BusinessAndLegal.ie

Working Time And Rest Periods-Organization Of Working Time Act 1997

terry — Wed, 09 Jun 2010 07:31:12 +0000

The leave entitlements and rest periods of employees are governed by the Organization of Working Time Act,1997 which regulates employees rights in relation to maternity leave, paternity leave,sick pay and holiday entitlements.

How working time is defined is important in this regard for example what is the position for employees who are on call. This appears from case law to require that the employee be on call in a particular place for it to count as working time;if the employee has to be on standby but can go home for example it has been held by the courts that this is not working time. This is particularly for doctors, for example, but the same principle applies to all workers.

It is worth noting that the Organization of Working Time Act does not apply to the defence forces or gardai or to certain other employees such as those working in an emergency situation, people working at sea and most importantly does not apply to people who can set their own working hours.

Rest Periods

An employee is entitled to a rest period of at least 11 hours in every work period of 24 hours. While at work an employee is entitled to a 15 minute break every 4.5 hours and an employee can not be obliged to work for more than 6 hours without a 30 minute break.

In a 7 day period an employee is entitled to a rest period of at least 24 hours and employees who are required to work on Sunday must be compensated by extra pay or paid time off or some other arrangement arrived at with the employee.

An employee can not be expected to work in excess of 48 hours per week; note that this is an average period and the average is calculated over 4-6 months so in any one week it is possible for the employee to work in excess of 48 hours but by law employers should not let employees to average over 48 hours per week in a 4-6 month period.

Night Workers

Employers can not expect or oblige night workers to work over 8 hours in a 24 hour period; a night worker is a worker who works at least 3 hours post midnight as night work is considered to be from midnight to 7 am.

Payment of Wages-The Legal Position

terry — Tue, 08 Jun 2010 17:51:57 +0000

The payment of wages in the employment contract is governed by the Payment of Wages Act, 1991 and this piece of legislation stipulates that wages be paid by cheque, cash, draft, credit transfer and postal order.

The employer is obliged to provide a written statement of wages and deductions at the time of payment.

There are only a few situations where deductions may be made from the emplyee’s wages and these situations include 1) if the law requires it, 2) if provision is made for the deduction in the contract of employment and 3) where the employee has given written consent for the deduction.

The act also goes on to say that where an employee is shortchanged or not paid at all, then the shortage will be considered by the act to be a deduction which is unlawful. Any employee who has a problem in this regard can make a complaint to the Rights Commissioner (within 6 months) and the Rights Commissioner can make an order directing the employer to make payment up to twice the net amount of wages that should have been made to the employee.

Any decision of the Rights Commissioner can be appealed to the Employment Appeals Tribunal and from there to the High Court, but only on a point of law in relation to the latter appeal. It is worth noting that a decision of a Rights Commissioner or a decision of the Employment Appeals Tribunal has the same force as an order of the Circuit Court.

Any term in an employment contract which seeks to limit or exclude the operation of the Payment of Wages Act, 1991 is void and won’t be recognised.

The Contract Of Employment

terry — Tue, 08 Jun 2010 17:02:00 +0000

The contract of employment in Ireland is made up of both express terms and implied terms with the Terms of Employment (Information) Act, 1994 stipulating that certain basic information must be given to the employee in writing.

This includes the names and addresses of both employer and employee, the place of work, the title of the job, pay, any terms relating to sick pay, periods of notice and many other basic details.

Implied Terms

In every contract of employment, written or otherwise, there are 4 categories of implied terms which fall under the headings of
a) terms implied by custom/practice(depending on the industry)
b) terms implied by statute (right to redundancy, right not to be unfairly dismissed)
c) terms implied by law (employers duty of care and employees duty of trust and confidence)
d) collective agreements in unionized employment.

Express Terms of Employment

The express terms of employment set out below is a pretty extensive list but it should provide a decent check list of what should be included in a contract of employment and be contained in writing in the contract.
1. Who-the employer and employee
2. When-when does employment start
3. What-what is the job role
4. Hours-hours of work?
5. Where-the workplace
6. Is there a period of probation? For how long?
7. Pay-the salary package
8. Holidays-what is the position re holidays and is there extra days over and above those set down by statute in the Organization of Working Time Act,1997
9. Sick pay-what is the situation re sick pay
10. Retirement age
11. Pension
12. Disciplinary and grievance procedure
13. Any restrictions re competition and setting up against the employer in the future using trade secrets/contacts
14. Notice re termination of employment
15. Email and internet use

This list is not exhaustive but should give a good basis for both employer and employee when it comes to negotiating an employment contract.

