S.I. No. 34/1999 - Parental Leave (Maximum Compensation) Regulations, 1999

I, JOHN O'DONOGHUE, T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by sections 3 and 21 (3) of the Parental Leave Act, 1998 (No. 30 of 1998), and having, in accordance with section 3(2) of that Act, consulted persons whom I consider to be representative of employers generally and employees generally, hereby make the following regulations:

1. These Regulations may be cited as the Parental Leave (Maximum Compensation) Regulations, 1999, and shall come into operation on the 10th day of February, 1999.

2. (1) In these Regulations —

“the Act” means the Parental Leave Act, 1998 (No. 30 of 1998);

“relevant date” means the date on which a notice referring a dispute to a rights commissioner is given under section 18(4) of the Act;

“dispute” means a dispute to which Part IV of the Act applies;

“relevant employment” in relation to an employee, means the employment in respect of which the 20 weeks' remuneration referred to in section 21(3) of the Act falls to be calculated;

“week”, in relation to an employee whose remuneration is calculated by reference to a week ending on a day other than a Saturday, means a week ending on that other day and, in relation to any other employee, means a week ending on a Saturday, and “weekly” shall be construed accordingly.

(2) In these Regulations —

(a) a reference to a Regulation is a reference to a Regulation of these Regulations so numbered, and

(b) a reference to a paragraph is a reference to the paragraph of the provision in which the reference occurs.

3. Where, by a decision of a rights commissioner or a determination of the Employment Appeals Tribunal in relation to a dispute, redress proposed for the employee concerned is or includes an award of compensation under subsection (2)(b) of section 21 of the Act, the 20 weeks' remuneration referred to in subsection (3) of that section shall be calculated in accordance with these Regulations.

4. (1) In the case of an employee who, before the relevant date, was remunerated in respect of the relevant employment wholly at an hourly rate, fixed wage or salary (with or without a regular bonus or allowance which does not vary by reference to the amount of work done), a week's remuneration for the purposes of section 21(3) of the Act shall be—

(a) the earnings in respect of that employment in the latest week before the relevant date in which the employee worked the number of hours per week that on that date was normal for that employment, plus

(b) if the employee was normally required to work overtime in the relevant employment, the average weekly overtime earnings in the relevant employment, as determined in accordance with paragraph (2).

(2) For the purposes of paragraph (1)(b), the average weekly overtime earnings of an employee in the relevant employment shall be —

(a) in case the employee was employed for the whole of the period of 26 weeks ending 13 weeks before the relevant date, his or her overtime earnings during that period divided by 26, or

(b) in any other case, his or her overtime earnings during the number of complete weeks worked before the relevant date divided by that number.

(3) If, in respect of the employment referred to in paragraph (1)(a), the employee's earnings would, apart from this paragraph, include a regular bonus or similar payment which, in whole or in part, does not relate to work done in that week, only so much (if any) of the payment which relates to that week shall be taken into account in determining the employee's earnings.

5. (1) This Regulation applies to an employee whose remuneration in respect of the relevant employment before the relevant date —

(a) was wholly or partly at piece rates,

(b) included commission directly related to the work done,

(c) otherwise varied in relation to the amount of work done by the employee, or

(d) varied on account of payments appropriate to attendance on a shift cycle, on particular days of the week or at particular times of the day.

(2) In relation to an employee to whom this Regulation applies, a week's remuneration for the purposes of section 21(3) of the Act shall be —

(a) in case the employee was employed in the relevant employment for the whole of the period of 26 weeks ending 13 weeks before the relevant date, his or her earnings for the number of hours worked during that period divided by that number, or

(b) in any other case, his or her earnings during the number of complete weeks worked before the relevant date divided by the number of hours worked during those weeks,

and multiplied in either case by the number of hours per week that on the relevant date was normal for that employment.

(3) The earnings referred to in paragraph (2)(a) shall be adjusted in respect of any variation in rates of pay which took effect during the period of 13 weeks before the relevant date.

(4) Where in any week within the period of 26 weeks, or complete weeks, referred to in paragraph (2) the employee's earnings would, apart from this paragraph, include a regular bonus or similar payment which, in whole or in part, does not relate to work done in that week, only so much (if any) of the payment which does relate to that week shall be taken into account for the purposes of paragraph (2) in determining those earnings.

(5) For the purposes of paragraph (2), any week worked in another employment shall be taken into account if it would not have operated, for the purposes of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 (No. 4 of 1973), to break the continuity of service of the employee concerned in the relevant employment.

6. In determining an employee's earnings for any period for the purposes of these Regulations, no account shall be taken of any sums paid by way of recoupment of expenses incurred by the employee in the discharge of the duties of his or her employment.

7. For the purposes of Regulations 4(2)(a) and 5(2)(a), any week during which an employee did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in those provisions, as the case may be, or before a week taken into account under this Regulation, as may be appropriate, shall be taken into account instead of a week during which the employee did not work as aforesaid.

8. Where, in respect of the relevant employment, there is no number of hours for which employees work in each week which is normal for that employment, the weekly remuneration of each such employee shall be taken, for the purposes of these Regulations, to be the average amount of the remuneration paid to each such employee in the 52 weeks, or such lesser number of weeks as may be appropriate, in each of which the employee was working in the employment immediately before the relevant date.

9. Where under these Regulations account is to be taken of remuneration paid in a period which does not coincide with the periods for which the remuneration is calculated, the remuneration shall be apportioned in such manner as may be just.

10. (1) Where, under a contract of employment, an employee is required to work for more hours per week than the number of hours that is normal for the employment, the hours for which the employee is so required to work shall be taken, for the purposes of Regulations 4 and 5(2), to be, in the case of that employee, the number of hours per week that is normal for the employment.

(2) Where, under a contract of employment, an employee is entitled to additional remuneration for working more than a specified number of hours per week —

(a) in a case where the employee is required under the said contract to work for more than the said specified number of hours per week, the number of hours per week for which the employee is so required to work shall, for the purposes of Regulations 4 and 5(2), be taken to be, in the case of that employee, the number of hours of work per week that is normal for the employment, or

(b) in any other case, the specified number of hours shall be taken, for the purposes of those provisions, to be, in the case of that employee, the number of hours of work per week that is normal for the employment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These Regulations prescribe the method of calculating maximum compensation for the purposes of redress under Part IV of the Parental Leave Act, 1998 .