Payment of Wages Act , 1991

1. Interpretation.

1.—(1)In this Act—

"cash" means cash that is legal tender;

"contract of employment" means—

(a)a contract of service or of apprenticeship, and

(b)any other contract whereby an individual agrees with another person 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) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

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

F1["contract worker" has the meaning assigned to it insection 4F;]

"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 purpose of this definition, 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 the Government, as the case may be, and an officer or servant of a local authority for the purposes of the F2[Local Government Act 2001(as amended by the Local Government Reform Act 2014)], a harbour authority, a health board or F3[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F3[or board], 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;

F1["mandatory charge" means a contractually-imposed and receipted payment that—

(a) a customer is required to pay in order to receive certain goods or services provided to the customer by or on behalf of an employer, and

(b) is payable by the customer in addition to an amount payable for the cost of such goods or services;]

"the Minister" means the Minister for Labour;

"strike" and "industrial action" have the meanings assigned to them by the Industrial Relations Act, 1990;

F1["tip or gratuity" means a payment that is—

(a) voluntarily made to, or left for, an employee or group of employees by a customer, in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be kept by the employee or shared with other employees, or

(b) voluntarily made to an employer, or to a person engaging contract workers, by a customer, in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be distributed to an employee, a group of employees or to a contract worker;]

"the Tribunal" means the Employment Appeals Tribunal;

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a)any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b)any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i)any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii)any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii)any payment referable to the employee's redundancy,

(iv)any payment to the employee otherwise than in his capacity as an employee,

(v)any payment in kind or benefit F4[in kind,]

F1[(vi) any payment by way of tips or gratuities.]

(2)Except in section 5 (5) (f), a reference in this Act to an employer receiving a payment from an employee is a reference to his receiving such a payment in his capacity as the employee's employer.

(3)In this Act, 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.

(4)In this Act, a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraphof the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

2. Modes of payment of wages.

2.—(1)Wages may be paid by and only by one or more of the following modes:

(a)a cheque, draft or other bill of exchange within the meaning of the Bills of Exchange Act, 1882,

(b)a document issued by a person who maintains an account with the Central Bank of Ireland or a holder of a licence under section 9 of the Central Bank Act, 1971, which, though not such a bill of exchange as aforesaid, is intended to enable a person to obtain payment from that bank or that holder of the amount specified in the document,

(c)a draft payable on demand drawn by a holder of such a licence as aforesaid upon himself, whether payable at the head office or some other office of the bank to which the licence relates,

(d)a postal, money or paying order, or a warrant, or any other like document, issued by or drawn on An Post or a document issued by an officer of a Minister of the Government that is intended to enable a person to obtain payment from that Minister of the Government of the sum specified in the document,

(e)a document issued by a person who maintains an account with a trustee savings bank within the meaning of the Trustee Savings Banks Act, 1989, that is intended to enable a person to obtain payment from the bank of the sum specified in the document,

(f)a credit transfer or another mode of payment whereby an amount is credited to an account specified by the employee concerned,

(g)cash,

(h)any other mode of payment standing specified for the time being by regulations made by the Minister after consultation with the Minister for Finance.

(2)Where wages fall to be paid to an employee by a mode other than cash at a time when, owing to a strike or other industrial action affecting a financial institution, cash is not readily available to the employee, the employer concerned shall, if the employee consents, pay the wages by another mode (other than cash) specified in subsection (1) and, if the employee does not so consent, pay them in cash.

(3)An employer who pays wages to an employee otherwise than by a mode specified in subsection (1) or contravenes subsection (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

3. Repeal of Truck Acts, 1831 to 1896, and related enactments.

3.—(1)The enactments specified in column (2) of the Schedule to this Act are hereby repealed to the extent specified in column (3) of that Schedule.

(2)Notwithstanding any provision of this Act—

(a)where, immediately before the commencement of this Act, an employee's wages were being paid to him in cash, the employer shall, while the employee is in the employment concerned, continue to pay those wages to him in cash unless any other mode of payment specified in section 2 is agreed upon by the employer or an organisation representative of employers (of which the employer is a member) and the employee or an organisation representative of employees (of which the employee is a member), and

(b)where, immediately before such commencement, an employee's wages were being paid to him, pursuant to section 3 of the Payment of Wages Act, 1979, by an instrument or mode of payment to which that section applied, then, if after such commencement, the agreement or other arrangement authorising payment of the wages by the instrument or mode aforesaid is terminated in a manner specified in that section, the employer shall pay those wages to him in cash unless any other mode of payment specified in section 2 is agreed upon as aforesaid.

(3)An employer who contravenes subsection (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

4. Statements of wages and deductions from wages.

4.—(1)An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees.

(2)A statement under this section shall be given to the employee concerned—

(a)if the relevant payment is made by a mode specified in section 2 (1) (f), as soon as may be thereafter,

(b)if the payment is made by a mode of payment specified in regulations under section 2 (1) (h), at such time as may be specified in the regulations,

(c)if the payment is made by any other mode of payment, at the time of the payment.

(3)Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(4)An employer who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

4A. F5[Application of sections 4B to 4F.

4A.(1) The Minister may by regulation prescribe an employer or class of employer to whichsections 4B to 4E(in so far as they are in operation) apply, and those sections shall apply to employers or classes of employers so prescribed.

(2) The Minister may by regulation prescribe a person or class of person (whether or not such person is an employer) to whomsection 4F(in so far as it is in operation) applies and that section shall apply to persons or classes of person so prescribed.

