Criminal Justice Bill 2011: Report and Final Stages

Minister for Justice and Equality (Deputy Alan Shatter)

I move amendment No. 1:

In page 21, line 31, after "refused" to insert "without reasonable excuse".

This amendment applies to section 15, which deals with court orders to produce documents or provide information. The amendment seeks to deal with a procedural issue regarding that section which has been brought to the attention of my Department. The aim of the amendment is to ensure that where a person from whom information has been requested by the Garda puts forward an excuse for not providing the information the court will be able to consider the reasonableness of the excuse in deciding whether to make an order under section 15 requiring the person to provide the information.

This is a technical amendment.

Amendment agreed to.

Acting Chairman (Deputy Joe O’Reilly)

Amendments Nos. 2 and 3 are related and may be discussed together.

Deputy Alan Shatter

I move amendment No. 2:

In page 26, line 28, after "document" to insert "(within the meaning of this Act)".

This is an amendment to section 18. The purpose of this amendment and amendment No. 3 is to clarify the link between section 18, which provides for presumptions relating to documents, and section 5 of the Criminal Evidence Act 1992, which provides for the admissability of certain documentary evidence compiled in the ordinary course of business.

The amendment makes it clear that for the purposes of the presumptions in subsections 18(2) and 18(3) the word "document" will mean a document as defined in section 2 of this Bill rather than the narrower meaning given to that word by the Criminal Evidence Act 1992.

Amendment agreed to.

Deputy Alan Shatter

I move amendment No. 3:

In page 26, line 29, after "1992 applies" to insert the following:

"or would apply if the document were reproduced in permanent legible form".

Amendment agreed to.

Acting Chairman (Deputy Joe O’Reilly)

Amendments Nos. 4, 5 and 8 may be discussed together.

Deputy Alan Shatter

I move amendment No. 4.

In page 27, between lines 34 and 35, to insert the following:

20.—(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee—

(a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

(b) for giving notice of his or her intention to do so.

(2) Schedule 2* shall have effect in relation to an alleged contravention of subsection (1).

(3) Nothing in paragraphs (a), (c), (d), (e) and (f) of the definition of "penalisation" shall be construed in a manner which prevents an employer from—

(a) ensuring that the business concerned is carried on in an efficient manner, or

(b) taking any action required for economic, technical or organisational reasons.

(4) (a) If penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in paragraph (a) of the definition of "penalisation", the employee (or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian, with his or her consent) may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal and, if the employee or his or her parent or guardian, as the case may be, does so, a complaint of such dismissal may not be presented to a rights commissioner under paragraph 1(1) of Schedule 2.

(b) If an employee (or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian, with his or her consent) presents a complaint to a rights commissioner under paragraph 1(1) of Schedule 2 in respect of a dismissal referred to in paragraph (a), the employee or his or her parent or guardian, as the case may be, may not institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal.

(5) For the purposes of this section and Schedule 2, a reference to "dismissal" includes—

(a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and

(b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.

(6) In this section, section 21 and in Schedule 2—

"contract of employment" means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

"disclosure", in relation to an employee, means a disclosure by the employee to a member of the Garda Síochána of information which he or she knows or believes might be of material assistance in —

(a) preventing the commission by any other person of a relevant offence, or

(b) securing the apprehension, prosecution or conviction of any other person for a relevant offence;

"employee" means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

"employer", in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—

(a) a person (other than an employee of that person) under whose control and direction an employee works, and

(b) where appropriate, the successor of the employer or an associated employer of the employer;

"penalisation" means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal,

(b) the threat of suspension, lay-off or dismissal,

(d) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty),

(f) unfair treatment,

(g) coercion, intimidation or harassment,

(h) discrimination, disadvantage or adverse treatment,

(i) injury, damage or loss, and

(j) threats of reprisal."

This very important amendment arises out of the discussion we have had on the Bill. I thank the Deputies opposite for that discussion, which was helpful in improving aspects of the Bill.

During the debates on Second Stage and Committee Stage, a number of Deputies raised the issue of whistleblower protection. I agreed that there is a need to make provision for the protection of persons who disclose information to the Garda Síochána in relation to relevant offences, as required by section 19, to ensure that such persons will not suffer penalisation in the workplace. Accordingly, I brought forward amendments to provide for protection against dismissal or other penalisation for persons who provide information to the Garda. The provisions are similar to the whistleblower protections provided in the Prevention of Corruption (Amendment) Act 2010.

