WRC Inspections

Enforcement

The Workplace Relations Act, 2015 provides for new enforcement procedures in workplace and employment matters.  Inspectors have been appointed to the Workplace Relations Commission.  They succeed the former NERA Inspectorate.  The powers of the Inspectors and authorised officers are consolidated.

An Inspector may, by the use of reasonable force if necessary, enter any workplace or any premises at reasonable times, where he has reasonable grounds for believing that they are being used in connection with the employment of persons, or on which he has reasonable grounds for believing that records or documents relating to employment are kept there.  An Inspector may not enter a dwelling-house, without the occupier’s consent or a District Court warrant.

Members of an Garda Siochana may be called in aid of Inspectors, as they consider appropriate. It is an offence to interfere with or to obstruct an Inspector or member of an Garda Síochána in the execution of their duties and powers under the legislation.


Notice of Inspection

Generally, employers will receive an advance notice of a WRC inspection.  An appointment letter will be sent.  If there is a good reason why the inspection cannot be carried out at the time, the employer is advised to contact the inspector to make an alternative arrangement.

The notice of inspection may be accompanied by a questionnaire.  Its completion before the inspector arrives is designed to assist the officer.

Inspectors may make unannounced inspections, in some cases.  This may arise in relation to protective legislation, such as the protection of young person’s legislation. Inspectors may not enter a residence without a warrant or consent.

Employees are obliged to maintain employment records at the place of employment.  If the employer wishes to have the inspection carried out elsewhere, advance contact should be made with the inspector, who will consider whether the request is reasonable and may grant it.


Reasons for Inspection

Inspections may be initiated for a number of reasons including an employee or third party complaint, as part of a sector specific or legislation specific compliance campaign or by way of routine inspection.

The WRC does not provide details of the reasons for a particular inspection.  In limited circumstances, WRC may inform the employer that there has been a complaint if

  • there is a repeated inspection within six months as a result of the complaint received subsequent to the first inspection;
  • the complainant’s name is not on any records;
  • an employee asked the inspector to do so;
  • inspection is on foot of a request to enforce a decision or determination of an employment rights body.

Inspection Process I

An inspector must identify himself and produce an official warrant of authorisation. He must explain the nature and the legal basis of the inspection. The warrant of inspection will set out the legislation under which the relevant person is appointed by the Minister.

The inspector carries out an initial review with the employer or it representatives.  Records will be requested.  A sample of employees may be interviewed.  This may be followed by a further meeting or interview with the employer or its representative, in order to inform them of preliminary findings, if any.

If it appears that the employer is compliant, the inspector will inform the employer, and a letter will issue concluding the inspection.  If potential breaches have been detected, the inspector may put further questions to the employer.  It may be necessary to caution the employer that what is said in reply may be used is evidence.  Employment regulatory compliance offences are subject to the same constitutional rights as other criminal offences.


Inspection Process II

Inspectors may take samples of records over a period of the last year.  Further samples may be required.  Inspectors may take copies of records.  If copying facilities are not available, the records may be removed and returned, for the purpose of copying.

Interviews are conducted with a sample of employees, in order to test compliance with records.  Employees may be interviewed without the employer’s consent.  The employer’s consent may be sought as a matter of courtesy, in order to avoid disruption.

Interviews may be conducted off-site if the premises are unsuitable, the employer requests and inspector agrees. In some cases, interviews and questions may be put by questionnaire, sent afterwards to sample employees.

Employers and their employees are obliged to cooperate with the inspector.  They must provide the relevant information, in order to assist the inspectorate service to determine whether there has been compliance.

The inspector determines the level of compliance with relevant employment legislation.  Employers are informed in writing on the conclusion of the inspection.


Requirements

The Inspector may require any person at a place of work, including the owners and persons in charge, to produce documents and records.  This includes the production of electronic records in a legible form.  An Inspector may inspect and take copies of any books, records and documents in electronic or paper form.  They may be removed as the Inspector considers reasonably necessary, for the purpose of performance of his functions.

