Transparent and Predictable Working Conditions Regulations 2022 signed into law
In an unexpected and somewhat low-key move, the Government implemented Ireland’s obligations under EU Directive 2019/1152 on transparent and predictable working conditions on 16 December 2022 by signing into law the European Union (Transparent and Predictable Working Conditions) Regulations 2022.
All employers need to be aware of the changes effected by this legislation. The Regulations create new employee rights and amend employers’ obligations under the Terms of the Employment (Information) Act 1994, the Organisation of Working Time Act 1997 and the Protection of Employees (Fixed-Term Work) Act 2003.
The Regulations apply to all employees in Ireland with limited exceptions, such as employees with less than four consecutive weeks’ service or working hours that amount to an average of 3 hours or less per week.
The general written statement of terms of employment that employers must provide to employees must now be provided not later than 1 month after commencement of employment. In addition, the information that must be provided by employers within 5 days of the employment starting and and within 1 month, has been altered.
The written statement of employment must be:
- signed and dated by the employer,
- in writing, and
- transmitted on paper or in electronic form provided the information is accessible to the employee, can be stored and printed and that the employer retains proof of transmission or receipt.
Whenever there is any change to an employees terms, the employer must notify the employee in writing of the changes no later than the day on which the change takes effect.
Probationary periods
Significant changes have been made as regards probationary periods. Probationary periods now cannot exceed 6 months except on an exceptional basis and even then cannot be longer than 12 months where this would be in the interest of the employee.
An interesting change is the express confirmation that a probationary period may be extended by the duration of employee absence.
Where an employee (other than a public servant) is subject to a probationary period exceeding 6 months and the employee has completed at least 6 months service, the probationary period will expire on the earlier of:
- the date on which the probationary period was due to expire, or
- 1 February 2023.
Finally, in this area, the Regulations amend the Protection of Employees (Fixed-Term Work) Act 2003 to provide that any probationary period in a fixed-term contract must be proportionate to the duration of the fixed-term contract and the nature of the work. Renewed or extended fixed-term contracts (for the same work) must not be subject to a probationary period.
Parallel employment & “incompatibility restrictions”
The Regulations provide that an employer must not:
- prohibit an employee from taking up employment with another employer, outside the work schedule established with the first employer, or
- subject an employee to adverse treatment for taking up employment with another employer.
An employer may restrict an employee from taking up employment with another employer where the restriction is proportionate and is based on objective grounds. Where an employer imposes an “incompatibility restriction”:
- details of the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based) must be included in the contract, or
- the employer must provide a statement in writing setting out the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based).
The list of objective grounds provided in the Regulations includes health and safety, the protection of business confidentiality, avoidance of conflicts of interests, etc.
Employment outside the State and Changes for Posted workers
The Regulations also contain a new obligation in relation to information to be provided to posted workers. Where an employee is a posted worker (within the meaning of the European Union (Posting of Workers) Regulations 2016), the employer must give the employee the following additional particulars:
- the remuneration to which the employee is entitled in accordance with the applicable law of the host Member State,
- any allowances specific to posting and any arrangements for reimbursing expenditure on travel, board and lodging, and
- the link to the single official national website (Internal Market Information System) developed by the host Member State pursuant to the IMI Regulation (Regulation (EU) No 1024/2012).
The Regulations also increase the information that must be provided to employees who are required to work outside the State for a period of not less than 1 month. The employer now must also give the employee details of the the country or countries in which the work outside the State is to be performed.
Right to request transfer to more predictable and secure working conditions
An employee who has been in the continuous service of an employer for not less than 6 months and has completed their probationary period (if any) may once, in any 12 month period, request a form of employment with more predictable and secure working conditions where available. An employer must provide a reasoned written reply within one month of receipt of any such request. Employers may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged.
Mandatory training
Where an employer is required by law or by a collective agreement to provide training to an employee so that they can carry out their role, such training must:
- be provided to the employee free of cost,
- count as working time, and
- where possible, take place during working hours.
Collective Agreements/REAs
The Regulations are disapplied in respect of probationary periods, the right to seek additional (parallel) employment, the right to request transfer to employment with more predictable and secure working conditions and work-related training, where the employment in question is governed by a collective agreement approved of by the Labour Court or a Registered Employment Agreement.
The Directive aims at improving working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. It expands the information required to be given to an employee on commencing employment and introduces new provisions including the ability to request transition to another form of employment with more predictable and secure working conditions (Article 12) and, the right to receive mandatory training (Article 13). Minister Damien English