Dáil Éireann debate -
Wednesday, 29 Jun 2005

Vol. 605 No. 4

Adjournment Debate.

Ombudsman for Children.

Mr. Neville

I welcome the opportunity to raise on the Adjournment the first report of the Ombudsman for Children, which was published yesterday. As someone who campaigned with former Deputy Austin Currie for an Ombudsman for Children, the publication of her first report is an important event and I congratulate Emily Logan and her staff on their work in establishing the office. The first year was difficult because there was no office or support but Ms Logan has now established a presence in this area. In future we will look forward to reports that will have a significant impact on children's rights.

We must look at the limitations and exclusions in her role that she has raised, particularly the limitations that apply to children in certain places of detention, the Garda Síochána, the administration of asylum, immigration, naturalisation and citizenship law, provision for the exercise of ministerial veto on investigation and the Defence Forces. Central to the office's concern is that these limitations will remove from its investigatory remit some of the most vulnerable children and young people in the State.

The Ombudsman for Children Act provides that the Ombudsman for Children should promote the rights and welfare of children. The ombudsman considers it an obligation to promote the rights of all children equally. To exclude any group or class of children from the reach of the Ombudsman for Children's investigatory powers by virtue of immigration status or detention in place not covered by the Act is to go against the primary objective of the Ombudsman for Children Act — the establishment of an ombudsman to promote the rights and welfare of children.

The exclusion of certain groups of children from the investigatory remit goes against the letter and spirit of the UN Convention on the Rights of the Child, which states that children's rights institutions should proactively reach out to all groups of children, in particular the most vulnerable and disadvantaged, such as children in care or detention, refugee or migrant children and other groups. Institutions should have the right of access in conditions of privacy to children in all forms of alternative care or other places.

In its present form, the Ombudsman for Children falls short of the level of protection offered to children in other countries. This is demonstrated by comparison with the situation in Northern Ireland and in Scotland. The Commission for Children and Young People in Northern Ireland contains no specific exclusions on asylum, immigration, naturalisation or citizenship nor on the administration of prisons or other places of detention or of the custody of children. In Scotland the Commission for Children and Young People provides that the commissioner may investigate any service provider for young people or children in regard to the extent the service provider has regard to the rights, interests and views of children and young people in making decisions that affect them.

Under the Good Friday Agreement, the Irish and British Governments are committed to providing parity of protection to the rights of all people on the island. The State has fallen short of the level of protection offered to children in Northern Ireland. The Office of the Ombudsman for Children will seek to resolve this situation and will ask the Minister to look at amendments to the Ombudsman for Children Act 2002. I put the need to amend the Act to the Minister to deal with the Ombudsman for Children's concerns.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Killeen)

I will take the adjournment on behalf of my colleague, Deputy Brian Lenihan, Minister of State with special responsibility for children. I thank the Deputy for raising this matter as it provides me with an opportunity to outline to this House an update on this matter.

The Ombudsman for Children recently issued her first annual report. The Ombudsman for Children was appointed in December 2003 and the office was formally established in April 2004 with a staffing complement of nine. The report covers the period from April 2004 to April 2005.

The role of the Office of the Ombudsman for Children is twofold: to promote the rights and welfare of children and to investigate complaints.

On the investigation of complaints, the office has a wide remit that includes public bodies, schools and voluntary hospitals. This remit exceeds that of the Office of the Ombudsman, which has sought a similar wide-ranging remit for several years. During the period under review, 177 complaints were received which, for an office in its infancy, must be seen as substantial. The majority of complaints — 51% — related to education, 16% related to health and just over one quarter concerned child protection, social welfare entitlements, civil proceedings, asylum and immigration.

Actions excluded from the remit of the Ombudsman for Children are broadly similar to those of the Office of the Ombudsman. In the annual report the Ombudsman for Children addresses a number of areas in which her powers of investigation are limited. These include children in certain places of detention, the Garda Síochána, administration of the law relating to naturalisation, immigration, citizenship and asylum, the Defence Forces and provision for a ministerial veto in investigations. These limitations are in place as a result of independent bodies having investigation powers, such as the visiting committees for prisons and places of detention and the plans for a Defence Forces ombudsman.

