Employment (Miscellaneous Provisions) Act 2018

The Employment (Miscellaneous Provisions) Act 2018 became effective on 4th March 2019.

The Act introduces regulations in relation to precarious work arrangements, zero hours contracts and uncertain working conditions. The key changes introduced are outlined as follows:-

Core Terms Of Employment

The employer must now give a written statement of 5 core terms within 5 days of commencing employment. The core terms in this regard are:

  1. Name of employer and employee
  2. Address of employer
  3. Expected duration of employment contract
  4. Method of calculating or rate of pay
  5. Expected hours of normal day or week

Failure to provide this statement may potentially lead to the criminal prosecution of the employer.

Banded Hours Provisions

Employees have a statutory entitlement to a banded hours contract where their contractual working hours over the previous 12 months do not reflect their actual working hours. If the employee requests such a contract, he/she must be given the banded hours contract unless:-

(i) the employee’s claim is not supported by evidence

(ii) there have been significant adverse changes to the employer’s business in the previous 12 months (iii) the hours worked in the previous 12 months were brought about by a temporary situation which no longer exists.

Exemption For Collective Agreements

There is an exemption from this section for employers who have entered into a banded hour arrangement through an agreement by collective bargaining with their employees. This is to recognise that in some sectors, in the retail sector particularly, banded hours arrangements have been agreed between the employer and employees and often work well. The new provisions will not interfere with these arrangements or with any such agreements that are collectively bargained in the future.  An employer is not obliged to offer hours of work in a week where the employee was not expected to work or when the business is not open. Current employees will not have to wait 12 months after commencement of this provision to seek to be placed on a band of hours. From 4 March 2019, an employee who believes their contract does not reflect the hours they have consistently worked over the previous 12 months of service with their employer may request to be placed by that employer in a band of hours that better reflects the hours they have worked regularly.

Prohibition of Zero Hours Contracts

A ‘zero hour’ work practice occurs when an employer requires an employee as a matter of contract to be available for a certain number of hours per week and/or on an “as and when required basis”, without the guarantee of work. There is a new provision under the Act to prohibit zero hours contracts except in very limited circumstances, such as where there is a genuine casual employment requirement or the need to provide cover in emergency situations.

Minimum Payment

If an employer fails to require an employee to work 25% of their contracted hours, the employee is entitled to a minimum payment (equivalent to 25% of the contract hours or 15 hours, whichever is lesser, and calculated at 3 times the national minimum wage). This entitlement does not apply to employees who are required to make themselves available on an “on-call” basis such as genuine emergency workers.

Anti-Penalisation Measures

The Act introduces much stronger anti-penalisation provisions in order to protect employees looking to exercise these new rights. For further information on this topic please refer to www.welfare.ie/en/pages/Employment_(Miscellaneous_Provisions)_Act_2018.aspx

What Questions Do You Have?

We are happy to help. Please post your comment below or
contact our company secretarial team at 01-6779000. Alternatively, send us an email: info@cooneycarey.ie

To keep in touch, connect with our friendly team on LinkedIn.

If this article helped you, please share it with other businesses.

Posted on March 29, 2019 by Mary Flanagan

Brexit – Company Law Considerations

Whilst the full effect and consequences of ‘Brexit’ on the Irish economy have yet to be ascertained, it is clear that, in the event of the UK leaving the European Union (EU) without a deal in place, there will be company law issues arising which will require consideration by Irish companies.

Non – EEA Director

A key issue in this context will be the requirement under Section 137 of the Companies Act 2014 whereby every Irish company is obliged to have at least one director who is resident in the European Economic Area (EEA) which is defined as comprising all EU member states plus Norway, Lichtenstein and Iceland.   

Irish companies that have historically been meeting this requirement by having a UK resident director in place, should note that they will no longer be operating in compliance with Irish company law after 29th March 2019.  The consequences of this non-compliance will give rise to a Category 4 offence carrying a maximum fine of €5,000. This situation may also present difficulties in filing an Annual Return in the Companies Registration Office (CRO) which must be filed in good time each year to avoid late filing penalties arising and importantly to avoid loss of audit exemption for preparation of financial statements in situations where the company was previously eligible to claim this.

What options are available?

A company finding itself in this position could first look at replacing its’ UK resident director with a director from another EEA state or alternatively appointing an additional EEA resident director to the board. However, in the event where this is not possible, there are two other options that may be available to a company.

  1. Insurance Bond – A company can avoid the need to have an EEA resident in place if it has acquired a bond to the value of €25,000 valid for a minimum of two years which must be obtained from a bank, building society, insurance company or credit union. In the event of the company’s failure to pay a fine or penalty imposed on it in respect of any offence under either the Companies Act 2014 or under the Taxes Consolidation Act 1997, the bond will be used to meet any amount outstanding in respect of that fine or penalty. The bond must take effect from the date on which the EEA resident director requirements lapse and it must be publicly filed in the CRO as should all subsequent renewals of the bond.
  2. Real and Continuous Link – A company may obtain a certificate from the Revenue Commissioners under Section 140 of the Companies Act 2014 that it has a real and continuous link with economic activity being carried out in the State with one or more of the following conditions being satisfied by it:-
  1. The affairs of the company are managed by one or more persons from a place of business established in the State and that person or those persons is or are authorised by the company to act on its behalf;
  2. The company carries on a trade in the State;
  3. The company is a subsidiary or a holding company of a company or other body corporate, that satisfies either or both of the conditions specified in (a) and (b) above;
  4. The company is a subsidiary of a company, another subsidiary of which satisfies either or both of the conditions specified in paragraphs (a) and (b).

The decision to grant the certificate rests solely with the Revenue Commissioners. Once the certificate is obtained, it must be filed with the CRO together with a Form B67 signed by a director and the company secretary. The exemption from the requirement to have an EEA resident director under Section 137 would then apply from the date of issue of the certificate by Revenue.

What Questions Do You Have?

We are happy to help. Please post your comment below or
contact our company secretarial team at 01-6779000. Alternatively, send us an email: info@cooneycarey.ie

To keep in touch, connect with our friendly team on LinkedIn.

If this article helped you, please share it with other businesses.

Posted on March 19, 2019 by Mary Flanagan

Taxation of Illness Benefit and Occupational Injury Benefit

Until the end of 2017 employers and pension providers were required to include with taxable pay all taxable Illness Benefit and Occupational Injury Benefit payments paid to employees by the Department of Employment Affairs and Social Protection (DEASP).

With effect from 1st January 2018, it is no longer the case. Now Revenue incorporates the taxable element of Illness or Occupational Injury Benefit into employees’ tax credit certificates. This has the effect of reducing Read more

Posted on January 8, 2018 by Mary Flanagan

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