Sectoral Regulation
Industrial Relations (Amendment) Act 2015
Chapter 3
Sectoral employment orders
Annotations:
Editorial Notes:
E5
Subcontracted posted workers provided with remedy for breach of sectoral employment order within meaning of chapter (27.07.2016) by European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016), reg. 9(1)(d).
E6
Redress and appeal procedures for contraventions of sectoral employment orders under Chapter provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44 and sch. 5 part 2 item 11, sch. 6 part 1 para. 35 and sch. 6 part 2 item 35, S.I. No. 410 of 2015, as inserted (1.08.2015) by Industrial Relations (Amendment) Act 2015 (27/2015), s. 24(d)(ii) and (e), S.I. No. 329 of 2015.
Definitions
13. In this Chapter—
“Act of 2000” means the National Minimum Wage Act 2000;
“economic sector” means a sector of the economy concerned with a specific economic activity requiring specific qualifications, skills or knowledge;
“overtime” means any hours worked in excess of normal working hours;
“remuneration” means basic pay and may include pay in excess of basic pay in respect of—
(a) shift work,
(b) piece work,
(c) overtime,
(d) unsocial hours worked,
(e) hours worked on a Sunday, or
(f) travelling time (when working away from base),
but shall not include remuneration paid by an employer to his or her spouse, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, step-son, step-daughter, grandson, grand-daughter, brother, sister, half-brother or half-sister;
“sectoral employment order” has the meaning assigned to it by section 17 .
Submission of request to Court
14. (1) Subject to subsection (3)—
(a) a trade union of workers,
(b) a trade union or an organisation of employers, or
(c) a trade union of workers jointly with a trade union or an organisation of employers,
may request the Court to examine the terms and conditions relating to the remuneration and any sick pay scheme or pension scheme, of the workers of a particular class, type or group in the economic sector in respect of which the request is expressed to apply.
(2) A request under this section shall include confirmation, in such form and accompanied by such documentation as the Court may specify that—
(a) where the request is made by a trade union of workers or jointly with the trade union of workers, the trade union of workers is substantially representative of the workers of the particular class, type or group in the economic sector in respect of which the request is expressed to apply, and
(b) where the request is made by a trade union or an organisation of employers or jointly with a trade union or an organisation of employers, the trade union or organisation concerned is substantially representative of the employers of the workers specified in paragraph (a).
(3) Where the Minister has made a sectoral employment order in relation to a class, type or group of workers in a particular economic sector, the Court shall not consider a request under subsection (1) in relation to the same class, type or group of workers in that sector, until at least 12 months after the date of the order, unless the Court is satisfied that exceptional and compelling circumstances exist which justify consideration of an earlier request.
(4) A request under subsection (1) shall be in a form prescribed by the Court.
Examination by Court
15. (1) Where the Court receives a request under section 14 it shall not undertake an examination in accordance with this section unless it is satisfied that—
(a) following consideration of any documentation submitted under subsection (2) of section 14 —
(i) the trade union of workers is substantially representative of the workers of the particular class, type or group in the economic sector in respect of which the request is expressed to apply, and in satisfying itself in that regard, the Court shall take into consideration the number of workers in that class, type or group represented by the trade union of workers, and
(ii) where the request is made by a trade union or organisation of employers or jointly with a trade union or organisation of employers, the trade union or organisation concerned is substantially representative of the employers in the particular class, type or group in the economic sector in respect of which the request is expressed to apply, and in satisfying itself in that regard, the Court shall take into consideration the number of workers employed in the particular class, type or group in the economic sector concerned by employers represented by the trade union or organisation of employers concerned,
(b) the request is expressed to apply to all workers of the particular class, type or group and their employers in the economic sector in respect of which the request is expressed to apply,
(c) it is a normal and desirable practice, or that it is expedient, to have separate terms and conditions relating to remuneration, sick pay schemes or pension schemes in respect of workers of the particular class, type or group in the economic sector in respect of which the request is expressed to apply, and
(d) any recommendation is likely to promote harmonious relations between workers of the particular class, type or group and their employers in the economic sector in respect of which the request is expressed to apply.
(2) Prior to undertaking an examination under this section, the Court shall publish in such manner as, in the opinion of the Court, is best calculated to bring the request to the notice of all interested persons concerned, notice of its intention to undertake an examination under this section.
(3) A notice under subsection (2) shall invite representations to be made to the Court from any interested parties not later than 28 days after the date of the notice.
(4) Not earlier than 28 days after the date of a notice under subsection (2), the Court may hear all parties appearing to the Court to be interested and desiring to be heard.
Court recommendation to Minister
16. (1) Subject to this section, the Court shall, where it considers it appropriate to do so, having heard all parties appearing to the Court to be interested and desiring to be heard, and having regard to the submissions concerned and the matters specified in subsection (2), make a recommendation to the Minister.
(2) When making a recommendation under this section, the Court shall have regard to the following matters:
(a) the potential impact on levels of employment and unemployment in the identified economic sector concerned;
(b) the terms of any relevant national agreement relating to pay and conditions for the time being in existence;
(c) the potential impact on competitiveness in the economic sector concerned;
(d) the general level of remuneration in other economic sectors in which workers of the same class, type or group are employed;
(e) that the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.
(3) A recommendation under this section shall—
(a) specify the class, type or group of workers and the economic sector in relation to which the recommendation shall apply,
(b) be accompanied by a report on the circumstances surrounding the making of the recommendation, including confirmation that the Court has had regard to the matters set out in subsection (2), and
(c) be made not later than 6 weeks after a hearing under section 15 .
