Adoptive Leave
S.I. No. 195/1995 –
Adoptive Leave (Referral of Disputes and Appeals) (Part V) Regulations, 1995.
ADOPTIVE LEAVE (REFERRAL OF DISPUTES AND APPEALS) (PART V) REGULATIONS, 1995.
I, MERVYN TAYLOR, T.D., Minister for Equality and Law Reform, in exercise of the powers conferred on me by section 32 (4) of the Adoptive Leave Act, 1995 (No. 2 of 1995), hereby make the following Regulations:
1. (1) These Regulations may be cited as the Adoptive Leave (Referral of Disputes and Appeals) (Part V) Regulations, 1995.
(2) These Regulations shall come into operation on the 20th day of July, 1995.
2. (1) In these Regulations, except where the context otherwise requires—
“the Act” means the Adoptive Leave Act, 1995 (No. 2 of 1995);
“appeal” means an appeal to the Tribunal under Part V of the Act;
“appellant” means a person who appeals to the Tribunal under Part V of the Act against a decision of a rights commissioner;
“applicant” means a person who refers a dispute to a rights commissioner under Part V of the Act;
“reference” means a dispute which is referred to a rights commissioner under Part V of the Act;
“regulations of 1979” means the Redundancy (Employment Appeals Tribunal) Regulations, 1979 ( S.I. No. 114 of 1979 ); and
” respondent” means a party to a reference under Part V of the Act other than an applicant, or a party to an appeal under the said Part V, other than an appellant, as may be appropriate.
(2) In these Regulations, a reference to a Regulation is a reference to a Regulation of these Regulations, unless it is indicated that reference to some other Regulation is intended.
(3) In these Regulations, a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
3. (1) A notice under section 34 (1) or 35 (2) of the Act shall contain the following particulars:
( a ) the names, addresses and descriptions of the parties to the proceedings;
( b ) in the case of a reference, the grounds upon which the applicant’s claim is based;
( c ) in the case of an appeal, the grounds of appeal;
( d ) in the case of a reference—
(i) the day of placement, or
(ii) where there has been no placement, the date on which the employer received the first notification of the adopting parent’s intention to take leave under the Act, or
(iii) in the case of an adopting father, the date on which the adopting mother died;
( e ) in case the notice is under section 34 (1) of the Act and is not given within the appropriate period specified in that section, the reasons for the delay;
( f ) the weekly remuneration of the adopting parent; and
( g ) in the case of an appeal, the date on which the decision to which the appeal relates was made and the name of the rights commissioner who made it.
4. (1) A reference or an appeal may be withdrawn by giving a notice in writing to the rights commissioner or the Tribunal, as may be appropriate, of the withdrawal of the reference or appeal.
(2) On receipt of a notice under paragraph (1) the rights commissioner or Tribunal, as the case may be, shall, as soon as is reasonably practicable thereafter, notify the respondent in writing of the withdrawal of the reference or appeal.
5. (1) A respondent who receives notice of an appeal, shall, if she wishes to contest the appeal, or wishes to appear or be heard at the hearing thereof, enter an appearance to it by giving a notice of appearance in writing to the Tribunal within 14 days (or such longer period as the Tribunal may fix under paragraph (3)) of the receipt by her of a copy of the notice concerned under section 35 (2) of the Act.
(2) A notice of appearance under this Regulation shall contain a brief outline of the grounds upon which the matter under appeal will be contested.
(3) A respondent in an appeal may apply to the Tribunal by notice in writing for an extension of the period within which to enter an appearance stating the grounds for the application, and the Tribunal may extend the time within which to enter the said appearance by such period as the Tribunal considers appropriate, if satisfied that there are reasonable grounds for so doing.
6. A copy of the notice of appearance shall be given by the Tribunal to the appellant as soon as may be after the receipt of the notice of appearance under Regulation 5 by the Tribunal.
7. A mistake of a formal nature shall not operate to invalidate a notice given under section 34 (1) or 35 (2) of the Act.
8. (1) The rights commissioner may request the parties in a reference to furnish him or her with particulars in relation to the dispute and may invite them to make submissions, either orally or in writing, in relation to the dispute.
