S.I. No. 196/1995:

ADOPTIVE LEAVE (CALCULATION OF WEEKLY REMUNERATION) REGULATIONS, 1995.

ADOPTIVE LEAVE (CALCULATION OF WEEKLY REMUNERATION) REGULATIONS, 1995.

I, MERVYN TAYLOR, T.D., Minister for Equality and Law Reform, in exercise of the powers conferred on me by section 32 (4) of the Adoptive Leave Act, 1995 (No. 2 of 1995), hereby make the following Regulations:

1. (1) These Regulations may be cited as the Adoptive Leave (Calculation of Weekly Remuneration) Regulations, 1995.

(2) These Regulations shall come into operation on the 20th day of July, 1995.

2. (1) In these Regulations--

"the Act" means the Adoptive Leave Act, 1995 (No. 2 of 1995);

"relevant date" means the date on which the adopting parent commenced leave under the Act or, where she has not commenced leave under the Act, the date on which her employer first received notification of her intention to take leave under the Act;

"relevant employment", in relation to an employee, means the employment in respect of which the weekly remuneration of the employee is calculated for the purposes of section 33 (3) of the Act;

"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.

3. ( a ) A week's remuneration of an employee in respect of an employment shall be calculated, for the purposes of section 33 (3) of the Act, in accordance with these Regulations.

( b ) Where, on the relevant date, an employee had less than 52 weeks' continuous service in the employment, a week's remuneration of the employee in respect of the employment shall be calculated, for the purposes of the said section 33 (3), in the manner that, in the opinion of the rights commissioner or the Tribunal, corresponds most closely to that specified in these Regulations.

4. In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by her, her weekly remuneration in respect of the relevant employment shall be her earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week, before the relevant date, in which she worked for the number of hours that was normal for the employment together with, if she was normally required to work overtime in the relevant employment, her average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.

5. For the purpose of Regulation 4 of these Regulations, the average weekly overtime earnings of an employee in the relevant employment shall be the amount obtained by dividing by 26 the total amount of her overtime earnings in that employment in the period of 26 weeks ending 13 weeks before the relevant date.

6. For the purpose of Regulations 5 and 7 (b) of these Regulations, any week during which the employee concerned did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in the said Regulation 5 or 7 (b), as the case may be, of these Regulations 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.

7. ( a ) In the case of an employee who is paid remuneration in respect of the relevant employment wholly or partly at piece rates, or whose remuneration includes commissions (being piece rates or commissions related directly to her output at work) or bonuses, and in the case of any other employee whose remuneration in respect of the relevant employment varies in relation to the amount of work done by her, her weekly remuneration shall be the amount obtained by dividing the amount of the remuneration to be taken into account in accordance with paragraph (b) of this Regulation by the number of hours worked in the period of 26 weeks mentioned in the said paragraph (b) and multiplying the resulting amount by the normal number of hours for which, on the relevant date, an employee in the relevant employment was required to work in each week.

( b ) The remuneration to be taken into account for the purposes of paragraph (a) of this Regulation shall be the total remuneration paid to the employee concerned in respect of the employment concerned for all the hours worked by the employee in the employment in the period of 26 weeks that ended 13 weeks before the relevant date, adjusted in respect of any variation in the rate of pay which became operative during that 13 week period.

( c ) For the purpose of paragraph (b) of this Regulation, 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.

8. (1) Where, under her contract of employment, an employee is required to work for more hours than the number of hours that is normal for the employment, the hours for which she is so required to work shall be taken, for the purposes of Regulations 4 and 7 (b) of these Regulations, to be, in the case of that employee, the number of hours that is normal for the employment.

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

( a ) in case 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 she is so required to work shall, for the purposes of Regulations 4 and 7 (b) of these Regulations, be taken to be, in her case, the number of hours of work per week that is normal for the employment, and

( b ) in any other case, the specified number of hours shall be taken, for the purposes of the said Regulations 4 and 7 (b), to be, in the case of that employee, the number of hours of work per week that is normal for the employment.

9. Where, in a particular week, an employee qualifies for a payment of a bonus, pay allowance or commission which relates to work the whole or part of which was not done in that particular week, the whole or the appropriate proportionate part of the payment, as the case may be, shall, for the purposes of Regulations 4 and 7 (b) of these Regulations, be disregarded in relation to that particular week and shall for those purposes, be taken into account in relation to any week in which any of the work was done.

10. An employee who is normally employed on a shift cycle and whose remuneration in respect of the employment varies having regard to the particular shift on which she is employed, and an employee whose remuneration for working for the number of hours that is normal for the employment varies having regard to the days of the week or the times of the day on or at which she works, shall each be taken, for the purposes of these Regulations, to be an employee who is paid wholly or partly by piece rates.

11. Where, in respect of the relevant employment, there is no number of hours for which employees work in each week that is normal for the 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 in each of which she was working in the employment immediately before the relevant date.

12. 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.

13. For the purposes of Regulations 4 and 7 of these Regulations, account shall not be taken of any sums paid to an employee by way of recoupment of expenses incurred by her in the discharge of the duties of her employment.

GIVEN under my Official Seal, this 20th day of July, 1995.

MERVYN TAYLOR,

Minister for Equality and Law Reform.

EXPLANATORY NOTE.

These Regulations prescribe the method of calculating weekly remuneration for the purpose of redress in the form of compensation under Part V of the Adoptive Leave Act, 1995 .