(4) The Court shall not make a recommendation under this section unless it is satisfied that to do so—
(a) would promote harmonious relations between workers and employers and assist in the avoidance of industrial unrest in the economic sector concerned, and
(b) is reasonably necessary to—
(i) promote and preserve high standards of training and qualification, and
(ii) ensure fair and sustainable rates of remuneration,
in the economic sector concerned.
(5) A recommendation under this section may provide for all or any of the following in respect of the workers of the class, type or group in the economic sector concerned:
(a) a minimum hourly rate of basic pay that is greater than the minimum hourly rate of pay declared by order for the time being in force under the Act of 2000;
(b) not more than 2 higher hourly rates of basic pay based on—
(i) length of service in the economic sector concerned, or
(ii) the attainment of recognised standards or skills;
(c) minimum hourly rates of basic pay for persons who—
(i) have not attained the age of 18 years,
(ii) enter employment for the first time after attaining the age of 18 years,
(iii) having entered into employment before attaining the age of 18 years, continue in employment on attaining that age, or
(iv) have attained the age of 18 years and, during normal working hours, undergo a course of study or training prescribed by regulations made by the Minister under section 16 of the Act of 2000, reduced to the percentage set out in section 14, 15 or 16 of that Act for the category of worker concerned;
(d) minimum hourly rates of basic pay for apprentices;
(e) any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked, hours worked on a Sunday, or travelling time (when working away from base);
(f) the requirements of a pension scheme, including a minimum daily rate of contribution to the scheme by a worker and an employer; and
(g) the requirements of a sick pay scheme.
(6) A recommendation under this section shall include procedures that shall apply in relation to the resolution of a dispute concerning the terms of a sectoral employment order.
(7) Subject to sections 14 and 15 , a recommendation under this section may provide for the amendment or cancellation of a recommendation previously made under this section and confirmed by the Minister by a sectoral employment order.
(8) In this section “apprentice” has the same meaning as it has in the Industrial Training Act 1967.
Sectoral employment orders
17. (1) Subject to subsection (4), the Minister shall, not later than 6 weeks after receiving a recommendation of the Court under section 16, where he or she is satisfied, having regard to the report referred to in section 16(3)(b) , that the Court has complied with the provisions of this Chapter, accept the recommendation and by order confirm the terms of the recommendation, from such date, (on or after the date of the order) as the Minister shall specify in the order.
(2) An order under this section shall, in this Chapter, be referred to as a sectoral employment order.
(3) Where the Minister is not satisfied that the Court has complied with the provisions of this Chapter, he or she shall—
(a) refuse to make a sectoral employment order confirming the terms of the recommendation, and
(b) notify the Court in writing of his or her decision and the reasons for the decision.
(4) Where it is proposed to make an order under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving of the draft has been passed by each such House.
Review of sectoral employment orders
18. (1) Subject to subsection (2), the Minister may request the Court to review the terms of a sectoral employment order.
(2) The Minister shall not make a request under subsection (1)—
(a) until at least 3 years after the date of a sectoral employment order in relation to which the request relates, or
(b) where a sectoral employment order has been amended, at least 3 years after the date on which the order was amended.
(3) Where the Minister makes a request under subsection (1), the Court shall examine the terms and conditions of the class, type or group of workers in the economic sector concerned as if the request were a request under section 14 and sections 13 to 17 shall apply with the necessary modifications in relation to a request under subsection (1).
Adaptation of contracts of service upon sectoral employment orders
19. (1) A sectoral employment order shall apply, for the purposes of this section, to every worker of the class, type or group in the economic sector to which it is expressed to apply, and his or her employer, notwithstanding that such worker or employer was not a party to a request under section 14 , or would not, apart from this subsection, be bound by the order.
(2) If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for the payment of remuneration at a rate (in this subsection referred to as the “contract rate”) less than the rate (in this subsection referred to as the “order rate”) provided by such order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order rate were substituted for the contract rate.
(3) If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for conditions in relation to a pension scheme or a sick pay scheme (in this subsection referred to as the “contract conditions”) less favourable than the conditions (in this subsection referred to as the “order conditions”) fixed by the order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order conditions were substituted for the contract conditions.
Prohibition on penalisation of worker by employer
20. (1) An employer shall not penalise or threaten penalisation of a worker for—
(a) invoking any right conferred on him or her by this Chapter,
(b) making a complaint to the Workplace Relations Commission that a provision of this Chapter has been contravened, or
(c) giving notice of his or her intention to do either of the matters referred to in paragraph (a) or (b).
(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 Act of 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed, until the contrary is proved, that the worker concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.
(4) If a penalisation of a worker, in contravention of subsection (1), constitutes a dismissal of the worker within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the worker in respect of that penalisation both under section 23 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 a worker 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.
Annotations:
Editorial Notes:
E7
Redress and appeal procedures for contraventions of subs. (1) provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44 and sch. 5 part 1 item 30, sch. 6 part 1 item 35, sch. 6 part 2 item 35, S.I. No. 410 of 2015, as inserted (1.08.2015) by Industrial Relations (Amendment) Act 2015 (27/2015), s. 24(d)(i) and (e), S.I. No. 329 of 2015.
Exemption from obligation to pay remuneration provided by SEO
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—
(a) a current tax clearance certificate under section 1095 (inserted by section 127 of the Finance Act 2002) of the Taxes Consolidation Act 1997 in respect of the employer concerned, and
(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.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.