(2) The rights commissioner may, if he or she considers it appropriate, convene an oral hearing at which he or she may put questions to the applicant and respondent and request the production of documents by them, in relation to the matters in dispute.
(3) Where a party in a reference fails or refuses, without just cause, to attend an oral hearing convened under paragraph (2), the rights commissioner may proceed with the hearing in that party’s absence.
(4) The rights commissioner may draw such inferences, as to him or her appear proper, from a failure or refusal by a party in a reference to comply with a request made under paragraph (1) or (2), or a failure or refusal by such a party to answer a question put to her by the rights commissioner.
9. A mistake (including an omission) of a verbal or formal nature, in a decision of a rights commissioner, may be corrected by a certificate signed by the rights commissioner.
10. A mistake (including an omission) of a verbal or formal nature, in a determination of the Tribunal, may be corrected by a certificate signed by the chairman of the Tribunal, or, if the determination concerned was made at a time when a vice-chairman was acting as chairman of the Tribunal, by the chairman of the Tribunal or such vice-chairman.
11. (1) The Tribunal shall maintain a register to be known as the Register of Adoptive Leave Determinations (referred to subsequently in this Regulation as “the Register”) and shall cause to be entered therein particulars of every determination by the Tribunal under Part V of the Act.
(2) The Register may be inspected free of charge by any person during normal office hours.
(3) Particulars of any correction made under Regulation 10 shall be entered in the Register.
(4) The parties to an appeal shall be furnished with a copy of the entry in the Register which relates to that appeal.
12. A respondent in an appeal who does not enter an appearance in accordance with Regulation 5, shall not be entitled to take part in or be present or represented at any proceedings before the Tribunal, relating to the matter under appeal.
13. (1) Where a notice is required, under the Act or these Regulations, to be served on a rights commissioner, the address for service of such notice shall be “Rights Commissioner, Labour Relations Commission, Tom Johnson House, Haddington Road, Dublin 4.”.
(2) Where a notice is required, under the Act or these Regulations, to be served on the Tribunal, the address for service of such notice shall be “The Secretary, Employment Appeals Tribunal, Davitt House, 65A Adelaide Road, Dublin 2.”.
14. Paragraphs 10 to 17 (2), 19, 20, 20A (inserted by the regulations of 1979), 23, 23A (inserted by the regulations of 1979) and 24 of the Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 ( S.I. No. 24 of 1968 ), shall, with any necessary modifications (including, in the case of the said paragraphs 20 and 20A, the modification that a sum awarded by the Tribunal under either of those paragraphs shall, in lieu of being paid out of the fund referred to therein, be paid by the Minister for Enterprise and Employment with the consent of the Minister for Finance), apply in relation to appeals under section 35 of the Act.
GIVEN under my Official Seal, this 20th day of July, 1995.
MERVYN TAYLOR,
Minister for Equality and Law Reform.
EXPLANATORY NOTE.
These Regulations prescribe procedures to be followed in relation to the hearing of disputes and appeals by a rights commissioner or the Employment Appeals Tribunal under Part V of the Adoptive Leave Act, 1995 .
S.I. No. 196/1995 –
Adoptive Leave (Calculation of Weekly Remuneration) Regulations, 1995.
ADOPTIVE LEAVE (CALCULATION OF WEEKLY REMUNERATION) REGULATIONS, 1995.
I, MERVYN TAYLOR, T.D., Minister for Equality and Law Reform, in exercise of the powers conferred on me by section 32 (4) of the Adoptive Leave Act, 1995 (No. 2 of 1995), hereby make the following Regulations:
1. (1) These Regulations may be cited as the Adoptive Leave (Calculation of Weekly Remuneration) Regulations, 1995.
(2) These Regulations shall come into operation on the 20th day of July, 1995.
2. (1) In these Regulations—
“the Act” means the Adoptive Leave Act, 1995 (No. 2 of 1995);
“relevant date” means the date on which the adopting parent commenced leave under the Act or, where she has not commenced leave under the Act, the date on which her employer first received notification of her intention to take leave under the Act;
“relevant employment”, in relation to an employee, means the employment in respect of which the weekly remuneration of the employee is calculated for the purposes of section 33 (3) of the Act;
“week”, in relation to an employee whose remuneration is calculated by reference to a week ending on a day other than a Saturday, means a week ending on that other day and, in relation to any other employee, means a week ending on a Saturday, and “weekly” shall be construed accordingly.
