Protection of Employment Act, 1977

• Permanent Page URL

Number 7 of 1977

PROTECTION OF EMPLOYMENT ACT, 1977

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

PART II

Consultation and Notification

PART III

Commencement of Collective Redundancies

PART IV

Miscellaneous

Number 7 of 1977

PROTECTION OF EMPLOYMENT ACT, 1977

AN ACT TO PROVIDE FOR THE IMPLEMENTATION OF THE DIRECTIVE OF THE COUNCIL OF THE EUROPEAN COMMUNITIES DONE AT BRUSSELS ON THE 17th DAY OF FEBRUARY, 1975, REGARDING THE APPROXIMATION OF THE LAWS OF MEMBER STATES OF THOSE COMMUNITIES RELATING TO COLLECTIVE REDUNDANCIES, AND TO PROVIDE FOR OTHER MATTERS RELATING TO THAT MATTER. [5th April, 1977]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary and General

Short title and commencement.

1.—(1) This Act may be cited as the Protection of Employment Act, 1977.

(2) This Act shall come into operation on such day as may be appointed by order of the Minister.

Interpretation.

2.—(1) In this Act—

“authorised officer” means a person appointed by the Minister to be an authorised officer for the purposes of this Act;

“contract of employment” means a contract of service or of apprenticeship;

“employee” means a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract of employment with an employer, whether the contract is for manual labour, clerical work or otherwise, is express or implied, oral or in writing, and “employer” and references to employment shall be construed accordingly;

“employees' representatives” means officials (including shop stewards) of a trade union or of a staff association with which it has been the practice of the employer to conduct collective bargaining negotiations;

“the Minister” means the Minister for Labour;

“prescribed” means prescribed by regulations under this Act;

“staff association” means a body of persons all the members of which are employed by the same employer and which carries on negotiations for the fixing of the wages or other conditions of employment of its own members only;

“trade union” means a trade union which is the holder of a negotiation licence granted under the Trade Union Acts, 1941 and 1971.

(2) In this Act a reference to a section is to a section of this Act unless it is indicated that reference to some other enactment is intended.

(3) In this Act a reference to a subsection is to the subsection of the section in which the reference occurs unless it is indicated that reference to some other section is intended.

Regulations and orders.

3.—(1) The Minister may make regulations for the purpose of giving effect to this Act.

(2) (a) The Minister may by order amend any provision of this Act so as to comply with any international obligations relating to collective redundancies that the State has decided to assume.

(b) The Minister may by order amend or revoke an order under this section.

(3) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations.

Laying of orders and regulations before Houses of Oireachtas.

4.—(1) Every order and regulation under this Act (other than an order under section 3, section 6 or section 7 (3)) shall be laid before each House of the Oireachtas as soon as possible after it is made and, if a resolution annulling the order or regulation is passed by either House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.

(2) Where an order is proposed to be made under section 3, section 6 or section 7 (3), a draft of the order shall be laid before both Houses of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House.

Expenses.

5.—The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Meaning of collective redundancies.

6.—(1) For the purpose of this Act, “collective redundancies” means dismissals which are effected for a reason specified in subsection (2) (other than a reason related to the individual employees dismissed) where in any period of 30 consecutive days the number of such dismissals is—

(a) at least five in an establishment normally employing more than 20 and less than 50 employees,

(b) at least ten in an establishment normally employing at least 50 but less than 100 employees,

(c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and

(d) at least 30 in an establishment normally employing 300 or more employees.

(2) The reasons referred to in subsection (1) are—

(a) that the employer concerned has ceased, or intends to cease, to carry on the business for the purposes of which the employees concerned were employed by him, or has ceased or intends to cease, to carry on that business in the place where those employees were so employed,

(b) that the requirements of the business for employees to carry out work of a particular kind in the place where the employees concerned were so employed have ceased or diminished or are expected to cease or diminish,

(c) that the employer concerned has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employees concerned had been employed (or had been doing before their dismissal) to be done by other employees or otherwise,

(d) that the employer concerned has decided that the work for which the employees concerned had been employed (or had been doing before their dismissal) should henceforward be done in a different manner for which those employees are not sufficiently qualified or trained,

(e) that the employer concerned has decided that the work for which the employees concerned had been employed (or had been doing before their dismissal) should henceforward be done by persons who are also capable of doing other work for which those employees are not sufficiently qualified or trained.

