Registered Employment Agreements apply automatically to all the relevant group or type of employees in the sector, job type and grade to which they apply.
The terms of a registered employment agreements in relation to pay and conditions of employment are incorporated in employees’ contracts, of employees to whom it is subject. A registered employment payment does not prejudice rights as to remuneration and conditions of employment which are conferred on any employee under any other legislation.
There are provisions requiring that employees be informed of their statutory entitlements, where an ERO or REA applies. The terms of the ERO it must be incorporated in the written terms of employment, to be furnished at the commencement of employment. Prompt rectification of incomplete or incorrectly stated terms may be required by an inspector.
The Labour Court registers the agreement. A register of employment agreements is to be maintained by the Labour Court. The registration must be confirmed by the Minister for Jobs, Enterprise, and Innovation. The Minister may refuse to register and advise the Labour Court of the grounds of refusal.
The legislation provides for the registration, cancellation and variation of registered employment agreements. The registry of employment agreements is to be published on the internet.
The Labour Court may give its decision on any question in relation to the interpretation of a registered employment agreement or its application. A court of law, in determining questions relating to the agreement must have regard to the decision of the Labour Court. It may refer the matter to the Labour Court if it thinks fit.
Where an application is made to the Labour Court to register an employment agreement, the Labour court shall register it provided that
- it is desirable or expedient to have a separate agreement for the class, type or group of employees covered;
- there is agreement amongst all of the parties to the agreement that it should be registered;
- the agreement is expressed to apply to all workers of a particular class, type or group and their employers;
- the trade union(s) are substantially representative of the workers to whom the agreement relates; in satisfying itself in that regard the Court shall take into consideration the number of workers to whom the agreement relates represented by the trade union or trade unions specified in the agreement that are employed by the employer or employers specified in the agreement;
- the agreement provides that if a trade dispute occurs between workers to whom the agreement relates and their employers, industrial action or a lock-out shall not take place until the dispute has been submitted for settlement by negotiation in the manner specified in the agreement;
- the agreement specifies the circumstances in which a party or parties to the agreement may terminate the agreement;
- registration of the agreement is likely to promote harmonious relations between the workers concerned and their employer and the avoidance of industrial unrest; and
- the agreement is in a form suitable for registration.
Following a legal challenge to the excessive delegation of law making powers, the Industrial Relations Acts were amended to provide more detailed principles and policies, which the Labour Court must take into account, in deciding whether or not to register an agreement.
- whether the parties are substantially representative of employers and employees;
- whether the agreement will be binding on all workers in the employment;
- the desirability of maintaining arrangements for collective bargaining;
- the promotion of harmonious industrial relationship;
- the desirability of avoidance of industrial unrest;
- the benefits of consultation at enterprise and sector level;
- the experience of registration and variation of employment agreements in the sector;
- the potential impact on employment levels;
- the desirability of maintaining fair and sustainable rights of remuneration;
- the desirability of maintaining competitiveness in the sector;
- levels of employment and unemployment in the sector;
- the terms of relevant national pay agreements;
- general wage levels in comparable sectors;
- where the sector is in competition with enterprises outside the State, the general level of wages in such comparable sectors in other jurisdictions.
An employer may apply to the Labour Court for an exemption from the obligation to pay the remuneration provided for. The mechanism is set out.
Where a REA so provides, an employer in financial difficulties may seek a temporary exemption from the requirement to pay the required remuneration rate. The exemption may be for up to 24 months and must be for a minimum of 3 months. An exemption will not be available if the employer has already been granted an exemption in respect of the same employees in the previous 5 years.
An application for exemption may be made by an employer where the employer has entered an agreement with the majority of the workforce or their representatives. It may grant an exemption where the employer informs the workers concerned of the financial difficulties of the business and notwithstanding the absence of an agreement with the majority. In the latter case, the Labour Court must be satisfied, that the employer cannot maintain the terms of the agreement and that compliance would result in considerable layoffs and adverse effects on the survival of the employer’s business.
Criteria for Exemption
The criteria to be considered by the Labour Court in the absence of an agreement with the workforce is set out in the legislation. The Labour Court must be satisfied that
- the employer has informed the employees concerned of the financial difficulties,
- has attempted to reach agreement;
- that he is unable to maintain the terms of the REA
- that requiring the employer to comply would result in a substantial risk that a significant number of workers would be laid off or made redundant or that the sustainability of the employer’s business would be significantly adversely affected.