3. ( a ) A week’s remuneration of an employee in respect of an employment shall be calculated, for the purposes of section 33 (3) of the Act, in accordance with these Regulations.
( b ) Where, on the relevant date, an employee had less than 52 weeks’ continuous service in the employment, a week’s remuneration of the employee in respect of the employment shall be calculated, for the purposes of the said section 33 (3), in the manner that, in the opinion of the rights commissioner or the Tribunal, corresponds most closely to that specified in these Regulations.
4. In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by her, her weekly remuneration in respect of the relevant employment shall be her earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week, before the relevant date, in which she worked for the number of hours that was normal for the employment together with, if she was normally required to work overtime in the relevant employment, her average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.
5. For the purpose of Regulation 4 of these Regulations, the average weekly overtime earnings of an employee in the relevant employment shall be the amount obtained by dividing by 26 the total amount of her overtime earnings in that employment in the period of 26 weeks ending 13 weeks before the relevant date.
6. For the purpose of Regulations 5 and 7 (b) of these Regulations, any week during which the employee concerned did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in the said Regulation 5 or 7 (b), as the case may be, of these Regulations or before a week taken into account under this Regulation, as may be appropriate, shall be taken into account instead of a week during which the employee did not work as aforesaid.
7. ( a ) In the case of an employee who is paid remuneration in respect of the relevant employment wholly or partly at piece rates, or whose remuneration includes commissions (being piece rates or commissions related directly to her output at work) or bonuses, and in the case of any other employee whose remuneration in respect of the relevant employment varies in relation to the amount of work done by her, her weekly remuneration shall be the amount obtained by dividing the amount of the remuneration to be taken into account in accordance with paragraph (b) of this Regulation by the number of hours worked in the period of 26 weeks mentioned in the said paragraph (b) and multiplying the resulting amount by the normal number of hours for which, on the relevant date, an employee in the relevant employment was required to work in each week.
( b ) The remuneration to be taken into account for the purposes of paragraph (a) of this Regulation shall be the total remuneration paid to the employee concerned in respect of the employment concerned for all the hours worked by the employee in the employment in the period of 26 weeks that ended 13 weeks before the relevant date, adjusted in respect of any variation in the rate of pay which became operative during that 13 week period.
( c ) For the purpose of paragraph (b) of this Regulation, any week worked in another employment shall be taken into account if it would not have operated, for the purposes of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 (No. 4 of 1973), to break the continuity of service of the employee concerned in the relevant employment.
8. (1) Where, under her contract of employment, an employee is required to work for more hours than the number of hours that is normal for the employment, the hours for which she is so required to work shall be taken, for the purposes of Regulations 4 and 7 (b) of these Regulations, to be, in the case of that employee, the number of hours that is normal for the employment.
(2) Where, under her contract of employment, an employee is entitled to additional remuneration for working for more than a specified number of hours per week—
( a ) in case the employee is required under the said contract to work for more than the said specified number of hours per week, the number of hours per week for which she is so required to work shall, for the purposes of Regulations 4 and 7 (b) of these Regulations, be taken to be, in her case, the number of hours of work per week that is normal for the employment, and
( b ) in any other case, the specified number of hours shall be taken, for the purposes of the said Regulations 4 and 7 (b), to be, in the case of that employee, the number of hours of work per week that is normal for the employment.
9. Where, in a particular week, an employee qualifies for a payment of a bonus, pay allowance or commission which relates to work the whole or part of which was not done in that particular week, the whole or the appropriate proportionate part of the payment, as the case may be, shall, for the purposes of Regulations 4 and 7 (b) of these Regulations, be disregarded in relation to that particular week and shall for those purposes, be taken into account in relation to any week in which any of the work was done.
