Relate
May 2011
Volume 38: Issue 5
ISSN 0790-4290
The journal of developments in social services, policy and legislation in Ireland
Contents
Enforcing employment rights: several bodies are involved in helping to enforce employment rights.
Social housing: housing needs assessment is now being carried out under new rules.
Disabled parking scheme: new rules on disabled parking rights will come into effect in June, 2011.
Community service: new legislation is proposed, which will deal with community service as an
alternative to prison.
Government departments: further information on changes in the responsibilities of government
departments.
Enforcing employment rights
There are several agencies involved in monitoring and enforcing employment rights. Many of these
are independent statutory bodies but some government departments are also directly involved.
The National Employment Rights Authority (NERA) plays a significant role. It was intended that it
would be put on a statutory basis but it is not clear whether this will now happen. The Employment
Law Compliance Bill 2008, which aimed to improve compliance with employment legislation and to
establish NERA on a statutory basis, had not been passed when the last Dáil was dissolved and it has
not been restored to the Dáil order paper. Legally, NERA remains part of the Department of
Enterprise, Jobs and Innovation and it exercises the statutory authority which that Department has
for enforcing various rights.
Current employment legislation
There is a wide range of legislation dealing with employment. It includes legislation on social
welfare, tax, data protection and freedom of information as well as the legislation specifically on
employment rights. The following are the main pieces of legislation dealing specifically with
employment rights:
Adoptive Leave Acts 1995 and 2005
Carer’s Leave Act 2001
Employees (Provision of Information and Consultation) Act 2006
Employment Equality Acts 1998 to 2008
Employment Permits Acts 2003 and 2006
Industrial Relations Acts 1946 to 2004
Maternity Protection Acts 1994 to 2004
Minimum Notice and Terms of Employment Acts 1973 to 2005
National Minimum Wage Act 2000
Organisation of Working Time Act 1997
Parental Leave Acts 1998 and 2006
Payment of Wages Act 1991
Protection of Employees (Employers’ Insolvency) Acts 1984 to 2004
Protection of Employees (Fixed-Term Work) Act 2003
Protection of Employees (Part-Time Work) Act 2001
Protection of Employment Acts 1977 to 2007 – these deal with collective redundancies
Protection of Young Persons (Employment) Act 1996
Redundancy Payments Acts 1967 to 2007
Safety, Health and Welfare at Work Act 2005
Terms of Employment (Information) Acts 1994 and 2001
Transnational Information and Consultation of Employees Act 1996
Unfair Dismissals Acts 1977 to 2007
The Industrial Relations Acts 1946 to 2004 deal with, among other things, Employment Regulation
Orders and Registered Employment Agreements. Employment Regulation Orders are made by the
Labour Court, following proposals by Joint Labour Committees. They set minimum terms and
conditions for employees in certain sectors of employment. Registered Employment Agreements are
agreements made between workers representatives and employers which are registered by the
Labour Court and then become legally binding on the parties. A review of the Employment
Regulation Order and Registered Employment Agreement schemes has been completed but the
report has not yet been published. The Government has announced its intention to reform the
system.
Employment rights bodies
The following is a summary of the roles of the different enforcement bodies for employment rights.
National Employment Rights Authority (NERA)
NERA is part of the Department of Enterprise, Jobs and Innovation. Its main functions are the
provision of employment rights information, inspection of employment premises and enforcement
of specific legislation. It provides information on the full range of employment rights and not just on
those areas where it is responsible for enforcement.
NERA inspectors have a wide range of powers of inspection under the laws dealing with, among
other things, protection of young people, hours of work, holidays, parental leave, carer’s leave,
national minimum wage and payment of wages.
They have the power to:
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Enter any premises at a reasonable time
Demand sight of records
Inspect records
Take copies of records
Interview and require information from any relevant person
If the inspectors find that an employer is not complying with the relevant legislation, NERA may, in
some cases, take legal proceedings against the employer – for example, for the recovery of arrears
of pay. In some cases it may pursue the enforcement of awards made by the Labour Court and the
EAT. In some cases it may prosecute the employer.
