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20 1997

ORGANISATION OF WORKING TIME ACT, 1997

PART IV

Miscellaneous

Approval of collective agreements by Labour Court.

24. —(1) In this section “collective agreement” means a collective agreement referred to in section 4 , 15 or 16 or paragraph 4 (a) of the First Schedule .

(2) On an application being made in that behalf by any of the parties thereto, the Labour Court may, subject to the provisions of this section, approve of a collective agreement.

(3) On receipt of an application under this section, the Labour Court shall consult such representatives of employees and employers as it considers to have an interest in the matters to which the collective agreement, the subject of the application, relates.

(4) The Labour Court shall not approve of a collective agreement unless the following conditions are fulfilled as respects that agreement, namely—

(a) in the case of a collective agreement referred to in section 4 , 15 or 16 , the Labour Court is satisfied that it is appropriate to approve of the agreement having regard to the provisions of the Council Directive permitting the entry into collective agreements for the purposes concerned,

(b) the agreement has been concluded in a manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned,

(c) the body which negotiated the agreement on behalf of the employees concerned is the holder of a negotiation licence under the Trade Union Act, 1941 , or is an excepted body within the meaning of that Act which is sufficiently representative of the employees concerned,

(d) the agreement is in such form as appears to the Labour Court to be suitable for the purposes of the agreement being approved of under this section.

(5) Where the Labour Court is not satisfied that the condition referred to in paragraph (a) or (d) of subsection (4) is fulfilled in relation to a collective agreement, the subject of an application under subsection (2) (but is satisfied that the other conditions referred to in that subsection are fulfilled in relation to the agreement), it may request the parties to the agreement to vary the agreement in such manner as will result in the said condition being fulfilled and if those parties agree so to vary the agreement and vary it, accordingly, the Labour Court shall approve of the agreement as so varied.

(6) Where a collective agreement which has been approved of under this section is subsequently varied by the parties thereto, any of the said parties may apply to the Labour Court to have the agreement, as so varied, approved of by the Labour Court under this section and the provisions of this section shall apply to such an application as they apply to an application under subsection (2).

(7) The Labour Court may withdraw its approval of a collective agreement under this section where it is satisfied that there are substantial grounds for so doing.

(8) The Labour Court shall determine the procedures to be followed by a person in making an application under subsection (2) or (6), by the Labour Court in considering any such application or otherwise performing any of its functions under this section and by persons generally in relation to matters falling to be dealt with under this section.

(9) The Labour Court shall publish, in such manner as it thinks fit, particulars of the procedures referred to in subsection (8).

(10) The Labour Court shall establish and maintain a register of collective agreements standing approved of by it under this section and such a register shall be made available for inspection by members of the public at all reasonable times.

Records.

25. —(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Refusal by an employee to co-operate with employer in breaching Act.

26. —(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

Complaints to rights commissioner.

27. —(1) In this section “relevant provision” means—

(a) any of the following sections, namely, section 6 (2), sections 11 to 23, or section 26 ,

(b) the provision referred to in section 6 (1) of regulations, a collective agreement, registered employment agreement or employment regulation order referred to in that section, or

(c) paragraph 9 of the Fifth Schedule.

(2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(7) A copy of a notice under subsection (6) shall be given to the other party concerned by the rights commissioner concerned.

(8) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subsection (2).

(10) The Minister may by regulations provide for any matters relating to proceedings under this section that the Minister considers appropriate.

Appeals from and enforcement of recommendations of rights commissioner.

28. —(1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under section 27 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

(2) An appeal under this section shall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under subsection (4) and stating the intention of the party concerned to appeal against the decision.

(3) A copy of a notice under subsection (2) shall be given by the Labour Court to the other party concerned as soon as may be after the receipt of the notice by the Labour Court.

(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Labour Court, namely—

(a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this section,

(b) the times and places of hearings of such appeals,

(c) the representation of the parties to such appeals,

(d) the publication and notification of determinations of the Labour Court,

(e) the particulars to be contained in a notice under subsection (2),

(f) any matters consequential on, or incidental to, the foregoing matters.

(5) The Minister may, at the request of the Labour Court, refer a question of law arising in proceedings before it under this section to the High Court for determination by the High Court and the determination of that Court shall be final and conclusive.

(6) A party to proceedings before the Labour Court under this section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.

