NERA Inspections of Businesses – Republic of Ireland only

Reception-Door-2Many businesses will be reasonably concerned should they be obliged to undergo inspection by the National Employment Rights Authority ( NERA).
NERA was established on an interim basis by the Government in February 2007. NERA aims to secure compliance with employment rights legislation.
NERA’s Inspection Services are regionalized throughout the country. In general, Inspectors have the following powers under employment rights legislation:

  • To enter any premises at a reasonable time
  • To demand sight of records
  • To inspect records
  • To take copies of records
  • To interview and require information from any relevant person
  • NERA Inspectors undertake both “announced” and “unannounced” inspections.

In the case of ‘announced inspections’, the inspector will contact the employer by letter or telephone to advise the employer that it is intended to carry out an employment rights compliance inspection on their business and to make the necessary arrangements for undertaking the inspection.
In the case of unannounced inspections, the inspector presents at the place of business and seeks the production of appropriate records.
The Inspection
At the start of any inspection, the Inspector identifies themselves, shows their authorization, which includes photographic identification, and will explain the purpose of the inspection. The inspector :

Ascertains the name(s) of the person(s) who keeps and updates the records
Examines the records to establish that they are in compliance with the relevant employment rights legislation
Determines the rates of pay in respect of each employee from the rosters and the wages records presented
Informs the employer during the course of the inspection of any breaches of the legislation identified
May interview employees.
The NERA website – www.employmentrights.ie – advises that the employer should have the following documents available for inspection :

A written statement of terms and conditions of employment. Whilst the full contract does not have to be in writing, certain terms and conditions of employment must be stated in writing within two months of the employee starting employment. These would typically include the method of calculating pay and whether or not there is a sick pay scheme in operation. (For fixed term employees it would also include in what circumstances their employment will come to an end.)
A written statement of pay or ‘payslip’
The payslip should set out gross pay and list all deductions made from it.
A minimum wage
Most experienced adult workers in Ireland are entitled to be paid €8.65 per hour. There are however, some exceptions to the minimum wage, including those employed by close relatives, those aged under 18 and trainees or apprentices.
There are also certain industries in Ireland where a higher minimum wage applies, including the construction industry. Further information on these industries is available from their industry specific pages. For example, see our page on the Registered Employments Agreements at http://www.morganmcmanus.com/employment/registered_employment_agreement.html
A maximum working week average of 48 hours a week
The maximum 48 hour week is based on an average calculated over a four, six, or twelve-month period depending on the industry. Employers must keep a record of how many hours an employee works.
Unpaid breaks during working hours
Workers have the right to a 15-minute break if working four and a half hours of work and a 30-minute break if working six hours of work.
Annual leave from work
Full-time workers have the right to four working weeks paid annual leave per year. Part-time workers have the right to a proportional amount of annual leave based on the amount of time they work.
A minimum amount of notice before dismissal
Workers are entitled to a minimum amount of notice if their employment ceases. The minimum amount of notice depends on the length of service.
As an employer, it is important to maintain records in relation to your employees and their entitlements and it is in your interest to do so. Keeping these records means that you will be prepared should a NERA inspector call and provides evidence that you are compliant with employment rights legislation.
An Inspection will typically last 2-3 hours.  The duration depends on a number of factors including the size of the business and the volume and quality of the records.
The table below identifies the key information and records required of a business to evidence their compliance with Employment legislation and can be requested by NERA on foot of a routine visit, on investigation or inspection of your business. This can result from an enquiry or a complaint raised by an employee with NERA regarding employment rights; on foot of a sectoral inspection campaign; or as an ad hoc routine visit.
We advise that you also read the relevant legislation summaries which are included in the Schedule to this page, as this will give you a better understanding of the Records required and why they are required.

Record Type

Information Sought

Employer Details

CRO Number, Employers Registered No,
Registered address in Ireland.

Employee Details

List of all employees including their personal details i.e. Date of Birth (if under 20), PPS Number, Home Address, Previous Work Experience (as evidence of compliance with appropriate rates of pay), Apprenticeship Registration Cards (where appropriate).

Termination-of-EmploymentTermination

Date of termination must be recorded. Where employer terminated employment, the amount of notice given to employee must also be recorded.

Young Persons’ (u18s) Register

Including dates of working, start and finish times, break times, payments made to each employee and written permission to work from Parent/Guardian if under 16.

Hours of Work

Start and Finish times recorded for each employee, every day. These may be in the form of Form OWT1 (or in a form substantially to like effect).

Break Times

Evidence that employees take their breaks during the working day. This can take the form of a written notice to inform staff of their breaks, who to inform if this is missed or reference to same in the Employment Terms and Conditions or Contract of Employment.