10. An employee who is normally employed on a shift cycle and whose remuneration in respect of the employment varies having regard to the particular shift on which she is employed, and an employee whose remuneration for working for the number of hours that is normal for the employment varies having regard to the days of the week or the times of the day on or at which she works, shall each be taken, for the purposes of these Regulations, to be an employee who is paid wholly or partly by piece rates.
11. Where, in respect of the relevant employment, there is no number of hours for which employees work in each week that is normal for the employment, the weekly remuneration of each such employee shall be taken, for the purposes of these Regulations, to be the average amount of the remuneration paid to each such employee in the 52 weeks in each of which she was working in the employment immediately before the relevant date.
12. Where under these Regulations account is to be taken of remuneration paid in a period which does not coincide with the periods for which the remuneration is calculated, the remuneration shall be apportioned in such manner as may be just.
13. For the purposes of Regulations 4 and 7 of these Regulations, account shall not be taken of any sums paid to an employee by way of recoupment of expenses incurred by her in the discharge of the duties of her employment.
GIVEN under my Official Seal, this 20th day of July, 1995.
MERVYN TAYLOR,
Minister for Equality and Law Reform.
EXPLANATORY NOTE.
These Regulations prescribe the method of calculating weekly remuneration for the purpose of redress in the form of compensation under Part V of the Adoptive Leave Act, 1995 .
S.I. No. 52/2006 –
Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2006
S.I. No. 52 of 2006
Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2006
WHEREAS it is enacted by section 6 (as amended by section 3 of the Adoptive Leave Act 2005 (No. 25 of 2005)) of the Adoptive Leave Act 1995 (No. 2 of 1995) and section 9(1) (as amended by section 5 of the Adoptive Leave Act 2005 ) of the Adoptive Leave Act 1995 that the Minister for Justice, Equality and Law Reform may, with the consent of the Minister for Social and Family Affairs and the Minister for Finance, by order extend the period specified in each of those provisions:
AND WHEREAS it is further enacted by section 8(1) (as amended by section 4 of the Adoptive Leave Act 2005 ) of the Adoptive Leave Act 1995 and section 10(1) (as amended by section 6 of the Adoptive Leave Act 2005 ) of the Adoptive Leave Act 1995 that the Minister for Justice, Equality and Law Reform may by order extend the period specified in each of those provisions:
AND WHEREAS it is further enacted by section 3(3) of the Adoptive Leave Act 1995 that where an order is proposed to be made under that Act (other than an order under section 1(2) thereof), a draft of the order shall be laid before both Houses of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House:
AND WHEREAS a draft of the following Order has been laid before both Houses of the Oireachtas and a resolution approving of the draft has been passed by each such House:
AND WHEREAS the Minister for Justice, Equality and Law Reform has, in accordance with section 3(4) of that Act, consulted such organisations or other bodies of persons representative of employers and such organisations or other bodies of persons representative of trades unions or bodies analogous to trades unions as he considers appropriate:
NOW I, Michael McDowell, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by sections 6, 8(1), 9(1) and 10(1) of the Adoptive Leave Act 1995 (No. 2 of 1995) (as amended by the Adoptive Leave Act 2005 (No. 25 of 2005)) and with the consent of the Minister for Social and Family Affairs and the consent of the Minister for Finance insofar as the said sections 6 and 9(1) are concerned, order as follows:
1. This Order may be cited as the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2006.
2. (1) Subject to paragraphs (2) and (3) of this Article, this Order (other than Articles 8 to 11 thereof) comes into operation on 1 February 2006.
(2) (a) Articles 4 and 5 of this Order apply in respect of an employed adopting mother or sole male adopter who commences adoptive leave or additional adoptive leave, as the case may be, at any time not less than 4 weeks after the date specified in paragraph (1) of this Article.
(b) Articles 6 and 7 of this Order apply in respect of an adopting father who commences adoptive leave or additional adoptive leave, as the case may be, at any time after the date specified in paragraph (1) of this Article.
(3) (a) Articles 4 to 7 of this Order do not apply in respect of an employee who –
(i) at any time prior to the relevant date, postpones the leave concerned in accordance with section 11C (inserted by section 9 of the Act of 2005) of the Act of 1995, and
(ii) by reason only of that postponement, resumes or commences the leave concerned after the relevant date.
