Section 26 provides for inspectors to be appointed and Section 27 gives these inspectors broad powers to enter places of employment and to inspect and/or remove documents, books and records. Further an inspector can require any person at the premises to give information and or assistance and also to make a declaration of truth as to this information.
Inspectors have the power to carry out employment rights compliance inspections in relation to the following legislation:
- Organisation of Working Time Act 1997
- Payment of Wages Act 1991
- Protection of Young Persons (Employment) Act 1996
- National Minimum Wage Act 2000
- Parental Leave Acts 1998 and 2006
- Redundancy Payments Acts 1967–2012
- Employment Agency Act 1971
- Protection of Employment Act 1977–2007
- Protection of Employees (Employers’ Insolvency) Acts 1984–2003
- Carer’s Leave Act 2001
- Employees (Provision of Information and Consultation) Act 2006
- Employment Permits Acts 2003–2014
Inspectors are empowered to work in Joint Investigation Units with the Department of Social Protection and the Revenue Commissioners, and to exchange information with these bodies. Although inspectors can enter a workplace, they cannot enter a “dwelling” unless there is consent or via a warrant under Section 27, sub-section 4. Section 27 also creates an offence of obstructing and/or interfering with an inspector or member of an Garda Siochana and failing or refusing to comply with requirement of an inspector or a member of an Garda Siochana under Section 27, sub-section 1 paragraphs (d) to (f).
See: Section 27
Section 28 Compliance Notices
Section 28 of the Act provides for the new procedure of serving compliance notices on employers. An inspector may serve a compliance notice on an employer if satisfied that a contravention of the relevant legislation has occurred. This notice specifies how that contravention is to be rectified. The Compliance Notice is essentially a direction from an inspector to an employer to do or refrain from doing certain things.
Compliance notices may be used in relation to breaches of the legislation listed in Schedule 4 of the Workplace Relations Act 2015. The following pieces of legislation are listed in Schedule 4:
Unfair Dismissals Act 1977 – Section 14(1), (2) and (4)
Payment of Wages Act 1991 Section 5
Maternity Protection Act 1994 Section 18
Organisation of Working Time Act 1997 Sections 6(2), 11, 12, 13, 14(1), 15(1), 16(2), 17, 18, 19(1), 19(1A), 21, 22 and 23(1) and (2)
Carer’s Leave Act 2001 – Section 13(2)
Protection of Employees (Temporary Agency Work) Act 2012 – Section 14
An employer has the right to appeal against the compliance notice to the Labour Court within 42 days and there is a further appeal from the decision of the Labour Court to the Circuit Court. It is now an offence for an employer to fail to comply with a compliance notice.
Employers should note that even if they are served with a compliance notice this does not prevent employees from taking action in relation to any alleged breach of employment law in respect of them.
Compliance Notices have triggered some controversy. While they are novel for the most part, it is important to bear in mind that they can only be issued under five pieces of legislation.
Section 36 – Fixed payment notices
Section 36 of the Act provides for using fixed payment notices for certain offences, which is also a new procedure. Inspectors may issue fixed payment notices for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence. The fine must be paid within 42 days. There is no option to appeal a Fixed Payment Notice. If an employer disputes it, they would simply not pay it and defend the resulting prosecution.
The offences are as follows:
- Breaches of the obligation on employers to consult representatives of employees and to provide information to them under the Protection of Employment Act 1977 (Section.11: Consultation of employees on collective redundancies)
- Failure to provide a statement of wages and deductions from wages under the Payment of Wages Act 1991 (Section 4)
- Failure to provide an employee with a statement of the average hourly rate of pay for a pay reference period – Section 23 of the National Minimum Wage Act 2000