HR Circular 004/2016 – Labour Court Recommendation re Clinical Psychologist’s Pay
HR Circular 005/2016 – re DoH Circular 4/2016, Revised Salary Scales for Student Nurses
HR Circular 006/2016 – English Language Requirements for NCHDs
HR Circular 008/2016 – Assimilation Arrangements for Temporary Assignment of Staff (LCR 21104)
HR Circular 013/2016 – Mental Health Nurse Retirees – Return to Work Pay Arrangements
Eligibility
Age of child
Amount of parental leave
Limitation to the Leave
Social insurance contributions
Transfer leave to New Employment
Terms and Conditions Protected while on Parental Leave
Notification of Parental Leave
Force Majeure Leave
Family Members covered by the Act in relation to the employee concerned
Notification of Force Majeure Leave
Leave Entitlement
Paternity Leave Act 2016
The Paternity Leave and Benefit Act 2016 introduced statutory paternity leave of 2 weeks together with a new Paternity Benefit. The legislation allows new fathers to start the combined package of paternity leave and Paternity Benefit at any time within the first 6 months following birth or adoption of a child. The provisions apply to births and adoptions on or after 1 September 2016. You must notify your employer that you intend to take paternity leave and of your intended dates no later than 4 weeks before your leave. You must provide proof of the expected date of birth of your child.
Paternity Benefit
Paternity Benefit is a payment for employed and self-employed people who are on paternity leave from work and covered by social insurance (PRSI). It is paid for two weeks and is available for any child born or adopted on or after 1 September 2016. You can start paternity leave at any time within the first 6 months following the birth or adoption placement.
You should apply for the payment 4 weeks before you intend to go on paternity leave (12 weeks if you are self-employed).
If you are already on certain social welfare payments then you may get half-rate Paternity Benefit.
You can read detailed Frequently Asked Questions about Paternity Benefit on the Department of Social Protection’s website.
Appeals
You have the right to appeal the decision made on your Paternity Benefit claim. You can get detailed information about making an appeal from the Social Welfare Appeals Office.
Rules
You must notify your employer that you intend to take paternity leave and of your intended dates no later than 4 weeks before your leave. You must provide proof of the expected date of birth of your child. Generally, you will need to provide a certificate from your spouse or partner’s doctor confirming when your baby is due, or, confirmation of the actual date of birth if you are applying for leave after the birth.
You should apply for Paternity Benefit at least 4 weeks before the date you intend to start your paternity leave. If you are self-employed you should apply 12 weeks before. You must register for a Public Services Card (if you don’t already have one) and register with the mywelfare.ie service (see ‘How to apply’ below for details of how to do this).
You must also satisfy the PRSI contribution conditions.
Basic Entitlement
The entitlement to a basic period of maternity leave i.e. 26 weeks, from employment extends to all female employees in Ireland (including casual workers), regardless of how long you have been working for the organization or the number of hours worked per week, if you become pregnant while in employment in Ireland.
Notice to Employer to take Maternity Leave
Payment during maternity leave
Additional maternity leave
If you are ill while you are on additional maternity leave
Public holidays and annual leave
Stillbirths and miscarriages
Payment is subject to PRSI requirements
Health and safety leave
Father’s entitlement to maternity leave
Postponing maternity leave
Returning to work
Medical visits
Returning to work
Eligibility
An adopting mother, a sole adopting father, or an adopting father where the adopting mother has died, who is in employment is entitled to:
There is no obligation on an employer to pay an employee during the 24 weeks standard leave. However, the initial 24 week period of adoptive leave will attract social welfare benefits in most cases. Absence from work on adoptive leave will not affect any employment right except the right to wages. The additional sixteen weeks unpaid leave does not attract social welfare benefits.
Notification Requirements
Adoptive Leave
An employee must give the employer a minimum of four weeks notice before the expected placement of the child. Notice of the expected day of placement may be given later but must be in writing and as soon as is reasonably practicable.
Additional Adoptive Leave
An employee must inform the employer in writing, at least four weeks beforehand of the intention to take additional adoptive leave.