The provision of whistleblower protection in the Bill does not conflict with the commitments in the agreed programme for Government relating to the introduction of whistleblowing legislation generally. There is a need to provide for specific whistleblower protection in this Bill because it is intended that it will be enacted before the summer recess and I do not wish to delay enactment of the Bill pending the enactment of the more comprehensive whistleblower protection legislation which we hope to see later this year.

Amendment No. 4 proposes to insert a new section 20 into the Bill, to provide protection for employees from penalisation for disclosing information relating to relevant offences. Subsection 20(1) prohibits an employer from penalising an employee for making a disclosure to the Garda Síochána in relation to a relevant offence, for giving evidence in relation to that disclosure in any proceedings for a relevant offence or for giving notice of his or her intention to do so. Subsection 20(2) provides that Schedule 2, to be inserted by amendment No. 8, will have effect in relation to an alleged contravention of subsection 20(1). Schedule 2 sets out the procedure for taking complaints before a rights commissioner and the Labour Court. Subsection 20(3) provides that the definition of "penalisation" in section 20 will not prevent an employer from ensuring that the business concerned is carried on in an efficient manner or from taking any action required for economic, technical or organisational reasons. Subsection 20(4) provides that where an employee wishes to seek redress for having been penalised by dismissal he or she may choose either the remedies available under this Bill or those under the Unfair Dismissals Act or at common law for wrongful dismissal, but not both. Subsection 20(5) sets out certain types of dismissal that are to be included within the meaning of the term "dismissal". Subsection 20(6) provides for the definition of certain terms used in sections 20 and 21 and Schedule 2. The term "disclosure" is defined to clearly link the new whistleblower protection provisions to the text of section 19, which prohibits the withholding of information. Of particular importance is the broad definition of "penalisation" which includes any act or omission of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment. The definition goes on to list specified instances of such acts or omissions.

Amendment No. 5 inserts a new section 21, which makes provision for a number of offences. Under subsection 21(1) it would be an offence for an employee to make a disclosure to the Garda Síochána in relation to a relevant offence, knowing the disclosure to be false or being reckless as to whether it is false. Under subsection 21(2) it will be an offence for an employer to contravene subsection 20(1) which prohibits the penalisation of an employee who makes a disclosure as defined in section 20. Subsection 21(3) provides for an offence in relation to false statements made under oath or affirmation by a person appearing as a witness at an appeal to the Labour Court against a finding of a rights commissioner under Schedule 2. Subsection 21(4) provides that where a person has been given notice requiring him or her to attend to give evidence at a Labour Court hearing of an appeal against a finding of a rights commissioner under Schedule 2 or to produce a document relating to the matter, it will be an offence to refuse or wilfully neglect to attend the hearing, to refuse to give evidence or to refuse or wilfully fail to produce the document. Subsections 21(5), 21(6) and 21(7) provide for penalties for persons convicted of offences under the section. Subsection 21(8) is a technical provision that provides for an evidential presumption in respect of a document from the Labour Court relating to a prosecution under subsection 21(4).

Amendment No. 8 proposes to insert a new Schedule 2 into the Bill to provide for redress for contravention of the new section 20. Paragraph 1 of the new Schedule 2 sets out the procedure for making a complaint to a rights commissioner that an employer has contravened subsection 20(1). The time limit for making a complaint is, in general, six months from the date of the contravention to which the complaint relates. Where the rights commissioner finds that an employee's complaint is well founded, the decision may require the employer to take a specified course of action which may include reinstatement or re-engagement in a case where the penalisation has constituted dismissal. The employer may be required to pay compensation of up to two years' remuneration. Paragraph 2 provides that a party may appeal to the Labour Court from a decision of a rights commissioner under Paragraph 1 and sets out the procedure in relation to such appeals. Provision is made for an appeal from the Labour Court to the High Court on a point of law only and the determination of the High Court on any such point of law is final and conclusive. Paragraph 3 contains supplemental provisions relating to Paragraphs 1 and 2. Paragraph 4 provides for the enforcement of determinations of the Labour Court. If an employer fails to carry out a determination of the Labour Court within 28 days from the date of the communication of the determination to the parties, the employee may apply to the Circuit Court for an order directing the employer to carry out the Labour Court determination. The Circuit Court may order the payment of interest on any compensation ordered by the Labour Court. Paragraph 5 provides that an employee to whom compensation is payable under Schedule 2 will be a preferential creditor in the case of the winding up of a company or a bankruptcy. Deputy Jonathan O'Brien may note that for the second time today we are dealing with preferential creditors in legislation.