Annual Leave

All employees who work more than 1,365 hours in a year must get at least 4 working weeks leave. For those who work more or less than 1,365 hours, the leave is calculated at 8% of all hours worked, capped at 4 working weeks. Record of annual leave taken must be recorded.

Public Holidays

The majority of employees are entitled to a benefit for each public holiday (dependent on the employee status and the no. of hours worked in the preceding 5 weeks before the public holiday). The type of benefit given to the employee should be recorded in their terms and conditions of employment and a record maintained.

Statement of
Terms & Conditions
of Employment for
each employee

Often known as a Contract of Employment. It should include: job title and classification, hours of work, rate of pay, board and lodgings if provided and all deductions for same, annual leave and public holiday entitlement and treatment etc.

Evidence of
Payment of Wages and
Statement of Deductions

All employees should receive a written statement of wages and deductions at the time of wage payment (or as soon as possible afterwards if payment is by credit transfer). Ideally this would present in the form of a payslip to include deductions made or premiums paid.
A payslip includes:

Gross Wages (At least minimum rate for an employee’s grade)
Total Deductions made, such as those for:
Board and Lodgings
Pension Deductions
Union Dues
Savings Schemes
Employment Permits  /  Authorization to Work, where applicable

A non-EEA national, except in the cases listed below, requires an employment permit to take up employment in Ireland (the EEA comprises the Member States of the European Union together with Iceland, Norway and Liechtenstein). It should be noted that it is an offence under the Employment Permits Acts 2003 and 2006 for both an employer and an employee if a non-EEA National is in employment without an appropriate employment permit.

For further information please visit the following website link. www.djei.ie/labour/workpermits

Names and Addresses of any Sub – Contractors and names of their employees who have worked for them

This is a requirement particularly in circumstances where the client works in the Construction Industry or in any other industry which is bound by the Registered Employment Agreements.  For instance, the Construction Industry Registered Employment Agreement of February 2011 requires (pursuant to clause 10) that the client ensures that their sub contractors are compliant with the Registered Employment Agreements.

Reception-SignIf instructed by a client with regard to an upcoming NERA inspection Morgan McManus provide templates and advice to the client to assist them in advance of the inspection in complying with the requirements of the law.
NERA can also request any documentation necessary to demonstrate compliance with employment rights legislation. Additional records may be required to be held depending on the sector/business involved and the legislation under which the inspection is being conducted. After the inspection has been concluded NERA Inspection Services will contact the employer in writing to advise them of the outcome of the inspection.
If a breach has been identified, NERA may;

Request the employer correct the breach.
Reimburse back pay to employees if required.
Refer employer directly to legal services for prosecution, depending on the offence. Complete another inspection. Impose fines in association with the breach.
Underpayment penalties

In cases of underpaying employees, the employer must send confirmation of compliance in writing and show evidence that the employee has been fully reimbursed for the underpayment within one month.
Prosecution may lead to significant penalties for employers with fines ranging from €1,900 to €15,000 depending on the breach of employment rights legislation.

Joint Investigations
NERA Inspectors will join with the Department of Social and Family Affairs and the Revenue Commissioners to work together in Joint Investigation Units (JIUs).  The role of the JIUs is to address areas where evidence suggests that non-compliance exists.
Relevant employment data can be exchanged between the Revenue Commissioners, the Minister for Social and Family Affairs and the Minister for Enterprise, Trade and Investment. This exchange of information enhances day-to-day inspectorate, prosecution and enforcement activity within NERA.

SCHEDULE
Relevant Legislation Summaries
The legislation below will give your Payroll section an understanding of the specific regulations which apply in the Republic of Ireland.

Terms of Employment (Information) Act, 1994-2001
This Act applies generally to all persons having continuous service of one month or more for the same employer and lays down the minimum information requirements that an employer must provide to an employee in a written Statement.
The legislation sets out minimum information requirements which an employer must give to an employee in a written Statement to be provided not later than two months from commencement of employment in relation to the following:

Name and address of employer.
Place of work.
Job title/nature of work.
Date of commencement of employment.
Nature of the contract (temporary or fixed term).
Pay and pay intervals.
Hours of work.
Paid leave.
Pensions.
Notice entitlement.
Collective agreements.
The pay reference period for the purposes  of the National
Minimum Wage Act, 2000.

The rest breaks to which the employee will be entitled.
The employee may request a written Statement of the average hourly rate of pay for a pay reference period.
Any changes in the Conditions of Employment or Statement previously issued to the employee must be notified to the employee in writing not later than one month after the change takes place.

Records

The employer must keep a copy of each written statement for the duration of the employee`s employment and for one year thereafter.

Organisation of Working Time Act, 1997
The purpose of this Act is to lay down minimum health and safety requirements around the organisation of working time.  It provides for minimum breaks to be taken within the working day, daily rest periods, maximum length of working week and holiday entitlements.