Return to Work
An employee must inform the employer in writing, at least 4 weeks beforehand of the date on which she/he intends to return to work after adoptive leave or additional adoptive leave.
Evidence of the Placement
Irish Adoption
An employee who has commenced adoptive leave must furnish the employer with a certificate of placement as soon as is reasonably practicable but no later than four weeks after the date of placement.
Foreign Adoption
An employee must give her/his employer a copy of the declaration of eligibility and suitability before the commencement of adoptive leave or additional adoptive leave (whichever occurs first). Particulars of the placement must be furnished as soon as is reasonably practicable.
Time off to attend certain classes and meetings
An employee is entitled to time off work, without loss of pay or right related to the employee’s employment to attend any pre-adoption classes and meeting which the employee is obliged to attend as part of the adoption process. An employee is obliged to notify the employer in writing of the dates and times of the classes concerned as soon as practicable but not later than two weeks before the date of the first class, and provides on request from the employer, an appropriate document indicating the dates and times of the classes concerned.
Right to Return to Work
The employee has a right to return to work after a period of adoptive leave or additional adoptive leave.
She/he has the right to return to:
That incorporate any improvements in the terms and conditions of employment to which the employee would have been entitled.
Annual Leave and Public Holidays
Employees on adoptive leave are entitled to be credited for any public holiday that occurs during their leave. This means in practice that they must be given either an extra day’s pay, or a set paid day off within a month, or an extra day’s annual leave for any public holiday that occurred during their leave. This also applies if the employer continues to provide full pay to the employee while on adoptive leave. Annual leave which accrues during an absence on adoptive leave shall be granted by the employer in accordance with Section 20 of The Organisation of Working Time Act 1997.
Redress
If there is a dispute between an employer and an employee on entitlements under the legislation, it can be referred to a Rights Commissioner, in the first instance, The Rights Commissioner’s decision can be appealed to the Employment Appeals Tribunal. If an adopting parent is dismissed from his or her job because he or she wants to take adoptive leave or is taking adoptive leave or additional adoptive leave, this will be regarded as an unfair dismissal, unless there are substantial group.
An agency worker is a person who has an agreement with an agency to work for another person. The Protection of Employees (Temporary Agency Work) Act 2012 applies to agency workers employed by an employment agency who are temporarily assigned to work for, and under the supervision and direction of, another organisation (the hirer).
The Act does not cover employees of contractor companies and limited liability companies where the worker is the beneficial owner. The Act may also exclude those employed under a managed service contract, which is a contract for services, for example, cleaning, where the contractor is responsible for managing and delivering the service.
The Act does not apply to work done on the Work Placement Scheme, JobBridge or any publicly-funded vocational training or re-training scheme specified by the Minister for Jobs, Enterprise and Innovation.
Employment and working conditions covered by the Act are as follows:
Working time
This includes the duration of working time, rest periods, breaks, night work, annual leave and public holidays
Pay
This is defined as basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work. The definition of pay in the Act does not include occupational pension schemes, sick pay, bonuses, maternity pay or benefit in kind. The right to equal pay is backdated to 5 December 2011.
However, if the agency worker has a permanent contract with the agency and is paid between assignments, equal treatment as regards pay does not apply.
Access to facilities
Temporary agency workers must have equal access to facilities such as childcare, canteen and car parking. They also must have equal access to information about permanent employment opportunities.
Penalisation
An agency worker is protected against being victimised for reporting breaches of the Protection of Employees (Temporary Agency Work) Act 2012. This means that the hirer or the agency may not penalise an agency worker by dismissal, unfair treatment or an unfavourable change in their conditions of employment.
Agency workers also have certain rights under the following employment legislation:
It is important for the agency worker to know who is responsible for ensuring compliance with employment protection legislation – the agency or the firm for which he or she is working.
Under the unfair dismissals legislation, the employer is the person for whom the employee actually works rather than the agency. Compliance with health and safety requirements is also the responsibility of the person or organisation for whom the agency worker is actually working.