Inspectors from NERA, the Revenue Commissioners and the Department of Social Protection engage
in joint investigation activity and exchange of information. This is provided for in the Social Welfare
and Pensions Act 2007.
You may bring a complaint to NERA if you consider that your rights are being, or have been,
breached in the following areas:
Employment Regulation Orders and Registered Employment Agreements
The national minimum wage (in certain circumstances you may go to a Rights Commissioner – see
below)
Payment of wages or failure to provide payslips
Protection of young people in employment
Domestic workers
If you are a domestic worker, that is, you are employed in a private home, you have the same rights
as other workers. There is a voluntary Code of Practice for Protecting Persons Employed in Other
People’s Homes. This is not legally binding.
NERA is currently undertaking a pilot programme to assess the level of compliance in the domestic
work sector.
National Employment Rights Authority
O’Brien Road
Carlow
Lo-call: 1890 80 80 90
Tel: (059) 917 8990
Web: www.employmentrights.ie
Rights Commissioners
Rights Commissioners are independent officers of the Labour Relations Commission.
You may bring a complaint to the Rights Commissioners if you consider that your rights are being, or
have been, breached in the following areas:
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National minimum wage – in general, the complaint should be made to NERA. You may,
however, complain to a Rights Commissioner if you have asked for a written statement from
your employer outlining the calculation of the average hourly pay. You may not refer a
complaint to both a Rights Commissioner and NERA in relation to the same dispute.
Unfair dismissal – if both you and your employer agree to the complaint being heard by a
Rights Commissioner; if not, your claim must go to the Employment Appeals Tribunal (EAT).
Dismissal due to transfer of business – if you have less than one year’s service, you may
make a claim to a Rights Commissioner under the law on transfer of undertakings; if you
have more than one year’s service, you may take your claim under the unfair dismissals
legislation either to a Rights Commissioner or the EAT.
Working time, breaks, rest periods, night work, Sunday work, zero hours contracts.
Failure to give written terms and conditions.
Fixed-term work.
Part-time work.
Unauthorised deductions from wages.
Force majeure leave, maternity leave, adoptive leave, parental leave, carer’s leave. You may
get help from the Equality Authority on matters related to maternity, adoptive and parental
leave. The Department of Social Protection is responsible for decisions about the care
aspects of carer’s leave – appeals against such decisions should generally be made within 21
days.
Holidays, but you may make the claim at the EAT if it is connected with another claim, for
example, redundancy or dismissal.
Collective redundancies – if your employer fails to consult and provide information to you
about proposed collective redundancies.
In general, you should make your complaint to a Rights Commissioner within six months. The Rights
Commissioners have the power to extend the time limit by a further six months if they consider that
there was reasonable cause for not meeting the six-month deadline.
In general, the Rights Commissioners hear the case in private. They usually try to reach a settlement
but, if this is not possible, they make a decision. You may appeal that decision to the EAT or the
Labour Court, depending on which issue is involved.
Rights Commissioner Service
Labour Relations Commission
Tom Johnson House
Haddington Road, Dublin 4
Tel: (01) 613 6700
Web: lrc.ie
Employment Appeals Tribunal
You may bring a complaint to the EAT if you consider that your rights are being, or have been,
breached in the following areas:
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Redundancy (including alleged misuse of short-time arrangements)
Unfair dismissals
Minimum notice
A complaint in relation to redundancy must be made within a year (this may be extended to two
years if there is reasonable cause for the delay). A claim for unfair dismissal must be made within six
months of the dismissal; again, this may be extended by a further six months if there is reasonable
cause.
You may appeal against the decision or recommendation of a Rights Commissioner to the EAT.
The EAT is a quasi-judicial body and its hearings are held in public.
Employment Appeals Tribunal
Davitt House
65a Adelaide Road, Dublin 2
Lo-call: 1890 220 222
Tel: (01) 631 3006
Web: www.eatribunal.ie
Labour Court
You may bring a complaint to the Labour Court if you consider that your rights are being, or have
been, breached in relation to a Registered Employment Agreement.
