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5 2000

NATIONAL MINIMUM WAGE ACT, 2000

PART 3

National Minimum Hourly Rate of Pay

Declaration and Review of National Minimum Hourly Rate of Pay

National minimum hourly rate of pay

11. —(1) The Minister shall, by order, after taking into account the impact the proposed rate may have on employment, the overall economic conditions in the State and national competitiveness, declare a national minimum hourly rate of pay for the purposes of this Act.

(2) A national minimum hourly rate of pay may include an allowance for board with lodgings, board only or lodgings only at such rates as the Minister may specify in the order under subsection (1).

(3) Subject to sections 12 and 13, the Minister may, by order and after taking into account the matters referred to in subsection (1), amend or revoke an order made under this section, including an order made under this subsection.

National economic agreement recommending national minimum hourly rate of pay.

12. —(1) The Minister shall, from time to time in accordance with this section or section 13 , review the national minimum hourly rate of pay.

(2) Where in the opinion of the Minister there is in existence or proposed a relevant agreement (“national economic agreement”) among economic and social interests in the State which includes a recommendation in relation to the national minimum hourly rate of pay of employees for the duration of the agreement, the Minister shall, within 3 months after being advised of the recommendation, and taking into account the matters referred to in section 11 (1)

(a) accept or vary the recommendation and declare the national minimum hourly rate of pay under section 11 accordingly or amend the order, or

(b) reject the recommendation.

(3) If the Minister varies or rejects a recommendation under subsection (2), the Minister shall, as soon as practicable, make a statement to the Oireachtas giving his or her reasons for that variation or rejection.

Labour Court may recommend national minimum hourly rate of pay where no national economic agreement.

13. —(1) Any organisation claiming to be substantially representative of employees or employers in the State may apply to the Minister for his or her opinion as to whether a relevant national economic agreement exists for the purpose of section 12 .

(2) Where in the opinion of the Minister there is no relevant national economic agreement as referred to in section 12 or, if there is such an agreement, it makes no recommendation in relation to the national minimum hourly rate of pay of employees that should obtain for the duration of the agreement, the Minister shall, in writing, advise the applicant accordingly.

(3) Any organisation which the Labour Court is satisfied is substantially representative of employees or employers in the State may separately or jointly, not earlier than 12 months after the Minister has last declared a national minimum hourly rate of pay of employees under section 11 , request the Labour Court to examine the national minimum hourly rate of pay of employees and make a recommendation to the Minister.

(4) The Labour Court in undertaking an examination as the result of an application under subsection (3), shall consult with such persons, including representatives of employers and employees in the private sector and public sector of the economy, as it thinks appropriate and if it is satisfied that general agreement is reached between the parties as to the appropriate hourly rate of pay of employees, recommend in writing to the Minister that rate accordingly.

(5) If, after the consultations referred to in subsection (4), the Labour Court is satisfied that general agreement between the parties cannot be reached, it may still make a recommendation to the Minister, but in doing so it shall have regard to the following matters:

(a) the movement in earnings of employees since the Minister last declared the national minimum hourly rate of pay under section 11 or amended the order;

(b) relevant exchange rate movement;

(c) the likely impact of any proposed change on—

(i) the level of unemployment and whether it is increasing or decreasing,

(ii) the level of employment and whether it is increasing or decreasing,

(iii) inflation in the economy, and

(iv) national competitiveness.

(6) The procedures of the Labour Court in relation to an application or hearing under this section shall be as determined by the Labour Court.

(7) The Minister shall, within 3 months after receiving a recommendation of the Labour Court under subsection (4) or (5), and after taking into account the matters referred to in section 11 (1), accept or vary the recommendation and declare the national minimum hourly rate of pay under section 11 accordingly, amend the order or reject the recommendation.

(8) If the Minister varies or rejects a recommendation under subsection (7), the Minister shall as soon as practicable make a statement to the Oireachtas giving his or her reasons for the variation or rejection.

Entitlement of Employee to Payment and Sub-minimum Rates

Entitlement to minimum hourly rate of pay.

14. —Subject to sections 17 and 18

(a) an employee who has attained the age of 18 years shall, subject to sections 15, 16 and 41, be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay, and

(b) an employee who has not attained the age of 18 years shall be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than 70 per cent of the national minimum hourly rate of pay.

Rates of pay during first 2 years of employment after entering employment after, or attaining, age of 18 years.

15. —(1) Subject to subsection (2) and sections 16, 17 and 18, a person who—

(a) enters employment for the first time after attaining the age of 18 years, or

(b) having entered into employment before attaining the age of 18 years continues in employment on attaining that age,

shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at an hourly rate of pay that on average is not less than—

(i) in the case of an employee commencing employment for the first time after attaining the age of 18 years—

(I) in his or her first year after having commenced employment, 80 per cent, and

(II) in his or her second year after having commenced employment, 90 per cent,

(ii) in the case of an employee having entered into employment before attaining the age of 18 years and continuing in employment on attaining that age—

(I) in his or her first year after having attained the age of 18 years, 80 per cent, and

(II) in his or her second year after having attained that age, 90 per cent,

of the national minimum hourly rate of pay, notwithstanding that the employee, if he or she has changed his or her employer during the relevant period, may have been remunerated at a higher rate by the previous employer.