For the purposes of all other employment legislation, such as the Protection of Employees (Temporary Agency Work) Act 2012, the party liable to pay the wages of the employee (the employment agency or client company) will, normally, be considered to be the employer of the agency worker.
The Social Welfare (Miscellaneous Provisions) Act 2003 provides that the person who pays the wages is the employer for PRSI purposes.
Part-time agency workers
Under the Protection of Employees (Part-Time Work) Act 2001, a part-time agency worker can only compare himself or herself to a comparable full-time employee who is also an agency worker.
In general, non-EEA nationals must have an employment permit to work in Ireland. EEA and Swiss nationals do not need an employment permit. Under the Employment Permits Acts 2003–2014 there are nine types of employment permit including a General Employment Permit, a Critical Skills Employment Permit and a Dependant/Partner/Spouse Employment Permit.
The Act also provides that a foreign national without an employment permit, who took all reasonable steps to get one, can take civil action against their employer to compensate them for work done or services rendered.
General Employment Permits are issued by the Department of Jobs, Enterprise and Innovation. Either the employer or the employee can apply for a permit which must be based on an offer of employment. Permits are issued to the employee and include a statement of the employee’s rights and entitlements. An employee with an employment permit has all the employment rights of Irish or EEA citizens for the duration of the employment permit.
Generally applications for General Employment Permits must have minimum annual pay of €30,000. Pay includes the salary for the job and health insurance. There are some exceptions, but applications are considered on a case by case basis.
Rules
The applicant must have the qualifications, skills and experience required for the job and must be directly employed and paid by an employer. General Employment Permit applications from recruitment agencies and other intermediaries are not acceptable. The employer must be trading in Ireland, registered with Revenue and with the Companies Registration Office. The employer cannot deduct recruitment expenses from the worker’s pay or retain their personal documents.
A General Employment Permit will not be issued to companies where the granting of the permit would mean that more than 50 per cent of the employees would be non-EEA nationals. However, this requirement may be waived in the case of start-up companies or where the applicant will be the only employee.
Labour market needs test
All new applications for General Employment Permits include evidence that a labour market needs test has been carried out, with some limited exceptions that are listed in the Act.
Duration and renewal
A General Employment Permit is issued first for two years and then may be renewed for a further three years. If a person has worked for five consecutive years on a work permit they may no longer need a permit to work in Ireland. When a person has been legally living and working in Ireland for five years on a work permit they can apply for long-term residence to the Irish Naturalisation and Immigration Service (INIS). Successful applicants are granted extended residence permission for a further five years and do not need a work permit to work in Ireland.
An employment permit is not necessary if the worker has:
What is a fixed term worker?
A fixed term worker is a person with a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as:
Written statement of the nature of the contract
An employer must provide a fixed-term employee with a written statement as soon as possible, outlining whether the contract will end on a specific date, following completion of a specific task or a specific event. In addition, where an employer intends to renew a fixed-term contract, a written statement must be supplied to the fixed-term employee not later than the date of renewal, setting out the objective grounds justifying the renewal and the failure to offer an open-ended contract.
The employer must include a clause stating that the Unfair Dismissals Acts 1977–2001 will not apply where the only reason for ending the contract is the expiry of the fixed term, or the completion of the specified purpose.
Both the employer and the employee must sign the contract.
Renewal of fixed-term contracts
Where an employee is employed by their employer (or associated employer) on two or more continuous fixed-term contracts, the aggregate (or combined) duration of those contracts may not exceed four years. However, these rules do not apply where there are objective grounds justifying the renewal of a contract of employment for a fixed term only. Where a renewal of a fixed-term contract does not comply with these requirements and cannot be objectively justified, the
contract is treated as an open-ended contract.
The Unfair Dismissal Acts 1977–2001 contain a provision aimed at ensuring that successive temporary contracts are not used in order to avoid that legislation. Where a fixed-term or specified-purpose contract expires and the individual is re-employed within three months, the individual is deemed to have continuous service.
Employers are obliged to inform fixed-term employees of vacancies for permanent positions. This may be done by means of a general announcement. As far as is practicable, an employer is required to help a fixed-term employee to access training to enhance skills, career development and job mobility.
