Protection of Employees (Part-Time Work) Act 2001
The three main aims of Act are these:
- To outlaw any discrimination against part-time workers;
- To ensure that the calibre of part-time employment improves;
- To encourage the development of voluntary part-time work and to enhance the organisation and flexibility of such work.
The terms of the Act are applicable to all part-time employees regardless of the hours they work or their years of employment. Previously there was a stipulation that any part- time employee should have been continuously employed for at least 13 weeks and be employed for at least 8 hours weekly, but these restrictions are no longer applicable. The Act, does however, distinguish between casual and non-casual part-time workers. The former being part-time employees who work on a casual basis, having fewer than 13 weeks continuous service and not regularly or seasonally employed or who are termed ‘casual’ based on a mutual consensus to that effect.
A circumstance which may not have previously been thought of as an objective ground in relation to less favourable treatment of a part-time employee, may now be looked upon more sympathetically in regard to a casual part-time employees – please refer to section 11 of the Act.
A worker’s service in a specific position is considered to be continuous unless the position has been ended by his/her dismissal or voluntary resignation from employment. The sum due for continuous service as stipulated under the Unfair Dismissals and Redundancy Payments legislation, for example is still applicable under the new legislation.
The term ‘part-time employee’ is defined as a member of the work force whose usual hours of attendance at the work place are fewer than the regular hours regarded as ‘full-time’ by workers in his/ her industry.
The Act clearly states that any part-time workers should not be treated less favourably in regard to employment conditions than those enjoyed by full time employers.
There is, however a clause in the Act which states that in specific circumstances a part-time worker may be dealt with less favourably than an equivalent full-time worker where such treatment can be condoned on objective grounds. An objective ground would be one where the circumstances are related to factors other those relevant to the part-time status of the employee.
The law further states that the legal rights of the part-time employee should be in direct proportion to the rights of a full time worker, and relevant compensation should be calculated on a pro rata footing.
Section 9 (1) of the Act outlines an exception to the constraints for discriminatory reasons in relation to pension schemes or arrangements. Section 9(1) states that “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”.
In summary, this clause outlines that the less favourable terms for part time employees may be applicable if their regular hours of work are less than 20% of those of a comparable full time worker. A comparable full time worker is defined as one who is employed by the same employer in a similar role. If there is no full time employee working for that employer, comparison can be made with an employee working in the same industry in a parallel position for another employer.
In some instances comparisons can be instigated in a collective consensus. Additionally one of the following conditions should be applicable:
- The two compared employees should be engaged in similar work in similar conditions insofar as their roles could be interchangeable.
- The differences in the compared employees’ roles should be of such a minimal nature that the result that such differences are effectively insignificant.
- The tasks performed in the workplace by the specific part time worker should be of equal or greater value to those tasks carried out by the comparable full-time employee.
(Section 7(2) and (3) of the Act gives a finite definition of a comparable full-time employee).
The Act also states that the terms of the agreement shall be rendered invalid in instances where it appears to prohibit or constrain the enactment of any part of the Act or is in conflict with any provision of the Act (see section 14 of the Act).
Referral of Complaint
An employee has the right to file a formal complaint to the Rights Commissioner if it appears that his/her employer has refrained from providing the full benefit which the employee is entitled to under the terms of the Act. A notification in writing of the nature of such a complaint must be produced within a period of six (6) months from the date of the alleged misdemeanour. The time limit for filing such a complaint may be extended by a further twelve (12) month period if the Rights Commissioner agrees that failing to produce the complaint within the usual six (6) month period was the result of a valid reason.
The Rights Commissioner has, after due consideration of the case, the jurisdiction to instigate one or more of the following outcomes:
- state that the complaint was or was not valid;
- require that the employer complies with the relevant clause of the Act;
- require the employer to pay compensation to the worker of monies commensurate with the terms of the Act to be calculated in a fair and just manner considering all the circumstances, but not more than two years remuneration in regard to the conditions of employment.
Either party has the right to appeal the decision of the Rights Commissioner to the Labour Court within six (6) weeks of the date that the said decision was made known to the concerned parties.