Protection of Employment Act , 1977

PART I Preliminary and General

1. 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.

2. 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;

F1["contract of employment" means:

(a) a contract of service or of 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 theEmployment Agency Act 1971(No. 27 of 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 contact 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, 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, F2[…];

F3["employees’representatives", in relation to employees who are affected, or are likely to be affected, by proposed collective redundancies (whether by being selected for redundancy or otherwise), means-

(a) a trade union, staff association or excepted body with which it has been the practice of the employer to conduct collective bargaining negotiations, or

(b) in the absence of such a trade union, staff association or excepted body, a person or persons chosen (under an arrangement put in place by the employer) by such employees from amongst their number to represent them in negotiations with the employer;]

F4["employer" 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 remuneration of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;]

F5["excepted body" has the meaning assigned to it by section 6(3) of theTrade Union Act, 1941 (No. 22 of 1941), as amended;]

F6["Minister" means the Minister for Enterprise, Trade and Employment;]

“prescribed” means prescribed by regulations under this Act;

F7["responsible person", in the case of an employer whose business is being terminated following the commencement of bankruptcy or winding up proceedings or for any other reason as a result of a decision of a court of competent jurisdiction, means—

(a) the liquidator,

(b) the provisional liquidator (within the meaning of Part 11 of the Companies Act 2014),

(c) the receiver who has assumed full responsibility for the management of the business concerned, or

(d) any other person appointed by the court where that person has assumed full responsibility for the management of the business concerned.]

“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.

3. 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.

4. 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.

5. 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.

6. Meaning of collective redundancies.

F8[6.—(1) For the purpose of this Act, "collective redundancies" means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is—

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

(b) at least 10 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) For the purpose of calculating the number of redundancies where the number of dismissals is at least 10 in an establishment normally employing more than 20 and less than 100 employees, terminations of a contract of employment which occur to the individual workers concerned shall be assimilated to redundancies provided there are at least 5 redundancies.

(3) In this section "establishment" means an employer or a company or a subsidiary company or a company within a group of companies which can independently effect redundancies.]

7. 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,

F9[(c) officers of a body which is a local authority within the meaning of theLocal Government Act 2001(as amended by the Local Government Reform Act 2014),]

(d)F10[…]

(e)F11[…]

(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.

8. 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

9. Obligation on employer to consult employees' representatives.

9.—F12[(1) Where an employer or a responsible person proposes to create collective redundancies, he or she shall, with a view to reaching an agreement, initiate consultations with employees’ representatives.]

(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 F13[F14[mitigating their consequences]by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant],

(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 F15[before the first notice of dismissal is given].

F16[(4) Where an employer has initiated consultations with employees’ representatives under this section, a responsible person may continue any consultation so initiated.]

10. Obligation on employer to supply certain information.

10.—(1)For the purpose of consultations under section 9, F17[the employer or responsible person 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,

F18[(c) the number of employees, and description or categories, normally employed,]

F19[(cc)(i) the number (if any) of agency workers to which the Protection of Employees (Temporary Agency Work) Act 2012 applies engaged to work for the employer,

(ii) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(iii) the type of work that those agency workers are engaged to do,

and]

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

F20[(e) the criteria proposed for the selection of the workers to be made redundant, and]

F21[(f) the method for calculating any redundancy payments other than those methods set out in the Redundancy Payment Acts, 1967 to 1991, or any other relevant enactment for the time being in force or, subject thereto, in practice.]

(3)F17[An employer or a responsible person] shall as soon as possible supply the Minister with copies of all information supplied in writing under subsection (2).

10A. F22[Application of sections 9 and 10.

10A.—Sections 9 and 10 shall apply to an employer irrespective of whether the decision regarding collective redundancies is being taken by the employer or by an undertaking which controls the employer and it shall not be a defence on the part of the employer that the necessary information had not been provided to the employer by a controlling party, or parties, which took the decision leading to the collective redundancies.]

11. Penalty for contravention of section 9 or 10.

F23[11.—(1)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 exceedingF24[€5,000].]

F25[(2) Subject to subsection (3), a responsible person 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 class A fine.

(3) In proceedings for an offence under subsection (2), it shall be a defence for a person against whom such proceedings are brought to show that, having exercised all reasonable professional care and skill, he or she had reasonable grounds for believing that the employer had complied with the obligations imposed on an employer under section 9 or 10.]

11A. F26[Decision of adjudication officer under section 41 of Workplace Relations Act 2015

11A.—A decision of an adjudication officer undersection 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofF27[section 9, 10 or 14(1)]shall do one or more of the following, namely—

(a) declare that the complaint is or, as the case may be, is not well founded,

(b) require the employer to comply with the provisionF28[…]concerned and, for that purpose, to take a specified course of action,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’remuneration in respect of the employee’s employment calculated in accordance with regulations undersection 17of theUnfair Dismissals Act 1977.]

11B.. F29[Decision of Labour Court on appeal from decision referred to in section 11A

11B.—A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 11A, shall affirm, vary or set aside the decision of the adjudication officer.]

12. 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.

F30[(2) The Minister may prescribe the particulars to be specified in a notification under this section and, without prejudice to the generality of the foregoing, regulations under this section shall make provision for the following:

(a) particulars of the employer;

(b) particulars of the proposed collective redundancies;

(c) particulars of the consultations with the employees’ representatives;

(d) such other particulars in relation to the employer’s proposal as the Minister considers appropriate.]

(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.

F30[(4) In the case of collective redundancies arising from the employer’s business being terminated following the commencement of bankruptcy or winding up proceedings or for any other reason as a result of a decision of a court of competent jurisdiction, the responsible person shall comply with the obligations of an employer under this section.]

F31[(5) Where the proposal to create collective redundancies concerns members of the crew of a seagoing vessel, the employer shall—

(a) where the vessel flies the Irish flag, notify the Minister in accordance withsubsection (1), or

(b) where the vessel flies the flag of another State, notify the competent authority of that other State.]

13. Penalty for contravention of section 12.

F32[13.—(1) An employer who contravenes section 12 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceedingF33[€5,000].]

F34[(2) Subject to subsection (3), a responsible person who contravenes section 12(4) shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

(3) In proceedings for an offence under subsection (2), it shall be a defence for a person against whom such proceedings are brought to show that, having exercised all reasonable professional care and skill, he or she had reasonable grounds for believing that the employer had complied with the obligations imposed on an employer under section 12.]

PART III Commencement of Collective Redundancies

14. Collective redundancies not to take effect for 30 days.

14.—F35[(1) An employer or a responsible person shall not effect collective redundancies 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 F36[€250,000].

F37[(3)F38[…]]

15. 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.

16. 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.

17. 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.