You may appeal to the Labour Court from decisions of the Equality Tribunal relating to employment
and pensions and from recommendations of the Rights Commissioners.
The Labour Court’s rulings in these cases are legally binding. (Its recommendations on industrial
relations disputes are not legally binding.)
Labour Court
Tom Johnson House
Haddington Road, Dublin 4
Tel: (01) 613 6666
Web: www.labourcourt.ie
Equality Tribunal
You may complain to the Equality Tribunal in relation to discrimination on the various grounds;
gender discrimination cases may go directly to the Circuit Court. You may get help from the Equality
Authority in these cases. In general, you must make your complaint to the Equality Tribunal within
six months but this may be extended by six months if there was a reasonable cause for the delay
(this extension does not apply to equal pay cases).
Equality Tribunal
3 Clonmel Street, Dublin 2
Lo-call: 1890 34 44 24
Tel: (01) 477 4100
Web: www.equalitytribunal.ie
The Equality Authority
Public Information Centre
Birchgrove House
Roscrea, Co. Tipperary
Lo-call: 1890 245 545
Tel: (0505) 24126
Web: www.equality.ie
Department of Social Protection and the Revenue Commissioners
The Inspectorate of the Department of Social Protection (DSP) is responsible for ensuring that
employers comply with their legal obligations in relation to PRSI contributions. The Revenue
Commissioners are responsible for ensuring compliance with the rules for Pay As You Earn (PAYE)
taxation.
The DSP and the Revenue Commissioners have joint inspection units throughout the country to deal
with non-compliance by employers with the PAYE/PRSI regulations and abuse of social welfare
schemes. There is a service level agreement between the two organisations setting out how the
units operate.
Social welfare inspectors also investigate compliance with employers’ obligation to make a Personal
Retirement Savings Account (PRSA) scheme available to employees in cases where the employer
does not operate a pension scheme. If the social welfare inspector discovers non-compliance by an
employer, this is notified to the Pensions Board which then has the duty to ensure compliance.
The social welfare inspectors also notify the Department of Enterprise, Jobs and Innovation of
suspected cases of non-compliance with the employment permits legislation. Web: www.welfare.ie,
www.revenue.ie
The Pensions Board
The Pensions Board is responsible for regulating occupational pensions and PRSAs. If you have a
complaint about the operation of your occupational pensions scheme or PRSA, you should contact
the Board.
Pensions Board
Verschoyle House
28/30 Lower Mount Street
Dublin 2
Lo-call: 1890 656 565
Tel: (01) 613 1900
Web: www.pensionsboard.ie
Health and Safety Authority
The Health and Safety Authority is responsible for enforcing the legislation on health and safety at
work.
Health and Safety Authority
The Metropolitan Building
James Joyce Street
Dublin 1
Lo-call: 1890 289 389
Tel: (01) 614 7000
Web: hsa.ie
Personal information
Access to personal information held by your employer is generally governed by the Data Protection
Acts. The Freedom of Information (FOI) Acts may also be relevant for employees of those public
bodies which are subject to FOI. Complaints in relation to data protection may be made to the Data
Protection Commissioner. Complaints in relation to FOI may be made to the Information
Commissioner.
Office of the Data Protection Commissioner
Canal House
Station Road
Portarlington
Co. Laois
Tel: (057) 868 4800
Lo-call: 1890 25 22 31
Web: dataprotection.ie
Office of the Information Commissioner
18 Lower Leeson Street
Dublin 2
Tel: (01) 639 5689
Web: oic.gov.ie
Migrant workers
Migrant workers have the same employment rights as other workers and may use the same
enforcement procedures. The Immigrant Council of Ireland and the Migrant Rights Centre both offer
information and support services to immigrants to Ireland.
