We resume on amendment No. 100. Deputy Howlin was in possession. We will hear from the Minister.
Employment Permits Bill 2005: Report Stage (Resumed) and Final Stage.
I move amendment No. 100:
In page 11, between lines 19 and 20, to insert the following:
"(3) An employment permit shall include or be accompanied by a summary of the principal employment rights of the employee.".
The employment permit already contains a statement of the valuable new protections for migrant workers, including entitlement to the national minimum wage, the prohibition on the retention of personal documents and deduction of recruitment expenses. However, I am disposed to accept the Deputy's amendment that the permit, when issued, should be accompanied by a summary of the principal employment rights for the employee.
Amendment agreed to.
I move amendment No. 101:
In page 11, between lines 22 and 23, to insert the following:
"Entitlements of a permit holder.
10.—(1) A holder of an employment permit shall be entitled to:
(a) the same tax and social benefits as nationals;
(b) be joined by his or her family where he or she holds a work permit valid for at least 12 months and where members of his or her family shall be entitled to work in the state; and
(c) obtain permanent residence after a period of 5 years.
(2) An applicant for a work permit who is a family member of an existing permit holder as provided for in subsection (1)(b) shall:
(a) be eligible for jobs which have not been advertised with FÁS in advance of their application;
(b) be entitled to apply for jobs in categories that would otherwise be ineligible for work permits; and
(c) not be subject to a fee for his or her application.”.
Amendment put and declared lost.
I move amendment No. 102:
In page 11, line 24, to delete "non-national" and substitute "foreign national".
A Cheann Comhairle, what section are we on?
Amendment No. 102. It is page 11, line 24, section 6.
Do I take it that, for the purpose of consistency, where the use of the word "non-national" appeared in the original text it is now being transposed to "foreign national"?
Yes. That amendment has been accepted and obviously the Bill——
We have moved from the tradition where we had Catholics and non-Catholics in this country to Catholics and other denominations. I always found the non-national nomenclature quite offensive but we know its origin.
We must move on, Deputy, because this amendment has already been discussed with amendment No. 101.
Amendment agreed to.
Amendment No. 103 not moved.
I move amendment No. 104:
In page 11, line 29, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 105 not moved.
I move amendment No. 106:
In page 12, line 13, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 107 not moved.
I move amendment No. 108:
In page 12, line 15, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 109 not moved.
On a point of order, I wish to inform the House that an intended amendment in the definition of the term "holder" on page 6, lines 8 and 9 from "non-national" to "foreign national" was omitted. I propose to effect this amendment by means of a correction by the Clerk of the Dáil. It is in the definition section. This amendment is consequential on the broader amendment.
Could the Minister clarify matters for us?
An intended amendment in the definition of the term "holder" on page 6, lines 8 and 9 from "non-national" to "foreign national" was omitted. This is a technical textual issue. I propose to effect this amendment by means of a correction by the Clerk of the Dáil.
Is the Minister proposing this amendment?
Is it appropriate? I will do so if the House accepts it.
We are going back to the beginning of the Bill.
We could deal with the amendment in the Seanad if we have to. I can propose the amendment in the Seanad if there are procedural difficulties.
Could we temporarily recommit the Bill to allow us to deal with the amendment?
Did this amendment arise on Committee Stage?
It is consequential on the decision to change terminology from non-national to foreign national.
Perhaps the best way to deal with the amendment is to go into committee.
We could go into committee now to deal with the specific issue and then revert to Report Stage.
We will recommit just for this one amendment.
Bill recommitted in respect of the following amendment:
I move the following amendment:
In page 6, line 8 and 9, to delete "non-national" and substitute " foreign national".
This amendment is consequential on earlier amendments accepted by the House. According to the amendment, "holder", in relation to an employment permit, means the foreign national to whom it has been granted. I thank Deputies for their co-operation.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 110:
In page 13, to delete lines 4 to 11.