(2) In calculating a period of employment for the purpose of subsection (1), any period of employment during which the employee had not attained the age of 18 years shall be ignored.

(3) An employer shall not be liable in a dispute with an employee to whom this section applies as to the applicable rate of pay for the employee if the employer took reasonable steps to obtain detailed information about the employee's employment with any previous employer and paid the employee at an hourly rate in accordance with the information and this section.

(4) This section applies to an employee in circumstances described in subsection (1) (a) or (b) whether he or she entered employment, or continued in employment on attaining the age of 18 years, before or after the commencement of this section, but the employee's entitlement to remuneration as provided for in subsection (1) shall be only in respect of any period remaining after the commencement of this section of the employee's first and/or second year after so entering employment for the first time or, as the case may be, so attaining the age of 18 years and continuing in employment.

Trainee rates.

16. (1)—Subject to subsection (3) and sections 17 and 18, where an employee who has attained the age of 18 years undergoes a course of study or training authorised by the employer within the workplace or elsewhere during normal working hours, such courses or training to be prescribed in regulations made by the Minister, the employee shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at a rate of pay that on average is not less than the following percentages of the national minimum hourly rate of pay:

(a) in respect of the first one-third period (but not exceeding 12 months) of the total study or training period, 75 per cent;

(b) in respect of the second one-third period (but not exceeding 12 months) of the total study or training period, 80 per cent;

(c) in respect of the third one-third period (but not exceeding 12 months) of the total study or training period, 90 per cent. cent.

(2) For the purpose of subsection (1), where a one-third period exceeds 12 months, the next subsequent one-third period shall be deemed to commence on the expiration of the previous period of 12 months.

(3) This section extends to an employee who is undergoing a course of study or training authorised by his or her employer which is subsequently prescribed for the purposes of subsection (1) and who—

(a) had not attained the age of 18 years at the time of the prescribing of the course of study or training, or

(b) had attained the age of 18 years at the time of the commencement of the course of study or training (whether or not he or she commenced that course before or after the commencement of this section),

and the date by reference to which the one-third periods of the total study or training period shall be calculated for the purposes of subsection (1) as so extended is the date (before or after the commencement of this section) on which the employee's period of study or training actually commenced, but the employee shall be entitled to remuneration at the relevant percentage of the national minimum hourly rate of pay, as provided for in subsection (1), only in respect of that part of such one-third period or periods remaining after the date on which—

(i) this section commenced,

(ii) the course of study or training was or is prescribed, or

(iii) the employee attained or attains the age of 18 years,

whichever is the later date.

(4) Subsection (1) does not apply to an employee who has already undertaken, before or after the commencement of this section, a course of study or training that is similar in purpose or content, while employed by the same or a different employer.

Pro-rata entitlement to minimum hourly rate of pay for less than full hour.

17. —The rate of pay that a person is entitled to in accordance with this Part shall be calculated pro-rata in respect of any time that is less than a full hour.

Calculation of Minimum Hourly Rate of Pay

Calculations for purpose of this Part.

18. —(1) Nothing in this Part prevents the deduction from any pay to which an employee is entitled in accordance with this Act, or the payment by an employee to an employer, of any amount permitted in accordance with section 5 of the Payment of Wages Act, 1991 , or any other enactment or instrument made under an enactment.

(2) No such deductions shall be made or payment allowed for in calculating the hourly rate of pay of an employee for the purpose of determining under this Act whether the employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act.

Reckonable and non-reckonable pay components in calculating average hourly rate of pay.

19. —(1) Subject to section 18 , all the pay of an employee in a specific pay reference period shall be included in calculating the employee's average hourly rate of pay in that period for the purposes of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in that period.

(2) Any payments or benefits-in-kind listed in Part 2 of the Schedule are not included as pay of an employee for the purposes of subsection (1).

(3) The Minister may, by regulation, add an item to, delete an item from, or otherwise amend, the Schedule but only after consultation with such representatives of employers and employees in the State as the Minister considers appropriate.

(4) An employer shall not, for the purposes of this Act, change a payment or benefit-in-kind listed as a non-reckonable component of pay as set out in Part 2 of the Schedule so that its status becomes that of a reckonable component of pay as set out in Part 1 of the Schedule.

(5) For the purposes of this section, the amount, if any, that shall be allowed for board with lodgings, board only, and lodgings only in calculating the hourly rate of pay of an employee in a pay reference period shall be the amount declared as such under section 11 .

Method of calculating employee's average hourly rate of pay.

20. —For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled under this Act in a pay reference period, the gross remuneration of the employee calculated in accordance with section 19 shall be divided by the total working hours of the employee in the pay reference period calculated under section 8 .

Payment of amount owed to employee on termination of employment.

21. —To avoid doubt, where the employment of an employee is terminated, the employee shall be paid at not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act in respect of the period commencing on the beginning of the pay reference period in which his or her employment was terminated and ending on the date of that termination.