(7) Section 39 (17) of the Redundancy Payments Act, 1967, shall apply in relation to proceedings before the Labour Court under this Part as it applies to matters referred to the Employment Appeals Tribunal under that section with—

(a) the substitution in that provision of references to the Labour Court for references to the Tribunal,

(b) the deletion in paragraph (d) of that provision of “registered”, and

(c) the substitution in paragraph (e) of that provision of “a fine not exceeding £1,500” for “a fine not exceeding twenty pounds”.

(8) Where a decision of a rights commissioner in relation to a complaint under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the employee concerned may, not later than 6 weeks after the expiry of that time, bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.

(9) The bringing of a complaint before the Labour Court under subsection (8) shall be effected by giving to the Labour Court a notice in writing containing such particulars (if any) as may be determined by the Labour Court.

(10) The Labour Court shall publish, in such manner as it thinks fit, particulars of any determination made by it under paragraphs (a), (b), (c), (e) and (f) of subsection (4) (not being a determination as respects a particular appeal under this section) and subsection (9).

Enforcement of determinations of Labour Court.

29. —(1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under section 27 within 6 weeks from the date on which the determination is communicated to the parties, the Circuit Court shall, on application to it in that behalf by—

(a) the employee concerned,

(b) with the consent of the employee, any trade union of which the employee is a member, or

(c) the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances,

without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the determination in accordance with its terms.

(2) The reference in subsection (1) to a determination of the Labour Court is a reference to such a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought, or if such an appeal has been brought it has been abandoned and the references to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.

(3) The Circuit Court may, in an order under this section, if in all the circumstances it considers it appropriate to do so, where the order relates to the payment of compensation, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act, 1981 , in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(4) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, business or occupation.

Evidence of failure to attend before or give evidence or produce documents to Labour Court.

30. —A document purporting to be signed by the chairman or the registrar of the Labour Court stating that—

(a) a person named in the document was, by a notice under paragraph (c) of section 39 (17) of the Redundancy Payments Act, 1967 (as adapted by section 28 (7)) required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document,

(b) a sitting of the Labour Court was held on that day and at that time and place, and

(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or failed to produce the document,

shall, in a prosecution of the person under paragraph (e) of the said section 39 (17) (as so adapted) be evidence of the matters so stated without further proof.

References to rights commissioner by Minister.

31. —Where—

(a) it appears to the Minister that an employer is not complying with a relevant provision (within the meaning of section 27 ) in relation to a particular employee,

(b) a complaint under section 27 , in relation to the matter, has not been presented to a rights commissioner by that employee or any trade union of which he or she is a member, and

(c) the circumstances touching the matter are, in the opinion of the Minister, such as to make it unreasonable to expect the employee or any trade union of which he or she is a member to present such a complaint,

the Minister may present a complaint in relation to the matter to a rights commissioner and a complaint so presented shall be dealt with, and the provisions of this Part shall, with any necessary modifications, apply to the complaint, as if it were a complaint presented by the employee concerned under section 27 .

Provisions in relation to outworkers who are employees.

32. —(1) An employer who employs any outworkers shall keep, in the prescribed form, a register in which he or she shall cause to be entered prescribed particulars in respect of each such worker for the time being employed by him or her.

(2) The Minister may, by regulations, prohibit an employer from employing outworkers to do a specified class or classes of work unless the employer complies with specified conditions in respect of the employment of the outworkers to do the said work.

(3) An employer who—

(a) fails to comply with subsection (1), or

(b) fails to comply with any condition specified in regulations under subsection (2) in respect of the employment by him or her of an outworker to do work of a class specified in such regulations,

shall be guilty of an offence.

Prohibition on double employment.

33. —(1) An employer shall not employ an employee to do any work in a relevant period during which the employee has done work for another employer, except where the aggregate of the periods for which such an employee does work for each of such employers respectively in that relevant period does not exceed the period for which that employee could, lawfully under this Act, be employed to do work for one employer in that relevant period.

(2) In subsection (1)relevant period” means a period of—

(a) 24 hours,

(b) 7 days, or

(c) 12 months.

(3) Whenever an employer employs an employee in contravention of subsection (1), the employer and the employee shall each be guilty of an offence.

(4) Where an employer is prosecuted for an offence under this section it shall be a good defence for him or her to prove—

(a) that he or she neither knew nor could by reasonable enquiry have known that the employee concerned had done work for any other employer in the period of 24 hours, 7 days or 12 months, as the case may be, in respect of which the prosecution is brought, or

(b) that he or she neither knew nor could by reasonable enquiry have known that the aggregate of the periods for which the employee concerned did work in the said period of 24 hours, 7 days or 12 months, as the case may be, exceeded the period for which he or she could lawfully be employed to do work for one employer in the said period of 24 hours, 7 days or 12 months, as the case may be.

