S.I. No. 20/1995:

MATERNITY PROTECTION (HEALTH AND SAFETY LEAVE REMUNERATION) REGULATIONS, 1995.

MATERNITY PROTECTION (HEALTH AND SAFETY LEAVE REMUNERATION) REGULATIONS, 1995.

I, MERVYN TAYLOR, Minister for Equality and Law Reform, after consultation with the Minister for Finance, the Minister for Social Welfare and the Minister for Enterprise and Employment, in exercise of the powers conferred on me by section 18 (4) of the Maternity Protection Act, 1994 (No. 34 of 1994), hereby make the following Regulations;

1. These Regulations may be cited as the Maternity Protection (Health and Safety Leave Remuneration) Regulations, 1995 and shall come into operation on the 30th day of January, 1995.

2. In these Regulations--

"the Act" means the Maternity Protection Act, 1994 (No. 34 of 1994);

"basis week", in relation to an employee to whom health and safety leave has been granted, means--

( a ) if the employee's pay is calculated by reference to a week ending on a day other than a Saturday, the last such week ending the first of her 21 days of health and safety leave, and

( b ) in any other case, the week ending on the last Saturday before the first of those 21 days;

"employee" means an employee to whom Part III of the Act applies;

"fixed rate", in relation to an employee's pay, means a rate of pay which is (or is a combination of)--

( a ) a fixed wage, salary, allowance or bonus for each week, month or any other fixed period; or

( b ) a fixed hourly or other time rate for a set number of hours (or other period of time) per week, month or any other fixed period;

"health and safety leave" means leave granted under section 18 of the Act;

"normal weekly pay" shall be construed in accordance with Regulations 4 and 5.

3. (1) Subject to paragraph (2), the remuneration which an employee shall be entitled to receive from the employer for the 21 days of health and safety leave referred to in section 18 (4) of the Act shall be an amount equal to three times the employee's normal weekly pay.

(2) If, in the case of any employee, the 21 days of health and safety leave are not consecutive, then--

( a ) if, in those 21 days, there is a period of at least 14 consecutive days, the employee shall be entitled to receive--

(i) in respect of the first 14 of those days, an amount of remuneration equal to twice her normal weekly pay, and

(ii) in respect of each (if any) further day in that period, remuneration at the appropriate daily rate for that day;

( b ) if, in those 21 days, there is a period of 7, but less than 14, consecutive days, the employee shall be entitled to receive--

(i) in respect of the first 7 of those days, an amount of remuneration equal to her normal weekly pay, and

(ii) in respect of each (if any) further day in that period, remuneration at the appropriate daily rate for that day; and

( c ) if, in those 21 days, there is a period of not more than 6 consecutive days (including a period of a single day) the employee shall be entitled to receive remuneration at the appropriate daily rate in respect of each of the days in that period.

(3) In paragraph (2), "the appropriate daily rate", in relation to a particular employee means--

( a ) for any day, other than one falling within paragraph (b), an amount equal to her normal weekly pay dividend by the number of days which she works in a normal working week or, if he does not work a set number of days, divided by five; and

( b ) for any day (such as Sunday) on which the employee would not normally work, nil.

4. (1) Subject to paragraph (3) and Regulation 5, the normal weekly pay of an employee--

( a ) whose pay, exclusive of any overtime, is wholly at a fixed rate, and

( b ) whose employment involves work each week and, subject to overtime and holidays, the same number of hours each week,

is an amount equal to her pay in respect of the basis week, less any amount attributable to overtime.

(2) For the purpose of paragraph (1), so much of any pay as is payable to the employee otherwise than specifically by reference to the basis week shall be apportioned to that week on a pro rata basis.

(3) If an employee to whom paragraph (1) applies was not in fact working for the employer during the basis week or worked less than the normal number of hours in the basis week, paragraph (1) and (2) shall have effect as if, for any reference to the basis week there were substituted a reference to that week--

( a ) during which the employee worked her normal number of hours for her employer; and

( b ) which ends on the same day (in the calendar week) as the basis week; and

( c ) which is the last such week before the beginning of the basis week.

(4) Subject to paragraph 5 and Regulation 5, the normal weekly pay of an employee to whom paragraph (1) does not apply is an amount equal to one twenty-sixth of her total pay in respect of the 26 weeks ending with the basis week; but, in calculating those 26 weeks and the employee's pay in respect of them, there shall be left out of account--

( a ) any week during which the employee would normally have been but was not in fact, working for her employer; and

( b ) any pay attributable to overtime.

(5) If an employee whose normal weekly pay falls to be determined under paragraph (4) has worked for her employer for a smaller number of weeks than allows for the 26 weeks referred to in that paragraph, that paragraph shall have effect as if for any reference to 26 weeks there were substituted a reference to that smaller number of weeks, and the reference to one twenty-sixth shall be construed accordingly.

(6) In this Regulation "pay", in relation to an employee, means pay to which she is entitled under her contract of employment, exclusive of any additional amount which, or so much of any amount as, is attributable to--

( a ) night work;

( b ) shift work;

( c ) working unsocial hours; or

( d ) the employee having to be available on stand by or otherwise on call.

5. If it appears to a rights commissioner or the Tribunal that the circumstances of a particular employee are such that her normal weekly pay cannot be calculated in accordance with Regulation 4, her normal weekly pay shall be calculated in such a manner as, in the opinion of the rights commissioner or Tribunal, most closely corresponds with one or other of the bases set out in Regulation 4.

GIVEN under my Official Seal, this 30th day of January 1995.

MERVYN TAYLOR,

Minister for Equality and Law

Reform.

EXPLANATORY NOTE.

These Regulations determine the manner of calculation of the amount of remuneration which an employee is entitled to receive from the employer for the first 21 days of leave granted by the employer to protect her safety and health, whether as a result of a risk assessment or because the employee cannot be required to perform nightwork.