Commercial Landlord And Tenant Disputes

terry — Tue, 08 Jun 2010 07:37:56 +0000

Landlord and tenant disputes are on the rise for obvious reasons with the downturn in the economy and landlords being faced with the choice of trying to recover outstanding rent or additionally trying to recover their premises and get the tenant out.

Generally the failure to pay rent by the tenant will be a breach of a covenant of the lease leading to a right accruing to the landlord for a straightforward breach of contract and the normal remedies available to the landlord when this occurs.

The legal proceedings that a landlord will take will depend on the amount of rent owed-if it is less than 6,348.69 euros it will be by way of Civil Summons in the District Court, if it is between that figure and less than 38,092.14 euros it will be by Civil Bill in the Circuit Court. Higher than that and you will find yourself the subject of High Court proceedings.

Recovery of Premises

Generally you will find that most commercial leases will have a covenant providing for the right to recover possession of the premises when there is a breach of a covenant of the lease.

Notice To Quit

If a lease has just expired, that is the time is up, the landlord needs to serve a Notice To Quit giving whatever period of notice is stipulated in the lease itself. After the service of the Notice To Quit the landord should mark any rent received as “mesne rates only” as not to do so could be seen as a waiving of the Notice by the landlord.

Forfeiture

Forfeiture procedure is appropriate where the landlord wants to get the tenant out before the term of the lease is up. He will want to do so if the rent is overdue and not being paid and the landlord thinks that he is better off trying to let the premises to someone else.To do this the landlord must be sure that the lease makes provision for forfeiture in the event of rent not being paid or whatever other breach of covenant the landlord is alleging. Most leases will contain such a covenant; if yours does not it will provide for forfeiture for breach of a condition of the lease.

In order to use the forfeiture procedure the landlord must first, by law, give the tenant the opportunity to remedy whatever breach has occurred.Firstly the landlord will need to serve a Notice of Forfeiture on the tenant which will set out the alleged breach and the time withing which it must be put right or that the landlord will re-enter the premises. This is called a Section 14 notice as the requirement arises from section 14 of the Conveyancing Act 1881.

If the remedy is not forthcoming and the breach is not sorted out then the landlord can re-enter the premises peaceably-it is important that to note that anything other than the minimum damage can lead to a criminal offence being caused by the landlord. If resistance is offered by the tenant then it would be very difficult for a landlord to enter peaceably and should withdraw.

Ejectment Civil Bill on Title

If the landlord can not take the premises peaceably he will need to go the Court route and it is by way of Ejectment Civil Bill on Title.Be warned that this is a slow process and the Courts have traditionally given a fair degree of latitude to tenants giving them more time to put things right.

Tenant Relief

Conveyancing Act 1881, section 14(2), provides some relief for the tenant provided that the landlord has not re-entered and the tenant has put matters right by paying the rent or whatever breach is alleged.The courts have traditionally been very fair with tenants in these matters and a tenant who has paid up, even late, will be in a strong position to get this statutory relief from the Court.

Judgment Mortgage-Registering A Judgment Mortgage

terry — Mon, 07 Jun 2010 11:13:06 +0000

Judgment mortgages are de rigeur in Ireland at the moment with considerable numbers of people finding themselves in difficult financial circumstances.A judgment mortgage will only arise after the obtaining of a judgment against a debtor on foot of a debt. The effect of then registering a judgment mortgage on a debtor’s property will be to give the registrar of the judgment mortgage priority over unsecured creditors of that debtor.

A judgment mortgage can be registered on either registered or unregistered property and it can be registered on the family home of a debtor, notwithstanding the fact that the spouse of the debtor may be a joint owner and owe nobody a cent. Normally it is necessary to obtain the consent of a spouse to allow a charge to be registered on the family home but this is not the case with a judgment mortgage.

Under the new Land and Conveyancing Law Reform Act 2009 a judgment can be registered as a judgment mortgage by applying to the Property Registration Authority and filling out the necessary forms and providing the necessary paperwork or proofs.

Well Charging Order

The next step afforded to the judgment creditor is to apply to Court to get a Well Charging Order and Order for Sale. This is a request from the creditor to the court to recognise that their judgment mortgage is well charged on the property and to be granted an order for sale of the property.However the court, as always, has a wide discretion to grant any order it sees fit and it can make a range of other orders as well including adjustment orders between joint owning owners and any other order it sees fit.

Order For Sale Execution

If and when the judgment creditor obtains an Order for Sale from court, be that Circuit Court or High Court, he will then have to go to and apply to have the property sold through the Examiner’s office in the High Court or the Circuit Court and the Courts will arrange the sale of the property by public auction.

Product Liability | Consumer Rights And Product Liability

terry — Sun, 06 Jun 2010 19:28:30 +0000

Consumer rights and product liability in relation to defective products are governed by a combination of protections such as common law which protects against tort or civil wrongs such as negligence; the law of contract will also provide relief to the consumer in relation to defective products; legislation such as Liability for Defective Products act 1991, the Civil Liability Act of 1961 and other more modern European legislation including directives and regulations.