LAWMaximum weekly working time

Since 1st March 1998, the new maximum average working week is 48 hours. Averaging may be balanced out over a 4, 6 or 12 month period depending on the circumstances.
The 48 hour net maximum working week can be averaged according to the following rules:-

For employees generally – 4 months;
For employees where work is subject to seasonality, a foreseeable surge in activity or where employees are directly involved in ensuring continuity of service or production – 6 months;
For employees who enter into a collective agreement with their employers which is approved by the Labour Court – 12 months.
In the case of young people under 18, hours of work are fixed by the Protection of Young Persons (Employment) Act, 1996.

Rest

Every employee has a general entitlement to:-

11 hours daily rest per 24 hour period;
one period of 24 hours rest per week preceded by a daily rest period (11 hours);
rest breaks – 15 minutes where up to 4 and a half hours have been worked; 30 minutes where up to 6 hours have been worked which may include the first break.
These rest breaks and intervals may be varied if there is a collective agreement in place approved by the Labour Court or if a regulation has been made for a particular sector. If there are variations in rest times and rest intervals under agreements or in the permitted sectors, equivalent compensatory rest must be available to the employee.

Minimum Breaks

This applies to both private and public sectors with certain exceptions; e.g. shift workers, individuals employed by family members, people whose work is spread out over the day (ie. cleaning personnel  who clean buildings in the morning and evening, people who determine their own working time).

The following minimum rest periods apply:

Daily Rest Periods : employees are entitled to a rest period of not less than 11 consecutive hours in each 24-hour period.

Breaks at Work : Employees who work more than 4.5 half-hours are required to have a rest period of at least 15 minutes.  Employees who work for 6 hours or more shall be entitled to a rest period of at least 30 minutes.  A break given to an employee at the end of the working day will not be considered as satisfying the requirement of sufficient rest for the employee.

Weekly Rest Periods : All employees are entitled to 24 hours consecutive rest per 7 days, which is preceded by a daily rest period of 11 hours.

The weekly rest period of 24 hours may be claculated as an average over 14 days in which case an employee is entitled to 48 hours rest immediately preceded by 11 hours daily rest.  Due to technical reasons, an employer may decide that certain rest periods cannot be preceded by a daily rest period.

This is a very detailed piece of legislation and further information can be furnished on request.

It is important to bear in mind that there is a Code of Practice on “Compensatory Rest” issued by the Labour Relations Commission which allows for employers in certain circumstances to seek to deviate from the strict requirements of the Act. If necessary, we can advise whether this may apply to your situation, when you attend with us.

While the Organisation of Working Time Act, 1997 sets out, inter alia, daily rests period, rests and intervals at work and weekly rests periods which must be provided to employees, in recognition of the fact that it may not be practicable in some industries to provide all of the rest periods in the manner prescribed, the Organisation of Working Time (General Exemptions) Regulations provide, as permitted by Section 4(3) of the 1997 Act that persons employed in certain activities should be exempt from the applications of Sections 11, 12 and 13 of the Act which deal respectively with daily rests, rests and intervals at work and weekly rests. Lists of the types of activities which can claim the exemption are set out in a schedule to the 1998 Regulations.

Holidays

All full time employees, who work more than 1365 hours per annum have a statutory entitlement to a minimum of 20 days annual leave.  All other employees will have their holiday entitlement calculated on a pro-rata basis.

Public Holidays
There are nine Public Holidays listed in the Organisation of Working Time Act, 1997 in Ireland each year. Public holidays in Ireland (as in other countries) may commemorate a special day or other event, for example, St Patrick’s Day (17 March) or Christmas Day (25 December). On a public holiday, sometimes called a bank holiday, most businesses and schools close. Other services, for example, public transport still operate but often with restricted schedules. The list of public holidays in Ireland each year is as follows:

New Year’s Day (1 January)
St. Patrick’s Day (17 March)
Easter Monday
First Monday in May, June, August
Last Monday in October
Christmas Day (25 December)
St. Stephen’s Day (26 December)
Good Friday is not a public holiday. While some schools and businesses close on that day, you have no automatic entitlement to time off work on that day.

How is the date of Easter Monday determined each year?

Easter Monday is the only public holiday in Ireland (and other countries) that can vary significantly from year to year. The date of Easter moves every year within the international calendar for civil use. Broadly speaking, Easter should be the first Sunday after the first full moon occurring on or after 21 March. This means that the earliest possible date for Easter Sunday in any year is 22 March, the latest is 25 April. Easter Monday will fall on the following dates between now and 2012: 5 April 2010, 25 April 2011, 9 April 2012.