The ministerial veto also exists in the Act establishing the Office of the Ombudsman and has never been used. The provision is in place to protect both the Minister and the Ombudsman for Children. It ensures that the Minister is accountable to the Oireachtas by avoiding any interference in the role of the Minister. It also protects the Ombudsman for Children as such a request must be in writing and it would be expected that the Ombudsman for Children would include this in any report to the Oireachtas, thus ensuring transparency.

As can be seen from the report, the establishment of the Office of the Ombudsman for Children has been very successful. The Ombudsman for Children adds a central plank to promoting children's rights and welfare, along with investigating complaints relating to issues affecting children. It is a major step forward in implementing the national children's strategy, particularly the first goal, which is concerned with giving children a voice.

I am pleased to report that the National Children's Office has made excellent progress in ensuring the development of structures to give children a voice and recently published national guidelines with the NGO sector on participation by children and young people.

Migrant Workers.

Mr. M. Higgins

I wish to raise the need for protection under the social welfare scheme of workers, particularly migrant workers, such as those affected by the abandonment of a public contract for the refurbishment of Eyre Square in Galway for Galway City Council and earlier the workers who are at risk following the collapse of a firm in Portumna; the increasing vulnerability of migrant workers affected by sudden closures in the construction industry, often on public contracts, without notice; breaches of statutory regulations and general absence of protection; the need for a hardship fund to address their immediate needs and such statutory changes as will meet their basic rights. In the service industry foreign workers are being exploited, particularly in terms of accommodation. They are charged for anything they consume on the employers' premises, even for glasses of water. Will the Minister of State inform the House what is the situation with regard to the number of hours foreign workers work each week? Who is on the inspectorate? How many reports has it carried out and have any of them been published?

Migrant workers are among the most vulnerable in society. Events this week bear this out. The group of workers laid off as a result of the actions undertaken by Kingston Construction Limited are now in a most invidious position. These workers were employed by a company engaged by Galway City Council. It has now moved to secure the site, it having been abandoned by the company. However, it is beyond comprehension that public money could be spent in this fashion. The city council engaged a company that did not comply with a registered agreement as it relates to pension rights as well as rates of pay. It is incumbent on State bodies to ensure that tenders for work which are accepted are compliant with the relevant registered agreement. A proper system of checks and balances must be implemented to ensure workers are protected. In the event of the kind of incidents that occurred in Galway city and county recently, it is worth noting that many workers, particularly migrant workers such as those affected by the abandonment of a public contract, are increasingly vulnerable. Such workers affected by sudden closures without notice in the construction industry are suffering breaches of statutory regulations and a general absence of protection.

When what happened in Galway arises, what immediate provisions are there for such workers, especially non-Irish workers, made redundant in this manner? What recourse do these people have? What arrangements are in place for those workers from within the EU, those from outside the EU and those from the new member states of the EU but who are in a minority in their state and do not enjoy full citizenship rights? There have been reports of people from some Baltic states not receiving the full benefits and protection of EU membership. Beyond these questions, there is a clear and urgent need for a hardship fund to address the immediate needs of workers, such as those in Galway who lost their jobs. There is now a pressing requirement for statutory changes that will meet their basic rights. Where accommodation has been booked and organised by the putative employers, in the event of the contract being broken, as in this case, in what position do such employees find themselves? Is it possible for them to apply for rent allowance?

The Government must act to protect the least powerful in society. Migrant workers are some of those with the least clout in Ireland. This has been seen as a result of Kingston Construction Limited's action and the previous company to which I referred. I call on the Minister of State to answer the questions I have raised and to indicate such actions he proposes to take in this regard.

Mr. Killeen

I welcome this opportunity to address the House on the day when the Minister for Enterprise, Trade and Employment, Deputy Martin, published the Employment Permits Bill 2005. The Bill contains a variety of provisions designed to deal with concerns expressed about the protections available to immigrant workers from outside the European Union employed in Ireland.

Protections set out for workers under the provisions of all employment rights legislation are equally applicable to all workers, whether a person be Irish or a foreign national. For the avoidance of doubt, section 20 of the Protection of Employees (Part-Time) Work Act 2001 provides that all employee protection legislation on the Statute Book applies to workers posted to work in Ireland.

