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5 2000

NATIONAL MINIMUM WAGE ACT, 2000

PART 5

Disputes about Entitlement and Enforcement

Hearing of Disputes

Disputes about entitlement to minimum hourly rate of pay.

24. —(1) Without prejudice to any other action that might be brought against an employer under this Act or otherwise, but subject to subsection (2), if an employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged under-payment to the employee, the employee or the employer, or the representative of either of them with their respective consent, may, by notice in writing containing such particulars, if any, as may be prescribed, refer the dispute to a rights commissioner for the rights commissioner's decision.

(2) A dispute cannot be referred to or dealt with by a rights commissioner—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under section 35 .

(3) As soon as practicable after a dispute is referred to him or her, the rights commissioner shall give to the other party to the dispute a copy of the notice of referral.

(4) An inspector shall advise a rights commissioner, on request by the rights commissioner, as to whether the inspector has investigated or is investigating an alleged under-payment the subject of the dispute.

(5) A rights commissioner shall hear the parties to a dispute and any evidence relevant to the dispute offered by them, and otherwise inform himself or herself about the dispute in such manner as prescribed or, if no manner is prescribed, then as the rights commissioner thinks appropriate.

(6) The Minister may, by regulation, prescribe such matters relating to proceedings of the rights commissioner under this section as the Minister thinks appropriate.

(7) The hearing of a dispute shall not be open to the public.

Prohibition of reduction in hours of work of an employee without a concomitant reduction in duties or amount of work.

25. —(1) Where an employee alleges that he or she is being prejudiced by a reduction in his or her hours of work without a concomitant reduction in duties or amount of work, because of an increased liability of the employer resulting from the passing of this Act or the declaration of a national minimum hourly rate of pay, and the employer, within 2 weeks of being so requested by the employee or the employee's representative with the employee's consent, does not restore the employee's working hours to those obtaining immediately before the reduction, the employer and employee shall, for the purposes of section 24 (1), be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee, and sections 24 to 32 (except section 24 (2)), with the necessary modifications, shall apply accordingly.

(2) A dispute cannot be referred to a rights commissioner under subsection (1) if a period of 6 months (or such longer period not exceeding 12 months, as the rights commissioner may allow) has elapsed since the employee's hours of work were reduced or alleged to be reduced.

(3) In proceedings under this section in respect of an allegation under subsection (1), the onus lies with the employer to prove that any reduction in hours of work was not for the purpose of avoiding the alleged increased liability referred to in subsection (1).

Decision of rights commissioner.

26. —(1) The rights commissioner shall, as soon as practicable after hearing a dispute, come to a decision on the dispute, advise the parties, in writing, of the decision and give to the Labour Court a copy of that decision.

(2) A decision of the rights commissioner may—

(a) include an award of—

(i) arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and

(ii) reasonable expenses of the employee in connection with the dispute,

(b) require an employer to remedy, within a specified time (not being later than 6 weeks after the date the decision was communicated to the employer) or in a specific manner, any matter, including the payment of any amount, in respect of which the employer is in breach of this Act,

as the rights commissioner considers appropriate.

(3) A rights commissioner shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours.

Appeal against rights commissioner's decision.

27. —(1) A party to a dispute who is aggrieved by a decision of a rights commissioner under section 26 may, within 6 weeks of the date on which the decision was communicated to the party under section 26 (1), by written notice of appeal containing such particulars, if any, as may be determined by the Labour Court, appeal to the Labour Court against the decision.

(2) As soon as practicable after receiving a notice of appeal, the Labour Court shall give to the other party to the dispute a copy of the notice.

(3) An appeal under this section shall be in the nature of a rehearing and proceedings in the appeal shall be conducted in such manner as the Labour Court thinks appropriate.

Power of Labour Court in relation to evidence.

28. —(1) The Labour Court, in the hearing of an appeal under section 27 , may take evidence on oath or affirmation and for that purpose may cause to be administered oaths to persons attending as witnesses at the hearing.

(2) A person who, on examination on oath or affirmation authorised under this section, wilfully and corruptly gives false evidence or wilfully and corruptly swears anything which is false, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

(3) The Labour Court may, by notice in writing to a person, require the person to attend at such time and place as is specified in the notice to give evidence in relation to the hearing of an appeal or to produce any documents in his or her possession, custody or control which relate to the matter of the hearing.

(4) A person to whom a notice under subsection (3) has been given who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

(5) A document purporting to be signed by the chairperson of the Labour Court and stating that—

(a) a person named in the document was, by notice under subsection (3), required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document,

(b) a sitting of the Labour Court was held on that day and at that time and place, and

(c) the person did not attend before the Labour Court in pursuance of the notice or, having so attended, refused to give evidence or refused or failed to produce the document,

shall, in a prosecution for an offence under subsection (4), be evidence of the matters stated, without further proof.

(6) A witness in a hearing of an appeal before the Labour Court has the same privileges and immunities as a witness before the High Court.

Determination of Labour Court on appeal.

29. —(1) The Labour Court shall, as soon as practicable after hearing an appeal under section 27 , determine the appeal by confirming the decision of the rights commissioner or substituting for that decision any decision of its own that the rights commissioner could have made on the hearing of the dispute.

(2) As soon as practicable after determining an appeal under subsection (1), the Labour Court shall give to the parties to the appeal a copy of the determination.

Referral or appeal to High Court on question of law.

30. —(1) The Minister may, at the request of the Labour Court, refer to the High Court for determination a question of law arising in an appeal under section 27 .

(2) A party to an appeal under section 27 may appeal to the High Court from a determination of the Labour Court but only on a question of law.

Enforcement

Referral of decision of rights commissioner to Labour Court for determination.

31. —(1) Where a decision of a rights commissioner in relation to a dispute under this Act has not been fully complied with by the employer concerned and the time for bringing an appeal against the decision has expired and no such appeal has been brought or if such an appeal has been brought it has been abandoned, the employee concerned may bring the dispute before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision of the rights commissioner.

(2) The bringing of a dispute before the Labour Court under subsection (1) shall be effected by giving to it a notice in writing containing such particulars, if any, as may be determined by the Labour Court.

Enforcement of determination of Labour Court.

32. —(1) A determination of the Labour Court in proceedings under this Act may provide that any matter, including the payment of any amount, in respect of which the employer is in breach of this Act, shall be remedied within a specified time or in a specific manner.

(2) Where a determination of the Labour Court does not specify a date by which a matter in respect of which an employer is in breach of this Act shall be remedied, the determination shall be deemed, for the purposes of this section, to provide that it shall be remedied within 6 weeks from the date on which the determination is communicated to the parties.

(3) If an employer fails to remedy a matter in respect of which he or she is in breach of this Act within the period provided under subsection (1) or (2), the Circuit Court shall, on application to it in that behalf—

(a) by the employee concerned,

(b) with the consent of the employee, by a trade union which holds a negotiating licence under the Trade Union Act, 1941 , of which the employee is a member, or

(c) by the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances, without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to remedy the matter within the time specified or deemed to be specified in, and in accordance with the terms of, the determination.

(4) The reference in subsection (3) to a determination of the Labour Court is a reference to such a determination in relation to which, at the expiration of the time for bringing an appeal, if any, against it, no such appeal has been brought, or if such an appeal has been brought it has been abandoned, and the reference in subsection (2) to the date on which the determination is communicated to the parties shall, in a case where an appeal is abandoned, be construed as a reference to the date of such abandonment.

(5) The Circuit Court may, in an order under this section, if in all the circumstances it considers it appropriate to do so, where the order relates to arrears of pay, direct the employer concerned to pay to the employee concerned interest on the arrears at the rate referred to in section 22 of the Courts Act, 1981 , in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(6) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, business or occupation.

(7) In proceedings under this section every document purporting to be issued by the Labour Court and sealed with its official seal, is to be received in evidence without further proof.

Inspectors and Inspections

Inspectors and their powers.

33. —(1) The Minister may, in writing, appoint as many persons as the Minister thinks appropriate to be inspectors for the purposes of this Act.

(2) Subject to this section, an inspector may do all or any of the following things for the purposes of this Act—

(a) enter at all reasonable times any premises or place where the inspector believes on reasonable grounds that—

(i) an employee is employed in work; or

(ii) the work that an employee is employed to do is directed or controlled,

(b) make such examination or enquiry as may be necessary for ascertaining whether this Act is being complied with in respect of an employee employed in those premises or that place or an employee whose work is directed or controlled from the premises or place,

(c) require the employer of an employee, or the representative of the employer, to produce to the inspector any records the employer is required to keep and inspect and take copies of entries in the records (including in the case of information in a non-legible form a copy of or an extract from that information in a permanent legible form),

(d) require any person the inspector believes on reasonable grounds to be or to have been an employee or the employer of an employee to furnish such information as the inspector may reasonably request,

(e) examine with regard to any matters under this Act any person the inspector has reasonable cause to believe to be or to have been an employer or employee and require the person to answer such questions (other than questions tending to incriminate the person) as the inspector may put relative to those matters and to sign a declaration of the truth of the answers.

(3) An inspector shall not, except with the consent of the occupier, enter a private dwelling (other than a part of the dwelling used as a place of work) unless he or she has obtained a warrant from the District Court under subsection (6) authorising the entry.

(4) Where an inspector in attempting to exercise his or her powers under this section is prevented from entering any premises, he or she may apply under subsection (6) for a warrant authorising the entry.

(5) An inspector, where he or she considers it necessary to be so accompanied, may be accompanied by a member of the Garda Síochána when exercising a power conferred on an inspector by this section.

(6) If a judge of the District Court is satisfied on the sworn information of an inspector that there are reasonable grounds for suspecting that information required by an inspector under this section is held on any premises or any part of premises, the judge may issue a warrant authorising an inspector accompanied by other inspectors or a member of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production, if so requested, of the warrant, to enter the premises (if need be by the use of reasonable force) and exercise all or any of the powers conferred on an inspector under subsection (2).

(7) A person who—

(a) obstructs or impedes an inspector in the exercise of any of the powers conferred on an inspector under this section,

(b) refuses to produce a record which an inspector lawfully requires the person to produce,

(c) produces or causes to be produced, or knowingly allows to be produced, to an inspector a record which is false or misleading in a material respect, knowing it to be false or misleading,

(d) gives to an inspector information which is false or misleading in a material respect knowing it to be false or misleading, or

(e) fails or refuses to comply with a lawful requirement of an inspector under subsection (2),

shall be guilty of an offence.

(8) Every inspector shall be furnished by the Minister with a certificate of his or her appointment and, on applying for admission to any premises or place for the purposes of this Act, shall, if requested by a person affected, produce the certificate or a copy of the certificate to that person.

Investigation of allegation or matter by inspector.

34. —(1) Where an employee alleges that his or her employer has failed to remunerate the employee to an extent required in accordance with this Act, the employee or the employee's representative with the consent of the employee, may request an inspector to investigate the allegation.

(2) An inspector may, on the request or on behalf of an employee under subsection (1), or of the inspector's own motion if the inspector believes that an under-payment of pay to an employee has been made, investigate the allegation or matter and, where the investigation is on the request or behalf of an employee, advise the employee of the outcome of the investigation.

(3) Subject to subsection (5), an inspector shall, on the request for advice under section 39 by the Minister, investigate the matter on which the advice is sought and advise the Minister accordingly.

(4) Where after investigating an allegation or matter under this section an inspector is satisfied that an offence under this Act has been committed, or when so requested by the Minister, the inspector shall furnish a report on his or her investigation to the Minister.

(5) An inspector shall not investigate an allegation or matter—

(a) in relation to a dispute which has been referred to a rights commissioner under section 24 (and shall cease any investigation he or she has commenced on becoming aware of any such referral); or

(b) involving payments made or alleged entitlements arising more than 3 years before the date of the inspection or proposed inspection.

(6) A rights commissioner shall, at the request of an inspector, inform the inspector as to whether a particular dispute has been referred to the rights commissioner under section 24 .

Offences and Enforcement

Offence to refuse or fail to pay minimum hourly rate of pay.

35. —(1) An employer who refuses or fails to remunerate an employee for each working hour or part of a working hour in any pay reference period at an hourly rate of pay that on average is not less than the employee's entitlement to the minimum hourly rate of pay in accordance with this Act shall be guilty of an offence.

(2) Where the employer charged is found guilty of an offence under this section, evidence may be given of any like contravention on the part of the employer in respect of any period during the 3 years immediately preceding the date of the offence.

(3) In proceedings against a person under subsection (1), it shall lie with the person to prove that he or she has paid or allowed pay of not less than the amount he or she was required to pay or allow in accordance with this Act.

Prohibition of victimisation of employee by employer.

36. —(1) An employer shall not cause or suffer any action prejudicial to an employee for the employee having—

(a) exercised or having proposed to exercise a right under this Act,

(b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or

(c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay.

(2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977 , except that it is not necessary for the employee to have at least one year's continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991 , were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly.

(3) Where an employee alleges he or she has suffered an action prejudicial to the employee in contravention of subsection (1) and the employer, within 2 weeks of being so requested by the employee or the employee's representative with the employee's consent, does not restore the employee to conditions of employment he or she enjoyed immediately before suffering the alleged prejudicial action, the employer and the employee shall, for the purposes of section 24 (1), be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act, resulting in an alleged underpayment to the employee, and sections 24 to 32 (except section 24 (2)), with the necessary modifications, shall apply accordingly.

(4) A dispute cannot be referred to a rights commissioner in pursuance of subsection (3) if a period of 6 months (or such longer period not exceeding 12 months, as the rights commissioner may allow) has elapsed since the employer's alleged prejudicial action referred to in subsection (1).

Penalties and proceedings.

37. —(1) A person guilty of an offence under this Act for which no penalty, other than under this section, is provided shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months, or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years, or to both the fine and the imprisonment.

(2) If the offence of which a person was convicted is continued after conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding £200 or on conviction on indictment to a fine not exceeding £1,000.

(3) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person (as well as the body corporate) shall be guilty of an offence and be liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.

(4) Proceedings in relation to a summary offence under this Act may be prosecuted by the Minister.

(5) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under this Act may be instituted within 12 months from the date of the discovery of the offence.

Defence for employer in proceedings.

38. —It shall be a defence in proceedings for an offence under this Act by an employer if the employer proves that he or she exercised due diligence and took reasonable precautions to ensure that this Act and any relevant regulations made under it were complied with by the employer and any person under his or her control.

Civil proceedings.

39. —(1) Where an employer has not paid to an employee an amount of pay to which the employee is entitled in accordance with this Act and, in respect of that amount no dispute has been referred to a rights commissioner under section 24 or allegation referred to an inspector under section 34 for investigation, and, in the opinion of the Minister, it is not reasonable in the circumstances to expect the employee, or the representative of the employee with the employee's consent, to either refer a dispute or allegation, or to institute civil proceedings for the recovery of the amount, the Minister may request an inspector to advise the Minister whether or not, in the inspector's opinion, civil proceedings should be instituted by the Minister on behalf and in the name of the employee.

(2) After considering the advice of an inspector requested under subsection (1), the Minister may, in his or her absolute discretion, institute or refrain from instituting civil proceeding in the name of the employee for the recovery of the amount.

(3) In proceedings under subsection (2) the employee shall not be liable for costs but the court before which the proceedings are brought may order that any costs that might otherwise have been awarded against the employee shall be paid by the Minister.

(4) The power given by subsection (2) shall not be in derogation of any right of an employee to institute civil proceedings on the employee's own behalf.

Employee's entitlements not affected by conditions of contract of employment contravening certain Acts.

40. —(1) Where a term or condition of the contract of employment concerned contravenes the Taxes Consolidation Act, 1997 , or the Social Welfare Acts, the employee concerned shall, notwithstanding the contravention, be entitled to redress under this Act for any under-payment of an amount of pay to which he or she would otherwise be entitled under this Act.

(2) Where, in proceedings under this Act, it is shown that a term or condition of a contract of employment contravenes the Taxes Consolidation Act, 1997, or the Social Welfare Acts, the rights commissioner, the Labour Court, an inspector or the Circuit Court, as the case may be, shall notify the Revenue Commissioners or the Minister for Social, Community and Family Affairs, as may be appropriate, of the matter.