I am not in a position to accept this amendment. The provision this amendment proposes to delete gives the Minister of the day discretionary powers to refuse a work permit application on the basis that the worker already has a work permit issued within the previous 12 months. The aim here is to balance the right of an employer to expect that when he or she goes to the effort and expense of recruiting a non-EEA worker, the worker will remain with him or her for a reasonable period against the right of the worker to change jobs. We have opted for a 12-month period, after which a worker can leave his or her employer or change jobs. The balance achieved in the Bill is correct and allows discretion to be exercised in the area and for each case to be treated on its merits. This does not restrict the Minister's power to grant a new work permit to an employee should circumstances warrant it. For example, in the case of exploitation or if the employee has been treated unfairly, the Minister can then issue a new work permit to that employee for a new employment within the 12-month period.
Amendment, by leave, withdrawn.
I move amendment No. 111:
In page 13, line 7, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 112 not moved.
I move amendment No. 113:
In page 13, lines 10 and 11, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 114 not moved.
I move amendment No. 115:
In page 13, line 18, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 116 not moved.
I move amendment No. 117:
In page 13, line 20, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 118 not moved.
I move amendment No. 119:
In page 13, line 28, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 120 not moved.
I move amendment No. 121:
In page 13, line 30, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 122 not moved.
I move amendment No. 123:
In page 14, line 2, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 124 and 125 not moved.
Amendment No. 126 arises out of Committee Stage. Amendments Nos. 126, 129, 131 and 149 are related and may be discussed together by agreement.
I move amendment No. 126:
In page 14, line 26, after "decision" to insert the following:
"(and, if the person does so, shall notify in writing the second-mentioned person of the reasons for the confirmation)".
Deputy Howlin raised this issue on Committee Stage and moved two amendments which are essentially encapsulated in amendment Nos. 129 and 131. We are proposing alternative amendments which we worked through with the Parliamentary Counsel in an effort to capture the spirit of Deputy Howlin's amendments. The amendments clarify the position in respect of the decisions to refuse or revoke an employment permit so that the persons appointed to conduct these reviews will be required to give reasons in writing for their decisions. Deputies Howlin and Quinn and I are trying to achieve the same outcome in this regard. In other words, if the Minister of the day revokes or refuses to issue an employment permit, the person who carried out the review must give reasons for his or her conclusions. This is the aim of amendment No. 126, which is similar to amendment No. 149.
Amendment agreed to.
I move amendment No. 127:
In page 14, line 27, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 128 and 129 not moved.
I move amendment No. 130:
In page 14, between lines 29 and 30, to insert the following:
"(5) A decision on appeal under this section may be the subject of an application to the Ombudsman.".
On Committee Stage, when we discussed an amendment proposing that reviews of decisions to refuse a permit could be the subject of an appeal to the Ombudsman, it was agreed that we would revisit the issue on Report Stage. Section 5(1)(e) of the Ombudsman Act 1980 states that the Ombudsman shall not investigate any action taken by or on behalf of a person if such an action is one taken in the administration of the law relating to naturalisation and the entry of foreign nationals, in other words, immigration, including economic migration arrangements. The office of the Ombudsman has confirmed that it does not have a role or function in reviewing an executive decision by the Minister for Enterprise, Trade and Employment to refuse or revoke an employment permit, which is an executive function. The office of the Ombudsman has pursued complaints relating to immigration matters in the past but these related solely to administrative actions, for example, delays or failure to provide adequate information about decisions. Accordingly, I do not propose to accept this amendment.
Amendment, by leave, withdrawn.
Amendment No. 131 not moved.
I move amendment No. 132:
In page 15, line 5, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 133 not moved.
I move amendment No. 134:
In page 15, line 11, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 135 not moved.
I move amendment No. 136:
In page 15, line 35, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 137 not moved.
I move amendment No. 138:
In page 15, lines 38 and 39, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 139 not moved.
Amendment No. 140 is ruled out of order.
Amendments Nos. 140 to 142, inclusive, not moved.
Amendments Nos. 143, 144, 157 and 162 are related and will be discussed together.
I move amendment No. 143:
In page 16, lines 14 and 15, to delete "or the employer".
I have tabled amendments Nos. 143 and 144 because it is grossly unfair that an employee, a permit holder who has done no wrong, will be disqualified or have his or her permit revoked if the employer is convicted of an offence under the Bill. If the amendment is accepted, section 16(1)(a) will read: “in the opinion of the Minister, the holder of the permit has not complied with section 19(1) or (2).” As the Bill stands, the employee will be the victim due to the conviction of the employer for an offence over which he or she will have no power.