Rules

Your entitlement to public holidays is set out in the Organization of Working Time Act 1997. Most employees are entitled to paid leave on public holidays. One exception is part-time employees who have not worked for their employer at least 40 hours in total in the 5 weeks before the public holiday.
Employees who qualify will be entitled to either the public holiday off as paid leave or one of the following alternatives:

A paid day off within a month of the public holiday
An additional day of annual leave
An additional day’s pay
The nearest church holiday to the public holiday as a paid day off
Booking Annual Leave

Employers can set their own practices in relation to booking annual leave.  This will very much depend on the operational constraints specific to each organisation and the notice required for booking annual leave may vary from two weeks to nine months.  This latter notice period would normally apply to requests for longer periods of leave or requests for holidays and at peak or popular times of the year, for example Christmas or during the month of August.  The Act provides that an employee must have eight months continuous service to have an entitlement to two consecutive weeks of annual leave. Restrictions may be placed on the annual leave entitlements of more senior employees who cannot easily be replaced and whose position demands that they be available at specific times of the year; for example, requiring that the Financial Controller be at work throughout the audit.  Such restrictions should be outlined in individual contracts of employment.

It is important that each employee understands the procedure for booking their annual leave.  The booking procedure should be outlined either in individual contracts of employment or in the employee handbook.  This ensures that there is fairness and consistency in the procedure, that there is no confusion over entitlement or dates to be taken, that cover for the employee can be arranged if required and that there is ownership of the process by all of the employees.

Shutdown Periods

Many organisations have shutdown periods during the annual leave calendar year.  Under the organisation of Working Time Act, 1997 employers must provide employees with one months notice of any period which the organisation prescribes as annual leave.  This practice should therefore be reflected either in the individual contract and/or the Employee Handbook.  It is therefore deemed to form part of the Employee’s terms and conditions of employment.

Records

All employers have a legal requirement to hold Records to ensure that they are complying with the Act for a period of 3 years. The onus is on the employer to prove compliance with the Act.

In the case of Dermot Munro v Goode Concrete Limited heard by the Labour Court, relating to the keeping of records of hours worked, the employer accepted that it did not maintain records in respect of the claimant’s employment as it is required to do under SI473/2001: Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001.  Since it failed to do this, the onus of proving that the relevant provisions of the Act were complied with and the rest periods were given to the employee rested with the employer. The court was satisfied that the company had not discharged the burden of proving that the relevant provisions of the Act were complied with.  Therefore, it found that the complaints were well founded and that the company contravened Sections 11, 12, 13, 14 and 15 of the Act. When deciding the amount of compensation to award, the Labour Court stated that the obligation to provide rest periods is imposed for health and safety reasons and is a fundamental social right in European Law.  Referring to judgements handed down by the European Court of Justice, it stated that the redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

It noted that under the Act, compensation should be just and equitable having regard to all the circumstances but it cannot exceed two years remuneration.  It found that in measuring an award that was just and equitable and taking in to account the gravity of the infringements which had occurred and having regard to the inconvenience and expense incurred by the employee in pursuing his claim, compensation of €15,000 should be paid to Mr Munro.

This case should act as an urgent reminder to all employers to ensure that they fully comply with the provisions of the Organisation of Working Time Act and in order to defend any claim that may be taken, they should ensure that proper records of hours worked and rest periods enjoyed by employees are noted.

Payment of Wages Act, 1991
This Act regulates the payment of wages.  Neither employers nor employees can contract out of their rights under the Act.

Ireland-Cross-BorderDefinitions

Wages means any sum that is payable to an employee by his/her employer in connection with his/her employment.  Wages include the following:

basic pay and overtime
shift allowances or similar payments
fees, bonuses or commissioners, referable to the employment
holiday, sick or maternity pay
any other payment for work whether under a contract of employment or not
any payment due to an employee in lieu of termination notice.
The following payments are not included in wages:
Any expenses incurred by an employee in the course of carrying   out his/her work
Any pension payment, gratuity or allowance connected with the death, retirement or resignation of the employee.
Any payment by way of compensation to an employee for loss of office.
Any payment relating to the employee’s redundancy.
Any payment to an employee for anything other than work in his/her capacity as an employee.
Any payment in kind or benefit in kind, e.g. a company car.
Legal Methods of Paying Wages
Wages must be paid in the following ways:

Cash
Cheque or bank draft drawn on a commercial bank or a Trustee Savings Bank.
A payable order or warrant issued by a Minister of the Governement or Public Authorities.
Postal orders, money orders, paying orders, warrants or any other such document issued by or drawn on An Post.
Credit transfers or any sort of payment where the amount is credited to an account specified by the employee.
Statement of Wages

An employer must provide an employee with a written statement each time a wage payment is made.  The statement must specify the gross wages payable and details of any deductions made from the gross amount.  The employer must treat the information in the statement confidentially and must endeavour to ensure that all others dealing with payment of wages maintain confidentiality.  Generally, an employer must not make any deduction from the wages of an employee unless authorised by Statute or with the prior consent of the employee.