Paragraph 6 provides for the amendment of the Protection of Employees (Employers' Insolvency) Act 1984 to include compensation payable under Schedule 2 in the insolvency payments scheme. This scheme provides for the payment of certain outstanding entitlements where employment has been terminated because of an employer's insolvency. Payments are made from the social insurance fund. This is a comprehensive, all-embracing provision designed to fully and properly address the issues that arose during our discussion of the legislation to ensure employees who report to An Garda Síochána instances of white collar crime, as the Bill requires them to do, do so in a manner which also ensures that they cannot be penalised in their employment. If they are penalised, there is a protective mechanism in place and a series of options available to them regarding the road they can travel to obtain the protection to which they are entitled.

Deputy Dara Calleary

I compliment the Minister and his officials on preparing such comprehensive amendments, which I welcome. I refer to two issues. First, in anticipation of the passage of the Bill, will the Minister discuss the possibility of NERA running an information campaign regarding these new rights for employees in order that people will be aware they will be protected as whistleblowers?

Second, with due respect to the Minister's former profession, I am always wary about comprehensive legislation such as this on the basis that lawyers will find a way to abuse its comprehensive nature to get around the provisions and intentions of the Bill. Is there a provision to afford protection in order that a smart lawyer will not use an exclusion from the interpretation of the legislation to get a client off or to land a client in trouble?

Deputy Alan Shatter

The framing of these provisions has involved consultation with Deputy Bruton's Department and they have fed into the process of developing the amendments, as has the Attorney General's office, which played a substantial role in finalising them, and my Department. The Minister for Jobs, Enterprise and Innovation is aware of, and supportive of, these provisions and they will be properly publicised in a manner that, hopefully, will make people readily aware of them.

I hope in the context of us debating the matter now there will be publicity for the fact that we are introducing important procedures in the area of white collar crime. These will facilitate the Garda in accessing crucial information, whether it is held in documentary or electronic form, and, in the context of the new provisions that require people who are aware of individuals engaged in such criminality to inform and assist the Garda in its work, it is of huge importance that people are generally aware of the fact that there are new whistleblower protection provisions included in the legislation.

If individuals working for a company, be it a local company or a multinational, in any area of life — even if they are working in a professional firm that it is not a limited liability company whatever the nature of the work — and they know people are engaged in white collar crime and they have information that might prevent a crime being carried out or that might assist the Garda in bringing to justice those who have engaged in such criminality, they will be obliged when the legislation comes into force to furnish such information to An Garda Síochána. If they do so in good faith believing in the truth of the information they are giving, they will be fully and properly protected under this legislation. They cannot be penalised in their employment nor can they be targeted by an employer for acting in good faith and co-operating with the Garda.

These are important provisions, which will, ultimately, form part of the overall legal architecture for general whistleblower provisions. However, the amendments mean they will be included in this legislation at this stage and I very much appreciate the support of the Opposition on this.

With regard to the Deputy's other question, I cannot and never try to predict what smart lawyers might do to extricate individuals from situations but these provisions have been drafted carefully. We all know that in years gone by no matter how carefully drafted was legislation passed by the House, odd interpretations emerged following court proceedings. Lacunae can be identified but, on the basis of the advice from the Attorney General's office, we believe that there are sound provisions. They provide the protection that both sides of the House believe is desirable. Should there be a gap in this when it comes to bringing together the whistleblower provisions to deal both with the public and private sectors, these provisions will be revisited but, at this stage, they provide a welcome additional protection for those who want to prevent white collar crime or who want to assist the Garda in investigating such crime after it has occurred.

