HR TIP Employment [Miscellaneous Provision] Act, 2018.

This second post relates to the Employment ( Miscellaneous Provision) Act 2018 The new legislation has set out:

A ban on zero-hour contracts, except in circumstances where there is genuine casual work, emergency cover or short -term relief.

Employers should be able to provide relief contracts where employees work occasional hours for emergency or short-term relief. However, employers should be aware that where this cover changes to a more regular arrangement or for example longer term cover for sick leave then the contract type should change to a fixed term/specific purpose contract as may be relevant.

A requirement for a minimum payment to be made to employees who are called into work and then sent home. In certain circumstances, these employees will be entitled to at least three times the national minimum wage. These provisions do not apply to employees who are required to make themselves available on an ‘on call’ basis such as genuine emergency workers.

In the event where an employee consistently works more than the hours specified in their contract of employment, they can request their employer to put them on a banded hours contract. This contract would more accurately reflect the hours that they have worked over the last twelve months. The employer may refuse to increase the employee’s contractual hours where there has been significant adverse changes to the business there has been emergency or unforeseeable circumstances extra hours were due to a temporary situation which no longer exists

In addition, the new legislation has amended the Organisation of Working Time Act to:

Allow employees whose hours of work are not reflected in the contract of employment to request their employer to place them on a band of weekly hours that corresponds to the average number of hours worked per week by the employee in the twelve months preceding the request.

The banded hours are set out below:

A 3 Hours 6 Hours
B 6 Hours 11 Hours
C 11 Hours 16 Hours
D 16 Hours 21 Hours
E 21 Hours 26 Hours
F 26 Hours 31 Hours
G 31 Hours 36 Hours
H 36 Hours And Over

If an employer receives a request from the employee, the employer must provide the employee with average weekly hours which fall within the appropriate band within four [4] weeks of the request.

For example, if an employee has worked an average of 10 hours a week for the 12 months preceding the request, they must be placed on the band B – between 6 and 11 hours of work a week.

The employer is obliged to apply the banded hours unless:

There is no evidence to support the claim made by the employee

Due to exceptional circumstances or an emergency it would not be practicable for the employer to comply to the request

There has been a significant change in the business

The average hours worked related to a temporary situation that no longer exists

Employers should review the contracts they have for relief workers to ensure that they are ‘relief’ workers and they meet the criteria of the zero-hour contracts as set out under the Act [see post 2]. If the employee is working more regular hours employers are advised to review the banded hours requirement above and their obligations and if necessary, update the employee’s contract.

Employers are reminded to keep adequate, comprehensive records of hours worked by employees so that they can verify any requests made by employees for banded hours in accordance with the Act. In addition please note that as yet, there is no case law in relation to this piece of legislation.

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