Industrial Relations (Amendment) Act 2015
Exemption from obligation to pay remuneration provided by sectoral employment orders
21. (1) The Court may, in accordance with this section, exempt an employer from the obligation to pay the remuneration otherwise payable by the employer to a worker or workers in accordance with a sectoral employment order.
(2) An exemption under subsection (1) shall remain in force for such period, being not less than 3 months and not more than 24 months from the date on which the exemption is granted, as is specified in the exemption.
(3) (a) Subject to paragraph (b) the Court shall not grant an exemption to an employer under subsection (1) if the employer has been granted an exemption in respect of the same worker or workers under that subsection within the previous 5 years.
(b) Where an exemption under subsection (1) has been granted for a period of less than 24 months, an employer or employer’s representative with the employer’s consent may, prior to the date on which the exemption is due to expire, apply to the Court to extend the period of the exemption for an additional period.
(c) Where an application is made under paragraph (b) the Court shall not extend the period of the exemption for more than 24 months from the date on which the exemption was granted.
(d) Where the period of the exemption has been extended by the Court under paragraph (b), the Court shall not further extend the period.
(4) An employer or employer’s representative with the employer’s consent may, in the manner and form approved by the Court, apply to the Court for an exemption under subsection (1).
(5) An application under subsection (4) shall be accompanied by—
(b) such information, particulars and documentation as the Court may reasonably require for the purpose of determining whether an exemption under subsection (1) should be granted, in particular such information in relation to the employer, his or her business and the potential impact of an exemption, as the Court may direct.
(6) On receiving an application under subsection (4), the Court shall convene a hearing of parties to the application and the workers or their representatives and shall give its decision on the application in writing to the parties.
(7) Subject to subsection (8), the Court shall not grant an exemption under subsection (1) unless it is satisfied that—
(a) where the employer makes an application he or she has entered into an agreement with—
(i) the majority of the workers,
(ii) the representative of the majority of the workers, or
(iii) a trade union representing the majority of the workers,
in respect of whom the exemption is sought, whereby the workers, the representative of the workers or the trade union, consents to the employer making the application, and to abide by any decision on the application that the Court may make, and
(b) the employer’s business is experiencing severe financial difficulties.
(8) Notwithstanding subsection (7), where the Court is not satisfied that the majority of the workers or their representative consents to an application under paragraph (a) of that subsection, the Court may grant an exemption under subsection (1), provided the Court is satisfied that—
(a) the employer has informed the workers concerned of the financial difficulties of the business and has attempted to come to an agreement with the workers, their representative or trade union in relation to a reduction of the remuneration provided by the sectoral employment order,
(b) the employer is unable to maintain the terms of the sectoral employment order, and
(c) were the employer compelled to comply with the terms of the sectoral employment order concerned there would be a substantial risk that—
(i) a significant number of the workers concerned would be laid off or made redundant, or
(ii) the sustainability of the employer’s business would be significantly adversely affected.
(9) In considering whether to grant an exemption under subsection (1), the Court shall have regard to the following:
(a) whether, if an exemption was granted, it would have an adverse effect on employment levels and distort competition in the economic sector concerned to the detriment of employers not party to the application, who are also subject to the sectoral employment order concerned;
(b) the long term sustainability of the employer’s business, were such an exemption to be granted; and
(c) any other matters the Court considers relevant.
(10) An exemption under subsection (1) shall specify:
(a) the names and employment positions occupied by the workers to whom the exemption applies;
(b) the duration of the exemption; and
(c) the remuneration to be paid to the worker or workers during the period of the exemption and the worker or workers shall be entitled to be paid not less than that remuneration for the duration of the exemption.
(11) Notwithstanding anything in this section, an exemption under subsection (1) shall not specify an hourly rate of pay which is less than that declared by order for the time being in force under the Act of 2000.
(12) Where during the period of an exemption under this section a new worker replaces a worker to whom the exemption relates, the employer may pay the new worker the remuneration specified by the Court in respect of the former worker and shall, as soon as practicable, notify the Court in writing of the employment of the new worker.
(13) Where a contract between an employer and a worker specified in an exemption under subsection (1), provides for the payment of remuneration at a rate higher than that provided by such exemption, the contract shall, in respect of any period during which the exemption is in force, have effect as if the remuneration provided for by such exemption and applicable to such worker were substituted for the remuneration provided for by the contract.
(14) The Court shall establish its own procedures for the hearing of applications, and in relation to incidental matters to be dealt with, under this section.
(15) The Court shall establish and maintain a register of all exemptions under this section and shall publish the register on the internet.
(16) No appeal shall lie from a decision of the Court under this section except to the High Court on a point of law.