The employment rights information unit in the Department of Enterprise, Trade and Employment is active in supplying information on employment rights to employees. Last year, 150,000 inquiries were dealt with by this unit. Officials have given several talks on employment rights to a range of migrant worker groups. Information on employment rights is available in leaflet form from the Department and is also available on the Department's website.

In matters of investigation and enforcement the labour inspectorate of the Department makes no distinction between Irish and migrant workers whether they are from inside or outside the European Union as regards the provision of information and enforcement activity. With regard to the labour inspectorate, it is appropriate that since January of this year steps have been taken which mean the complement of Inspectors will have almost doubled from 17 officers to 31 once current recruitment activities are completed. I expect this to happen soon.

Apart from the increases in resources there is further significant activity on the employment rights front. Arising out of Sustaining Progress, work is under way to address issues identified in the report of the review group on the employment rights bodies and in the discussion document which focused on the mandate and resourcing of the labour inspectorate. A restatement or consolidation of employment rights legislation forms part of this agenda. This work will lead to the establishment of better streamlined procedures for complaint resolution for employees together with more effective investigation and enforcement to deal with the detection and, where appropriate, the prosecution of breaches found. All workers, including migrant workers, will benefit from these improvements.

These are the positive initiatives that are under way to improve the legislative environment in the context of employment rights and to address breaches of statutory regulations. While I understand this is not the situation in the case in question, there is provision for the protection of workers' entitlements where their employer has gone into liquidation or receivership. The insolvency payments scheme, which is administered by the Department of Enterprise, Trade and Employment, enables employees to claim, either through the liquidator or receiver, arrears of pay, holiday pay, pay in lieu of statutory notice and various other pay related entitlements that may be owed to them by their employer. The scheme operates under the Protection of Employees (Employers’ Insolvency) Act 1984, and payments are made from the social insurance fund. Where a payment has been made to an employee under the scheme, the Minister for Enterprise and Employment becomes a creditor against the employer in place of the employee.

Mr. M. Higgins

What do they do in the short term?

Mr. Killeen

Where workers are dismissed by reason of redundancy, the Redundancy Payments Acts require, subject to certain conditions, that employers make statutory payments to these workers amounting to two weeks' pay for each year of service up to a ceiling of €600 per week, plus a bonus week. Any person who is laid off by his or her employer is entitled to unemployment benefit or assistance provided he or she satisfies the normal qualifying conditions for receipt of payment. In the case of unemployment assistance, these conditions include the requirement to be habitually resident in the State.

Mr. M. Higgins

That includes all the Poles——

An Ceann Comhairle

Allow the Minister of State speak without interruption.

Mr. Killeen

In the case of a non-EEA national who becomes unemployed but who has been granted permission to remain in the State until a particular date by a Garda registration officer on foot of a work permit, he or she is considered to be legally resident in the State up to the expiry date on the visa, even if he or she has lost his or her employment prior to that date. Subject to satisfying all the statutory conditions for entitlement to payment, a non-EEA national who is legally resident in the State under these circumstances may receive payment of unemployment benefit or assistance up to but not beyond the expiry date on the visa. The supplementary welfare allowance scheme is the safety net within the overall social welfare system in that, subject to qualifying conditions, it provides assistance to any person in the State whose means are insufficient to meet their needs and those of their dependants.

The Employment Permits Bill clearly sets out in legislation the procedures relating to the application, grant and refusal of work permits. It allows for the introduction of a green card type system for highly skilled migrant workers, and for the means to establish the number of employment permits in total and by sector and to identify the skills and employment categories in respect of which employment permits may be granted. It will grant the work permit to the employee rather than the employer. However, for reasons of traceability and the enforcement of employees' rights, the practice of the employer applying for the permit will continue. The employment permit will contain a statement of the rights and entitlements of the migrant worker, including that the employee may change employment through the application for another work permit by a new employer. This will provide migrant workers with greater freedom and flexibility.

