Protection of Employees (Part-Time Work) Act 2001

PART 1 Preliminary and General

1. Short title, collective citation and construction.

1.—(1) This Act may be cited as the Protection of Employees (Part-Time Work) Act, 2001.

(2) In so far as it relates to the Minimum Notice and Terms of Employment Acts, 1973 and 1984, this Act and those Acts shall be construed together as one and may be cited together as the Minimum Notice and Terms of Employment Acts, 1973 to 2001.

(3) In so far as it relates to the Protection of Employees (Employers’ Insolvency) Acts, 1984 and 1990, this Act and those Acts shall be construed together as one and may be cited together as the Protection of Employees (Employers’ Insolvency) Acts, 1984 to 2001.

(4) In so far as it relates to the Redundancy Payments Acts, 1967 to 1990, this Act and those Acts shall be construed together as one and may be cited together as the Redundancy Payments Acts, 1967 to 2001.

(5) In so far as it relates to the Terms of Employment (Information) Act, 1994, this Act and that Act shall be construed together as one and may be cited together as the Terms of Employment (Information) Acts, 1994 and 2001.

(6) In so far as it relates to the Unfair Dismissals Acts, 1977 to 1993, this Act and those Acts shall be construed together as one and may be cited together as the Unfair Dismissals Acts, 1977 to 2001.

(7) In so far as it relates to the Worker Participation (State Enterprises) Acts, 1977 to 1993, this Act and those Acts shall be construed together as one and may be cited together as the Worker Participation (State Enterprises) Acts, 1977 to 2001.

2. Commencement.

2.—This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

3. Interpretation (generally).

3.—(1) In this Act, unless the context otherwise requires—

“collective agreement” means an agreement by or on behalf of an employer on the one hand, and by or on behalf of a body or bodies representative of the employees to whom the agreement relates on the other hand;

“conditions of employment” includes conditions in respect of remuneration and matters related thereto (and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement);

“contract of employment” means—

(a) a contract of service or 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 the Employment Agency Act, 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 contract is express or implied and, if express, whether it is oral or in writing;

“employee” means a person of any age 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 purposes of this Act, a person holding office under, or in the service of, the State (including 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 Government, as the case may be, and an officer or servant of a local authority for the purposes of the F1[Local Government Act 2001(as amended by the Local Government Reform Act 2014),], or of a harbour authority, F2[or health board, or a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F2[or board], as the case may be;

“employer” means, in relation to an employee, 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 wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

“Framework Agreement” means the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC annexed to Directive 97/81/EC of 15 December, 1997 of the Council of the European Communities;

“Minister” means the Minister for Enterprise, Trade and Employment;

“prescribed” means prescribed by regulations made by the Minister under this Act;

“relevant enactment” means—

(a) the Carer’s Leave Act, 2001,

(b) the Minimum Notice and Terms of Employment Acts, 1973 and 1984,

(c) the Protection of Employees (Employers’ Insolvency) Acts, 1984 and 1990,

(d) the Redundancy Payments Acts, 1967 to 1990,

(e) the Terms of Employment (Information) Act, 1994,

(f) the Unfair Dismissals Acts, 1977 to 1993, or

(g) the Worker Participation (State Enterprises) Acts, 1977 to 1993;

“remuneration”, in relation to an employee, includes—

(a) any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment, and

(b) any amounts the employee will be entitled to receive on foot of any pension scheme or arrangement.

(2) In this Act—

(a) a reference to a Part or section is a reference to a Part or section of this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment (including this Act).

4. Regulations and orders.

4.—(1) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed or for the purpose of enabling any provision of this Act to have full effect.

(2) Regulations under this Act may make different provisions in relation to different classes of employees or employers, different areas or otherwise by reference to the different circumstances of the matter.

(3) A regulation or order under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient.

(4) The Minister may by order amend or revoke an order under this Act (including an order under this subsection).

(5) A regulation or order under this Act (other than an order under section 2) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling that regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

5. Repeal.

5.—The Worker Protection (Regular Part-Time Employees) Act, 1991, is repealed.

6. Expenses.

6.—The expenses incurred by the Minister 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.