Liability For Defective Products Act 1991

Under this act the consumer does not need to prove negligence on behalf of the supplier or retailer; he/she merely needs to show that the product caused the consumer damage because of a defect in the product. It is a strict liability therefore the consumer does not need to show any negligence on the part of the manufacturer. So you just need to show a link between the product and the damage suffered.

Common Law-Negligence

The consumer will need to prove that the manufacturer owed a duty of care to the consumer, that that duy of care was not upheld, that there was loss or damaged incurred by the consumer as a result of the failure in relation to the duty of care and there was a close connection between the injury suffered and the conduct of the supplier/manufacturer.

Sale of Goods Act

The Sale of Goods Act 1893 and the Sale of Goods And Supply of Services Act 1980 state that the supplier has a contractual duty to the consumer in relation to the consumer in respect of defects in his product.It is diffficult to recover under this act against a manufacturer as your contract will be with the retailer.

European Legislation

Various pieces of European legislation such as the European Directive on Product Liablity and the European Communities (General Product Safety) Regulations 2004 also provide protection to the consumer in relation to defective and dangerous products.

Under the Liability For Defective Products Act 1991 liability is strict and no duty of care needs to be established and this is why it will be used on many occasions along with perhaps a legal action for breach of contract and/or negligence.

The time within which you can bring an action under the various headings above varies from 2 years in relation to a personal injury claim to 6 years for breach of contract under the Sale of Goods Act. If you are unfortunate enough to suffer as a result of a dangerous/defective product make sure to retain the evidence carefully including the product itself, any invoices/receipts and a good note of where and when you purchased it.

National Consumer Agency

The National Consumer Agency is a good source of information in this whole area as it has some pretty strong powers under the Consumer Protection Act of 2007.

How To Enforce A Foreign Judgment In Ireland

terry — Sat, 05 Jun 2010 22:27:06 +0000

When you obtain a foreign judgment against an Irish debtor you will invariably want to enforce that judgment against the assets of the debtor in Ireland, if he has any.

There is an important distinction to be made at the outset though-if your judgment was obtained in an EU country then there is a procedure to have your judgment recognised and enforced in Ireland but if your judgment was obtained against an Irish debtor in a non EU country, then there is no way of having that judgment recognised in Ireland.

EU Judgments

If your judgment is an EU obtained judgment then the Brussels I regulation provides that your judgment will be recoginsed in all EU member states. To enforce it though you will need to go through a simple procedure involving making an application to the Master of the High Court in Ireland for a Declaration of Enforcability. This is a pretty straight forward procedure and once you have obtained your Declaration then your foreign judgment will have the same effect and weight as if it had been obtained in the High Court in Ireland.

Non EU Judgments

If your judgment was obtained in a non EU country then to enforce it you will need to go through the Summary Summons procedure of the High Court in Ireland as if it was a debt incurred in Ireland.

Transnational Litigation-Brussels I Regulation

terry — Sat, 05 Jun 2010 21:45:40 +0000

The Brussels I regulation is directly applicable in all member states (with the exception of Denmark) and deals with jurisdiction and enforcement of judgments in both civil and commercial proceedings.

The aim of the regulation is to allow legal proceedings be taken and prosecuted in a uniform fashion where the parties to a dispute are in different jusrisdictions or countries. It essentially aims to clarify where to sue in the event of a dispute between individuals or companies who are not in the same country.

There are many exceptions, that is matters that are not covered by the regulation such as bankruptcy and revenue matters but the general rule of jurisdiction is..

General Rule Of Jurisdiction

You sue whoever you wish to sue in the state in which they are ordinarily domiciled and in relation to a company-where that company has it’s registered office. However there are a number of important exceptions as follows:

Exceptions

1. If the dispute relates to a contract then you can sue in the country where the contract was supposed to be performed;
2. If you are suing on foot of a tort, a civil wrong, then you can do so where the harmful event occurred;
3. If you are suing a number of defendants, that is there are a number of co-defendants, then you can sue in the country where any one of them is domiciled;
4. If you are suing an insurance company you may do so where the company is domiciled or where you are domiciled;
5. Consumer contracts-if you are suing on foot of a consumer contract you may do so in your own state or in the state of the other party;
6. Contracts of employment-you may sue where the employer is domiciled or where you as employee are domiciled.

These last 3 exceptions reflect the inequality in strength between a consumer or employee versus the company, employer or insurance company.

Property

In relation to property proceedings, the court of the state where the property is located has exclusive jurisdiction, regardless of where the parties are domiciled.