The Bill prohibits employers from deducting recruitment expenses from remuneration and from retaining workers' personal documents. It introduces significant penalties for breaches of the legislation, comprising fines to a maximum of €50,000 or terms of imprisonment not exceeding five years. These provisions give additional protections to migrant workers beyond those already in existing employment rights legislation.

Commercial Payments Directive.

Mr. Sargent

Ba mhaith liom buíochas a ghabháil leis an gCeann Comhairle as ucht cead a thabhairt dom an cheist thábhachtach seo a ardú anocht. Over the last month I have received deputations from representatives of ten small and medium-sized indigenous companies operating in the construction sector. They alerted me to a particular scam that is widespread and straightforward.

A construction company, in this case Glenman Corporation of County Galway, won a Government contract to build council housing in Fortunestown, south County Dublin and in Ballymun, Dublin city. It hired sub-contractors to do most of its work. When the work was completed and the sub-contractors presented invoices, in one case for €374,000 and €254,000 in another, some contrived fault was found in the documentation or the work. They were told they would not be paid. When the subcontractors threatened legal proceedings, they were told it would take three years to get to court and by then they would be bankrupt. Instead, they were made an offer of approximately half of what they were owed to take or leave.

It is a clever scam because it uses the laws drafted by this House in good faith against the very people for whom laws are drafted to protect — the most vulnerable. We all know, sometimes from bitter experience, that the law favours the rich and that justice delayed is justice denied. A small contractor will have little choice but to risk going into further debt if he or she decides to take on a larger contractor. The scam also works because we have no effective prompt payments legislation. I remind the House that payment delayed is also payment denied. However, the legislation only governs public bodies and does not cover the private business sector.

Yesterday, before I raised this matter in the House while some hauliers protested outside the gates of Leinster House, I was only aware of ten companies which faced this difficulty. Today, following coverage in the national newspapers, several more have come forward to state that they also face financial ruin at the hands of Glenman Corporation. A plant hire company is owed €180,000, a site security company is owed €10,000 and a haulage company is owed €206,000. This is Government money not reaching people who work on Government projects. I spoke to one man who owes €400,000 to the people he hired to carry out this work. His apartment has been ransacked — we suspect by the creditors — his wife and children have been obliged to move out of the family home and he has not slept in his family home for four weeks because he fears for his life.

Another women who recently started a cleaning firm has been obliged to move out of Dublin to Wicklow. Her two vans have been repossessed and she is living in fear of her life, not because she has done anything wrong, but because she has been let down by our courts and our legislation.

This story will grow bigger as time passes and more people come forward. I believe the scandal is bigger than the Gama one with which we are familiar. I appeal to the House to recognise that the long-term prosperity of this country depends to an enormous extent on small to medium-sized indigenous companies. As a country, we will come to ruin if we do not legally and effectively protect sole traders and small and medium-sized companies. This does not mean grants, State loans or other funding, nor does it mean tax breaks. Legally, small companies are entitled to protection.

I appeal to this House to reform the prompt payment legislation to include all business transactions, to reform legal structures to make it affordable and accessible to all sectors of society and to make it quick and effective. Most of all however, I appeal that we examine the way in which we award Government contracts so that unscrupulous companies no longer have the power effectively to drive small companies to ruin.

Mr. Killeen

Gabhaim buíochas leis an Teachta as an t-ábhar tábhachtach seo a chur os ár gcomhair anocht. I understand that the company in question has contracts with Ballymun Regeneration Limited, South Dublin County Council and Dublin City Council for the construction of a number of local authority housing schemes. The schemes for Ballymun Regeneration Limited involved are Sillogue, phase 3B, where 58 units are due for completion in December 2005 at a budget cost of €8.8 million, and Poppintree, phase 5B, where 90 units are due for completion at the end of the year at a cost of €15.1 million. The scheme for South Dublin County Council involved is Fortunestown with 112 units and a community facility at a cost of €20.3 million, and the involved scheme for Dublin City Council is Poplar Row, phase 2, with 69 new units and 56 units refurbished at a cost of €17.177 million.