The Inspector may require any person at the place of work, including the owner or person in charge, to give the Inspector such information and assistance as the inspector may reasonably require for the purpose of his functions. An Inspector who has reasonable grounds for believing a person to be or to have been an employee may require any person, to answer questions as may be asked which are relevant to any matter of employment law compliance. They may be required to make a declaration of the truth of the answers to the questions.

The Inspector may examine any person whom he has reasonable grounds for believing to be or have been, an employer or employee in relation to any matter under any employment legislation. The Inspector must first caution the person concerned that he is not obliged to say anything, and that if does so, that whatever he says may be taken down and may be given in evidence against him.

It is an offence to fail or to refuse to comply with a requirement made in relation to information sought. It is an offence to give information, which person concerned knows to be false or misleading in any material respect.  Where an inspector believes that a person may have committed an offence under the legislation, he may require that the person give his name and address.


Required Records

The following records are commonly required by WRC inspectors;

  • employee’s registration number;
  • full name and address and PPS number of the employee;
  • terms of employment for each employee as provided to him under the Terms of Employment Act;
  • payroll details including salaries, shifts, commissions and bonuses et cetera;
  • copies of pay slips;
  • job classification;
  • dates of commencement and termination;
  • hours of work, records which may be in the prescribed format;
  • register of employees under 18 years of age as required by legislation;
  • records of holidays and public holidays entitlements;
  • documents necessary to demonstrate compliance.

In particular sectors, further, more detailed records may be required.

NERA, the predecessor of the WRC, published a guide to its compliance inspections.  It emphasises that if the relevant records are accurate, up-to-date and in place, that it will ease inspections considerably. The employer should ensure that it has proof of compliance by way of the records or other evidence.


Non-Compliance

Where minor noncompliance is detected, the inspector may request rectification.  Where the breach can be demonstrably rectified, the file may be closed.

In the case of serious non-compliance or non-cooperation, WRC may invoke legal sanctions.  Various legislation provides for prosecution and penalties.  The authority seeks to make a proportionate and fair assessment of the seriousness of the breach.  Mitigating factors, such as level cooperation, previous history, rectification of breaches and redress will be considered in determining whether action should be taken.

If wages are underpaid, WRC will seek recovery of the unpaid wages.  The employer will be requested to make calculations, and the inspector will verify them for compliance.  There is a standard WRC unpaid wages payment form.  It must be completed together with proof that the relevant payments have been made.

WRC may share information with other agencies, including the Revenue Commissioners and the Department of Social Protection.  It may undertake joint inspections with those bodies.


Compliance Notices

The Workplace Relations Act provides for the issue of compliance notices for the purpose of enforcement of employment legislation. A compliance notice may be issued where an Inspector forms the opinion that any “scheduled” contravention of employment law, (which includes most employment law obligations), has occurred, which the employer concerned fails or refuses to rectify.

The compliance notice sets out the steps which the employer must take, in order to comply with the relevant requirement.  An employer may appeal against the notice or any part of it, to the Labour Court.  The Labour Court, following an appeal, may confirm the notice, nullify it or order the employer to comply with the notice, subject to such directions as the Court may give.

There is provision for an appeal from the Labour Court decision to the Circuit Court.  The Circuit Court, following a hearing, may affirm, withdraw, nullify or require the employer to comply with its determination.

The failure to comply with a compliance notice may, following application and hearing by the Circuit Court, be the subject of a binding direction and order.  The failure to comply with the Circuit Court order is an offence.


Appeal against Compliance Notices I

An appeal against the decision of an Inspector to issue a compliance notice under the  Workplace Relations Act shall be initiated within 42 days of the date on which the compliance notice was served using a form provided for that purpose. The notice of appeal shall contain a statement of the grounds of appeal.

