Jack Wall (Kildare South, Labour)
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Question 403: To ask the Minister for Enterprise, Trade and Employment the entitlements of a person (details supplied) in Count Kildare in relation to holiday payments; and if he will make a statement on the matter. [32633/06]

Tony Killeen (Clare, Fianna Fail)
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Section 19 of the Organisation of Working Time Act 1997 provides that an employee's annual leave entitlement is calculated as follows:

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), or

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

The employee can avail of the method which is most favourable to him or her of the above three methods.

If, as indicated by the Deputy, the employee has changed employment during the leave year, he or she would be entitled to annual leave as provided for at (b) or (c) above. The balance of annual leave owing to him or her during the leave year would fall to be given to him or her by the second employer in respect of his or her service with the second employer. The maximum annual leave entitlement of an employee who changes employment during a leave year is 4 working weeks between both employers.

In addition to annual leave, there are nine public holidays per year as follows:

1. New Years Day (January 1),

2. St. Patrick's Day (March 17),

3. Easter Monday,

4. The first Monday in May,

5. The first Monday in June,

6. The first Monday in August,

7. The last Monday in October,

8. Christmas Day (December 25), and

9. St. Stephen's Day (December 26)

Employees, other than part-time employees, have an immediate entitlement to public holiday benefits. Part-time employees must have worked at least 40 hours in the 5 weeks ending on the day before the public holiday to qualify for public holiday benefit.

In respect of a public holiday, an employee is entitled to whichever of the following his or her employer determines:

(a) a paid day off on that day

(b) a paid day off within a month of that day

(c) an additional day of annual leave

(d) an additional day's pay.

Any disputes between an employee and employer in relation to annual leave and public holiday entitlement may be referred to a Rights Commissioner for decision under the 1997 Act.

Richard Bruton (Dublin North Central, Fine Gael)
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Question 404: To ask the Minister for Enterprise, Trade and Employment if his attention has been drawn to a practice where companies keep breaking contracts in order to leave workers in a permanent temporary capacity, thereby eroding their capacity to develop pension rights and other service-related benefits; and his plans to develop protocols that would bring this practice to an end. [32669/06]

Tony Killeen (Clare, Fianna Fail)
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The Protection of Employees (Fixed-Term Work) Act 2003, provides that a fixed-term employee shall not be treated less favourably than a comparable permanent employee in respect of conditions of employment including pay, pensions and other service-related benefits. In order to invoke the anti-discrimination provisions in the Act, the fixed-term employee must find a permanent comparator with (a) the same or associated employer or, (b) where (a) does not apply, as specified in a collective agreement or, (c) where neither (a) nor (b) applies, in the same sector or industry. In the case of (a) and (c) above, the fixed-term employee and the comparable permanent employee, must perform the same work or similar work or work of greater or equal value.

If a fixed-term employee, can find a permanent comparator as described above, who is in receipt of a pension or other service-related benefits which the fixed-term employee is not in receipt of, that fixed-term employee would be able to claim a pension or other service related benefit for himself or herself from his or her employer. The only way the employer could avoid paying the fixed-term employee a pension or granting a service related benefit in the above circumstances, would be, if he or she had objective grounds for treating the fixed-term employee less favourably than the comparable permanent employee.

Under the 2003 Act, a ground shall not be regarded as an objective ground for the purposes of the Act, unless it is based on considerations other than the status of the employee concerned as a fixed-term employee, and the less favourable treatment which it involves for that employee, is for the purpose of achieving a legitimate objective of the employer, and such treatment is appropriate and necessary for that purpose.

If a fixed-term employee feels that he or she is entitled to a pension or other service-related benefit under the provisions of the 2003 Act and if his or her employer refuses to concede this, it is open to him or her to refer the matter to a Rights Commissioner for adjudication under the 2003 Act.

The Protection of Employees (Fixed-Term Work) Act 2003 also provides in relation to an employee who enters on a fixed-term contract of employment before the commencement of the Act — on 14 July 2003 — that if that employee is employed continuously on such a contract of employment for three continuous years, his or her contract of employment can only be renewed one more time on a fixed-term basis for up to one year and that if it is renewed again after that, it is deemed to be a contract of indefinite duration — unless the employer has objective grounds for renewing the contract of employment again on a fixed-term basis.

In addition, the 2003 Act provides in relation to an employee who enters on a fixed-term contract of employment after the commencement of the Act, that if that employee is employed on such a contract of employment for four continuous years and the contract is renewed again after that, then it is deemed to be one of indefinite duration unless the employer has objective grounds for renewing the contract of employment again on a fixed-term basis.

Any dispute between an employer and a fixed-term employee about whether a contract of employment should be deemed to be one of indefinite duration may also be referred to a Rights Commissioner for a decision, under the 2003 Act.