Only those fixed-term employees whose normal hours of work are less than 20 per cent of the normal hours of the comparable permanent employees can be excluded from entitlement to join a pension scheme.
Exceptions
The Act does not apply to agency workers placed by a temporary work agency at the disposition of a user enterprise; apprentices; a member of the Defence Forces; a trainee Garda or a trainee nurse. However, the Act applies to agency workers employed directly by an employment agency.
What is a “part-time” worker?
A part-time employee is an employee whose normal hours of work are less than the normal hours of a comparable employee. People who share a job (see below) are viewed as part-time workers and have all the statutory entitlements of part-time workers.
What is a comparable employee?
A comparable employee (called a comparator) is one who is doing the same or similar work. The work of the part-time employee must be of equal or greater value to the comparator’s work. The comparable employees must be employed by the same or an associated employer, or in the same industry or sector, or designated as such in a collective agreement.
In general, a part-time employee may not be treated less favourably than a comparable full-time employee in respect of conditions of employment, including pay and pensions, unless the employer can objectively justify the different treatment. Any justification offered cannot be connected with the fact that the employee is on a part-time contract.
In relation to a pension scheme or arrangement, an employee who normally works less than 20 per cent of the normal hours of the comparable full-time employee can be treated in a less favourable manner. However, this does not prevent an employer and a part-time employee from entering into an agreement whereby the part-time employee receives the same pension benefits as a comparable fulltime employee. Where employers try to justify less favourable treatment on objective grounds, they have to show that the difference in treatment is based on grounds other than the part-time status of the employee.
Part-time employees cannot be victimised for invoking their rights under the Act.
Part-time casual employees may be treated less favourably if such a difference in treatment can be objectively justified. Casual employees are those with fewer than 13 continuous weeks’ service who are not in regular or seasonal employment or are regarded as casually based by a collective agreement to that effect.
Maternity leave
All female employees who have a contract of employment are now entitled to maternity leave (currently 26 weeks), regardless of the hours worked or length of service.
Annual Leave
Holiday entitlements of part-time workers are calculated in a different way to those of full-time workers. Under the Organisation of Working Time Act 1997 part-time workers are entitled to eight hours leave for every 100 hours worked, subject to a maximum of 4 working weeks (eight per cent of all hours worked, excluding lunch time).
Public holidays
Part-time workers who have not worked for their employer for at least 40 hours in total in the five weeks before a public holiday are not entitled to paid leave on the public holiday. Part-time workers who are entitled to paid leave on the public holiday but are due to work that day are entitled to an extra day’s pay, or a paid day off within a month of the public holiday, or an extra day’s annual leave, as the employer decides.
Those entitled to paid leave but not due to work on the public holiday are entitled to one fifth of their weekly pay instead of the actual day’s leave or pro rata time off/annual leave as mentioned above. Where the pay varies, an average day’s pay can be worked out by adding the number of hours worked over the previous thirteen weeks and dividing by the number of days worked.
Overtime
Part-time workers are entitled to overtime if a comparable full-time employee is paid overtime after working their maximum hours per week. However, the employer can decide that part-time employees must work the same number of hours as a full-time employee before they can claim overtime. Employers in Ireland are not required by law to pay employees higher rates for work completed in overtime but SIPTU has negotiated time and a half or double time for overtime in most company agreements.
Work Hours (Including Holidays/Bank Holidays)
General
The Organisation of Working Time Act 1997 sets out statutory rights for employees in respect of rest, maximum working time and holidays. These rights apply either by law as set out in the Act, in Regulations made under the Act or through legally binding collective agreements. These agreements may vary the times at which rest is taken or vary the averaging period over which weekly working time is calculated.
Maximum Weekly Working Time
The maximum average working week is 48 hours. Averaging may be balanced out over a 4, 6 or 12 month period depending on the circumstances.
