

(6) Without prejudice to section 6, an employment regulation order may include one or more provisions providing that section 11, 12 or 13 shall not apply in relation to the employees to whom the order relates or a specified class or classes of such employees.

5.—Without prejudice to section 6, an employer shall not be obliged to comply with section 11, 12, 13, F8[16, 17 or 18A] where due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer’s control, it would not be practicable for the employer to comply with the section concerned.

6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of section 11, 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12 or 13.

(2) Where by reason of the operation of subsection (1) or (2) of section 4, or section 5, an employee is not entitled to the rest period or break referred to in section 11, 12, or 13 the employer concerned shall—

(a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or

(b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5.

(3) The reference in subsection (2) (b) to the making of arrangements as respects an employee’s conditions of employment does not include a reference to—

(a) the granting of monetary compensation to the employee, or

(b) the provision of any other material benefit to the employee, other than the provision of such a benefit as will improve the physical conditions under which the employee works or the amenities or services available to the employee while he or she is at work.

7.—(1) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed or for the purpose of enabling any provision of this Act to have full effect.

(2) Regulations under this Act may make different provisions in relation to different classes of employees or employers, different areas or otherwise by reference to the different circumstances of the matter.

(3) A regulation or order under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient.

(4) The Minister may by order amend or revoke an order under this Act (other than an order under section 1 (2) but including an order under this subsection).

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

8.—F9[…]

9.—Each enactment specified in the Fourth Schedule is hereby repealed to the extent specified in the third column of that Schedule.

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

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

F10[(aa) any period during which the employee was absent from work while on parental leave, force majeure leave F11[, leave for medical care purposes, domestic violence leave or an approved flexible working arrangement within the meaning of the Parental Leave Act 1998] or carer’s leave within the meaning of the Carer’s Leave Act, 2001,]

(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

16.—(1) In this section—

“night time” means the period between midnight and 7 a.m. on the following day;

“night work” means work carried out during night time;

“night worker” means an employee—

(a) who normally works at least 3 hours of his or her daily working time during night time,

and

(b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year.

(2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—

(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(i) 2 months, or

(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.

(3) In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under section 28 (1) of the Safety, Health and Welfare at Work Act, 1989, in relation to the risks attaching to the work that the night worker is employed to do indicates that that work involves special hazards or a heavy physical or mental strain.

(4) The days or months comprising a reference period shall, subject to subsection (5), be consecutive days or months.

(5) A reference period shall not include—

(a) any rest period granted to the employee concerned under section 13 (2) (save so much of it as exceeds 24 hours),

(b) any rest periods granted to the employee concerned under section 13 (3) (save so much of each of those periods as exceeds 24 hours),

(c) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

F12[(cc) any period during which the employee was absent from work while on parental leave, force majeure leave F13[, leave for medical care purposes, domestic violence leave or an approved flexible working arrangement within the meaning of the Parental Leave Act 1998] or carer’s leave within the meaning of the Carer’s Leave Act, 2001.]

(d) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(e) any sick leave taken by the employee concerned.

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, F14[that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.]

F15[(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.]

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee’s employment.

F15[(6) In this section—

"reference hours and days" has the same meaning as it has in Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 20197 on transparent and predictable working conditions in the European Union;

"seafarer" has the same meaning as it has in the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, implemented by Council Directive 2009/13/EC of 16 February 2009⁸;

"sea fisherman" has the same meaning that "fisherman" has in the Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation, concluded on 21 May 2012 between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche) implemented by Council Directive (EU) 2017/159 of 19 December 2016⁹.

(7) This section shall not apply to seafarers or sea fishermen.]

18. (1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours ("the contract hours"),

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to that week (whether or not the number of those occasions or the circumstances otherwise touching the engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in that week).

(2) In a contract for a certain number of hours of work referred to in paragraphs (a) and (c) of subsection (1), the number of hours concerned shall be greater than zero.

(3) Notwithstanding subsection (1), subsection (2) shall not apply to—

(a) work done in emergency circumstances, or

(b) short-term relief work to cover routine absences for that employer.