The Labour Court is to consider whether granting an exemption would have an adverse effect on employment levels, to competition in the sector or be to the detriment of employers, who are not a party to the application. It is to have regard to the implications of granting an exemption on the long-term sustainability of the employer’s business.
The exemption shall not specify an hourly rate less than the hourly rate fixed by the national minimum wage. It must not reduce pension contributions paid. If a new worker replaces an existing worker to whom an exemption relates, the employer may pay the new worker the lower rate.
Where a contract specified in an exemption, provides for payment of more than the rates, the contract shall take effect as if the rate provided for by the exemption was substituted for the rate provided by the contract.
If a new employee replaces an employee, to whom an exemption relates, the employer may pay the new employee the lower rate. Where the contract between an employer and employee, subject to an exemption, provides for payment of remuneration of more than the rate provided for by such exemption, the contract is deemed to provide the rate provided by the exemption is substituted for the rate provided by the contractor.
REA Variation I
There is provision for the review of a registered employment agreement by the Labour Court. A party may apply to vary the REA. The Agreement may be varied in its application to any employee to whom it applies. An application may be made to the Labour Court for variation.
In the case of a contested application, there is a more elaborate procedure for variation. The proposed alteration must be first discussed by the parties using dispute resolutions procedures, referred to in the agreement. This may include reference to the Workplace Relations Commission and ultimately to the Labour Court for investigation.
Having heard all parties, the Labour Court issues a recommendation. If after 6 weeks the dispute remains unresolved, a party may apply to the court to vary the agreement in terms of the recommendations. Following a further hearing, the court may refuse the application or grant the variation. The Minister may confirm the variation of the order.
REA Variation II
A review may be conducted of the circumstances of the sector to which REA applies. The review may consider whether the continued registration is appropriate. The Labour Court may arrange for a report to be commissioned on the circumstances in the particular sector. The court shall have regard to the report in making its decision.
Where all parties agree, an application may be made to the Labour Court to vary the agreement. Where one party seeks to vary it, but the other(s) do not, the Labour Court, may after the exhaustion of dispute resolution provisions on the matter, including local discussions, the Workplace Relations Commission conciliation and the Labour Court recommendations, may grant or refuse a variation of the agreement, as it deems appropriate.
A party may withdraw from the agreement following variation, where the agreement provides that the party may do so in the circumstances.
The Agreement can be cancelled on the joint application of the parties. It may also be cancelled if there are substantial changes in the circumstances of the business and it is, therefore, undesirable to maintain the registration. Where all parties agree on the application, the Labour Court may consider the application and grant or refuse the application to vary the agreement.
An REA may be cancelled by the Labour Court if the trade union or employer party ceases to be substantially representative of employees or employers in the sector. The Ministers confirms the cancellation if appropriate.
The Labour Court may cancel registration of an employment agreement;
on the parties’ request voluntarily given;
where the registration has continued after its expiry date, upon the application of any party made after three months’ notice to the court, with the consent of all parties;
where it does not provide for its duration, after 12 months from the date of registration, on the application, made after 6 months’ notice to the court, of all parties to the agreement;
where it is satisfied that the trade union or trade unions parties no longer substantially represent or no longer substantially representative of the workers concerned.
An agreement with an expiry date continues until cancelled by the Labour Court.
There is a simplified mechanism to secure compliance with the REA. Criminal prosecution is no longer the preferred route. The application may be brought to the Circuit Court, by or on behalf of the employees or the Minister. The Circuit Court is required to make an order directing the employer to comply with the terms of the order.
If the wages under the REA are unpaid, the employee has a right to recover it in civil proceedings. Trade union representatives may complain to the Labour Court where the agreement has not been complied with. The Labour Court can consider the complaint and may make an order directing compliance. Failure to comply is a criminal offence.
Employers or their representatives may make a complaint to the Labour Court that a strike is being promoted in contravention of a Registered Employment Agreements. The Labour Court can conduct an enquiry and make an order. The Labour Court may direct the trade union to refrain from assisting the dispute or cancel the registration.
The Labour Court has a role in approving collective agreements, derogating from certain provisions of the Organisation of Working Time legislation.
References and Sources
Employment Law Meenan 2014 Ch. 7
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.18 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Industrial Relations Act 1946 (No. 26)
Industrial Relations Act 1969 (No. 14)
Industrial Relations Act 1976 (No. 15)
Industrial Relations Act 1990 (No. 19)
Industrial Relations (Amendment) Act 2001 (No. 11)
Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)
Industrial Relations (Amendment) Act 2012 (No. 32)
Industrial Relations (Amendment) Act 2015
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016