In this ‘Hot Topics’ article Niamh Walsh, Associate Solicitor in Crowley Solicitors provides an overview of  WRC Inspections and the key areas to watch out for in 2019.

With over 5,000 WRC inspections taking place during 2018 and the WRC’s commitment in their Work Programme for 2019 to continue this level of inspection activity into 2019, not to mention the taking effect of the Employment (Miscellaneous Provisions) Act 2018 on 1 March 2019, now is the time to audit employment compliance practices. An audit is now essential to avoid falling foul of the penalties that can be imposed by WRC Inspectors as part of their role in monitoring employment law compliance.

Why does the WRC initiate an inspection?

The WRC initiates inspections for a number of reasons including:

1. Receipt of complaints of non-compliance with relevant employment rights legislation from employees

1. Routine inspections

1. The WRC runs compliance campaigns that focus on specific sectors or pieces of legislation

Targeted Sectors             

The WRC’s Work Programme 2019 confirms that the WRC will undertake targeted inspection campaigns in sectors such as equine, fisheries, nail bars, car washes and specific professional sectors in 2019.

We have also seen an increased focus by the WRC on sectors such as construction, childcare, security, recruitment, sectors involving a-typical work and those subject to Employment Regulation Orders and Sectoral Employment Orders.

Key areas of legislation to watch for the purpose of WRC Inspections

• Organisation of Working Time Act 1997 – sick leave/annual leave/rest breaks/hours of work records
• Payment of Wages Act 1991
• Terms of Employment (Information) Act 1994 (surviving sections post March 2019)
• Protection of Employees (Temporary Agency Work) Act 2012
• National Minimum Wage Act 2000 -In light of the changes to the minimum wage from 1 January 2019, this could potentially be an area of legislation that the WRC target in 2019
• Employment (Miscellaneous Provisions) Act 2018 - Zero hours contracts may also be an area of focus later in the year given the impending commencement of this legislation on 1 March 2019

WRC Inspectorate’s Powers

Findings of non-compliance by WRC Inspectors can lead to a wide range of outcomes such as contravention notices, compliance notices, fixed payment notices, payments of arrears to employees and court prosecutions.

The WRC also has the power to share information with other State bodies such as the Office of the Revenue Commissioners and the Department of Social Protection. The WRC’s Privacy Statement specifically notes this power to share personal data under and in compliance with the Workplace Relations Act 2015.

The Data Sharing and Governance Bill 2018, which was passed by Dáil Éireann on 31 January 2019 and it is now before Seanad Éireann for debate, also provides for the sharing of personal data between public bodies and the concept of Data Sharing Agreements.

It remains to be seen whether this will result in the WRC entering into Data Sharing Agreements with bodies and agencies such as the Data Protection Commission when the Bill is enacted.

How should employers prepare for an inspection?

A full employment law compliance audit is the optimum way to prepare for an inspection. A non-exhaustive list of compliance red zone areas is as follows:

1. Payslips and payroll details (Gross to net, rate per hour, overtime, deductions, shift and other premiums and allowances, commission and bonuses, service charges etc.)
2. Annual leave and public holiday entitlements taken by each employee
3. Timesheets showing start and finish times, Sunday work and overtime
4. Copies of Employment Permits/Permission to work for Non-EEA Nationals, or evidence that a permit or permission to work is not required (Passport & immigration stamp/GNIB card)
5. Copy of Terms of Employment, including procedures for Bullying/Harassment, Grievance and Disciplinary and procedures for dismissal
6. Rests and intervals at work
7. Register of employees under 18 years of age
8. Name, address, date of birth, nationality and PPS number of each employee
9. Dates of commencement and termination (if applicable) of employment
10. Employee’s job classification/job description/experience
11. Employer registration number
12. Whether board and lodgings are provided and relevant details

The commencement of the Employment (Miscellaneous Provisions) Act 2018 on 1 March 2019 will require the following key compliance matters to be addressed also:

• The prohibition on zero hours contracts, save in limited circumstances
• The provision of minimum payments to low paid workers who are required to be available for work but are not called into work
• The new concept of banded hours contracts
• The obligation to notify employees in writing of the core terms of their employment within 5 days of commencement of employment

In short, preparation is key and employment and HR compliance audits should be carried out on at least an annual basis by all employers, large and small alike.