I am advised by the Department of the Environment, Heritage and Local Government that neither they nor the local authorities concerned had any prior knowledge or difficulties with the payment of suppliers or sub-contractors by the company referred to. Having checked the matter with the local authorities, they have indicated that all claims owed to the company concerned are fully up to date. In the light of recent reports, Ballymun Regeneration Limited has sought to contact the company to ascertain the extent to which suppliers and sub-contractors working on the regeneration project are owed money, the amount involved, if any, and its proposals to address the matter. While the issue of payment of suppliers or sub-contractors is a matter for the companies involved in the first instance, the local authorities will maintain a watching brief to see if and how this matter is resolved.

The Deputy has also referred to the general issue of prompt payment of bills by public and private sector organisations and I am happy to clarify the legal position in that respect. In general, this area is governed by the provisions of the European Communities (Late Payment in Commercial Transactions) Regulations 2002, which came into force as SI 388 of 2002. These regulations, which gave effect to a European Union directive on late payment in commercial transactions, came into effect in Ireland on 7 August 2002 and apply to commercial transactions in both the public and private sectors.

The regulations provide essentially that penalty interest will become payable if payments for transactions between undertakings are not met within 30 days, unless otherwise specified in a contract or agreement. A payment is regarded as late when 30 days have elapsed unless an alternative payment period is specified in an agreed contract. In the case of an agreed contract, payment is regarded as late if the payment period exceeds the date or end of the period for payment specified in the contract. Where the contract does not specify a payment period, a default payment period of 30 days will apply. This 30-day payment period begins on the date of receipt by the purchaser of an invoice for payment or the date of receipt of the goods or services where the date of receipt of the invoice is uncertain or the purchaser receives the invoice before the delivery of the goods or services in question. In cases where the parties have agreed a procedure for acceptance or verification of the goods or services, the 30-day payment period starts after this process has been completed.

The interest rate specified in the regulations for late payment is the European Central Bank, ECB, rate plus seven percentage points. However parties to a contract may, if they wish, agree an alternative interest rate. Compensation may be claimed for the recovery costs of the debt, if such costs arise, and the basis on which this may be done is also laid down in the regulations.

Mr. Sargent

That is easier said than done.

Probation and Welfare Service.

Mr. Carey

Ba mhaith liom buíochas a ghabháil leis an gCeann Comhairle as ucht cead a thabhairt domsa an t-ábhar seo a thabhairt roimh an Dáil. Since 2001, the Village Project has served the Finglas and Ballymun area by providing assessment services. It was set up under the auspices of the probation and welfare service of the Department of Justice, Equality and Law Reform. The detrimental effects which the proposed change to this service will have on young people in my constituency must be addressed.

As the Minister of State is aware, the Village Project was established in 2001 by the probation and welfare service. It was a pilot project to provide assessments for children between the ages of 12 and 16 years from the Finglas and Ballymun areas who were referred by the courts. It was set up as a response to the identified need for a community-based assessment service that provided an alternative to the residential centres in existence. The project was originally a co-operative venture between the Department of Education and Science and the probation and welfare service and was funded under the children at risk fund until April 2004.

Since its inception, the project has been extremely successful. A total of 84 young people have undergone assessment up to May 2005. To date, 82 young people have completed their assessments and of this number, a total of 79 have returned to either mainstream schools, alternative educational settings or are in employment. The financial efficacy of the project is apparent when one considers that in 2002, it cost up to €250,000 to detain a young person in a residential placement while it cost €320,000 to assess 20 young people in the Village Project centre.

In April 2004 there was a change in policy and practice. Funding and responsibility for the project were transferred wholly to the Department of Justice, Equality and Law Reform and placed under the auspices of the probation and welfare service. Although the service had availed of the services of the project since 2001, it adopted this new responsibility with a view to the project fulfilling its role under the Children Act 2001. The probation and welfare service has the responsibility of establishing and developing day centres under the Act with a view to conducting assessments with the community of children aged between 16 and 17 who are on remand. It indicated its desire for the Village Project specifically to fulfil this role in this area.

Before I continue, I wish to provide an outline of the referrals to the project. A total of 19 young people attended the Village Project as a consequence of criminal justice matters and five of the 19 are in detention schools or institutions for young offenders. The remainder continue to be under the supervision of the probation and welfare service and most of them maintain some level of contact with the Village Project. All the young people who attended the project because of criminal justice matters are male.