Immigrant Council of Ireland
2 St Andrew Street
Dublin 2
Tel: (01) 674 0200
Web: immigrantcouncil.ie
Migrant Rights Centre
55 Parnell Square West
Dublin 1
Tel: (01) 889 7570
Web: mrci.ie
Possible changes to employment legislation
The intention to streamline the complaint, appeal and enforcement procedures and documentation
across all the employment rights bodies was announced in 2005.
It was also announced that the Employment Appeals Tribunal (EAT) would continue as a stand-alone
body but would become an appeal body only. These changes have not been implemented.
Business inspection and licensing authority
The programme for government includes a commitment to establish a single business inspection and
licensing authority which would take over the business inspection activities of the Health and Safety
Authority and National Consumer Agency. It is not yet clear if this will involve any change in the
inspection arrangements for compliance with labour legislation.
NERA
As already stated, the legislation to put NERA on a statutory basis – the Employment Law
Compliance Bill 2008 – has not been enacted.
That Bill also included proposals for improved enforcement of rights. These included:
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An obligation on employers to display information about employment legislation, including
enforcement provisions; on-the-spot fines were proposed for breaches of this requirement
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NERA would have the power to enter and search premises and to order people to appear
before it
Employers could be served with compliance notices and compliance orders
There would be protection for people who felt they had been victimised or penalised for
making a report or for exercising their rights
Employers could be required to maintain certain records
Employers could be obliged to provide information to former employees
Membership of a trade union
You are entitled to be a member of a trade union but your employer is not obliged to negotiate with
that trade union. There is a commitment in the programme for government to ensure that Irish law
on the right of employees to engage in collective bargaining is consistent with recent judgments of
the European Court of Human Rights. These are complex cases and it is not clear whether Irish
legislation is in conformity with them.
Temporary agency workers
The EU Directive on Temporary Agency Work 2008/104/EC will come into effect on 5 December
2011. Irish legislation will be required to give effect to the Directive. Broadly, it gives temporary
agency workers the same rights as other workers.
Social housing
A number of changes in social housing arrangements came into effect on 1 April 2011.
Housing needs assessment
The Housing (Miscellaneous Provisions) Act 2009 provides for a new process of housing needs
assessment. The Social Housing Assessment Regulations 2011 (SI 84/2011), and amending
Regulations (SI 136/2011), came into force on 1 April 2011.
There is now a standardised method of means testing applicants for social housing support. Prior to
this, different systems of means testing were applied by different local authorities.
Getting social housing support
You may apply for social housing support to one local authority only. This must be the local authority
in the area in which you normally live or with which you have a local connection.
If you do not meet either of these conditions, a local authority may, at its discretion, conduct a social
housing needs assessment. The regulations set out the criteria for determining whether or not you
have a local connection with the area. If you apply and are eligible for social housing support, the
local authority carries out an assessment of housing need. This assessment may also be carried out if
you have been receiving Rent Supplement for 18 months or more.
The regulations set out the factors which the local authority must consider when assessing your
need for social housing support. These include previous supports provided, the standard of your
current accommodation, and factors such as disability and age. You must pass the means test and
meet a number of other requirements.
Means test
The new regulations provide for three income thresholds. Each local authority is assigned to one
threshold. These thresholds are based on an analysis of the local private rental cost of housing
accommodation in each area. The income thresholds are €25,000, €30,000 and €35,000.
The €35,000 threshold applies in all the Dublin area councils, in Cork city, Galway city, and in Meath,
Kildare and Wicklow.
The €30,000 threshold applies in Limerick city and county, Waterford city, Cork county, all of Kerry,
Kilkenny, Louth, and Wexford.
The €25,000 threshold applies in all other places.
The income threshold is the maximum net income for a single person household. It is increased if
there are other adults and/or children in the household. It is increased by 5% for each adult, subject
to a maximum of 10%, and by 2.5% for each child, subject to a maximum of 10%. So, if you have a
single person household and you live in Dublin, you may apply for social housing support if your net
income is less than €35,000; if you are a couple with two children, you may apply if your income is
less than €38,500. The maximum income limit is €42,000 – this would apply to a household with
three or more adults and four or more children. The maximum income limits for the other
thresholds are €36,000 and €30,000.