(4) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent of the hours for which such work has been done in that week,

then the employee shall, subject to this section, be entitled—

(i) in a case where the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

(ii) in a case where the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be,

and the minimum payment shall be calculated as 3 times the national minimum hourly rate of pay within the meaning of the National Minimum Wage Acts 2000 and 2015 or 3 times the minimum hourly rate of remuneration established by an employment regulation order, for the time being in force, on each occasion that this occurs.

(5) Subsection (4) shall not apply—

(a) if the fact that the employee concerned was not required to work in the week in question the percentage of hours referred to in paragraph (a) or (b) of that subsection, as the case may be—

(i) constituted a lay-off or a case of the employee being kept on short-time for that week, or

(ii) was due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer’s control,

or

(b) if the employee concerned would not have been available, due to illness or for any other reason, to work for the employer in that week the said percentage of hours.

(6) The reference in subsection (4)(b) to the hours for which work of the type referred to in that provision has been done in the week concerned shall be construed as a reference to the number of hours of such work done in that week by another employee of the employer concerned or, in case that employer has required 2 or more employees to do such work for him or her in that week and the number of hours of such work done by each of them in that week is not identical, whichever number of hours of such work done by one of those employees in that week is the greatest.

(7) References in this section to an employee being required to make himself or herself available to do work for the employer shall not be construed as including references to the employee being required to be on call, that is to say to make himself or herself available to deal with any emergencies or other events or occurrences which may or may not occur.

(8) Nothing in this section shall affect the operation of a contract of employment that entitles the employee to be paid wages by the employer by reason, alone, of the employee making himself or herself available to do, at the times and place concerned, the work concerned.]

18A.(1) Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.

(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.

(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).

(4) The band of weekly working hours on which the employee is entitled to be placed shall be determined by the employer on the basis of the average number of hours worked by that employee per week during the reference period.

(5) An employer may refuse to place an employee on the band requested—

(a) where there is no evidence to support the claim in relation to the hours worked in the reference period,

(b) where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period,

(c) in circumstances to which section 5 applies, or

(d) where the average of the hours worked by the employee during the reference period were affected by a temporary situation that no longer exists.

(6) This section shall not apply to banded hour arrangements which have been entered into by agreement following collective bargaining.

(7) An employee placed on a band of weekly working hours shall work hours the average of which shall fall within that band for a period of not less than 12 months following that placement.

(8) Where an employee believes that his or her employer has failed to place the employee in a band of weekly working hours in accordance with subsection (3), having been requested to do so under subsection (2) or unreasonably refused a request to be placed on a band of weekly working hours, the employee may make a complaint in accordance with Part 4 of the Workplace Relations Act 2015.

(9) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with this section shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded, and

(b) where the decision is that the complaint was well founded, require the employer to comply with this section and place the employee on the appropriate band of hours.

(10) Notwithstanding section 27(3)(c), a decision in accordance with subsection (9)(b) shall not order an employer to pay compensation to the employee for the employer’s failure to comply with this section.

(11) Either party to proceedings under subsection (8) may appeal a decision of an adjudication officer to the Labour Court in accordance with section 44 of the Workplace Relations Act 2015.

(12) 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 this section shall affirm, vary or set aside the decision of the adjudication officer.

(13) Nothing in this section requires an employer to offer hours of work in a week where the employee was not expected to work, or requires an employer to offer hours of work in a week where the employer’s regular occupation, profession or trade is not being carried out.

(14) In this section ‘reference period’ means a period of 12 months after the commencement of employment with the employer and immediately before the employee makes a request under subsection (2), and a continuous period of employment with that employer occurring immediately before the commencement of section 18A shall be reckonable for the purposes of this section.

TABLE

Bands of weekly working hours

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

F18[(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

F19[(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.]

(2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

22.—(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee’s additional day’s pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

23.—F20[(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection—

"relevant period" means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.]

(2) Where—

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.

(3) If an employee ceases to be employed by reason of his or her death, any compensation payable under this section shall be paid to the personal representative of the employee.

