The recent Dunne’s Stores employee strike highlighted the difficulties some staff have to deal with when it comes to zero hour contracts. Employers state that it is to assist staff and they are being flexible.  Staff say that it is unpredictable and leaves them vulnerable and unable to apply for loans, mortgages etc.

The main issues to consider are as follows

Zero hour contracts are most prevalent within female dominated occupations such as hotel/accommodation, retail, contract cleaning and domestic working sectors;

They can be seen to” demand maximum flexibility from employees but minimum commitment from employers;

Zero hour does not necessarily mean low pay;

Employers and employees both view flexibility of contracts as important to the employment relationship;

IBEC`s HR and IR team has not yet had to defend a claim arising from zero hour contracts;

There is no statutory category for “ zero hour”;

Zero hour contracts have no mutuality of obligation-an employer is not obliged to provide work and an employee is not obliged to take on that work;

Zero hour contracts appear to be common among non-Irish nationals.

Employees on zero-hours contracts are protected by the Organisation of Working Time Act 1997 but this does not apply to those Employees on casual employment. The Act requires that an employee subject to a zero-hours contract who works less than 25% of their hours in any week should be compensated.

The amount of compensation depends on whether the employee got any work or none at all during the contracted week. If the employee got no work, then the compensation should be either for 25% of the possible available hours or for 15 hours, whichever is less.  If the employee got some work, they should be compensated to bring them up to 25% of the possible available hours.

For example, if you are required to be available for 20 hours per week, but you got no work, you would be entitled to be compensated for 15 hours or 25% of the 20 hours (that is, 5 hours), whichever is the less. In this case, 5 hours is the lesser amount. If, on the other hand, you got 3 hours’ work out of the 20, you would be entitled to be compensated by 2 hours to bring you up to 25% of the contract hours.

For more information on Employment law related issues, contact O’Shaughnessy Bairéad solicitors to discuss. 

The New Companies Act is set to commence on 1 June 2015 – Below are some of its more important changes to the existing regime.

Focus on the Private Company

Up to now, company law was based on the needs of larger public limited companies, but the great bulk of Irish business is done by small private companies. The new Act focuses on the private limited company with shares and attempts to simplify the legalities around running a private company.

Company Models

The Companies Act 2014 creates new company types to replace the current types.

• LTD – Private Company Limited by Shares
• DAC – Designated Activity Company limited by shares or by guarantee
• (these are private limited companies but with specified objects)
• PLC – Public Limited Company
• PUC – Public Unlimited Company
• PULC – Public Unlimited Company with no share capital
• ULC – Private Unlimited Company
• CLG – Company Limited by Guarantee (these are public guarantee companies)

Companies limited by shares

Once the act commences, most existing private companies will, after a transition period of 18 months, convert automatically into a new type of Company called a company limited by shares or a “CLS”.  A CLS shall have a number of advantages:-

full capacity (the existing rule of ultra vires (or beyond its powers) will no longer apply);

needs only one director and one shareholder

a simplified constitution

It may be useful to Companies to convert earlier and that option is available.

Designated Activity Companies (‘DAC’) 

Some companies will have to, or may choose to become a Designated Activity Company, where the company is limited to carrying on a specific activity; an example would be a management company of an apartment block.

Simplified Procedures

The formalities associated with a great number of transactions will be easier: written majority resolution, approval of some transactions (such as loans to directors or the company giving financial assistance for purchases of its own shares), AGM business in writing.

Director’s duties codified

Judges have, over the years, decided what are fiduciary and care duties of Company directors. These are now restated and codified in eight rules.

These include the obligation to act in good faith in what the director considers to be the in the best interest of the company and to act honestly and responsibly. The bill imposes an objective standard of care skill and diligence on a director. There are also a number of rules dealing with the diversion of the company’s property information or opportunities and conflicts of interest. Usefully, however the bill allows the company to relax certain of these rules.

The Constitution of companies will need to be drafted to take advantage of these options.

Director’s Loans

We have become familiar with the restrictions on companies making loans, in favour of directors or connected persons. There is a new simplified procedure for approving or whitewashing such loans.

However, it is important that properly drafted loan agreements are put in place, because under the new rules undocumented loans between a company and a director/connected person are to be treated adversely.

Directors Report

Each director will have to be required to confirm that all relevant information of which they are aware (having made reasonable enquiries) has been conveyed to the auditors. This is a significant additional responsibility. Directors will need to take advice on what steps they need to take to ensure they comply.

Age Requirement

Under the new Act, every director and secretary must be aged 18 or over. Any appointment where the company officer is a minor is void.  This applies to companies that were incorporated prior to the new Act’s introduction and any minor who is currently appointed as a director, ceases to be a director.