Net income is defined as gross income of all kinds – including almost all social welfare payments –
less tax, PRSI and the Universal Social Charge. Child Benefit is disregarded as well as most temporary
income.
Alternative accommodation
You do not qualify for social housing support if you have suitable alternative accommodation
available. You are regarded as having alternative accommodation if a member of the household has
property that the household could reasonably be expected to live in. A property is not regarded as
alternative accommodation if:
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It is occupied by a person who is divorced or legally separated from a member of the
household, or whose civil partnership with a household member has been dissolved
It would be overcrowded if the household lived in it
It is unfit for human habitation
It would not adequately meet the accommodation requirements of a household member
with a disability
Housing waiting lists
If you are assessed as being eligible for and in need of social housing support, you are placed on a
waiting list. The Minister of State with responsibility for Housing and Planning has recognised that
the increase in the income thresholds will mean that there will be longer housing lists. Each local
authority has an order of priority (often called a points system) for offering housing to people on its
waiting list.
Refusal to allocate housing
If you or a member of your household has previously been in local authority housing, the local
authority may refuse to allocate a dwelling to you if you or a household member has:
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Damaged a dwelling or site previously provided by a local authority, without repairing the
property or paying for repairs
Built up rent arrears for 12 weeks or more in any period of three years as a local authority
tenant, without arranging to repay them
Breached the terms of a local authority tenancy agreement, leading to the authority ending
the tenancy
Further review of eligibility
The Minister of State with responsibility for Housing and Planning has said that he intends to look
again at the eligibility criteria for social housing before the end of 2011.
Tenant purchase schemes
Statutory Instrument (SI) 82/2011 provides for the 2011 tenant purchase scheme, which allows the
sale of local authority houses to long-standing tenants. This is a new scheme and does not replace
the 1995 tenant purchase scheme. The 1995 scheme continues to exist and is available to tenants
with less than 10 years’ tenancy. The maximum discount under the 1995 scheme is 30%.
It is intended that both schemes will cease to exist in 2012 and a new arrangement will then be
introduced which will be based on the incremental purchase scheme. This will require new
legislation.
The 2011 scheme
In order to avail of the 2011 scheme, you must have been a tenant for at least 10 years. You must
apply before 31 December 2011 and the sale must be completed before the end of 2012. The
definition of tenancy may include periods when your spouse or civil partner was the tenant and the
periods of tenancy of previous occupants if you succeeded to the tenancy.
The following dwellings may not be sold under the scheme:
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Those which were specifically designed for occupation by one or more older people
Those which are part of a premises where there are other dwellings and which require
arrangements for the upkeep of common areas, for example, apartments
Those which were specifically designed for occupation by members of the Traveller
community, where more than one such dwelling is provided on the land concerned
Caravans, mobile homes or similar structures
Those which the local authority consider ought not to be sold for reasons of proper
management of the authority’s stock of housing accommodation or on account of the
dwelling’s structural condition or because the local authority proposes to carry out
reconstruction or improvement works
Price
The sale price is the market value of the dwelling less a deduction for length of tenancy. A deduction
may also be made for improvements made by the tenant. The market value is reduced by 3% in
respect of each year of your tenancy to a maximum of 45%.
Buying apartments
As stated above, this scheme does not provide for the sale of local authority apartments to tenants.
The Housing (Miscellaneous Provisions) Act 2009 does provide for such sales but the relevant
sections have not yet been brought into effect. The Minister of State with responsibility for Housing
and Planning has said that he intends to bring them into effect as soon as possible.
Further information
You may get further information from your local authority.
Disabled parking scheme
Most of the recommended changes to the rules governing the disabled parking scheme are being
introduced from1 June 2011. These changes were recommended following a review of the scheme
in 2010 – see Relate, November 2010.
Medical eligibility
The changes mean that there will be an assessment of the extent of your mobility impairment rather
than whether or not you suffer from a specific disability. In effect, the scheme will be restricted to
those for whom walking, even short distances, is extremely difficult, detrimental or impossible.