The 48 hour net maximum working week can be averaged according to the following rules:
Rest
Every employee has a general entitlement to:-
These rest periods and rest intervals may be varied if there is a collective agreement in place approved by the Labour Court or if a regulation has been made for a particular sector. If there are variations in rest periods and rest intervals under agreements or in the permitted sectors, equivalent compensatory rest must be available to the employee.
Night Workers
Night time is the period between midnight and 7 am the following day.
Night workers are employees who normally work at least 3 hours of their daily working time during night time and the annual number of hours worked at night equals or exceeds 50% of annual working time.
Annual Leave/Holidays
Holiday pay is earned against time worked. All employees, full-time, part-time, temporary or casual earn holiday entitlements from the time work is commenced. The Organisation of Working Time act 1997 provides that most employees are entitled to 4 weeks annual holidays for each leave year with pro-rata entitlements for periods of employment of less than a year. In the case of employees working a normal 5 day week this would work out at 12/3 days per month worked or 20 days per leave year.
Depending on time worked, employees holiday entitlements should be calculated by one of the following methods:-
The time at which annual leave may be taken is determined by the employer having regard to work requirements, and subject to the employer taking into account the need for the employee to reconcile work and family responsibilities, and the opportunities for rest and recreation available to the employee.
The Organisation of Working Time Act provides that the employees concerned or their trade unions are consulted at least 1 month in advance of the dates selected by the employer for annual leave. The employee’s annual leave must be taken within the leave year to which it relates or, with the employee’s consent, within 6 months of the next leave year. The pay for the annual leave must be given in advance of the commencement of the employee’s annual leave, and is calculated at the normal weekly rate.
Mandate has also negotiated agreements with many employers providing for annual leave entitlement in excess of the minimum outlined above
Public Holidays
The Act also provides the following nine public holidays:-
In respect of each public holiday, an employee is entitled to:-
as the employer may decide.
If the public holiday falls on a day on which the employee normally works, then the employee is entitled to either a paid day off, an additional day’s pay, a paid day off within a month of the day, or an additional day of paid annual leave for the public holiday.
If the public holiday falls on a day on which the employee does not normally work, then the employee is entitled to 1/5 of his/her normal weekly wage for the day, which rate of pay is paid if the employee receives options (i) (ii) or (iv), above, as may be decided by the employer.
If the employee is asked to work on the public holiday, then he/she is entitled to either an additional day’s pay for the day, or a paid day off within a month of the day, or an additional day of paid annual leave.
Most SIPTU members who work on Public Holidays are entitled to be paid ‘Time and a half’ or ‘Double time’ in accordance with agreements between the union and employer.
There is no service requirement in respect of public holidays for full-time employees. Other categories of employees (part-time) qualify for public holiday entitlement provided they have worked at least 40 hours during the 5 weeks ending on the day before a public holiday.
(Note that this Act refers to public holidays, not bank holidays. Not every official bank holiday is a public holiday though in practice most of them coincide. Good Friday is not a Public Holiday).
Sunday Premium
If not already included in the rate of pay, employees are generally entitled to paid time-off in lieu or a premium payment for Sunday working. An employee is entitled to the premium payment for Sunday working payable to a comparable employee in a collective agreement in force in a similar industry or sector. This means that the Sunday Premium, if not already paid, will be equivalent to the closest applicable collective agreement which applies to the same or similar work under
similar circumstances and which provides for a Sunday premium. The premium can be in the form of:-
SIPTU has agreements with many employers specifying the premium payment that applies to Sunday Working.
Zero Hours
Employees will be entitled to be paid for 25% of the time which they are required to be available or 15 hours whichever is the lesser, e.g. if an employee’s contract of employment operates to require the employee to be available for 48 hours in a week, he/she will be entitled to a minimum payment of 12 hours even if not required to work that week.
The Zero Hours provision does not apply to lay-offs, short-time, emergency or exceptional circumstances, employee illness or employee on-call.
Complaints
Complaints about any breaches of the Organisation of Working Time Act may be referred to a Rights Commissioner.
Records
Records are required to be kept by the employer. These records must be retained for 3 years and must be available for inspection by Labour Inspectors.
The regulations provide that employers are required to keep: