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5 2000

NATIONAL MINIMUM WAGE ACT, 2000

PART 6

Miscellaneous

Employer in financial difficulty.

41. —(1) The Labour Court may, in accordance with this section, exempt an employer from the obligation to pay an employee or number of employees entitlements otherwise payable to them in accordance with section 14 , not being entitlements to which section 14 (b), 15 or 16 apply.

(2) An exemption under subsection (1) shall be for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.

(3) The Labour Court shall not exempt an employer under subsection (1) if the employer has previously ever been granted an exemption under that subsection.

(4) An employer or employer's representative with the employer's consent may, in the manner and form approved by the Labour Court, apply to the Labour Court for an exemption under subsection (1).

(5) On receiving an application under subsection (4) the Labour Court shall convene a hearing of parties to the application and shall give its decision on the application in writing to the parties.

(6) Before granting an exemption under subsection (1), the Labour Court must be satisfied that—

(a) where the employer employs more than one employee-

(i) the employer has entered into an agreement with the majority of the employees or the representative of the majority of the employees, or

(ii) there is a collective agreement covering the majority of the employees in respect of whom the exemption is sought,

whereby the employees or their representative consent to—

(I) the employer making the application, and

(II) abide by any decision on the application that the Labour Court may make,

(b) where the employer makes an application in respect of a single employee, the employer has entered into an agreement with the employee or the representative of the employee whereby the employee or his or her representative consents to the employer making the application and to abide by any decision on the application that the Labour Court may make,

and that, in either case, the employer cannot pay an entitlement under section 14 to an employee to whom the agreement relates due to the employer not having the ability to pay or being unlikely to be able to pay, to the extent that, if the employer were compelled to pay—

(i) the employee would be likely to be laid-off employment with the employer, or

(ii) the employee's employment would be likely to be terminated.

(7) A decision of the Labour Court to exempt an employer under subsection (1) shall specify

(a) the name and employment positions occupied by employees to whom the exemption applies;

(b) the duration of the exemption; and

(c) the average hourly rate of pay to be paid to the employee or employees during the period of the exemption, and the employee or employees shall be entitled to be paid at not less than that rate accordingly.

(8) Where during the period of an exemption under this section a new employee replaces an employee to whom the exemption relates, the employer may pay the new employee the hourly rate of pay specified by the Labour Court in respect of the former employee and shall, as soon as practicable, notify the Labour Court in writing of the employment of the new employee.

(9) The Labour Court shall establish its own procedures for the hearing of applications, and in relation to incidental matters to be dealt with, under this section.

(10) The Labour Court shall maintain a register of all decisions under this section and shall make the register available for examination by members of the public at such place and reasonable times as it thinks fit.

(11) No appeal shall lie from a decision of the Labour Court under this section except to the High Court on a question of law.

(12) For the purposes of calculating an employee's entitlement to a redundancy payment under the Redundancy Payments Acts, 1967 to 1991, any exemption under this section shall be ignored and the calculation made as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

(13) A payment in lieu of notice to an employee in accordance with the Minimum Notice and Terms of Employment Acts, 1973 to 1991, shall not have regard to any exemption under this section and the payment in lieu of notice shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

(14) A payment from the Social Insurance Fund in accordance with section 6(2)(a)(i) of the Protection of Employees (Employers' Insolvency) Acts, 1984 to 1991, shall not have regard to any exemption under this section and any such payment shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

Act not to derogate from certain provisions of or under Industrial Relations Acts, 1946 to 1990.

42. — The provisions of this Act are in addition to and not in derogation of the Industrial Relations Acts, 1946 to 1990, or—

(a) Employment Regulation Orders, and the enforcement of such Orders, made under those Acts, or

(b) Registered Employment Agreements, and the enforcement of such Agreements, on the register under those Acts on the commencement of this section,

except that where a minimum hourly rate of pay in accordance with this Act is a greater amount than the minimum rate of pay prescribed under an Employment Regulation Order or such a Registered Employment Agreement, the employee's entitlement to pay in accordance with this Act shall prevail.

Repercussive claims.

43. —(1) The Labour Relations Commission or the Labour Court shall not recommend in favour of or endorse a claim or a part of a claim for the improvement in the pay of an employee who has access to any of its services if in the view of the Labour Relations Commission or the Labour Court, as the case may be, the claim or part of the claim is based on the restoration of a pay differential between the employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

(2) The Labour Court shall not by Employment Regulation Order give effect to a proposal which could be submitted to it by a Joint Labour Committee under section 42 of the Industrial Relations Act, 1946 , or section 48 of the Industrial Relations Act, 1990 , if, in the view of the Labour Court, the proposal is based on or partly on the restoration of a pay differential between an employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

(3) The Labour Court shall not register an employment agreement under section 27 of the Industrial Relations Act, 1946 , or vary such an agreement under section 28 of that Act if, in the view of the Labour Court, the agreement or variation, or part of the agreement or variation, is based on or partly on the restoration of a pay differential between an employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

(4) No conciliation or arbitration scheme in the public sector shall recommend in favour or endorse a claim or a part of a claim for the improvement in the pay of an employee who is subject to the scheme if the claim or part of the claim is based on the restoration of a pay differential between the employee and another employee who has secured or is to secure an increase in pay as the result of the passing of this Act.

Amendment of section 3 of Terms of Employment (Information) Act, 1994.

44. — Section 3(1) of the Terms of Employment (Information) Act, 1994 , is amended by the substitution of the following for paragraph (g):

“(g) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,”.

Amendment of section 39 of Organisation of Working Time Act, 1997.

45. Section 39 of the Organisation of Working Time Act, 1997 , is hereby amended by the insertion in the table to subsection (2) of the following after “Minimum Notice and Terms of Employment Acts, 1973 to 1991”:

“National Minimum Wage Act, 2000

Parental Leave Act, 1998”.

Change of ownership of business.

46. — Without prejudice to the generality of the European Communities (Safeguarding of Employee's Rights on Transfer of Undertakings) Regulations, 1980 (S.I. No. 306 of 1980), on the transfer of an undertaking within the meaning of those regulations the transferee shall become liable to an employee in the undertaking to whom this Act applies in respect of any matter under this Act, in the same manner and to the same extent as the transferor immediately before the transfer, as if the transferee has originally entered into the relevant contract of employment or other agreement with the employee.

Extension of Protection of Employees (Employers' Insolvency) Act, 1984.

47. Section 6 of the Protection of Employees (Employers' Insolvency) Act, 1984 , is hereby amended—

(a) in subsection (2)(a)—

(i) by the deletion of “and” from the end of subparagraph (x),

(ii) in subparagraph (xi), by the substitution for “Employment Equality Act, 1977.” of “Employment Equality Act, 1977,”, and

(iii) by the insertion of the following after subparagraph (xi):

“(xii) any amount which an employer is required to pay by virtue of the National Minimum Wage Act, 2000, being an amount by reference to which proceedings have been instituted against the employer for an offence under section 35 of the National Minimum Wage Act, 2000, and

(xiii) any amount which an employer is required to pay by virtue of—

(I) a decision of a rights commissioner under section 26 of the National Minimum Wage Act, 2000, or

(II) a determination of the Labour Court under section 29 of the National Minimum Wage Act, 2000,

and made, in any case, not earlier than the commencement of the relevant period.”,

(b) in subsection (4)(c), by the insertion of the following after subparagraph (vi):

“(vii) A payment shall not be made under this section in respect of an amount to which a decision of a rights commissioner under section 26 of the National Minimum Wage Act, 2000, relates unless—

(I) in case an appeal from the decision to the Labour Court is brought under section 27 of that Act, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

(viii) A payment shall not be made under this section in respect of an amount to which a determination under section 29 of the National Minimum Wage Act, 2000, relates unless—

(I) in case an appeal from the determination is brought to the High Court under section 30 of that Act, the appeal is withdrawn, or

(II) in case there is no appeal, the time for bringing an appeal has expired.”,

and

(c) in subsection (9), in the definition of “the relevant date”, by the substitution for “(x) or (xi) of subsection (2)(a)” of “(x), (xi) or (xiii) of subsection (2)(a)”.

Service of documents.

48. —(1) The service of a notice or other document on a person for the purpose of or in relation to a proceeding under this Act may be effected by delivering it to the person or by sending a copy by prepaid registered post in an envelope addressed to the person at his or her last known residence or place of business in the State.

(2) In the case of a company to which the Companies Act, 1963 , applies, service may be effected by delivering the document to, or by sending it by registered prepaid post in an envelope addressed to the company at its registered office.

(3) In the case of a body corporate to which subsection (2) does not apply or an unincorporated body of persons, the service may be effected by sending a copy of the notice or other document by registered prepaid post in an envelope addressed to the body at any place in the State where the body conducts its business or in such other manner as an originating summons may be served on such a body under the Rules of the Superior Court.

Provisions relating to winding-up and bankruptcy.

49. —(1) There shall be included amoung the debts which, under section 285 of the Companies Act, 1963 , are, in the distribution of the assets of a company being wound-up, to be paid in priority to all other debts, all arrears of pay payable under this Act by a company to an employee, and that Act shall have effect accordingly

(2) There shall be included amoung the debts which, under section 81 of the Bankruptcy Act, 1988 , are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all arrears of pay payable under this Act by the bankrupt or arranging debtor.

(3) Formal proof of the debts to which priority is given under subsection (1) or (2) shall not be required except in cases where it may otherwise be provided by rules or general orders made under the respective Act.

Recovery of money due to employee.

50. —(1) Without prejudice to section 39 , any amount of money due to an employee from his or her employer under or in accordance with this Act shall be recoverable by the employee as a simple contract debt in a court of competent jurisdiction and action for its recovery may be instituted and maintained on behalf of the employee by the employee's trade union, if the employee is a member.

(2) Where in a prosecution for an offence under this Act it appears to a court that money is due by an employer to an employee, and the employer is convicted of that offence, the court may, if it is satisfied that the employer is liable to pay to his or her employee an amount of money, order, in addition to any penalty which it may impose pursuant to this Act, that the employer pay the amount to the employee.