(3) When making regulations undersubsection (1), the Minister—

(a) shall have regard to the following:

(i) whether or not employers to which the regulations relate are carrying on a business in the State in relation to which the payment of tips or gratuities by customers typically applies;

(ii) the likely impact of such regulations on employment, either generally or in the particular economic sector to which the regulations relate;

(iii) the impact on the welfare of employees ofsections 4Bto4Enot applying to their employers;

(iv) the need for customers of employers to which the regulations relate to be informed as to how tips or gratuities and mandatory charges paid will be treated;

(v) the need for employees of employers to which the regulations relate to understand how tips or gratuities will be treated;

(vi) the costs, including administrative and financial costs, ofsections 4Bto4Eapplying to the employers to which the regulations relate,

(b) shall consult with—

(i) such organisations as the Minister considers to be representative of the employers to which the regulations relate, or a substantial number of such employers, and

(ii) a person, group or organisation that the Minister considers to be representative of a substantial number of employees of the employers to which the regulations relate,

and

(c) may—

(i) specify employees of employers to which the regulations relate, or classes of such employees, in respect of whom the regulations shall not apply, and

(ii) consult with such persons (if any), other than persons referred to inparagraph (b), as the Minister considers appropriate having regard to the circumstances.

(4) When making regulations undersubsection (2), the Minister—

(a) shall have regard to the following:

(i) whether or not persons to whom the regulations relate are carrying on a business in the State in relation to which the payment of tips or gratuities by customers typically applies;

(ii) the likely impact of such regulations on employment, either generally or in the particular economic sector to which the regulations relate;

(iii) the impact on the welfare of contract workers ofsection 4Fnot applying to the persons in respect of whom they are contract workers;

(iv) the need for customers of persons to whom the regulations relate to be informed as to how tips or gratuities and mandatory charges paid will be treated;

(v) the need for contract workers of persons to whom the regulations relate to understand how tips or gratuities will be treated by the person;

(vi) the costs, including administrative and financial costs, ofsection 4Fapplying to the persons to which the regulations relate,

(b) shall consult with—

(i) such organisations as the Minister considers to be representative of the persons to whom the regulations relate, or a substantial number of such persons, and

(ii) a person, group or organisation that the Minister considers to be representative of a substantial number of contract workers working for such persons, and

(c) may—

(i) specify employees of persons to which the regulations relate, classes of such employees or contract workers in respect of such persons in respect of whom the regulations shall not apply, and

(ii) consult with such persons (if any), other than persons referred to inparagraph (b), as the Minister considers appropriate having regard to the circumstances.]

4B. F6[Treatment of certain tips and gratuities.

4B.(1) An employer to which this section applies shall, in a manner that is fair in the circumstances and in accordance with this Act, distribute to his or her employees any tips or gratuities received by the employer by an electronic mode of payment.

(2) Subject tosubsection (3), an employer shall not retain any share of tips or gratuities received by the employer by an electronic mode of payment.

(3) An employer may only retain a share of tips or gratuities received by the employer by an electronic mode of payment—

(a) in so far as such retention is required or permitted by this Act, or

(b) where that employer—

(i) regularly performs, to a substantial degree, the same work performed by some or all of the employees, and

(ii) retains a share of tips or gratuities received by an electronic mode of payment that is no more than an amount that is fair and reasonable in the circumstances having regard to the amount of such work so performed by that employer.

(4) In considering a complaint under Part 4 of the Workplace Relations Act 2015 regarding whether or not a distribution undersubsection (1)of tips or gratuities to an employee is fair, an adjudication officer shall have regard to all of the factors or circumstances that he or she considers relevant, including—

(a) the seniority or experience of the employee,

(b) the value of sales, income or revenue generated for the business by the employee,

(c) the proportion or number of hours worked by the employee during the pay period in which the tip or gratuity was made,

(d) whether the employee is on a full-time or part-time contract of employment,

(e) the role and influence of the employee in providing service to customers,

(f) whether the employee was consulted in relation to the manner of distribution, and

(g) whether there is an agreement, whether formal or informal, between the employer and the employee providing for the manner in which tips or gratuities are to be distributed.

(5) (a) An employer to which this section applies shall, no later than 10 days from the date on which a distribution of tips or gratuities is made, give or cause to be given to an employee a statement in writing specifying clearly—

(i) the total amount of tips or gratuities distributed by the employer for the period to which the statement relates, and

(ii) the amount of tips or gratuities distributed to the employee to whom the statement is provided.

(b) The employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement underparagraph (a)relates and the statement are treated confidentially by the employer and his or her agents and by any other employees.

(6) Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(7) An employer to which this section applies shall, before establishing or making a material change to its policy on the manner in which tips or gratuities shall be distributed amongst employees, or on the way in which mandatory charges shall be treated, consult with those employees.

(8) An employer who contravenessubsection (5)(a)shall be guilty of an offence and shall be liable on summary conviction to a class C fine.]

4C. F7[Prohibition on certain deductions.

4C.An employer to which this section applies shall not—

(a) without prejudice to the generality ofsection 5(1),make a deduction from an employee’s wages in respect of tips or gratuities made to, or left for, an employee, or

(b) make a deduction from tips or gratuities to be distributed, in accordance withsection 4B, to an employee, other than—

(i) as required by or under this Act, by any other statute or by any instrument made under any statute, or

(ii) to the extent as is fair and reasonable in order to meet costs directly arising from paying tips or gratuities by means of electronic modes of payment.]

4D. F8[Treatment of matters described as service charge.

4D.(1) Where an employer to which this section applies—

(a) describes a charge (including a mandatory charge) imposed on a customer as a "service charge", or any similar or cognate term, whether in a tips and gratuities notice or in any other medium, or

(b) in any other way leads customers to believe that a mandatory charge shall be distributed to employees,