(4) Where compensation is payable under subsection (2), the employee concerned shall, for the purpose of Chapter 9 of Part II of the Social Welfare (Consolidation) Act, 1993 (which relates to unemployment benefit) and Chapter 2 of Part III of that Act (which relates to unemployment assistance), be regarded as not having been, on the public holiday concerned, in the employment of the employer concerned.

(5) In this section “appropriate daily rate” and “normal weekly rate” mean, respectively, the appropriate daily rate of the employee concerned’s pay and the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

24.—(1) In this section “collective agreement” means a collective agreement referred to in section 4, 15 or 16 or paragraph 4 (a) of the First Schedule F21[or in regulation 9(4) or 10(2) of the Activities of Doctors in Training Regulations].

(2) On an application being made in that behalf by any of the parties thereto, the Labour Court may, subject to the provisions of this section, approve of a collective agreement.

(3) On receipt of an application under this section, the Labour Court shall consult such representatives of employees and employers as it considers to have an interest in the matters to which the collective agreement, the subject of the application, relates.

(4) The Labour Court shall not approve of a collective agreement unless the following conditions are fulfilled as respects that agreement, namely—

(a) in the case of a collective agreement referred to in section 4, 15 or 16 F21[or regulation 9(4) or 10(2) of the Activities of Doctors in Training Regulations], the Labour Court is satisfied that it is appropriate to approve of the agreement having regard to the provisions of the Council Directive permitting the entry into collective agreements for the purposes concerned,

(b) the agreement has been concluded in a manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned,

(c) the body which negotiated the agreement on behalf of the employees concerned is the holder of a negotiation licence under the Trade Union Act, 1941, or is an excepted body within the meaning of that Act which is sufficiently representative of the employees concerned,

(d) the agreement is in such form as appears to the Labour Court to be suitable for the purposes of the agreement being approved of under this section.

(5) Where the Labour Court is not satisfied that the condition referred to in paragraph (a) or (d) of subsection (4) is fulfilled in relation to a collective agreement, the subject of an application under subsection (2) (but is satisfied that the other conditions referred to in that subsection are fulfilled in relation to the agreement), it may request the parties to the agreement to vary the agreement in such manner as will result in the said condition being fulfilled and if those parties agree so to vary the agreement and vary it, accordingly, the Labour Court shall approve of the agreement as so varied.

(6) Where a collective agreement which has been approved of under this section is subsequently varied by the parties thereto, any of the said parties may apply to the Labour Court to have the agreement, as so varied, approved of by the Labour Court under this section and the provisions of this section shall apply to such an application as they apply to an application under subsection (2).

(7) The Labour Court may withdraw its approval of a collective agreement under this section where it is satisfied that there are substantial grounds for so doing.

(8) The Labour Court shall determine the procedures to be followed by a person in making an application under subsection (2) or (6), by the Labour Court in considering any such application or otherwise performing any of its functions under this section and by persons generally in relation to matters falling to be dealt with under this section.

(9) The Labour Court shall publish, in such manner as it thinks fit, particulars of the procedures referred to in subsection (8).

(10) The Labour Court shall establish and maintain a register of collective agreements standing approved of by it under this section and such a register shall be made available for inspection by members of the public at all reasonable times.

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two 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, in such form, if any, as may be prescribed, as will show whether the provisions of this F22[Act and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this F22[Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

F23[26. (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with subsection (1) it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.]

27.—(1) In this section “relevant provision” means—

(a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26,

F24[(aa) any of the following regulations of the Activities of Doctors in Training Regulations, namely, regulations 5 to 10,]

(b) the provision referred to in section 6(1) of regulations, a collective agreement, registered employment agreement or employment regulation order referred to in that section, or

(c) paragraph 9 of the Fifth Schedule.

(2) F25[…]

(3) F26[A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.]

(4) F25[…]

(5) F25[…]

(6) F25[…]

(7) F25[…]

(8) F25[…]

(9) F25[…]

(10) F25[…]

28. 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 subsection (3) of section 27 shall affirm, vary or set aside the decision of the adjudication officer.]