Stamp Duty Reliefs

terry — Fri, 04 Jun 2010 16:15:59 +0000

There are a number of stamp duty reliefs and exemptions and this post will look at the most common ones.
Transfers Between Spouses
Transfers between spouses are exempt from stamp duty.

Stamp Duty Reliefs

Consanguinity Relief
This relief applies to transfers between blood relations such as transfers from parent to child, grandchild, grandparent, brother, sister and some others. The relief provides for payment of 50% of the normal stamp duty that would have applied had there been no relationship.

Young Trained Farmer
There is no stamp duty on a transfer of qualifying land to young trained farmers.

Site Transfer From Parent To Child
When a parent transfers a site to a child for the purposes of building a private residence, and the value of the site is less than 500,000 euros, then there is no stamp duty.The size of the site can not be greater than 1 acre.

Farm Consolidation Relief
There is considerable relief in relation to the transfer of farms to encourage the consolidation of farms and the best place to investigate this scheme is the farm advisory body, Teagasc.

Charities And Sporting Bodies
Charities and sporting bodies both enjoy relief from paying stamp duty when acquiring property; both the charities and sporting bodies need to be approved and further enquiries should be made from the Stamp duty section of Revenue Commissioners for further information.

Gifts/Voluntary Transfers
Bear in mind that if the transfer is a voluntary transaction, that is a gift, the stamp duty will be calculated on the market value of the property at the date of transfer.

Stamp Duty | Stamp Duty Rates In Ireland

terry — Fri, 04 Jun 2010 08:02:46 +0000

Stamp duty is a tax on documents and most peoples experience with stamp duty will be in relation to property purchase which gives rise to the notion that stamp duty is applied to property. But it is actually a tax on the instrument which witnesses the property transaction and you will also see stamp duty applied to other instruments (legal documents) such as shares in companies.

The Stamp Duties Consolidation act 1999 governs this whole area and in that legislation there is a Schedule 1 which sets out the heads of charge for stamp duty which stipulates that the stamp duty on a conveyance or transfer of property will range from 0% to 9%. Each year the government in the Finance Act may change the rate of duty in various heads of charge but the duty will be calculated on an “ad valorem” (for value) rate.

Generally stamp duty will be payable if the document/instrument is executed in Ireland or if the transaction relates to property in the State. You used to have 30 days within which to stamp your document/instrument with the Revenue Commissioners; this is now 44 days and you can do the stamping online with the new online stamping service provided by the Revenue Commissioners called eStamping with the purchaser being the liable person for the duty. However if it is a voluntary transfer, such as a gift, both parties will be jointly and severally liable.

Residential Stamp Duty Rates

The rates of duty applicable for residential property (whether new or second-hand) are as follows:
First €125,000 Nil
Next €875,000 7%
Excess over €1,000,000 9%

* Transactions, where the consideration (or the aggregate consideration) does not exceed €127,000, are exempt from stamp duty.

Stamp Duty Rates On Non Residential Property

Up to €10,000 Exempt

€10,001 to €20,000 1%

€20,001 to €30,000 2%

€30,001 to €40,000 3%

€40,001 to €70,000 4%

€70,001 to €80,000 5%

Over €80,000 6%
These rates are applicable from February, 2010.

How much stamp duty you will have to pay will depend on whether you are considered to be a first time buyer, owner occupier or investor. First time buyers do not have to pay stamp duty on either new or second hand houses but there is a clawback of duty if the first time buyer or owner occupier lets all or part of the property other than under the Rent A Room scheme. This rent a room relief is not available to investors.

Stamp Duty On New Homes

Investors pay full duty on new homes; first time buyers are exempt. Owner occupiers may qualify for relief from stamp duty if there is a Floor Area Compliance Certificated for the property and whether the house is completed or if it is the sale of a site and contract to build a new house.

Conveyance Combined With Building Agreement

Owner occupiers will pay duty on either 25% of the total price excluding vat or the price of the site(excluding vat), whichever is the higher.
No stamp duty is payable on contents although they are taken into consideration when apportioning the total price paid.

Stamp Duty on Leases

Stamp duty is payable on leases and is divided between any premium payable which is calculated at normal stamp duty rates and duty payable on the rent. Generally if the lease is for less than 35 years and the rent is less than 30,000 euros there is no duty.
If the lease is greater than 100 years stamp duty is payable at 12% of the average annual rent.
If the lease is greater than 35 years and less than 100 years then duty is payable at 6% of the annual average rent.
If the lease is less than 35 years stamp duty is due at a rate of 1% of the average annual rent.
It is important to note that these rates apply on the creation of a new lease; if you are dealing with an existing lease and are taking an assignment of the lease then it is treated as a normal property transaction and the normal property transfer rates apply.