Employment Status National Standard Order, 2012

L.N. 44 of 2012

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Employment Status National Standard Order, 2012

IN exercise of the powers conferred by article 4 of the

Employment and Industrial Relations Act, the Minister for Justice,

Dialogue and the Family has made the following Order –

(1) The title of this Order is the Employment Status

National Standard Order, 2012.

(2) This Order shall be without prejudice to and shall

not apply in the case of

(a) any other law defining or regulating either the

specific conditions of employment of employees falling

under that particular law or the relationship between persons

providing a service and a service user and the respective

conditions thereof, and

(b) any right and/or obligation which the person

providing the service and the person for whom the service

is provided may have in regard to their agreed contract for

service, as existing and in relation to events occurring before

the coming into force of this Order, including the right to

inter alia institute legal proceedings before the appropriate

court of law

Provided that the provisions of article 6 of this Order

shall prevail over paragraph (b) hereof.

(3) Subject to sub-article (2) hereof, any declaration

made by any individual in relation to his own or to another person’s

employment status shall be considered to be null and void and

without effect if its consequences are in any way in conflict with

the provisions of this Order.

(1) For the purposes of this Order, “the Act” means the

Employment and Industrial Relations Act.

(2) Terms and expressions used in this Order, unless

the context otherwise requires, shall have the same meaning

assigned to them in the Act.

(1) Subject to the provisions of sub-article (2), when

considering the employment status of a person who is nominally

self employed and is prima facie not considered as an employee,

it shall be presumed that there is an employment relationship and

that the person for whom the service is provided is the employer

and that the provisions of the Act and of the regulations or orders

issued thereunder apply to that relationship if at least five of the

following criteria are satisfied in relation to the person performing

the work;

(a) he depends on one single person for whom the

service is provided for at least 75% of his income over a

period of one year;

(b) he depends on the person for whom the service is

provided to determine what work is to be done and where and

how the assigned work is to be carried out;

(c) he performs the work using equipment, tools or

materials provided by the person for whom the service is

provided;

(d) he is subject to a working time schedule or

minimum work periods established by the person for whom

the service is provided;

(e) he cannot sub-contract his work to other individuals

to substitute himself when carrying out work;

(f) he is integrated in the structure of the production

process, the work organisation or the company’s or other

organization’s hierarchy;

(g) the person’s activity is a core element in the

organization and pursuit of the objectives of the person for

whom the service is provided, and

(h) he carries out similar tasks to existing employees,

or, in the case when work is outsourced, he performs tasks

similar to those formerly undertaken by employees.

(2) Notwithstanding the presence of five or more of

the criteria referred to in the previous sub-article in a relationship

between two persons or more, any person in a relationship which

would by virtue of the presence of such criteria be automatically

considered to be an employment relationship may, before

entering into such a relationship, submit a written request to the

Director to exempt such a relationship from being considered to

be an employment relationship and the Director may exempt in

writing that relationship if it is considered that there are particular

grounds relating to that activity to exempt it from this requirement,

including that the activity being carried out is an uncommon

occurrence or of very short duration and such exemption shall

remain valid unless rescinded by the Director.

Provided that in the case of relationships established

before the coming into force of this Order, the person concerned

shall have a period of six weeks from the said entry into force to

make such a request in respect of such a relationship.

(1) A person who was considered to be performing Effective date of

services as a self-employed person for another person, whether employment,

prior to, or at any time following, the date of the entry into force

of this Order and is subsequently found to be an employee in terms

of article 3 of this Order, shall be considered to have been engaged

as an employee on an indefinite contract of the person for whom he

was providing services.

(2) The date of engagement on an indefinite contract

referred to in the subarticle (1) of this article shall be considered

to be the date of the initial continuous provision of services and

the seniority and any notice due in case of an eventual redundancy

shall be computed accordingly

Provided that for the purpose of this subarticle the term

‘continuous provision of services’ shall include those contracts,

whether on a self-employed or employment basis, when the work

performed was essentially the same and where the period between

a contract and another does not exceed a period of six months and

the periods between such contracts shall be taken into account.

(3) If a person had been performing services for

another person on a self-employed basis prior to the date of entry

into force of this Order and whose relationship by virtue of article

3 of this Order is deemed to be an employment relationship, it

shall be presumed, for all intents and purposes of the Act, that

the probationary period in terms of article 36 of the Act in that

relationship has elapsed prior to the coming into force of this Order

unless the employer proves otherwise.

(4) If a person performs services for another person on

a self-employed basis on or after the date of entry into force of this

Order and whose relationship by virtue of article 3 of this Order is

deemed to be an employment relationship, the probationary period

in that relationship shall be considered to have commenced on the

date of engagement to provide services.

(5) The indefinite contract of employment referred to

in this sub-article shall be deemed to be whole-time on the same

basis as the hours of work of a comparable whole-time employee,

or, in the absence of a comparable whole-time employee, on the

basis of the hours specified in the applicable sectoral or Wage

Council Wage Regulation Order, or, in the absence of an applicable

Order, on a forty-hour normal working week, unless, in relation to

hours of work, otherwise specified in writing in terms of article 7

of this Order.

(1) The employer shall be obliged to grant a person

who is considered to be his employee in terms of this Order

(a) with respect to wages;

(i) the same wages paid to a comparable

employee or,

(ii) where there is no such comparable employee,

to the same remuneration he used to receive in return for

services rendered on a self-employed basis as wages

Provided that if there is disagreement as to

the payable wage and the employee terminates his

employment, the provisions laid down in sub-article (2)

of article 7 of this Order shall apply.