Amendment No. 157 seeks to address a situation where an unscrupulous employer could pretend that he or she had renewed the work permit, which would result in the employee becoming illegal through no fault of his or her own. The amendment tries to build fairness into the section.
Amendment No. 162 seeks to give employees the right to seek alternative employment rather than immediately becoming illegal. In all cases, this is largely a by-product of the employer being the person who seeks and holds the permit. I do not want to labour the point because we have dealt with it at length on Second and Committee Stages.
I will be helpful to the Deputy, as amendments Nos. 143 and 144 would not have the desired objectives he has articulated. In fact, they may have the opposite impact in so far as they would take the employer out of the equation. If I were to accept them, in essence I would be excluding the employer from his or her responsibilities in this regard. In other words, the Deputy would be letting him or her off scot free. If the employer was guilty of fraudulent behaviour in respect of a work permit, only the employee would be left in the section. He or she would be the subject matter of potential difficulties because the word "employer" would be removed. That is not what the Deputy intends but it would occur. The employee holds the permit also. Under legislation, both the employer and the employee have the right to apply for a work permit.
I thought it was just a copy of the permit.
No. The employee has the actual permit.
There has been a change because I understood an employee was only obliged to get a copy.
For that reason, the employer is specifically mentioned in this section, which refers to the holder of the permit or the employer. If the employer does not comply with the provisions of the Bill, we want to be able to penalise him or her. We do not want to take the employer out of the equation. This is not what the Deputy intended but would be the impact of the amendments. He understands why I do not wish to accept them.
There is a group of amendments. Does the Minister want to address the next two?
Yes. I understand what the Deputy is endeavouring to achieve with amendments Nos. 157 and 162. Under the new arrangements provided for in the Bill, the permit will be issued to the worker who will, therefore, know when the first permit expires as the date will be on it. If he or she does not receive a renewal permit shortly after the expiry of the first permit, he or she will know that one has not been granted. If an employer refuses to apply for a renewal permit, the Department will continue to favourably consider a work permit application in respect of the person concerned. Section 9(2)(d) of the Bill provides that the employment permit will contain an explicit statement that a new application for the grant of an employment permit may be made by the worker himself or herself. The matter is covered.
Amendment, by leave, withdrawn.
Amendments Nos. 144 and 145 not moved.
Amendments Nos. 146 and 148 are cognitive and will be discussed together.
I move amendment No. 146:
In page 16, line 33, to delete "14 days" and substitute "28 days".
Both amendments result from our debate on Committee Stage when it was suggested to me by Deputy Hogan that we should extend from 14 to 28 days the period in which a decision to revoke a permit may be sought. I have agreed to the suggestion and I am moving an amendment to this effect.
Amendment agreed to.
Amendments Nos. 147 and 150 are related and will be discussed together.
I move amendment No. 147:
In page 17, to delete lines 1 to 7.
We discussed this matter on Committee Stage. I wish to re-emphasise to the House that the powers enshrined in section 16(5) are ones that I envision only being used exceptionally. Inevitably, there will be circumstances in which, for reasons of public interest, a decision to revoke a permit should take effect immediately. We are talking about exceptional circumstances. For example, if information on particular individuals is given to the Minister, he or she should be in a position to do something based on security advice. That is the only intention and the decision would be subject to review.
The next amendment seeks to delete lines 26 to 32, but they are necessary to ensure section 16(5) can be implemented and provide that when revocation of a permit is reviewed and cancelled, the period for which the permit will remain in force after the cancellation excludes the period between initial revocation and its cancellation. I hope the Deputy understands. This was a good tongue twister when I read it this morning.
Will the Minister indicate the regulations he intends to impose in respect of this section? He mentioned that regulations and the criteria to be used in reaching a decision are to be produced. While this power will not be generously used, what circumstances does the Minister have in mind and what regulations does he wish to publish in conjunction with this section to provide the necessary safeguards?
To be honest, we have not formulated the regulations. In essence, we are talking about exceptional circumstances. I can revert to the Deputy.
Before agreeing the regulations, will the Minister give an undertaking that he will bring them to the attention of the party spokespersons or the relevant committee?
Yes, before the Bill is completed.
Amendment, by leave, withdrawn.