(b) In this paragraph “the relevant date” means –
(i) 1 February 2006, in respect of an adopting father’s adoptive leave or additional adoptive leave, and
(ii) 1 March 2006, in respect of an employed adopting mother or sole male adopter’s adoptive leave or additional adoptive leave.
(4) Subject to paragraphs (5) and (6) of this Article, Articles 8 to 11 of this Order come into operation on 1 February 2007.
(5) (a) Articles 8 and 9 of this Order apply in respect of an employed adopting mother or sole male adopter who commences adoptive leave or additional adoptive leave, as the case may be, at any time not less than 4 weeks after the commencement of those Articles.
(b) Articles 10 and 11 of this Order apply in respect of an adopting father who commences adoptive leave or additional adoptive leave, as the case may be, at any time after the commencement of those Articles.
(6) (a) Articles 8 to 11 of this Order do not apply in respect of an employee who –
(i) at any time prior to the relevant date, postpones the leave concerned in accordance with section 11C (inserted by section 9 of the Act of 2005) of the Act of 1995, and
(ii) by reason only of that postponement, resumes or commences the leave concerned after the relevant date.
(b) In this paragraph “the relevant date” means –
(i) 1 February 2007, in respect of an adopting father’s adoptive leave or additional adoptive leave, and
(ii) 1 March 2007, in respect of an employed adopting mother or sole male adopter’s adoptive leave or additional adoptive leave.
3. In this Order –
“Act of 1995” means the Adoptive Leave Act 1995 (No. 2 of 1995);
“Act of 2005” means the Adoptive Leave Act 2005 (No. 25 of 2005).
4. The minimum period for the purposes of section 6 (as amended by section 3 of the Act of 2005) of the Act of 1995 is 20 weeks.
5. The maximum period for the purposes of section 8(1) (as amended by section 4 of the Act of 2005) of the Act of 1995 is 12 weeks.
6. The adoptive leave for the purposes of section 9(1) (as amended by section 5 of the Act of 2005) of the Act of 1995 shall be for a period of –
(a) in case the adopting mother dies on or after the day of placement, 20 weeks less the period between the date of placement and the date of her death, or
(b) in any other case, 20 weeks.
7. The additional adoptive leave for the purposes of section 10(1) (as amended by section 6 of the Act of 2005) of the Act of 1995 shall be for a period of –
(a) in case the adopting mother dies on or after the expiration of 20 weeks from the day of placement, 12 weeks less the period between the date of that expiration and the date of her death, or
(b) in any other case, 12 weeks.
8. The minimum period for the purposes of section 6 (as amended by section 3 of the Act of 2005) of the Act of 1995 is 24 weeks.
9. The maximum period for the purposes of section 8(1) (as amended by section 4 of the Act of 2005) of the Act of 1995 is 16 weeks.
10. The adoptive leave for the purposes of section 9(1) (as amended by section 5 of the Act of 2005) of the Act of 1995 shall be for a period of –
(a) in case the adopting mother dies on or after the day of placement, 24 weeks less the period between the date of placement and the date of her death, or
(b) in any other case, 24 weeks.
11. The additional adoptive leave for the purposes of section 10(1) (as amended by section 6 of the Act of 2005) of the Act of 1995 shall be for a period of –
(a) in case the adopting mother dies on or after the expiration of 24 weeks from the day of placement, 16 weeks less the period between the date of that expiration and the date of her death, or
(b) in any other case, 16 weeks.
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GIVEN under my Official Seal,
1 February, 2006.
Michael McDowell
Minister for Justice,
Equality and Law Reform
The Minister for Social and Family Affairs consents to the foregoing Order (other than Articles 5, 7, 9 and 11 thereof).
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1 February, 2006.
Seamus Brennan
Minister for Social and Family Affairs
The Minister for Finance consents to the foregoing Order (other than Articles 5, 7, 9 and 11 thereof).
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1 February, 2006.
Brian Cowen
Minister for Finance
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation)
This Order extends the periods of adoptive leave under the Adoptive Leave Act 1995 .