Protection of Young Persons (Employment) Act, 1996
The Protection of Young Persons (Employment) Act, 1996 came into Irish Law in January 1997 and repealed the protection of Young Persons (Employment)Act, 1977.
The Act is designed to protect young workers and to ensure that a young person’s education is not put at risk during their school years.
The main thrust of the Act is to set out restrictions on hours of work and minimum rest requirements for children and young people.
Essentially the Act sets out minimum age limits for employment, rest intervals, maximum working hours, prohibits the employment of under 18s on late night work and sets down specified record-keeping regulations for young workers.
The Act generally applies to employees under 18 years of age but makes a specific definition between ‘child’ and ‘young person’. Under the Act a ‘child’ is classified as a person who has not reached 16 years of age whereas a ‘young person’ is a person who has reached 16 but not yet reached 18 years of age.
The Act however does allow children under 16 to be employed in film, cultural, sport or advertising under a licence issued by the Department of Enterprise, Trade and Employment which in turn sets out specific protection for such work.
The full provisions of the Act do not apply to:
a)employment of close relatives
b)employment in fishing, shipping or the defence forces.
The Act sets the minimum age for employment for Under 16sas follows:
14 and 15 year olds may be employed carrying out light work only during school holidays, or for 15 year olds only, during the school term or as part of an approved work experience programme. The Act specifies that such work must not be harmful to their health or safety.
Provisions for Under 16’s are as follows:
Maximum Working Time:
14 year olds15 year olds
Term-time:no employment8 hours per week
Work Experience:40 hours40 hours
The Act also sets limits on the maximum working day. Where the maximum week is 35 hours, the maximum day is 7 hours and where the maximum week is 40 hours the maximum day is set at 8 hours.
During the summer holidays, under 16s must have at least 21 days free from any work.
Rest Breaks for Under 16s
4 hours half hour rest break
Daily rest break14 consecutive hours off
Weekly rest break2 days off, (as far as practicable must be consecutive)
Provisions for 16 and 17 year olds as follows:
Maximum Working Time:
Maximum working day8 hours
Maximum working week40 hours
Half hour rest breakafter 4.5 hours work
Daily rest break12 consecutive hours off
Weekly rest break2 days off (as far as practicable must be consecutive)
The Act also sets down limits on Night Work and Early Morning Work as follows
Under 16s not before 8am or after 8pm
*16 and 17 Year oldsnot before 6am or after 10pm
*Following Ministerial approval 16 and 17 year olds may work up to 11pm at night during school holidays and on weekend nights where there is no school the next day. When availed of the early morning ban then moves forward to 7pm. In order to comply with this Regulation a Code of Practice concerning the Employment of Young Persons in Licensed Premises has been drawn up which lays down criteria which an employer must abide by in order to remain compliant. The general principles and provisions of the Code of Practice have been detailed at the end of this memo.
A second regulation concerning the employment of 16 and 17 year olds employed as bar apprentices has also been ratified. This concerns a bar apprentice who is employed in a full-time capacity in a licensed premises. As such he/she may work up to midnight on any one day but not before 8am on the following day. The young person must be supervised by an adult.
Prohibition on Double Employment: where someone under 18 works for more than one employer the combined daily or weekly hours cannot exceed the maximum hours set out for each category of employee as defined above. Any employer, parent or 16 and 17 year old who helps breech this regulation may commit an offence.
Employment on Work Experience or Training Programmes: a person aged 15 may be employed as part of an approved training programme, and an employer may employ a 14 or 15 year old who is a full-time secondary student as part of work experience or an educational programme. As outlined above these placements are for a maximum of 8 hours pay day or 40 hours per week.
Safety, Health and Welfare at Work: Under the Act, employers are obliged to carry out any additional risk assessments in the workplace and to take any preventative measures necessary.
Duty of the employer: An employer is obliged to maintain specific records under the Act.
- Before employing a ‘young person’ or ‘child’ an employer must acquire a copy of the birth certificate or satisfactory evidence of age.
- An employer must obtain written permission from a parent or guardian.
- A register with the following details must be maintained
- Full name
- Date of birth
- Starting and finishing times of work
- Wage rate and total wages paid to each employee
The above records must be kept at the place of work for a period of 3 years.