I move amendment No. 148:
In page 17, line 13, to delete "14 days" and substitute "28 days".
Amendment agreed to.
I move amendment No. 149:
In page 17, line 24, after "decision" to insert the following:
"(and, if the person does so, shall notify in writing the second-mentioned person of the reasons for the confirmation)".
Amendment agreed to.
Amendment No. 150 not moved.
I move amendment No. 151:
In page 18, line 4, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 152 not moved.
I move amendment No. 153:
In page 18, line 7, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 154 not moved.
I move amendment No. 155:
In page 18, line 8, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 156 and 157 not moved.
I move amendment No. 158:
In page 18, line 14, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 159 not moved.
I move amendment No. 160:
In page 18, line 15, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 161 and 162 not moved.
I move amendment No. 163:
In page 18, line 27, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 164 and 164a not moved.
I move amendment No. 165:
In page 19, line 2, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 166 not moved.
I move amendment No. 167:
In page 19, line 31, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 168 not moved.
I move amendment No. 169:
In page 22, line 23, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 170 not moved.
Amendments Nos. 171 and 172 are related and will be discussed together.
I move amendment No. 171:
In page 22, line 34, to delete "A person referred to in subsection (1) or (2) shall not keep” and substitute the following:
"Neither a person referred to in subsection (1) or (2) nor a person acting on his or her behalf shall keep”.
I agree with the Deputy that it is unconscionable that any person acting on behalf of the employer should hold or retain personal documents belonging to an employee. However, the Parliamentary Counsel has pointed out that the second part of amendment No. 172, as drafted, is too wide. For example, if accepted it would mean that a friend or family member of a migrant worker could not retain a personal document belonging to that worker without first securing the Minister's permission. Hence, I propose amendment No. 171, which essentially captures Deputy Howlin's proposals on Committee Stage.
Amendment agreed to.
Amendment No. 172 not moved.
I move amendment No. 173:
In page 22, line 39, after "passport," to insert "a driving licence, an identity card,".
This amendment simply seeks to include both driving licences and identification cards on the list of documents the employer is prohibited from taking from the employee. For example, domestic employees could be isolated in some rural or secluded location and may not be fully aware of their rights under this Bill. Moreover, driving licences and identification cards are also fundamental items of documentation. One could argue that while permit holders could have cars in here, the retention by their employers of their driving licences would render such people unable to drive. Identification cards are also essential personal items which should be included.
The Deputy has made a valid point and I accept the amendment.
Amendment agreed to.
I move amendment No. 174:
In page 22, line 42, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 175 and 176 not moved.
I move amendment No. 177:
In page 22, to delete lines 43 to 46 and in page 23, to delete lines 1 to 11.
The safeguards inherent in section 24 are designed to combat fraudulent use or trafficking in work permits in respect of employment which, for example, may no longer exist where the employee has been made redundant or has left the employment for some other reason. The requirement to surrender the permit or a copy within four weeks of termination of employment must be seen in this context. If permits were to be left in circulation for longer periods, the risk of their use for illegal employment purposes would increase significantly. This is why failure to comply with this requirement is described as an offence. However, there are defences if the employer or employee concerned can demonstrate that reasonable steps had been taken to surrender the permit. Hence, given the safeguards within the Bill, there is no requirement to accept the amendment. The balance is correct in the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 178:
In page 22, line 43, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 179 not moved.
I move amendment No. 180:
In page 22, line 45, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 181 not moved.
I move amendment No. 182:
In page 23, between lines 11 and 12, to insert the following:
"25.—(1) Whereupon the employment permit of a foreign national who is not—
(a) a citizen of a European Union,
(b) a citizen of a European Economic Area country, or
(c) in possession of any permit that allows him or her to remain legally within the State,
expires or is revoked, he or she shall cease to be permitted to remain legally within the State after a period of 8 weeks has elapsed after the expiration or revocation of his or her employment permit, unless he or she obtains a permit under paragraph (c).
(2) A person who contravenes subsection (1) shall be guilty of an offence.”.
A similar amendment was discussed on Committee Stage. It proposed a right to remain for eight weeks after the expiry of an employment permit. I undertook to give a statement regarding this matter on Report Stage.