The notice of appeal shall be accompanied by a copy of the compliance notice and a statement containing the following particulars:

  • the basis on which the compliance notice is opposed;
  • the evidence that will be adduced in advancing the appeal;
  • the number of witnesses (if any) that the employer proposes to call in support of the appeal;
  • an outline of the evidence that the proposed witnesses are expected to give.

A copy of the notice of appeal and of the statement shall be sent by the Court to the Inspector.  Within three weeks from the date of the notification the Inspector will submit a replaying statement.


Appeal against Compliance Notices II

A replying statement shall include the following particulars

  • the basis upon which the Inspector formed the opinion that the provision in issue had been contravened;
  • the evidence that the Inspector proposes to adduce at the appeal;
  • the number of witnesses (if any) that the Inspector proposes to call to give evidence at the appeal;
  • an outline of the evidence that the proposed witnesses are expected to give.

On receipt of the replying statement the appeal will be set down for hearing.  Subject to the discretion of the Court, witnesses may give evidence and be cross-examined.  As soon as may be after the close of the hearing the Court shall issue its determination and shall do one of the following: –

  • affirm the compliance notice;
  • withdraw the compliance notice;
  • withdraw the compliance notice and require the employer to whom the notice applies to comply with such directions as may be given by the Court.

Administrative Fines

A fixed payment notice may be issued in relation non-compliance with a range of employment legislation.  The fixed payment notice gives the option to the addressee, typically the employer, to pay the amount specified in the notice. In this event, a prosecution in relation the alleged offence or contravention, the subject of the notice, may not be undertaken.

Where the Inspector suspects noncompliance, in respect of one or more offences, he may serve a fixed payment notice.  If the person addressed pays the sum, the matter does not proceed to Court.  Otherwise, the matter may be pursued by prosecution.

The fixed payment notice alleges that the person addressed has committed a specified offence.  It follows a prescribed form.  The person concerned, may during the 42-day period, beginning on the date of the notice, make the stated payment (of an amount up to €2,000), and may thereby avoid prosecution.

The notice must state that the person concerned is not obliged to make the payment He is entitled to contest his guilt in a prosecution. It is a defence to proceedings to prove that a person has made a payment in response to a fixed payment notice.


Evidence

The written report of an Inspector is admissible in employment based legal proceedings.  An adjudicator of the WRC may request a copy of the report where an inspection has been conducted. He may request that an inspection be undertaken.  The purpose of the provisions I to enhance the efficiency of WRC hearings.

The Labour Court may request the Director-General of the Commission to arrange to have an Inspector conduct an inspection of specified employment records of a named employer, who is party to proceedings before the Labour Court.  The report by the Inspector may be considered by the Labour Court.


Sharing Information

The WRC, its inspectors and adjudication officers may share employment-related information with other bodies. This includes, in particular, the Revenue and the Department of Social Protection and with the Labour Court (which is appeals body in respect of decisions of adjudication officers).

The WRC and other statutory bodies, including, for example, an Garda Síochána, Revenue, Department of Corporate Enforcement, are empowered to advise each other of suspected offences, in their respective areas of competence, which come to their notice.

There is provision for the development of cooperation between the Commission, the Labour Court and other bodies, in order to facilitate the exchange of information and prevent duplication. The Act formalises and provides a statutory basis for administrative cooperation and exchange of information with employment law compliance bodies in other states, including, in particular, Britain and Northern Ireland.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 24

Employment Law Supplement Meenan 2016 Ch.24A

Employment Law Regan & Murphy  2009  Ch.22 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.2

Dismissal Law in Ireland  Redmond 2007 Ch.10

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Acts

Workplace Relations Act 2015 (No.16)

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)

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislative Guides

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Principles of Irish Employment Law         Daly & Doherty   2010

Termination & Redundancy, What is the law?  Hayes, Barry & O’Mara 2005

Termination of Employment Statutes (IEL)       Kerr  2016

Termination of Employment: Practical Guide for Employers        Purdy         2011

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

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/

UK Texts

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