People who have a Primary Medical Certificate (which gives them entitlement to various tax reliefs
for adaptations of cars and other benefits) and those registered as blind will continue to be exempt
from requiring further medical assessment to qualify for the permit. GPs will not determine
eligibility; instead the GP will provide medical information to decision-makers within the issuing
authorities.
Parking bays
The size of parking bays will be increased and new types of bays will be introduced. There will be
new set-down and pick-up disabled spaces. Local authorities will have the power to introduce timerestricted parking spaces.
Fraudulent use of disabled permits
There will be new measures to reduce the fraudulent use of permits.
Community service
The Criminal Justice (Community Service) (Amendment) (No. 2) Bill 2011 proposes to extend the use
of community service orders. The Bill is currently being discussed in the Oireachtas. When enacted,
it will require judges, when considering the imposition of a sentence of 12 months or less, to
consider the alternative sanction of community service first.
The option of community service instead of a custodial sentence was first introduced in Ireland
under the Criminal Justice (Community Service) Act 1983. This Act provides that a court may make a
community service order in respect of an offender who is over the age of 16 years and has been
convicted of a criminal offence for which a sentence of imprisonment would be appropriate. A
community service order requires an offender to perform unpaid work for between 40 and 240
hours. Community service orders are more likely to be imposed by the District Court but they may
also be imposed by the Circuit Court (and the Central Criminal Court but they are unlikely to be
imposed there as the offences involved are very serious).
A number of conditions must be met before making an order:
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The court must be satisfied, on the basis of an assessment report of a probation officer, that
the offender is a suitable person for such an order
Appropriate work must be available
The offender must consent to the order
The Bill does not change the conditions which apply to the making of community service orders. It
simply requires a judge to consider making an order. The judge retains the discretion to commit the
offender to prison or to make another appropriate order, for example, a suspended sentence,
application of the Probation Act, or a restriction on movement order.
The current legislation requires that the hours of work under a community service order must be
completed within a year of the making of the order. This can be extended by order of the court. The
Bill proposes a number of amendments to facilitate the making of community service orders by the
Circuit Court.
Government departments
The main changes to government departments were described in last month’s issue of Relate. More
details of where certain services will be located have since become available
Most of the changes are being made by Statutory Instruments under the Ministers and Secretaries
(Amendment) Act 1939. However, primary legislation is required in some cases – notably for the
establishment of the Department of Public Expenditure and Reform – and this legislation has not yet
been introduced. A number of name changes have been made.
The functions of the Department of Community, Equality and Gaeltacht Affairs are being transferred
to a number of other departments as follows:
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The equality, integration, disability and human rights functions have been transferred to the
Department of Justice and Equality with effect from 1 April 2011
The marine tourism function has been transferred to the Department of Agriculture,
Fisheries and Food from 1 May 2011
The National Drugs Strategy function has been transferred to the Department of Health and
Children from 1 May 2011
The social inclusion function has been transferred to the Department of Social Protection
from 1 May 2011
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The Irish language, Gaeltacht and the islands functions have been transferred to the
Department of Arts, Heritage and the Gaeltacht from 1 May 2011
It has been decided to transfer the charities regulation function and the Family Mediation Service to
the Department of Justice and Equality but it is not yet clear when this will occur.
When all relevant functions have transferred from the Department of Community, Equality and
Gaeltacht Affairs, its structure will be used to establish the Department of Children and Youth
Affairs.
The Department of Children and Youth Affairs will cover the following functions:
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The functions of the Office of the Minister for Children and Youth Affairs (including colocation of the Early Years Education Unit from the Department of Education and Skills).
The Irish Youth Justice Service, which will transfer from the Department of Justice and
Equality.
The functions of the Minister for Education and Skills in respect of the National Educational
Welfare Board.
The family affairs function and the Family Support Agency, which are currently part of the
Department of Community, Equality and Gaeltacht Affairs. As stated above, the Family
Mediation Service will no longer come under the remit of the Family Support Agency and
will transfer to the Department of Justice and Equality.