Foreign Disqualification

Where any director (where already appointed to a company) is or becomes disqualified in a foreign jurisdiction then Form B74a must be submitted to the CRO. This should be done within 3 months of the commencement of the Act for existing company directors who are currently disqualified and did not submit Form B74 notice on appointment.

Mergers and Divisions

There are new arrangement’s which will make it easier to merge companies or to split the business of an Irish company. This may be a useful device in dealing with family succession or in the disposal of part of the business conducted by a company.

Time line to enactment

It is expected that the bill will be enacted before the end of the year and that will come into effect in June 2015. During the transition period of 18 months existing companies must file an amended constitution to reflect the new rules.

For more information on the forthcoming changes, contact O’Shaughnessy Bairéad to discuss. 

Three major Bills are in development, which aim to modernise family law in Ireland;

The Children and Family Relationships Bill, The Adoption (Identity & Information) Bill and The Bill on Surrogacy, Assisted Human Reproduction and Associated Research.

1 The Children and Family Relationships Bill, 

The new Bill aims to modernise family law by reflecting the reality of the diverse family forms in Ireland today. The reform is child-centred with more focus on the protection of a child’s rights and security.

The Bill covers issues of parentage, guardianship, adoption, custody and access, and it addresses gaps which have been identified in current law. The Bill addresses the needs of children living with: married parents, unmarried parents, a parent and their parent’s partner, or with their grandparents or other relative taking on a parental role. The Bill will cover children been parented by same-sex couples and children who have been conceived through assisted human reproduction (AHR).

Some of the major reforms include:

More unmarried fathers will be entitled to automatic guardianship of their children. The father will become guardian where they have lived with the mother of their child for 12 months and played an active role in parenting their child.

The Bill emphasises the child’s right to be heard in family matters, which relate to them. It also defines for the first time factors which a court can take into account in defining the best interest of the child, such a meaningful relationships, emotional, psychological and the spiritual well-being of the child, as well as issues such as family violence.

Where a spouse, civil partners and cohabiting couples who have lived together for three years to jointly apply to adopt, rather than individually as is the current case.

The legislation allows a relative of the child to apply for custody if they have looked after them for 12 months, where no guardian is able or willing to do so.

The Bill establishes a national donor-conceived child register which will allow children conceived by AHR to trace their identity and know specified personal information relating to donors.

2 The Adoption (Identity & Information) Bill

This Bill aims to provide greater rights for adopted people. If passed in its current form, it will provide up to 50,000 with the right to their birth certificate for the first time. Minister for Children and Youth Affairs James Reilly stated that he did not oppose the Bill but he could foresee constitutional difficulties with it.

3 The Bill on Surrogacy, Assisted Human Reproduction and Associated Research.

Late last year the Supreme Court urged the Oireachtas to legislate around issues of motherhood, surrogacy, and assisted reproduction to provide clarity and security to families engaging with these new technologies. Work has commenced on the drafting of a Bill on Surrogacy, Assisted Human reproduction and Associated Research. It is proposed that at least one of those involved in a surrogacy arrangement would have to be a genetic parent.  It will also consider a “transfer of parentage” scenario to be allowed in surrogacy cases under the new legislation, where birth certificates can be reissued to reflect the genetic parents of a child.

 

For more information on Family Law related issues, contact O’Shaughnessy Bairéad solicitors to discuss. 

On 15 April 2015, an initiative was launched following a number if incidents reporting illegal puppy farming and advertising.  The new organisation established has introduced minimum standards for classified ad websites to ensure the welfare of animals being sold online is protected and any illegal activity is identified and reported as quickly as possible.

It is a very difficult industry to monitor and control with many transactions of a minor nature however, the minimum standards were recently launched by animal welfare organisations which seeks to obtain the co-operation of the website operators.

The online sale of pets has been identified as a significant problem with rogue breeders breaking the law and in many cases compromising the welfare of the animals being offered for sale. In the absence of a ban, which would result in adverts appearing on unregulated websites likely based outside Ireland, it would make dealing with animal welfare issues extremely difficult and would do nothing to prevent the over production of puppies.

The ISPCA has said the online sale of pets has been identified as a significant problem with rogue breeders breaking the law and in many cases compromising the welfare of the animals being offered for sale.

The new Regulatory body referred to as the ‘Irish Pet Advertising Advisory Group’ (IPAAG) have imposed a Minimum Standards for online classified advertising websites to ensure that the welfare of animals sold online is protected and that any illegal activity is identified and investigated.

In addition to providing standards for the online advertising of animals for sale, IPAAG will also provide an opportunity for the buyer to be educated on what criteria to use to identify a responsible breeder.

Online websites that comply with the standards will provide links to www.ipaag.ie,which will include information for the safe purchase of healthy dogs, cats, equines and exotic animals.

A very welcome development.