29.—F28[…]

30.—F29[…]

31.—F30[…]

32.—(1) An employer who employs any outworkers shall keep, in the prescribed form, a register in which he or she shall cause to be entered prescribed particulars in respect of each such worker for the time being employed by him or her.

(2) The Minister may, by regulations, prohibit an employer from employing outworkers to do a specified class or classes of work unless the employer complies with specified conditions in respect of the employment of the outworkers to do the said work.

(3) An employer who—

(a) fails to comply with subsection (1), or

(b) fails to comply with any condition specified in regulations under subsection (2) in respect of the employment by him or her of an outworker to do work of a class specified in such regulations,

shall be guilty of an offence.

33.—(1) An employer shall not employ an employee to do any work in a relevant period during which the employee has done work for another employer, except where the aggregate of the periods for which such an employee does work for each of such employers respectively in that relevant period does not exceed the period for which that employee could, lawfully under this F31[Act or the Activities of Doctors in Training Regulations], be employed to do work for one employer in that relevant period.

(2) In subsection (1) “relevant period” means a period of—

(a) 24 hours,

(b) 7 days, or

(c) 12 months.

(3) Whenever an employer employs an employee in contravention of subsection (1), the employer and the employee shall each be guilty of an offence.

(4) Where an employer is prosecuted for an offence under this section it shall be a good defence for him or her to prove—

(a) that he or she neither knew nor could by reasonable enquiry have known that the employee concerned had done work for any other employer in the period of 24 hours, 7 days or 12 months, as the case may be, in respect of which the prosecution is brought, or

(b) that he or she neither knew nor could by reasonable enquiry have known that the aggregate of the periods for which the employee concerned did work in the said period of 24 hours, 7 days or 12 months, as the case may be, exceeded the period for which he or she could lawfully be employed to do work for one employer in the said period of 24 hours, 7 days or 12 months, as the case may be.

34.—(1) A person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding £1,500.

(2) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in that capacity, that person shall also be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(3) If the contravention in respect of which a person is convicted of an offence under this Act is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable, on summary conviction, to a fine not exceeding £500.

(4) Proceedings for an offence under section 8 or a further offence, in relation to such an offence, under subsection (3) may be brought and 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 offence.

35.—(1) In this section

“code of practice” means, in relation to a section of this Act, a code that provides practical guidance as to the steps that may be taken for the purposes of complying with the section;

“the Commission” means the Labour Relations Commission.

(2) The Commission may and, at the request of the Minister, shall, prepare a code of practice for the purposes of any section of this Act (other than section 6 (2)) or, in the case of a request by the Minister, a section of this Act (other than section 6 (2)) specified in the request.

(3) The Commission, after consultation with the National Authority for Occupational Safety and Health, shall prepare a code of practice for the purposes of section 6 (2).

(4) In preparing a code of practice referred to in subsection (2) or (3), the Commission shall invite such organisations representative of employers, such organisations representative of employees, and such other bodies, as the Commission considers appropriate to make submissions, whether orally or in writing, to it in relation to the proposed code of practice and shall have regard to any such submissions made to it, in response to the invitation, by such organisations or bodies.

(5) The Commission shall submit a copy of a code of practice prepared by it under this section to the Minister who may—

(a) by order declare the code (which shall be scheduled to the order) to be a code of practice, or

(b) make such modifications to the code as he or she considers appropriate and declare the code as so modified (which shall be scheduled to the order) to be a code of practice,

for the purposes of the section or sections concerned of this Act.

(6) The Minister may, at the request of the Commission or of his or her own volition after consultation with the Commission, by order—

(a) amend or revoke a code of practice, the subject of an order under subsection (5) or this subsection (and the code of practice shall, in case it is amended by the order, be scheduled, in its amended form, to the order),

and

(b) declare, accordingly, the code of practice, as appropriate—

(i) to be no longer a code of practice,

or

(ii) in its form as amended by the order, to be a code of practice,

for the purposes of the section or sections concerned of this Act,

and

(c) revoke, as the case may be, the order concerned under subsection (5) or the previous order concerned under this subsection.