Penalties, proceedings, etc.

34. —(1) A person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding £1,500.

(2) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in that capacity, that person shall also be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(3) If the contravention in respect of which a person is convicted of an offence under this Act is continued after the conviction, the person shall be guilty of a further offence on every day on which the contravention continues and for each such offence the person shall be liable, on summary conviction, to a fine not exceeding £500.

(4) Proceedings for an offence under section 8 or a further offence, in relation to such an offence, under subsection (3) may be brought and prosecuted by the Minister.

(5) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.

Codes of practice.

35. —(1) In this section

code of practice” means, in relation to a section of this Act, a code that provides practical guidance as to the steps that may be taken for the purposes of complying with the section;

the Commission” means the Labour Relations Commission.

(2) The Commission may and, at the request of the Minister, shall, prepare a code of practice for the purposes of any section of this Act (other than section 6 (2)) or, in the case of a request by the Minister, a section of this Act (other than section 6 (2)) specified in the request.

(3) The Commission, after consultation with the National Authority for Occupational Safety and Health, shall prepare a code of practice for the purposes of section 6 (2).

(4) In preparing a code of practice referred to in subsection (2) or (3), the Commission shall invite such organisations representative of employers, such organisations representative of employees, and such other bodies, as the Commission considers appropriate to make submissions, whether orally or in writing, to it in relation to the proposed code of practice and shall have regard to any such submissions made to it, in response to the invitation, by such organisations or bodies.

(5) The Commission shall submit a copy of a code of practice prepared by it under this section to the Minister who may—

(a) by order declare the code (which shall be scheduled to the order) to be a code of practice, or

(b) make such modifications to the code as he or she considers appropriate and declare the code as so modified (which shall be scheduled to the order) to be a code of practice,

for the purposes of the section or sections concerned of this Act.

(6) The Minister may, at the request of the Commission or of his or her own volition after consultation with the Commission, by order—

(a) amend or revoke a code of practice, the subject of an order under subsection (5) or this subsection (and the code of practice shall, in case it is amended by the order, be scheduled, in its amended form, to the order),

and

(b) declare, accordingly, the code of practice, as appropriate—

(i) to be no longer a code of practice,

or

(ii) in its form as amended by the order, to be a code of practice,

for the purposes of the section or sections concerned of this Act,

and

(c) revoke, as the case may be, the order concerned under subsection (5) or the previous order concerned under this subsection.

(7) A failure by a person to observe a code of practice under this section shall not of itself render that person liable to any civil or criminal proceedings.

(8) In any proceedings under this Act before a court, the Labour Court or a rights commissioner, a code of practice for the time being declared under subsection (5) or (6) to be a code of practice for the purposes of one or more sections of this Act shall be admissible in evidence and any provision of the code which appears to the court, the Labour Court or rights commissioner, as the case may be, to be relevant to any question arising in the proceedings shall be taken into account by it, him or her in determining that question.

Provisions in relation to Protection of Young Persons (Employment) Act, 1996.

36. —(1) In this section “the Act of 1996” means the Protection of Young Persons (Employment) Act, 1996.

(2) Nothing in the preceding sections of this Act shall prejudice the provisions of the Act of 1996.

(3) The obligation of an employer under section 15 of the Act of 1996 to keep the records referred to in that section at the place where the young person or child concerned is employed shall, if the young person or child is employed by the employer at 2 or more places, be construed as an obligation to keep the said records at the place from which the activities that the young person or child is employed to carry on are principally directed or controlled.

(4) Subsection (2) of section 22 of the Act of 1996 is hereby amended by—

(a) the insertion in paragraph (a) after “work” of “or from which he or she has reasonable grounds for supposing the activities that an employee is employed to carry on are directed or controlled (whether generally or as respects particular matters)”, and

(b) the insertion in paragraph (b) after “place” of “or any employee the activities aforesaid of whom are directed or controlled from any such premises or place”.

Voidance of certain provisions.

37. —Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.

Amendment of section 51 of Safety, Health and Welfare at Work Act, 1989 .

38. Section 51 of the Safety, Health and Welfare at Work Act, 1989 , is hereby amended by—

(a) the insertion in subsection (3) after “1851,” of “but without prejudice to subsection (4)”, and

(b) the substitution in subsection (4) for all the words beginning with “in respect of the contravention ” to the end of that subsection of the following:

“in respect of the contravention may be commenced at any time within—

(i) six months of the making of the report or, in a case falling within paragraph (c), within six months of the conclusion of the inquest, or

(ii) one year after the date of the contravention,

whichever shall be later.”.