The position is that the right to remain after the expiry of an employment permit is a matter for the Department of Justice, Equality and Law Reform. As such, it is not appropriate——
Hence, such people will not remain for eight weeks.
——to the Employment Permits Bill and is a matter for consideration in the context of the forthcoming immigration and residence Bill sponsored by the Department of Justice, Equality and Law Reform. We have worked with that Department to dovetail many of the provisions of this legislation with the immigration and residence Bill.
In practice, the position at present is that within three months of taking up employment, a work permit holder must register with the Garda Síochána. On registration, permission to reside in the State is granted and a registration card is issued. The expiry date on this registration card is the same as that stipulated on the employment permit. Accordingly, I am not in a position to accept the Deputy's amendment. However, I can undertake to discuss the matter with the Minister for Justice, Equality and Law Reform, Deputy McDowell.
I wish the Minister luck.
The motivation behind this amendment——
I take it that the issue is with the date.
Yes.
The Department of Justice, Equality and Law Reform will seek a period of eight hours.
That was the motivation for tabling the amendment. It was pointed out, quite correctly, on Committee Stage that a time period should lapse to be reasonable and to allow people to tidy up their affairs before leaving the country. I hoped, by tabling this amendment which provides for an eight week period, to get an amendment from the Minister that would go some distance towards our position, rather than remaining at zero weeks. Effectively, at present the legislation states that the moment one's permit elapses, one must leave within the hour and while the interpretations of Departments may vary, that is the law.
Members must try to ensure that safeguards are put in place to allow people a reasonable length of time in which to be able to either renew their permit or, in this case, when all avenues have been exhausted and the permit has lapsed, to go home or elsewhere. I tabled an amendment with an eight week period for discussion purposes on Committee Stage and have done so again on Report Stage. I had hoped the Minister would take the opportunity to insert a period of three or four weeks to give some leeway to those caught in such a situation, often through no fault of their own, where the employer might decide to terminate employment or where the administrative process in Departments might be to blame for the way in which people are treated. I am disappointed the Minister has not seen fit to table his own amendment or to accept this one.
I have some experience of dealing with the Department of Justice, Equality and Law Reform which regards every Irish citizen as a potential criminal, if not today, tomorrow. It is an extremely difficult body with which to deal. I am indicating this formally, as I have elsewhere. I urge the Minister to make the law exact, to give himself a period of eight weeks in order that he will have something with which to negotiate when legislation is introduced. The work permits section will give him chapter and verse in regard to the difficulties experienced in the past, unless they have been tidied up since. Given my experience over two decades, it is an impossible Department with which to deal in this area. If one reads the history by Dermot Keogh of the treatment of the Jews going back to the 1930s, the pattern has been ingrained. I urge the Minister to consider the Fine Gael amendment. Let it be enacted. When the Department of Justice, Equality and Law Reform introduces its legislation, the Minister will then have something with which to negotiate. Otherwise, there is nothing to stop that Department effectively giving people summary notice to leave the State. As the Minister is a senior Government Minister, the matter is left to his discretion. He is dealing with work permits. If the Department of Justice, Equality and Law Reform introduces legislation with a wider remit, it will have to come to the Minister or his successor to negotiate. I suspect the House might be disposed to reducing the number of weeks from eight should it be required. This would give the Minister some bargaining power. However, if he does not accept the amendment, he will have no such power and be shown no mercy in St. Stephen's Green.
I fervently support the amendment which is in keeping with the general thrust of amendments Nos. 157 and 162 in my name in trying to create space for permit holders who, through no fault of their own, find themselves without a permit, or certainly without employment.
Unfortunately, we have all know what the attitude of the Department of Justice, Equality and Law Reform is. We read in the newspapers and see on our televisions screens virtually weekly that it is ruthless in dealing with any foreign national deemed to be here illegally. I would go further than the two previous speakers and say that, as the Taoiseach in waiting, the Minister should be courageous and accept the amendment. If he includes it in the legislation, he will be in a position of strength. We are all aware of what the attitude of the Department of Justice, Equality and Law Reform is to this issue. It has demonstrated no sympathy to those who find themselves in this position. The Minister could demonstrate compassion and consideration by accepting the amendment.
As a humble member of the Government, I work collectively with my colleagues——
The Minister is the only one who is humble.