Display of the Act: Such an employer must display the prescribed abstract of the Act at place of work of the employees, and in such a place where it can be easily read. A copy of this abstract (in poster format) may be obtained from the Department of Enterprise, Trade and Employment (DETE). Employers are also obliged to give a copy of the official summary of the Protection of Young Persons (Employment) Act to all appropriate employees.
Offences & Penalties: The Minister can make a summary prosecution for any offence under the Act. An employee’s Trade Union may also take a summary prosecution for offences other than those under Section 19 (conduct of an employer at an Employment Appeals Tribunal) for Section 22 (obstruction of inspectors etc) of the Act.
Proceedings for an offence may be initiated within 12 months of the date of the offence. A person found guilty of committing an offence under the Act can be ordered to pay a fine of up to €1,904.61 and any extra contraventions can attract a fine of up to €317.43 per day.
Complaints and Inspections: Any complaints may be made to the DETE which authorises Inspectors to enter any place of work where they have reasonable grounds for supposing that an offence is being committed and to request any relevant information. Such inspectors are not required to reveal whether the inspection is on foot of a complaint or whether it is a routine inspection.
Complaints of Sections 13 and Section 17 of the Act may be made by a parent or guardian of the ‘child’ or ‘young person’ to the Rights Commissioner. Section 13 stipulates that where the hours of work are altered in order to comply with the provisions of the Act, the existing rate of pay and conditions of employment must be preserved and that any agreement in force which regulates the rate of pay shall remain unaffected. Section 17 of the Act states that an employer may not penalise an employee who refuses to co-operate in breaching the Act.
Such complaints may be made to the Rights Commissioner on an appropriate form available from the DETE and must be made within 6 months from alleged date of contravention.
Upon receipt of such complaint a Rights Commissioner will give both parties an opportunity to be heard by him/her. A Rights Commissioner will then respond (in writing) to both parties and will either:
- Accept or reject the complaint
- Order the employer to take a specific course of action
- Order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all circumstances.
Appeals from Recommendations of Rights Commissioner: Appeals may be made to the Employment Appeals Tribunal (EAT) within 6 weeks of the date of the recommendation. The EAT will then notify the other party in order that they will have the opportunity to present any further evidence. The EAT will then issue a written determination which will either affirm, vary or set aside the previous recommendation of the Rights Commissioner.
Where an employer does not implement either the recommendation of the Rights Commissioner (where no appeal has been lodged) or the determination from an EAT, the employer may be ordered before the District Court. This Court has the authority to compel compliance without a re-hearing. An employer may also be ordered to pay interest on any financial compensation awarded.
Either side may appeal a EAT Determination to the High Court on a point of law and the Minister may at the request of the Tribunal refer a question of law to the High Court for determination.
Code of Practise Concerning the Employment of Young Persons in Licensed Premises
Additional regulations concerning the Employment of Young Persons in Licensed Premises, in accordance with the Protections of Young Persons (Employment) Act, 1996 have been put into place by means of Statutory Instrument (S.I. No. 350/2001).
These additional regulations permit ‘young persons’ (16 and 17 year olds) to work beyond 10pm in certain circumstances.
These additional regulations permit employers to employ a young person of 16 or 17 years of age to work in a licensed premises, carrying out general duties until 11pm where that day is not before a school day. In turn such an employee may not work before 7am on the following day. The Regulations also set out particular restrictionsand definitions to be adhered to when employing such a person and a Code of Practice has been put into place in order to guide employers and employees on this matter. Employers who avail of these regulations must strictly follow the terms of the Code of Practise as outlined below in order to ensure they remain compliant.
The Code of Practise makes reference to anddefines licensed premises as a premises ‘to which a licence (within the meaning of the Licensing Acts, 1883 to 2000) is attached and the whole or any part of which is used to sell food or intoxicating liquor or both for consumption thereon. It makes reference to general duties as not supplying intoxicating liquor from behind the bar counter in licensed premises or supplying it for consumption off the premises.
The Code was drawn up in order to ensure that those who might be interested in a career in the industry would encounter a positive experience and receive such on-going training as may be necessary. The regulations also highlights the importance that the purpose, function and terms of the Code of Practise are known and understood by management, employees, trade unions and parents.