(3) (a) In this section “establishment” means—

(i) where an employer carries on business at a particular location, that location, or

(ii) where an employer carries on business at more than one location, each such location.

(b) For the purposes of the definition in paragraph (a) of this subsection, each workplace, factory, mine, quarry, dockyard, wharf, quay, warehouse, building site, engineering construction site, electricity station, gas works, water works, sewage disposal works, office, wholesale or retail shop, hotel, restaurant, café, farm, garden or forest plantation shall be taken to be a separate location.

(c) In ascertaining for the purposes of this section the total number of employees employed in an establishment, account shall be taken of those employees who are based at the establishment but who also perform some of their duties elsewhere.

(d) The Minister may, for the purpose of extending the provisions of this section by order amend paragraph (a), (b) or (c) of this subsection and may by order amend or revoke such an order.

(4) For the purposes of this section, “business” includes a trade, industry, profession or undertaking, or any activity carried on by a person or body of persons, whether corporate or unincorporate, or by a public or local authority or a Department of State, and the performance of its functions by a public or local authority or a Department of State.

Application and non-application of Act.

7.—(1) Subject to subsection (2), this Act applies to all persons in employment on or after the commencement of this Act in an establishment normally employing more than 20 persons.

(2) This Act does not apply to—

(a) dismissals of employees engaged under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) where the dismissals occurred only because of the expiry of the term or the cesser of the purpose,

(b) a person employed by or under the State other than persons standing designated for the time being under section 17 of the Industrial Relations Act, 1969 ,

(c) officers of a body which is a local authority within the meaning of the Local Government Act, 1941 ,

(d) employment under an employment agreement pursuant to Part II or IV of the Merchant Shipping Act, 1894 ,

(e) employees in an establishment the business carried on in which is being terminated following bankruptcy or winding-up proceedings or for any other reason as a result of a decision of a court of competent jurisdiction.

(3) (a) The Minister may by order declare that this Act shall not apply to a class of employees specified in the order and from the commencement of the order this Act shall not apply to that class.

(b) The Minister may by order declare that this Act shall apply to a specified class of employee and from the commencement of the order this Act shall apply to that class.

(c) The Minister may by order amend or revoke an order under this subsection.

(4) Where a notice of dismissal by reason of redundancy which was given before the commencement of this Act expires after such commencement, sections 9 , 10 , 12 and 14 shall not apply to the dismissal concerned, but such a notice shall be in accordance with the Minimum Notice and Terms of Employment Act, 1973 , and with the relevant contract of employment.

(5) In this section “establishment” has the same meaning as in section 6.

Calculation of normal number of employees.

8.—For the purposes of this Act, the number of employees normally employed in an establishment (within the meaning of section 6) shall be taken to be the average of the number so employed in each of the 12 months preceding the date on which the first dismissal takes effect.

PART II

Consultation and Notification

Obligation on employer to consult employees' representatives.

9.—(1) Where an employer proposes to create collective redundancies he shall, with a view to reaching an agreement, initiate consultations with employees' representatives representing the employees affected by the proposed redundancies.

(2) Consultations under this section shall include the following matters—

(a) the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or otherwise mitigating their consequences,

(b) the basis on which it will be decided which particular employees will be made redundant.

(3) Consultations under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first dismissal takes effect.

Obligation on employer to supply certain information.

10.—(1) For the purpose of consultations under section 9, the employer concerned shall supply the employees' representatives with all relevant information relating to the proposed redundancies.

(2) Without prejudice to the generality of subsection (1), information supplied under this section shall include the following, of which details shall be given in writing—

(a) the reasons for the proposed redundancies,

(b) the number, and descriptions or categories, of employees whom it is proposed to make redundant,

(c) the number of employees normally employed, and

(d) the period during which it is proposed to effect the proposed redundancies.

(3) An employer shall as soon as possible supply the Minister with copies of all information supplied in writing under subsection (2).

Penalty for contravention of section 9 or 10.

11.—An employer who fails to initiate consultations under section 9 or fails to comply with section 10 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

Obligation on employer to notify Minister of proposed redundancies.

12.—(1) Where an employer proposes to create collective redundancies, he shall notify the Minister in writing of his proposals at the earliest opportunity and in any event at least 30 days before the first dismissal takes effect.