The Minister in St. Stephen's Green does not realise that.
I have had good discussions with the Minister, Deputy McDowell, on his Bill and this one. Officials of my Department have worked with officials of the Department of Justice, Equality and Law Reform. The idea is to create a one-stop-shop to provide a much more effective facility and pathway for people coming to this country. In the context of economic migration, it is hoped people will enjoy immediate family reunification. The Bill will be liberal. Perhaps some of the stereotypical views articulated about the Department of Justice, Equality and Law Reform may not be reflected in the legislation. We have all moved on in how we handle what has been a rapid and recent phenomenon, namely, the growth in migration levels.
It is reflected each week.
There has been a turn-around in our fortunes from mass emigration and unemployment to almost full employment and significant inward migration. It is sensible to devise a proper framework to manage this change. The Bill endeavours to put a proper template in place. The immigration and residence Bill will complement it. It is not within my competence to deal with residency issues or naturalisation processes. I am not in a position, therefore, to accept the amendment. However, I will discuss the issue with the Minister, Deputy McDowell. I understand what the Deputies are endeavouring to achieve, namely, from the day a permit expires, there should be leeway in facilitating people to remain. In practice, this is what happens. We are all aware that no one leaves Ireland on the day his or her work permit expires.
They are waiting for a knock on the door.
Not in regard to the work permit.
It is less than a fortnight——
I will speak to the Minister, Deputy McDowell. His Bill provides the context in which to discuss the matter.
I can predict his response.
The Deputy might be surprised.
Amendment, by leave, withdrawn.
I move amendment No. 183:
In page 23, line 34, after "to" to insert "a".
This is a technical amendment proposed on the advice of the Parliamentary Counsel.
Amendment agreed to.
I move amendment No. 184:
In page 24, line 6, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 185 not moved.
I move amendment No. 186:
In page 24, line 8, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 187 not moved.
I move amendment No. 188:
In page 24, line 12, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 189 not moved.
I move amendment No. 190:
In page 24, line 15, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 191 not moved.
I move amendment No. 192:
In page 24, line 16, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 193 not moved.
I move amendment No. 194:
In page 24, line 28, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 195 not moved.
I move amendment No. 196:
In page 24, line 39, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 197 not moved.
I move amendment No. 198:
In page 24, line 42, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 199 not moved.
I move amendment No. 200:
In page 24, line 45, to delete "non-nationals" and substitute "foreign nationals".
Amendment agreed to.
Amendment No. 201 not moved.
Amendments Nos. 202 and 205 are related and will be discussed together.
I move amendment No. 202:
In page 25, line 4, to delete "5" and substitute "2".
As indicated on Committee Stage, I am not in a position to accept these amendments. Five years is not an unreasonable period to retain records relating to the employment of a non-national under the work permit arrangements. The required period for the retention of records mirrors that required by the Revenue Commissioners.
Amendment, by leave, withdrawn.
I move amendment No. 203:
In page 25, line 5, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 204 and 205 not moved.
I move amendment No. 206:
In page 25, line 8, to delete "for".
This is a technical amendment tabled on the advice of the Parliamentary Counsel.
Amendment agreed to.
I move amendment No. 207:
In page 25, line 9, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 208 not moved.
I move amendment No. 209:
In page 25, lines 18 and 19, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 210 not moved.
I move amendment No. 211:
In page 25, line 22, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendment No. 212 not moved.
I move amendment No. 213:
In page 25, lines 30 and 31, to delete "non-national" and substitute "foreign national".
Amendment agreed to.
Amendments Nos. 214 and 215 not moved.
Amendments Nos. 216 and 217 are related and may be discussed together.
I move amendment No. 216:
In page 28. line 1, to delete "12" and substitute "24".
Amendment agreed to.
Amendment No. 217 not moved.
I move amendment No. 218:
In page 28, between lines 4 and 5, to insert the following:
"(5) A dispute between an employer and an employee regarding the application of this Act may be referred to a rights commissioner and thereafter to the Labour Court.".
Having carefully considered what was said during the discussion on Committee Stage, the Bill, as drafted, substantially allows for what is proposed. Specifically, section 26 prohibits the penalisation of employees by employers, while Schedule 2 permits complaints to be made to a rights commissioner in that regard. In addition, under paragraph 13(c) of the Schedule, the rights commissioner may require the employer to pay compensation to the employee, while under paragraph 2 of the Schedule, a decision of the rights commissioner may be appealed to the Labour Court.