PART 2 Part-Time Work and the Rights of Part-Time Employees

7. Interpretation (Part 2).

7.—(1) In this Part—

“agency worker” means an employee whose contract of employment is of the kind mentioned in paragraph (b) of the definition of “contract of employment” in section 3;

“associated employer” shall be construed in accordance with subsection (5);

“comparable employee” shall be construed in accordance with subsection (2);

“full-time employee” means an employee who is not a part-time employee;

“normal hours of work” means, in relation to an employee, the average number of hours worked by the employee each day during a reference period;

“part-time employee” means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her;

“reference period” means a period which complies with the following conditions:

(a) the period is of not less than 7 days nor more than 12 months duration,

(b) the period is the same period by reference to which the normal hours of work of the other employee referred to in the definition of “part-time employee” in this section is determined, and

(c) the number of hours worked by the employee concerned in the period constitutes the normal number of hours worked by the employee in a period of that duration;

“relevant part-time employee” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(4) If the relevant part-time employee is an agency worker then the application of subsection (3) shall not result in any employee, other than another agency worker, being regarded, for the purposes of this Part, as a comparable employee in relation to him or her (and likewise, if the relevant part-time employee is a non-agency worker, the application of that subsection shall not result in an agency worker being regarded, for the purposes of this Part, as a comparable employee in relation to the relevant part-time employee).

(5) For the purposes of this Part, 2 employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.

8. Application of relevant enactments.

8.—Each relevant enactment shall apply to a part-time employee in the same manner, and subject to the like exceptions not inconsistent with this section, as it applies, other than by virtue of this Act, to an employee to whom that enactment relates.

9. Conditions of employment for part-time employees.

9.—(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

10. Proportionate provision of certain conditions of employment.

10.—(1) The extent to which any condition of employment referred to in subsection (2) is provided to a part-time employee for the purposes of complying with section 9(1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable full-time employee concerned.

(2) The condition of employment mentioned in subsection (1) is a condition of employment the amount of the benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by the employee.

(3) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act, 1997.

11. Part-time employees who work on a casual basis.

11.—(1) This section applies to a part-time employee who—

(a) works on a casual basis, and

(b) does not fall within a class of employee prescribed under subsection (7).

(2) Notwithstanding section 9(1), a part-time employee to whom this section applies may, if such less favourable treatment can be justified on objective grounds, be treated, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) For the purposes of this section, a part-time employee shall, at a particular time, be regarded as working on a casual basis if—

(a) at that time—

(i) he or she has been in the continuous service of the employer for a period of less than 13 weeks, and

(ii) that period of service and any previous period of service by him or her with the employer are not of such a nature as could reasonably be regarded as regular or seasonal employment,

or

(b) by virtue of his or her fulfilling, at that time, conditions specified in an approved collective agreement that has effect in relation to him or her, he or she is regarded for the purposes of that agreement as working on such a basis.

(5) In subsection (4)(b), “approved collective agreement” means a collective agreement that stands approved of by the Labour Court under the Schedule to this Act.

(6) For the purposes of subsection (4)(a), the service of an employee in his or her employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of him or her by the employer, or

(b) the employee voluntarily leaving his or her employment.

(7) The Minister shall from time to time cause to be reviewed, in such manner as he or she determines, the operation of this section in relation to part-time employees and may, following such a review, subject to subsection (9), prescribe a class or classes of such employee to be a class or classes of employee to whom this section shall not apply.

(8) In determining the manner in which such a review shall be carried out, the Minister shall consult with such organisations representative of employers, such organisations representative of employees, and such other bodies as the Minister considers appropriate and, before making regulations under this section, the Minister shall consult with such organisations and bodies in relation to the terms of the proposed regulations.

(9) The Minister shall not make regulations under this section unless the results of the review concerned referred to in subsection (7), in the Minister’s opinion, show that there cannot, in ordinary circumstances, be objective grounds for treating the class or classes of employees to whom the regulations relate in a less favourable manner than a comparable full-time employee.

12. Objective grounds for less favourable treatment.

12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) For the avoidance of doubt, a ground which does not constitute an objective ground for the purposes of section 9(2) may be capable of constituting an objective ground for the purposes of section 11(2).

13. Review of obstacles to the performance of part-time work.