In addition, between 2004 and 2005, five mini-assessments have been conducted on behalf of the probation and welfare service. These consisted of a psycho-educational assessment as well as or instead of an offending risk assessment and were conducted with young people from outside the Dublin 9 and Dublin 11 areas or for whom a full assessment was not required. Ongoing contact with the majority of probation and welfare referrals has been prevalent with many of these young people visiting the project on a weekly basis. Additionally, contact has been maintained with these young people who are in detention via telephone contact and-or visits to either detention schools or young offenders institutions.

Although the probation and welfare service had availed of the services of the project since 2001, it recently adopted the new responsibility under the Children Act. The probation and welfare service has the responsibility of developing and establishing day centres under the Act with a view to conducting assessments of children aged between 16 and 17 years. I am aware that up to 11 of those centres are proposed countrywide.

The implications of the change in direction will have a detrimental effect on the current services provided by the centre. It is now apparent that for the project to continue while simultaneously meeting the funding obligations of its exclusive funding source, that is, the probation and welfare service, it must change its core objectives and, consequently, the type of service it provides.

Given these new circumstances, the board of the Village Project has had to make the difficult decision no longer to accept new referrals for assessment from the courts from Monday, 20 June. Rather, the project must now focus on the development of its role as a day centre and deliver services purely to the clients of the probation and welfare service. This will mean that young people from 12 to 16 years of age will no longer be able to avail of the service. Educational welfare officers, schools and projects will have nowhere to refer children for comprehensive assessments. The positive changes brought about by this project will not continue to develop and further detention of this younger age group could be the result.

I request the Minister to review the situation and ensure the Village Project can continue to meet the needs of the community in which it operates. As I stated, many 12 to 16 year olds and their families have benefited greatly from the service and it would be a travesty if changes to funding sources dictated that this successful scheme was not allowed to continue into the future. I recognise the need of 16 and 17 year olds will be addressed with these changes but this should not be to the detriment of services for younger people.

There is much concern among education practitioners, in particular, in the area. In the course of correspondence from the chairperson of the project to the chief executive officer of the National Education Welfare Board, it was indicated that the likelihood of alternative assessment arrangements being available in the short term was unlikely. It was suggested, therefore, that the board would engage in consultations with the probation and welfare service to see how a modification of the decision could be made.

Mr. Killeen

Gabhaim buíochas leis an Teachta agus tugaim freagra thar cheann an Aire.

The probation and welfare service operates under the aegis of the Department of Justice, Equality and Law Reform. It has approximately 430 staff and an annual budget of approximately €45 million. It provides assessments on offenders to the courts and is responsible for the proposal and implementation of community sanctions. It also provides a probation service to prisons. The service funds and works in association with 75 voluntary bodies or projects in the provision of relevant services. The objective of the service is to reduce reoffending and protect the public.

The Village Project was established in 2001 as a pilot project to provide assessments for children between the ages of 12 and 16 years referred by the courts from the Finglas and Ballymun areas. The project was a co-operative venture between the Department of Education and Science and the probation and welfare service. Initially, it was funded under the children at risk fund in the Department of Education and Science. Following a request from the Department of Education and Science, the Department of Justice, Equality and Law Reform commenced funding the project on 1 January 2004. Since 1 January 2004, 21 males and 12 females have been assessed.

The probation and welfare service has the responsibility of establishing and developing day centres under the Children Act 2001 with a view to conducting assessments of juveniles who are on remand within the community and it has indicated its desire for the project to fulfil this role. It may also provide an assessment service to referrals from other relevant State and community-based services when resources allow.

The Village Project's board of directors has been considering the implications of this change of direction for a number of months and now accepts that for the viability of the project and to meet funding obligations, it must change its core objectives and, consequently, the type of service it provides. To meet the needs of the probation and welfare service client group and to replicate the requirements of the day centre order as outlined in the Children Act 2001, the Village Project will require some considerable modification. The project is now focusing on the development of its role as a day centre and delivering services to the clients of the probation and welfare service.

The Dáil adjourned at 10.35 p.m. until 10.30 a.m. on Thursday, 30 June 2005.