S.I. No. 370/1996:

PROTECTION OF EMPLOYMENT ORDER 1996.

PROTECTION OF EMPLOYMENT ORDER 1996.

I, Eithne Fitzgerald, Minister of State at the Department of Enterprise and Employment, in exercise of the powers conferred on me by section 3 (2) of the Protection of Employment Act, 1977 (No. 7 of 1977), and the Enterprise and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1995 (No. 43 of 1995) and for the purposes of implementing Council Directive No. 92/56/EEC of 24 June 1992 amending Directive No. 75/129/EEC on the approximation of the laws of the Member States relating to collective redundancies, hereby order as follows:

1. (1) This Order may be cited as the Protection of Employment Order, 1996.

(2) This Order shall come into effect on the 9th day of December, 1996

2. In this Order:

"the Act" means the Protection of Employment Act, 1977 ;

"the Minister" means the Minister for Enterprise and Employment.

3. The Act is hereby amended as provided in the subsequent Articles of this Order.

4. Section 2(1) is amended as follows:

(a) the definition of "contract of employment" is replaced by the following:

"`contract of employment' means:

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 (No. 27 of 1971), and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contact is express or implied and, if express, whether it is oral or in writing ;",

(b) the definition of "employees' representatives" is replaced by the following:

"`employees' representatives' means a trade union or staff association or a person or persons chosen by the employees likely to be affected by the proposed redundancies to represent them;",

(c) the following definition is added:

"`employer' means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who, under a contract of employment referred to in paragraph (b) of the definition of "contract of employment", is liable to pay the remuneration of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;", and

(d) in the definition of "employee" the words "and `employer" and references to employment shall be construed accordingly" are deleted.

5. Section 6 is replaced by the following:

"6. (1) For the purpose of this Act, `collective redundancies' means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is --

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

(b) at least 10 in an establishment normally employing at least 50 but less than 100 employees,

(c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and

(d) at least 30 in an establishment normally employing 300 or more employees.

(2) For the purpose of calculating the number of redundancies where the number of dismissals is at least 10 in an establishment normally employing more than 20 and less than 100 employees, terminations of a contract of employment which occur to the individual workers concerned shall be assimilated to redundancies provided there are at least 5 redundancies.

(3) In this section `establishment' means an employer or a company or a subsidiary company or a company within a group of companies which can independently effect redundancies.".

6. Section 7 (2) (e) is deleted.

7. In Section 9 (1) the words "representing the employees affected by the proposed redundancies" are deleted.

8. Section 9 (2) (a) is amended by the substitution for "otherwise mitigating their circumstances" of the following:

"mitigating their circumstances by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant".

9. Section 10(2) is amended --

(a) by the substitution for paragraph (c) of the following:

"(c) the number of employees, and description or categories, normally employed,",

(b) by the addition of the following paragraphs:

"(e) the criteria proposed for the selection of the workers to be made redundant, and

(f) the method for calculating any redundancy payments other than those methods set out in the Redundancy Payment Acts, 1967 to 1991, or any other relevant enactment for the time being in force or, subject thereto, in practice.".

10. The Act is amended by the insertion, after section 10, of the following:

"Application of sections 9 and 10.

10A.--Sections 9 and 10 shall apply to an employer irrespective of whether the decision regarding collective redundancies is being taken by the employer or by an undertaking which controls the employer and it shall not be a defence on the part of the employer that the necessary information had not been provided to the employer by a controlling party, or parties, which took the decision leading to the collective redundancies. ".

11. Section 12 is amended by the addition of the following subsection:

"(4) In the case of collective redundancies arising from the employer's business being terminated following bankruptcy or winding up proceedings or for any other reason as a result of a decision of a court of competent jurisdiction the person responsible for the affairs of the business need comply with subsection (1) only if the Minister so requests.".

12. Section 14 is amended by the addition of the following subsection:

"(3) Subsections (1) and (2) shall not apply in the case of collective redundancies arising from the employer's business being terminated following bankruptcy or winding up proceedings or for any other reason as a result of a decision of a court of competent jurisdiction.".

GIVEN under my hand, this 4th day of December 1996

Eithne Fitzgerald

Minister of State at the Department

of Enterprise and Employment.

EXPLANATORY NOTE

The Protection of Employment Act, 1977 , transposed into law Council Directive No. 75/129/EEC on the approximation of the laws of the Member States relating to collective redundancies. This Directive was subsequently amended by Council Directive 92/56/EEC and the purpose of this order is to give effect to those amendments in the 1977 Act.