NERA Inspection and HR Compliance

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This "Brief Guide" give information on employment records which need to be retained in the Republic of Ireland as well as what the National Employment Rights Agency (NERA) inspect. This document can be downloaded at http://www.collierbroderick.ie/Services/HR%20Compliance/HR%20Audit.asp

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NERA Inspection and HR Compliance

  1. 1. Brief Guide to Records Required for NERA Inspections (This is a brief guide only and should not be considered as a comprehensive guide to NERA Inspections) Page 1 of 6
  2. 2. Prepared by CollierBroderick Management Consultants Tel: +353 1 8666426 Fax: +353 1 8666457 E-mail: enquiries@collierbroderick.ie Web: www.collierbroderick.ie Disclaimer Whilst every care has been taken by CollierBroderick Management Consultants to ensure that the information contained in this guide is accurate and up-to-date, as the guide is for information purposes, the contents of these pages should not be relied upon as a substitute for your own independent HR or legal advice. We recommend that you always consult a suitably qualified HR or legal professional on any specific matter before relying on any information in this guide. No responsibility or liability is accepted by or on behalf of CollierBroderick Management Consultants or anyone associated with its production for any errors or omissions in the guide, nor for any use the information may be put to. P age 2 of 6
  3. 3. A Guide to Records Required for NERA Inspections Introduction The National Employment Rights Authority (NERA) was established under the Social Partnership Agreement "Towards 2016” to achieve a national culture of employment rights compliance. NERA provides information to employees and employers through its information unit, monitors employment conditions through its inspection services and can enforce compliance and seek redress. Since the establishment of NERA, the number of Labour Inspectors has increased substantially with approximately 90 NERA Inspectors carrying out inspections today. With this increase, it is only a matter of time before all Company’s receive a visit from NERA and are checked for their compliance with employment legislation. Records Required for NERA Inspections Although there is a lot of literature out there which claims to have a ‘comprehensive checklist’ of what records you require when you are inspected by NERA, it is important to note that no-one can give you a full list of everything NERA require – even NERA. In fact, until NERA is fully established in the next few months, a complete list of everything required for inspections as directed by NERA will not be available. That said, below is a list of records which should be retained by the Company so as to ensure that it meets current NERA guidelines and the requirements of various pieces of employment legislation and Codes of Practice. 1. Employer registration number with the Revenue Commissioners 2. Full Name, Address and PPS Number for each employee (full-time and part-time) 3. Terms of employment for each employee. In other words, the Company should hold a written Statement of Terms of Employment of a Contract of Employment for each employee which contains all terms and conditions dictated by the Terms of Employment (Information) Act, 1994 (e.g. place of work, hours of work, date of commencement, date of termination of contract [if it is a fixed-term Contract of Employment], terms and conditions relating to leave, etc) and the SI/49/1998 - Terms of Employment (Additional Information) Order, 1998 (i.e.. particulars of times and duration of rest breaks being allowed to the employee as well as any other terms and conditions relating to those rest breaks). 4. Details of all employees job classification. 5. Details of annual leave and public holiday entitlements received by each employee. 6. Hours of work for each employee, including starting and finishing times, meal breaks and rest periods, so as to ensure that the Company is in compliance with the provisions of the Organisation of Working Time Act, 1997. It is important to note in this case a number of points: P age 3 of 6
  4. 4. Records on working hours must be retained for at least 3 years. Employees may be interviewed by the NERA Inspector so as to confirm that the record of working hours is true and accurate. The Organisation of Working Time (Records)(Prescribed Form and Exemption) Regulations, 2001 stipulate that a Company should keep, for all employees: - Detailed records of the days and total hours worked in each week; - Leave taken by the employee by way of annual leave and public holidays, and the payment received in respect of that leave; - Any “additional days pay” paid to an employee in respect of public holidays. Note: It is not adequate for a Company to only maintain records of the number of hours each employee works per day / week as this does not allow the NERA Inspector to check if an employee received a 15 minute break after 4.5 hours and a 30 minute break after 6 hours, if the employee received a break of 11 consecutive hours between working days and a break of 24 consecutive hours per week, etc. An employer is not obliged to keep a record of rest breaks for employees who determine their own working time. An employer is exempt from keeping a record of rest breaks for employees if he / she uses an electronic record-keeping facility or manual record keeping facilities such as Form OWT1 and: - Notifies all employees in writing of their statutory daily and weekly rest break, and - Implements procedures which employees can use to notify the Company should they miss their scheduled statutory rest period. 7. Payroll details such as Gross to Net, Rate per hour, Overtime, Deductions, Shift and other Premiums and Allowances, Commissions and Bonuses, Service Charges, etc. It may seem unusual that NERA may wish the Company to produce these records, however, these records will be used to ensure, among other things, that the Company is paying employees above the minimum rate, are deducting appropriate levels of tax and PRSI, etc. 8. Copies of payslips to show that the Company is compliant with the Payment of Wages Act, 1991. 9. So as to comply with the Protection of Employees (Young Persons) Act, 1996, a register of employees who are under 18 years as well as: A copy of the birth certificate or other evidence of age; The written permission of a parent or guardian of the child; details of the child’s starting and finishing times and wages rate. In addition to the above, to comply with the Protection of Employees (Young Persons) Act, 1996 the Company must give a copy of the official summary of the Protection of Employees (Young Persons) Act to all employees under 18 years of age as well as P age 4 of 6
  5. 5. display the prescribed abstract of the Act at the place of work in a place where it can be easily read by those under the age of 18. 10. Whether board and / or lodgings are provided and relevant details if they were. 11. “Any documentation necessary to demonstrate compliance with employment rights legislation”. Such documentation may include: Documentation which shows compliance with any Employment Regulation Order (ERO) or Registered Employment Agreement (REA) which may dictate terms and conditions of certain employees within the Company. Documentation which shows compliance with any non-registered collective agreement. Documentation which shows compliance with any determination made by the Employment Appeals Tribunal (EAT), Labour Court or Equality Tribunal. Documentation which shows compliance with National Pay Agreements. Discipline and Grievance policies including proof that these policies were given to all employees. Under the Code of Practice SI/146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 best practice is to have written Discipline and Grievance policies. In addition, under the Unfair Dismissals Acts, 1977-2001 an employee must receive a copy of the disciplinary policy within 28 days of commencing employment and thus, the Company must be able to produce evidence that each employee received a copy of this policy. Penalties In addition to the various penalties and fines for breaches of employment legislation (please see individual acts for more details on this), according to the Employment Law Compliance Bill, 2008 which will officially establish NERA when it is enacted, penalties and fines which NERA Inspectors can impose can be up to €5,000 and / or 12 months' imprisonment for summary offences and up to €250,000 and / or 3 years' imprisonment for indictable offences. In addition, where applicable, the NERA Inspector may order for issues to be rectified and backdated for a period of up to 3 years (e.g. If a Company has been paying below the minimum wage or minimum rate of pay as set by a registered collective agreement, the NERA Inspector may order for this situation to be rectified and for monies owed to be paid). P age 5 of 6
  6. 6. For Consultation Services relating to Internal HR Audits, Employment Law Contracts of Employment, Policies and Procedures and Employee Handbooks Contact Helena Broderick Managing Consultant Tel: +353 1 8666426 E-mail: hbroderick@collierbroderick.ie Services are available nationwide through our team of experienced HR practitioners and employment law consultants Web: www.collierbroderick.ie P age 6 of 6

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