(2) The Minister may prescribe the particulars to be specified in a notification under this section.

(3) A copy of a notification under this section shall be supplied as soon as possible by the employer affected to the employees' representatives affected who may forward to the Minister in writing any observations they have relating to the notification.

Penalty for contravention of section 12.

13.—An employer who contravenes section 12 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

PART III

Commencement of Collective Redundancies

Collective redundancies not to take effect for 30 days.

14.—(1) Collective redundancies shall not take effect before the expiry of the period of 30 days beginning on the date of the relevant notification under section 12.

(2) Where collective redundancies are effected by an employer before the expiry of the 30-day period mentioned in subsection (1) the employer shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £3,000.

Further consultations with Minister.

15.—(1) For the purpose of seeking solutions to the problems caused by the proposed redundancies, the employer concerned shall, at the Minister's request, enter into consultations with him or an authorised officer.

(2) For the purpose of consultations under this section, an employer shall supply the Minister or an authorised officer with such information relating to the proposed redundancies as the Minister or the officer may reasonably require.

Saver for employees' rights to notice, etc.

16.—Nothing in this Act shall affect the right of any employee to a period of notice of dismissal or to any other entitlement under any other Act or under his contract of employment.

Provisions relating to authorised officers.

17.—(1) An authorised officer may—

(a) enter at all reasonable times any premises or place where he has reasonable grounds for supposing that any employee is employed,

(b) there make any examination or enquiry necessary for ascertaining whether this Act has been or is being complied with,

(c) require an employer or his representative to produce any records which the employer is required by this Act to keep, and inspect and take copies of entries in the records.

(d) examine with regard to any matters under this Act any person whom he has reasonable cause to believe to be or to have been an employer or employee and require him to answer any questions (other than questions tending to incriminate him) which the officer may put relating to those matters and to sign a declaration of the truth of the answers.

(2) The powers conferred on an authorised officer by subsection (1) (a) shall not be exercisable in respect of a private dwelling house unless the Minister (or an officer of the Minister appointed by the Minister for the purpose) certifies that he has reasonable grounds for believing that an offence under this section in relation to an employee employed in the house has been committed by the employer, and the authorised officer in applying for admission to the house produces the certificate.

(3) Any person who—

(a) obstructs or impedes an authorised officer in the exercise of any power conferred by this section,

(b) refuses to produce any record which an authorised officer lawfully requires him to produce,

(c) produces, or causes to be produced or knowingly allows to be produced, to an authorised officer any record which is false in any material respect knowing it to be false,

(d) prevents or attempts to prevent any person from appearing before or being questioned by an authorised officer, or

(e) wilfully fails or refuses to comply with any lawful requirement of an authorised officer under subsection (1) (d)

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(4) An authorised officer shall be furnished with a certificate of his appointment and, on applying for admission to any premises or place, shall, if so required, produce the certificate to the occupier and to any person being examined by him.

PART IV

Miscellaneous

Records to be kept by employers.

18.—(1) An employer shall keep such records as may be necessary to enable the Minister or an authorised officer to ascertain whether or not the provisions of this Act are being and have been complied with.

(2) Records kept under this section shall be retained by an employer for a period of not less than three years from the date on which they were made.

(3) An employer who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(4) Where an employer fails to keep or retain records under this section the onus of proving that he has complied or is complying with this Act shall lie on him.

Certain provisions to be null and void.

19.—Any provision in any agreement (whether a contract of employment or otherwise) purporting to exclude or limit the operation of any provision of this Act shall be null and void.

Notices, etc. to Minister.

20.—Any notice or other document which is required or authorised by this Act to be given by an employer to the Minister shall be in writing and shall be sent by registered post addressed to the head office of the Department of Labour or, where that is not practicable, shall be delivered to that office.

Proceedings under Act.

21.—(1) An offence under this Act may be prosecuted by the Minister.

(2) Proceedings for an offence under this Act may be commenced within one year from the date of the offence.

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

Mitigation of penalty for certain offences.

22.—Where an employer is convicted of an offence under section 11 or 14, he may plead in mitigation of the penalty for that offence that there were substantial reasons related to his business which made it impracticable for him to comply with the section under which the offence was committed.