Terms of Employment (Information) Act, 1994

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Number 5 of 1994

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994

ARRANGEMENT OF SECTIONS

Number 5 of 1994

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994

AN ACT TO PROVIDE FOR THE IMPLEMENTATION OF DIRECTIVE NO. 91/533/EEC OF 14 OCTOBER, 1991 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES ON AN EMPLOYER'S OBLIGATION TO INFORM EMPLOYEES OF THE CONDITIONS APPLICABLE TO THE CONTRACT OR EMPLOYMENT RELATIONSHIP, TO AMEND THE MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT, 1973 , AND TO PROVIDE FOR RELATED MATTERS. [5th April, 1994]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1.—(1) In this Act—

“the Act of 1973” means the Minimum Notice and Terms of Employment Act, 1973 ;

“the Council Directive” means Council Directive No. 91/533/EEC of 14 October, 1991⁽¹⁾ ;

“contract of employment” means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956 , shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act, 1941 , a harbour authority, a health board or a vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

“the Minister” means the Minister for Enterprise and Employment;

“the Tribunal” means the Employment Appeals Tribunal.

(2) A word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive.

(3) In this Act—

(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act,

(b) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

Exclusions.

2.—(1) This Act shall not apply to—

(a) employment in which the employee is normally expected to work for the employer for less than 8 hours in a week, or

(b) employment in which the employee has been in the continuous service of the employer for less than 1 month.

(2) Where the exclusion of a class or classes of employment from any provision of this Act is justified by objective considerations, the Minister may, after consultation with representatives of employers and of employees within that class or classes of employment, by order declare that that provision shall not apply to that class or those classes of employment and this Act shall have effect in accordance with the provisions of any such order for the time being in force.

(3) The First Schedule to the Act of 1973 shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous with the following modifications and with any other necessary modifications—

(a) the reference to 21 hours shall be construed as a reference to 8 hours,

(b) the references to an employee shall be construed as references to an employee within the meaning of this Act.

(4) The Minister may by order amend or revoke an order under this section, including an order under this subsection.

Written statement of terms of employment.

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

Employment outside State.

4.—(1) Where, after the commencement of this Act, an employee is required to work outside the State for a period of not less than 1 month, the employer concerned shall give or cause to be given to the employee, prior to the departure of the employee from the State, a statement under section 3 and there shall be added to the statement the following particulars, that is to say—

(a) the period of employment outside the State,

(b) the currency in which the employee is to be remunerated in respect of that period,

(c) any benefits in cash or kind for the employee attendant on the employment outside the State,

(d) the terms and conditions, where appropriate, governing the employee's repatriation.

(2) The particulars referred to in paragraphs (b) and (c) of subsection (1) may be given in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing such particulars.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4 .

Existing contracts of employment.

6.—(1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement under section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4 .

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection.

Complaints by employees in relation to contraventions of Act by their employers.

7.—(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3 , 4 , 5 or 6 in relation to him or her and, if he or she 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 recommendation in writing in relation to it and shall communicate the recommendation to the parties.

(2) A recommendation of a rights commissioner under subsection (1) 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) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order 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 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 ,

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 a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.

(4) (a) 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.

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

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

(6) A rights commissioner shall furnish the Tribunal with a copy of any recommendation given by the commissioner under subsection (1).

(7) The Minister may by regulations—

(a) provide for any matters relating to proceedings under this section that the Minister considers appropriate, and

(b) amend paragraph (d) of subsection (2) so as to vary the maximum amount of the compensation provided for in that paragraph, and this section shall have effect in accordance with the provisions of any regulations under this paragraph for the time being in force.

Appeals from and enforcement of recommendations of rights commissioner.

8.—(1) A party concerned may appeal to the Tribunal from a recommendation of a rights commissioner under section 7 and, if the party does so, the Tribunal 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 recommendation and shall communicate the determination to the parties.

(2) (a) An appeal under this section shall be initiated by the party concerned giving, within 6 weeks of the date on which the recommendation to which it relates was communicated to the party, a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the recommendation.

(b) A copy of a notice under paragraph (a) shall be given by the Tribunal to the other party concerned as soon as may be after the receipt of the notice by the Tribunal.

(3) The Minister may by regulations provide for all or any of the following matters in relation to proceedings before the Tribunal and for anything consequential thereon or incidental or ancillary thereto:

(a) the procedure in relation to all matters concerning the initiation and the hearing by the Tribunal 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 Tribunal,

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

(f) the award by the Tribunal of costs and expenses in relation to such appeals and the payment thereof,

(g) the extension by the Tribunal of the time for initiating such appeals.

(4) (a) The Minister may, at the request of the Tribunal, refer a question of law arising in proceedings before it to the High Court for determination by it and the determination of the High Court shall be final and conclusive.

(b) A party to proceedings before the Tribunal may appeal to the High Court from a determination of the Tribunal on a point of law and the determination of the High Court shall be final and conclusive.

(5) Section 39 (17) of the Redundancy Payments Act, 1967 , shall apply in relation to proceedings before the Tribunal under this Act as it applies to matters referred to it under that section with the substitution in paragraph (e) of the said section 39 (17) of “a fine not exceeding £1,000” for “a fine not exceeding twenty pounds”.

(6) (a) Where a recommendation 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 recommendation has expired and no such appeal has been brought, the employee concerned may bring the complaint before the Tribunal and the Tribunal 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 recommendation.

(b) The bringing of a complaint before the Tribunal by virtue of this subsection shall be effected by giving to the Tribunal a notice in writing containing such particulars (if any) as may be specified in regulations made for the purposes of subsection (3).

Enforcement of determinations of Tribunal.

9.—(1) (a) If an employer fails to carry out in accordance with its terms a determination of the Tribunal in relation to a complaint under section 7 within 6 weeks from the date on which the determination is communicated to the parties, the District Court shall, on application to it in that behalf by—

(i) the employee concerned,

(ii) the employee's trade union, or

(iii) 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.

(b) In paragraph (a) the reference to a determination of the Tribunal 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 reference 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.

(2) The District 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 Tribunal is communicated to the parties and ending on the date of the order.

(3) Proceedings under this section shall be heard by the judge assigned to the district court district 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 Tribunal.

10.—A document purporting to be signed by the chairman or a vice-chairman of the Tribunal 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 , required to attend before the Tribunal 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 Tribunal was held on that day and at that time and place, and

(c) the person did not attend before the Tribunal 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), be evidence of the matters so stated without further proof.

Laying of orders and regulations before Houses of Oireachtas.

11.—Every order or regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such 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 thereunder.

Expenses of Minister.

12.—The expenses incurred by the Minister 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.

Repeals.

13.—Sections 9 and 10 of the Act of 1973 are hereby repealed.

Short title and commencement.

14.—(1) This Act may be cited as the Terms of Employment (Information) Act, 1994.

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

⁽¹⁾ O.J. No. L 288, 18.10.91, p. 32.