(7) A failure by a person to observe a code of practice under this section shall not of itself render that person liable to any civil or criminal proceedings.

(8) In any proceedings under this Act before a court, the Labour Court or a rights commissioner, a code of practice for the time being declared under subsection (5) or (6) to be a code of practice for the purposes of one or more sections of this Act shall be admissible in evidence and any provision of the code which appears to the court, the Labour Court or rights commissioner, as the case may be, to be relevant to any question arising in the proceedings shall be taken into account by it, him or her in determining that question.

36.—(1) In this section “the Act of 1996” means the Protection of Young Persons (Employment) Act, 1996.

(2) Nothing in the preceding sections of this Act shall prejudice the provisions of the Act of 1996.

(3) The obligation of an employer under section 15 of the Act of 1996 to keep the records referred to in that section at the place where the young person or child concerned is employed shall, if the young person or child is employed by the employer at 2 or more places, be construed as an obligation to keep the said records at the place from which the activities that the young person or child is employed to carry on are principally directed or controlled.

(4) Subsection (2) of section 22 of the Act of 1996 is hereby amended by—

(a) the insertion in paragraph (a) after “work” of “or from which he or she has reasonable grounds for supposing the activities that an employee is employed to carry on are directed or controlled (whether generally or as respects particular matters)”, and

(b) the insertion in paragraph (b) after “place” of “or any employee the activities aforesaid of whom are directed or controlled from any such premises or place”.

37.—Save as expressly provided otherwise in this F32[Act or the Activities of Doctors in Training Regulations], a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement F33[or coming into operation] of the provision concerned of this F32[Act or the Activities of Doctors in Training Regulations]) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this F32[Act or the Activities of Doctors in Training Regulations].

38.—

39.—(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment F35[or statutory instrument] referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

TABLE

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment F38[or statutory instrument] referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment F39[or statutory instrument] in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment F40[or statutory instrument] and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment F41[or statutory instrument] within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

(5) References in subsection (4) to the institution of proceedings in respect of any matter under an enactment F42[or statutory instrument] referred to in subsection (2), or the Table thereto, shall be construed as including references to the presentation of a complaint, or the referral of a dispute, in respect of the said matter, to the relevant authority concerned.

40.—(1) As respects a failure to comply with any provision of Part III in relation to an employee, the employee or, with the consent of the employee, any trade union of which the employee is a member may, in lieu of presenting a complaint in respect of such a failure under section 27, include in proceedings to be instituted by him or her or it in respect of any matter under an enactment referred to in the Table to section 39 (2) a claim for relief in respect of such a failure and where such a claim is included the following provisions shall have effect:

(a) subject to the provisions of this section, the provisions of the said enactment (hereafter in this section referred to as “the relevant enactment”) shall, with any necessary modifications, apply in like respects to the said claim (hereafter in this section referred to as “the holidays claim”) and the procedures to be followed in respect of it (including procedures in respect of appeals) as they apply to the proceedings otherwise under the enactment,

(b) the relevant authority that hears the said proceedings may grant the same relief in respect of the holidays claim as a rights commissioner may grant under section 27 (3) in respect of such a claim and in so far as the grant of such relief consists of or includes the making of a requirement on the employer concerned to pay compensation to the employee the limit specified in section 27 (3) in relation to compensation under that provision shall, in lieu of any limit specified in the relevant enactment in relation to compensation that may be required to be paid under that enactment, apply in relation to such compensation.

(2) Notwithstanding subsection (1) (a)—

(a) any provision of the relevant enactment requiring proceedings under that enactment to be instituted within a specified period shall not apply to such proceedings in so far, but only in so far, as they relate to the holidays claim,

(b) subsections (4) and (5) of section 27 shall apply to the hearing of the holidays claim by the relevant authority concerned as they apply to the hearing of a complaint under section 27 by a rights commissioner.

(3) In this section “relevant authority” has the same meaning as it has in section 39.

(4) References in this section to the institution of proceedings in respect of any matter under an enactment referred to in the Table to section 39 (2) shall be construed in accordance with subsection (5) of section 39.

41.—F43[…]