General Principles of the Code of Practise
1.Provision of Written Terms and Conditions of Employment
First and foremost the Code of Practise provides that an employer must comply with the provisions as laid down in the ‘Protection of Young Persons (Employment) Act, 1996 as outlined above. The Code makes particular reference to section 11 of the Act which requires an employer to provide the ‘young person’ with a copy of an abstract of the Act within 1 month of employment and that the abstract be on display in a prominent position. The Code also reiterates the provisions laid down in the Act in relation to hours of work, rest breaks and finishing times.
Employers must also comply with Section 3 of the Terms and Conditions (Information) Act, 1994 which provides that an employee must be furnished with a written statement of terms and conditions of employment to employees who are at least 1 month in employment, within 2 months of commencement of such employment. This statement must comply with the provisions laid down in the Act including the rate of pay and the starting and finishing times.
The Act also makes reference to the Organisation of Working Time Act, 1997 and that all provisions be complied with and in particular the entitlements to annual leave, public holidays and payment of a Sunday Premium.
The Education (Welfare) Act, 2000 has also been cited and that Sections 29 and 30 are complied with. These sections provide that a 16 or 17 year old who is not a registered student or who has not completed a prescribed programme of education may not be employed by an employer unless that employer is the holder of a certificate issued by the National Educational Welfare Board.
2.Rates of Pay
The rate of pay will take into account the provisions of the National Minimum Wage Act, 2000 or where appropriate the provisions laid down under a collective agreement(in respect of the hotel industry, the Hotels Joint Labour Committee).
Employees must comply with Section 4 of the Payment of Wages Act, 1991 which provides that employees are given written statements of wages and deductions.
3.Induction Training
All ‘young persons’ should be fully trained and inducted into all aspects of his/her employment. This induction process should include providing the employe with written copies of:
a)statement of the terms and conditions of employment
b)summary of the provisions of the Protection of Young Persons (Employment) Act, 1996
c)copy of any relevant collective agreement or ERO, ie Hotels JLC
d)and a copy of this Code of Practise.
4.Study Time
Students should be allowed study leave and also leave to sit exams without having to work excessive hours in the period approaching such exams. A student’s job is to be protected where they wish to return to work following the exam/study leave
5.Continuing Education and Training
Provision must be made for ‘young persons’ (even if not registered as a full-time student in an educational institution or school) but who are engaged in education or a training programme to be allowed flexibility with regard to working hours as such a programme requires.
6.Right to Representation
An employer is obliged to recognise the right of a ‘young person’ to trade union representation.
7.Health and Safety
Any health and safety Statement (required under the Safety, Health and Welfare at Work Act, 1989) must take into account the particular needs of a ‘young person’ and pay particular regard to the Safety, Health & Welfare at Work (Children and Young Persons) Regulations, 1998.
8.Bullying, Sexual Harassment and Equality Issues
Explanations on these maters and details of internal grievance procedures shall be given in the training session. Samples of the above procedures are available from IHF.
9.Requirement to Work Beyond Grade
The terms of employment should specify type of work ‘young person’ has been employed to carry out in order to prevent abuses such as requiring ‘young person’ to perform tasks appropriate to other grades.
10.Consent of Parent of Guardian
Before employing the ‘young person’, the employer shall obtain written permission of the parent or guardian of the candidate along with a copy of the birth certificate or evidence of the person’s age. (a sample form has been provided below). Obtaining the consent of a parent or guardian An employer should also consultwith the parent or guardian on arrangements to get the employee home after work.
11.Review of Code of Practice
This Code of Practise may be reviewed after 6 months in operation
12.Signatures to Code of Practice
Irish Congress of Trade Unions
Irish Hotels Federation
Licensed Vintners Association
Mandate
National Parents Counil post primary
Restaurants Association of Ireland
Vintners Federation of Ireland
Sample form for obtaining written permission from parent or guardian
Code of Practice - Employment of Young Persons in Licensed Premises
I have read and understand the Code of Practice and agree to adhere to its contents.Employee ______
Employer ______
Date______
Parental or Guardian consent:
I agree to the employment of ______with the above employer.
Signature of either parent or guardian:
Date:
Detach here (This part is to be retained by the Employer)
Code of Practice - Employment of Young Persons in Licensed Premises
I have read and understand the Code of Practice and agree to adhere to its contents.
Employee ______
Employer ______
Date:______
Parental or Guardian consent:
I agree to the employment of ______with the above employer.
Signature of either parent or guardian:
Date;