(b) With respect to other conditions of employment,

the same conditions of employment as those enjoyed by a

comparable employee or, where there is no such comparable

employee, to the applicable minimum conditions of

employment in terms of the Act and the regulations or orders

issued thereunder.

Notwithstanding any provision in any law or in any

collective agreement or individual contract, if a person had been

performing services for another person on a self-employed basis

prior to the date of entry into force of this Order and whose

relationship by virtue of article 3 of this Order is deemed to be

an employment relationship, any penalty clause laid down in the

previous contract for service in relation to events occurring before

the coming into force of this Order, shall, on the entry into force of

this Order, be null and void unless and until it is authorized by the

Director in terms of the Act

Provided that this does not in any way waive any right to

initiate civil procedures for damages which may be available to

either party to the contract for service in terms of subarticle 2(b) of

article 1of this Order.

(1) In situations where the employment status of a Information to

person is deemed to be one of employment in terms of this Order, employees.

the employer shall be bound to give or send to the employee a

letter of engagement or a signed statement, which shall include

the information laid down in the Information to Employees

Regulations 2002, and in these cases, notwithstanding the different L.N. 431 of 2002

timeframe set out in the Information to Employees Regulations

2002, the timeframe for delivery of the relevant document to the

employee shall be;

(a) in the cases of persons rendering services who by

virtue of this Order shall be considered to be employees on

the date of entry into force of this Order, as soon as possible,

but in any case, not later than eight weeks from the date of

entry into force of this Order, and

(b) in the case referred to in article 3 (2) of this Order,

where the person for whom the services are provided requests

an exemption in terms of that same subarticle and the Director

does not accede to such a request, within two weeks from the

date of the Director’s refusal.

(2) If an employee does not agree with

(a) any of the conditions of employment listed in a

letter of engagement or a signed statement in accordance with

this paragraph; or

(b) the amount of wages being proposed to be given as

specified in sub-article (1) of article 5 of this Order,

and leaves employment, he may institute proceedings before

the Industrial Tribunal where he may claim unfair dismissal and

the relevant provisions of the Act shall apply.

Any conversion of a contract of service or of a contract

of employment into a contract for service can only have legal effect

for the purposes of the Act if it is authorized by the Director. Until

such authorization is obtained and if it is refused once sought, the

employment status of the person concerned shall be considered to

be unchanged and shall be the same as that enjoyed prior to the

request for authorization.

Unless otherwise expressly stated, nothing in this Order

shall be interpreted as conferring on employees the right to carry

with this status benefits which are particular to their previous self-

employed relationship.

(1) The provisions in the Constitution or in any other

law which apply to employment with the public service or public

sector shall prevail over this Order and nothing in this Order shall

confer a right to any person to consider a relationship between

a person providing a service and the public sector or service for

whom the service is provided to be an employment relationship.

(2) However, in the public service or public sector, if a

relationship which is entered into after the date of entry into force

of this Order is nominally a self-employed one and satisfies the

requirements set out in article 3 (1), but which, by virtue of sub-

article 10(1), cannot be considered to be one of employment, and

in respect of which no exemption has been obtained as specified in

article 3(2), the person providing the service may refer his case to

the Industrial Tribunal to claim compensation from the person from

whom that service is provided at any time during the relationship

or within four months from when the relationship is terminated.

If the Tribunal is satisfied that the reason for the continuation of

the contract on a self-employed basis is because of the provision

in sub-article 10(1), it shall grant an award of compensation and

establish an amount to be paid by the person for whom the service

is provided to the person who provides the service for the duration

of the relationship.

In such cases, the Tribunal shall award the equivalent of what

would have been one week’s wages had the relationship become

one of employment,

(a) for each year, or part of, of the duration of the self-

employed relationship, in the case of a relationship which has

been terminated; and

(b) in the case of a relationship which has not been

terminated, in addition to paragraph (a) hereof, the Tribunal

shall order the employer to continue paying this penalty

annually in respect of each year, or part thereof, until said

relationship is terminated.

(1) It shall be the duty of the person to whom services

are provided, or the employer, as the case may be, to provide

a written statement to the person rendering the services or to his

employee, as the case may be, who requests such statement in

writing and who considers that the person to whom services are

rendered or his employer, as the case may be, may have treated

him in a manner which infringes a right conferred on him by this

Order.

(2) Such statement shall state the reasons for any

difference in treatment and shall be provided within twenty-one

days from the date of the request.

(3) A written statement made in terms of this

paragraph shall be admissible as evidence in any proceedings under

this Order.

(1) An employee may present a complaint to the Complaints to the

Industrial Tribunal that his employer or the person for whom he Industrial Tribunal.

has rendered services has infringed a right conferred on him by

this Order within a period of four months from the date when the

employee became aware of the infringement of his rights and the

Tribunal may make such order and / or award compensation as it

deems necessary in order to remedy any breach.

(2) The right of referral of a case to the Industrial

Tribunal for compensation shall also apply in respect of a person

referred to in article 10 on the basis and conditions set therein.

Any person contravening the provisions of this Order Offences.

shall be guilty of an offence and shall be liable on conviction to a

fine of not less than one thousand euros (1000) in respect of each

employee affected.

€0.72