The organisation, that has been set up by the government to ensure that there is a employment law compliance culture, continues its inspections into various industries in the country.
In 2008 there were 80 labour inspectors employed, up from 50 in 2007. 27,900 interviews, inspections and calls were made during the year. This work out at about 1.5 interviews, inspections or calls made each day by each inspector. Over 4629 breaches of employment law were found or about 1 breach in every 6 from their interviews, inspections or calls. The report states that Ä3,110,064 was recovered for employees.
The 3 industries with the highest levels of non-compliance were, in order of percentage of breaches found, Contract Cleaning, Hotels and the Catering industries. All of which have REA/EROs in place, meaning that requirements for them were higher than normal industries. Of the 73 inspections in contract cleaning, there was breaches discovered in 85% of inspections, there were 142 inspections in the hotel sector, with 78% of visits detecting a breach and there were 1,059 inspections in the catering sector with 73% of visits detecting breaches.
Certainly the emphasise has been on the catering sector, having over 3 times the levels of visits of the next highest sector. (Construction with 297 inspections)
NERA states that they received over 1500 complaints, up 30% on the previous year. Given that we have a working population of over 2 million people, this represents 0.075% of the workforce.
Enforcement and Prosecution
In 2008 NERA forwarded 70 cases to the State Solicitors office for prosecution. 44 were from themselves and 26 where from a body called the Construction Industry Monitoring Agency (founded to ensure compliance in the Construction sector focusing on, amongst other things, pensions). 88 cases were concluded in 2008 some of which were from cases taken in 2007.
With 4,629 breaches detected in 2008, approximately 1.5% of NERA inspections lead to cases being taken against employers.
NERA also has the power to enforce awards through the Labour Court and the Employment Equality Tribunal. 46 cases were taken in 2008 with Ä74,970 being awarded. Though this represents a 12% decrease on cases taken in 2007. NERA is continuing to carry out inspections.
NERAs campaign to ensure compliance with employment law is continuing this year. NERA have the authority to involve the Department of Social Welfares inspectors and inspectors for the Revenue Commissioners in any investigation that they launch.
They have also recently looked to tender out the Persecution and Enforcement activities to a solicitors grouping, indicating that there could be an increase in the number of prosecution cases being taken.
Records to be made available for Inspection:
The following list sets out the standard records which an inspector will require access to during the course of an inspection:
- Employer registration number with the Revenue
- The full Name, Address and PPS Number for each employee (full-time, part-time, casual, fixed term etc)
- There is meant to be a contract of employment or statement for each employee detailing their main terms and condition of employment.
- Payroll details (including Gross and Net pay, rate per hour/rate of piecemeal, overtime if applicable, deductions, shift and other premiums and allowances where paid, commission and bonuses, etc.)
- Copies of employees payslips
- Employees job classification or job title
- Dates of commencement and where relevant, date on which employment was terminated
- Hours of work for each employee (including starting and finishing times, meal breaks and rest periods). These may be in the form of Form OWT1 (or in a form that is substantially similar).
- List of employees who are under 18, including hours they have worked, break times, start and finish times. Also including information available for employees who are under on their rights.
- Whether board and/or lodgings are provided and relevant details
- Details of annual leave entitlements to be received by each employee including how public holidays are applied
- Any documentation that may be necessary to prove compliance with relevant employment legislation.
Depending on the type of business you are in you may be required to hold additional records. Remember where you are unsure you should contact the 24 Hour Advice Line for further information.
If you have any questions relating to this or any other matters, please contact the 24hour advice line.
COMMON ISSUES THAT ARISE:
1. Record of Hours
It is important that a record of all hours and breaks are kept. The obligation is on the employer to prove that breaks were received and that the employee did not work over 48 hours average of a relevant reference period, normally 4 months.
2. Public Holiday Entitlements
Very simply put there is an obligation on all employers to provide a paid day off or an additional days pay for full time staff not working a public holiday. Where an employee has worked on the day of the Public Holiday then they are entitled to flat rate (unless bound by an ERO/REA or the employees contract provides for a higher rate for Public Holidays) for the time worked plus paid time off in lieu or an additional days pay equivalent to one fifth of their normal working week. Where there are part-time employees they too are entitled to benefit from the public holiday whether they worked it or not once they have worked at least 40 hours in the preceding five weeks to the Public Holiday.
Whether on piecemeal rate, hourly, daily, weekly or annual rates of pay, the employer is obliged to ensure that all employees are earning over Ä8.65 per hour. Please note that this will depend on the industry involved as well. Often where REAs (Registered Employment Agreements) or EROs (Employment Regulation Orders) cover the employment then higher pay rates may apply.
Again if you are unsure or need assistance in determining any of the above matters, please do not hesitate to contact the 24 hour Advice Line.
Interestingly enough there was a case taken recently against an employer in the Athlone District Court recently. A company operating a fast food take away was summoned on 20 sample breaches of the Protection of Young Persons in Employment Act 1996. In this case a 16 year old had been working longer than the legal hours and had been working after 10pm. She was considered one of the main breadwinners in the family and had actively sought the extra work. Judge John Neilan looked to use a degree of common sense and dismissed all the charges commenting that:
“My own children went out into the same marketplace. I would have absolutely no objections for them to go into the marketplace of life rather than hanging round streets. It gives them an ethos that’s sadly lacking in this country. I have no intentions of punishing her and I commend her employer. What does this say to young people? Go to England because the law says you can’t work here?”
“Is the Minister aware of the nightmare visited on families up and down the country?… I accept the legislation is there but why should her employer be punished if the child wants to provide for her family?
The judge accepted defence counsels comments that there was a technical breach only and dismissed the charges.
While we are not advocating breaking the law, the above case highlights the fact that finally a commonsense approach is being applied to employment law and is not always ruling against the employer. This is not to say should another similar case be taken in the future, the employer may well be found to be in breach of the Protection of Young Persons (Employment) Act 1996 and may be subject to hefty fines as a result.