2012 has seen a number of important developments in Irish employment law. Industrial disputes, migrant workers, High Court Injunctions, Budget 2013 and reform of the industrial relations system have all been part of the developments in 2012 and in this snapshot we look to update all readers with the most important developments that you need to be aware of.
Agency Workers
In May, the Protection of Employees (Temporary Agency Work) Act 2012 came into force and which essentially affords agency workers the right to receive the same treatment as that of comparable permanent employees had they been employed by the same end-user at the same time.
New Legislation for REAS & JLCS
This year we saw a new basis for wage-setting mechanisms put in place with the Industrial Relations (Amendment) (No. 3) Act coming into force in July. Importantly, this legislation is only the basis for future REAs and EROs and has not actually set up any new EROs or REAs. The Act sets out the new ground rules for the establishment and updating of EROs and REAs and employers within ERO and REA industries should ensure to keep an eye on the Bottom Line Express for future updates.
Data Protection
In April 2012 the Data Protection Commissioner launched his annual report and highlighted a key concern of how employers install and use CCTV on their premises. Importantly, if an employer wishes to use CCTV on their premises then the employees must be informed of this and also the use of any footage must be transparent and proportionate, which essentially means an employer may not use any footage for means other than intended.
Migrant Workers & Employment Permits
There was a lot of movement on the issue of employment permits in 2012. Firstly, in Hussein -v- The Labour Court and Younis the High Court ruled that an employee was not entitled to a Rights Commissioner award of €92,000 because his employment contract was substantively illegal. Basically, the High Court stated that because he did not have a lawful contract (i.e. he was working without a permit) then he could not enforce any employment rights in Ireland and was not entitled to the benefit of Irish employment legislation. This case has been a talking point for 2012 as it effectively creates a loop-hole in Irish employment law which could allow for the abuse of illegal migrant workers. Indeed the High Court stated in the decision that they had notified the Department of Jobs, Enterprise and Innovation (DJEI) of this decision on the assumption that they would most likely wish to correct this loop hole in order to prevent migrant worker exploitation.
In July 2012, the Government removed all restrictions placed on Romanian and Bulgarian workers accessing the Irish labour market. Previously, such workers were required to have an employment permit for at least 12 months before they could obtain free access to the Irish labour market. Although these restrictions were due to automatically lapse on 1st January 2014, the Government decided to remove the restrictions 17 months ahead of schedule as such permit applications had significantly dropped and were unlikely to increase again in future.
Another employment permit themed issue that featured in 2012 was the extension to the Student Visa Scheme that was announced at the end of August. The Irish Naturalisation and Immigration Service (INIS) announced an amnesty of sorts to persons who have been working in Ireland on a student visa since before 1st January 2005.
Updated Code of Practice for Harassment & Sexual Harassment
2012 saw the publication of Statutory Instrument (S.I.) No. 208 of 2012 which refers to the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. The S.I. looks at formalising a code of practice on Harassment and Sexual Harassment in the workplace, and looks at giving practical and normative guidance to employers and employees the definition of harassment and sexual harassment, how it may be prevented, and what steps to take if it does occur.
Workplace Bullying
The case of Margaret Kelly v Bon Secours Health System Limited [2012] IEHC 21 was particularly noteworthy in 2012 as it recognises the concept of “Corporate Bullying” and awarded damages to an employee on this basis. Damages were awarded not just on view of injuries sustained from treatment from another employee, but of the overall view which Management had of the plaintiff, namely that she was deemed to be a “troublemaker”.
High Court Injunctions
2012 has seen the number of public high court injunctions increase with the highly publicised case of GOAL CEO John O’Shea taking out an injunction to prevent his dismissal. Some other high profile injunction cases this year included that of Mary Mullen of Brown Thomas, and Karl Brophy of INM. The injunction is now seen as a viable means by employees of protecting their employment status and is having an ever-increasing impact on employers in Ireland.
Reform of Irish Tribunals Put Before the Oireachtas Committee
In July 2012, Minister Bruton forwarded a submission entitled to the Oireachtas Committee on Jobs, Enterprise and Innovation on the reform of the Irish dispute resolution system. Essentially the major project for Minister Bruton in 2012 has seen him engaged in an exhaustive effort to source as much information and feedback as possible from experts on how the current Irish employment dispute resolution system may best be reformed. Indeed, Peninsula Business Services have been heavily involved in the reform process and have liaised with the DJEI through a series of reform submissions. However, Minister Bruton’s submission to the Oireachtas Committee would appear to mark the end of this consultation process and Minister Bruton, it would seem, has settled on a proposed new system and 2013 should see the introduction of this new means of dealing with Workplace Disputes. The main change that is anticipated is that the five bodies of the EAT, LRC, Equality Tribunal, Labour Court and NERA will be merged with only two bodies remaining.
Budget 2013
The 2013 budget has been announced and from an employer’s perspective there have been a number of notable items that will have a direct impact on those running a business. The most significant change is the announcement that employers will no longer be able to claim a rebate on redundancy payments made to employees, as of 1st January 2013. However there have also been some other talking points with Maternity Benefit to be treated as taxable income from 1st July 2013, and no sick pay scheme to been introduced in the private sector, which was long hinted by Minister for Social Protection Joan Burton. Our readers in the tourism industry will also be heartened to hear that the present VAT rate of 9% has been retained.
As indicated above we have seen a number of developments in Irish employment law in 2012 and with the Budget to be effected, the new legislation on EROs to be implemented, and the reform of the Irish Tribunal system to take force, 2013 promises to have just as many talking points for Employers.
If you have any queries regarding the items mentioned above please don’t hesitate to contact our 24 hour Advice Service on 01 855 5050 and speak to one of our Employment Law Advisors on how this affects your business.