I take the point and I am glad it is covered, but we are dealing with foreign workers and solicitors who might advise in the first instance. In giving this right in the Schedule, the Minister does not make it as explicit as he would in the main text of the Bill. I accept, however, as he says, that the point is covered. This addition would simply provide the "belt and braces" in the primary text of the Bill rather than the Schedule. It would not contradict what is contained in the Schedule but simply reinforce it in the primary text.
I support the amendment tabled by the Labour Party. The Bill seems to be providing for another layer of adjudication in dealing with work permits. There are existing processes which can be used rather than providing for a new one. We do not go straight to the rights commissioner if there is a dispute over the application for a work permit. We would end up in an expensive process which could be circumvented if we were to accept the amendment.
The Bill deals with the prohibition of the penalisation of employees. This relates to whistle-blowing and so on. We wanted it to be quite clear that we would not allow an employer to use penalties and that if he or she did so, there would be a process by which the employee could pursue him or her. The most effective way of doing this is via the rights commissioner, as Deputy Quinn has proposed. Working with the social partners for some time, there is a general move towards endeavouring to resolve these issues outside court. If this can be achieved, it should be. To be fair, Deputy Quinn's amendment is wider in so far as it more or less states any dispute between an employer and an employee may be referred to the rights commissioner. It would have wider implications.
We are talking about a dispute between an employer and an employee regarding the application of this Bill. We are mainstreaming those with work permits and giving them the set of rights of existing workers.
I am not averse to returning to the House on this matter but as we move towards the Seanad debate I will have more time to think about the full implications of every issue which could be the subject matter of a dispute which would not necessarily be referred to the rights commissioner.
If it is a dispute which is referred to the rights commissioner, he or she can throw out the case if it is spurious.
I am genuinely prepared to consider the matter.
I accept that.
Amendment, by leave, withdrawn.
I move amendment No. 219:
In page 29, line 5, to delete "under subsection (4)” and substitute “referred to in subsection (4)”.
This is a technical amendment proposed on the advice of the Parliamentary Counsel.
Amendment agreed to.
I move amendment No. 220:
In page 30, to delete lines 16 to 20 and substitute the following:
39.—Section 1(1) of the Act of 2003 is amended——
(a) by inserting the following definition after the definition of “employer”:
"‘foreign national' means a non-national (within the meaning of the Immigration Act 1999);",
and
(b) by deleting the definition of ”non-national“.”.
Acceptance of this amendment involves the deletion of section 39 of the Bill.
Amendment agreed to.
Amendments Nos. 221 and 222 cannot be moved as a result of amendment No. 220 being agreed to.
Amendments Nos. 221 and 222 not moved.
I move amendment No. 223:
In page 34, line 21, after "1982" to insert "and section 134 of the Companies Act 1990".
This is a technical amendment proposed on the advice of the Parliamentary Counsel.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I propose to bring forward an amendment to the Bill on Committee Stage in the Seanad to insert an enabling provision to permit me, as Minister, by regulation, to allow, continue or restrict access to our labour markets by nationals of Romania and Bulgaria. The purpose is to facilitate the entry of those countries into the European Union. That decision will be taken later in the year in accordance with labour market trends and must be implemented before the expected accession or Romania and Bulgaria on 1 January 2007. I propose to move the relevant amendment in the Seanad and then return to the Dáil.
That means the Minister can consider some of the other propositions we have made since he must return to the Dáil.
That is correct. I thank Opposition Deputies. We had a very constructive debate on Committee Stage and have taken on board quite a number of amendments. The discussion on Committee Stage and the interaction between us have allowed for a better and more enhanced Bill. I thank my officials for the hard work they put into the drafting of the Bill and, in particular, for their tolerance and acceptance of the consequences arising from the change of "non-national" to "foreign", which was very necessary. That gave rise to 79 consequential amendments. Therefore, someone had to pore over the detail of the legislation and ensure the full implications were reflected in the complete text. I also thank the Ceann Comhairle and Leas-Cheann Comhairle for facilitating the debate.
Question put and agreed to.