Powers of rights commissioner, Employment Appeals Tribunal or Labour Court in certain cases.

39. —(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

TABLE

Adoptive Leave Act, 1995

Maternity Protection Act, 1994

Minimum Notice and Terms of Employment Acts, 1973 to 1991

Payment of Wages Act, 1991

Protection of Employees (Employers' Insolvency) Acts, 1984 to 1991

Protection of Young Persons (Employment) Act, 1996

Redundancy Payments Acts, 1967 to 1991

Terms of Employment (Information) Act, 1994

Unfair Dismissals Acts, 1977 to 1993

Worker Protection (Regular Part-Time Employees) Act, 1991

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent's name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

(5) References in subsection (4) to the institution of proceedings in respect of any matter under an enactment referred to in subsection (2), or the Table thereto, shall be construed as including references to the presentation of a complaint, or the referral of a dispute, in respect of the said matter, to the relevant authority concerned.

Alternative means of claiming relief in cases of non-compliance with Part III .

40. —(1) As respects a failure to comply with any provision of Part III in relation to an employee, the employee or, with the consent of the employee, any trade union of which the employee is a member may, in lieu of presenting a complaint in respect of such a failure under section 27 , include in proceedings to be instituted by him or her or it in respect of any matter under an enactment referred to in the Table to section 39 (2) a claim for relief in respect of such a failure and where such a claim is included the following provisions shall have effect:

(a) subject to the provisions of this section, the provisions of the said enactment (hereafter in this section referred to as “the relevant enactment”) shall, with any necessary modifications, apply in like respects to the said claim (hereafter in this section referred to as “the holidays claim”) and the procedures to be followed in respect of it (including procedures in respect of appeals) as they apply to the proceedings otherwise under the enactment,

(b) the relevant authority that hears the said proceedings may grant the same relief in respect of the holidays claim as a rights commissioner may grant under section 27 (3) in respect of such a claim and in so far as the grant of such relief consists of or includes the making of a requirement on the employer concerned to pay compensation to the employee the limit specified in section 27 (3) in relation to compensation under that provision shall, in lieu of any limit specified in the relevant enactment in relation to compensation that may be required to be paid under that enactment, apply in relation to such compensation.

(2) Notwithstanding subsection (1) (a)

(a) any provision of the relevant enactment requiring proceedings under that enactment to be instituted within a specified period shall not apply to such proceedings in so far, but only in so far, as they relate to the holidays claim,

(b) subsections (4) and (5) of section 27 shall apply to the hearing of the holidays claim by the relevant authority concerned as they apply to the hearing of a complaint under section 27 by a rights commissioner.

(3) In this section “relevant authority” has the same meaning as it has in section 39 .

(4) References in this section to the institution of proceedings in respect of any matter under an enactment referred to in the Table to section 39 (2) shall be construed in accordance with subsection (5) of section 39 .

Increase of penalties under certain enactments.

41. —(1) Section 49 of the Safety, Health and Welfare at Work Act, 1989 , is hereby amended by the substitution of “£1,500” for “£1,000” in each of the following provisions of that section, namely, subsection (1), paragraph (a) of subsection (2) and paragraph (i) of subsection (3).

(2) Paragraph (j) (which increases a certain penalty under the Dangerous Substances Act, 1972 ) of section 58 of the Safety, Health and Welfare at Work Act, 1989 , is hereby amended by the substitution of “£1,500” for “£1,000” in each place where it occurs in that paragraph.

(3) Section 39 of the Safety, Health and Welfare (Offshore Installations) Act, 1987 , is hereby amended by—

(a) the substitution of “£1,500” for “£1,000” in each of the following provisions of that section, namely, paragraph (a) of subsection (1), and subsection (2),

(b) the substitution of the following paragraph for paragraph (b) of subsection (1):

“(b) on conviction on indictment, to a fine or, at the discretion of the court, to imprisonment for a term not exceeding two years, or to both a fine and such imprisonment.” and

(c) the substitution of the following paragraph for paragraph (b) of subsection (7):

“(b) on conviction on indictment, to a fine or, at the discretion of the court, to imprisonment for a term not exceeding two years, or to both a fine and such imprisonment.”.

(4) This section shall have effect as respects offences committed after the commencement of this section.