Deputy Jonathan O’Brien

I compliment the Minister on this comprehensive and technical amendment. The fact he was in a position to introduce it before the Bill was finalised in the House is welcome. It was probably the one area of weakness in the legislation we all identified when it was published. The description of penalisation is broad, ranging from dismissal to discrimination, which, I presume, will cover reference letters when somebody leaves employment. It is comprehensive and the message needs to go out that if individuals are involved in this activity, their colleagues will not only have a responsibility to report it but they will have protection and, therefore, there will be no excuse for not reporting white collar crime.

If legal eagles find a way around it, we can address that when we deal with the more comprehensive whistleblower legislation. It is probably not a bad thing that the provision is being included now because any discrepancies in it will be highlighted. I welcome the amendment. Is the Minister hoping to get the legislation through the other House as well before the recess?

Deputy Alan Shatter

I thank the Deputy for his contribution. If we complete Report and Final Stages today, Second Stage of the Bill will be taken in the Seanad the week after next. The House is sitting for an additional week, for which I am partly responsible I am afraid.

Deputy Dara Calleary

The Minister should not trust the Senators too much.

Deputy Alan Shatter

It is expected that Committee and Remaining Stages will be completed as well. The objective is to have the Bill enacted before August in order that it can come into force and assist the Garda not only in future investigations but also in current investigations.

I am conscious that in my opening comments on these amendments, I went through the technicalities involved but I would like to outline the detailed circumstances in which an employer can be regarded as penalising an individual, to which Deputy O'Brien referred. This broad definition is designed to ensure as comprehensive a protection as possible. Penalisation under the legislation when enacted will mean "any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment". This will apply not only to the employer but also to someone in the employment of the employer who may seek to make life difficult for a whistleblower. Without prejudice to the generality of what could fall within the context of penalisation, the Bill expressly makes reference to an employee being suspended, laid off or dismissed; the threat of suspension, lay-off or dismissal; demotion or loss of opportunity for promotion; a transfer of duties; change of location of place of work; reduction in wages; change in working hours; the imposition or the administering of any discipline, reprimand or other penalty; and the unfair treatment of an employee.

Sometimes a vindictive employer might target an employee to make his or her life extremely difficult. On occasion one reads in the newspapers reports of court hearings or hearings before the Employment Appeals Tribunal where it is alleged, for example, that an employee has been bullied by an employer. That, of course, would constitute unfair treatment among a number of other possible forms of misconduct that could fall within that.

The definition also includes coercion, intimidation or harassment; discrimination, disadvantage or adverse treatment; injury, damage or loss; and — the classic thing that arises when someone might be known to be about to report something to the Garda — the threat of reprisal, which may be of a nature relating to the employment itself or the threat of other form of reprisal that would make the employee's life, or his or her capacity to undertake his or her work, extremely difficult. A comprehensive range of issues are covered in this so that anyone who meets his or her obligations, in particular, under the new section 19 of the Bill, will have all of the protections that he or she should require available to him or her.

Deputy Dara Calleary

On a procedural point, which is probably for the Acting Chairman, Deputy O'Reilly, in the event of there being amendments from the Seanad, the Dáil will not be in session to agree them and, therefore, the legislation cannot pass. We all agree that we need to get this passed. Is there any provision for the Select Committee on Justice, Defence and Equality, on behalf of the Dáil, to take any amendments that may come from the Seanad at a special meeting?

Deputy Alan Shatter

Procedurally, we cannot do that. The Bill started life in the Seanad and came back to us. It is with us now. If it goes back to the Seanad, if there were further amendments made in the Seanad, it could give rise to a difficulty in the Bill being completed by the end of this month. That is an issue that has arisen in the past. I hope the Bill will be supported in the Seanad. We very carefully teased it out in the context of this House and it is very much in the public interest that it be enacted. I hope that is not an issue that will arise. Certainly, procedurally, if the Seanad amended the Bill, we could not take it in a committee. It would have to come back in to the floor of the House.

Amendment agreed to.

Deputy Alan Shatter

I move amendment No. 5:

In page 27, between lines 34 and 35, to insert the following:

21.—(1) An employee who makes a disclosure knowing it to be false or being reckless as to whether it is false shall be guilty of an offence.

(2) An employer who contravenes section 20(1) shall be guilty of an offence.

(3) A person who, upon examination on oath or affirmation authorised under paragraph 2(7) of Schedule 2, wilfully makes any statement which is material for that purpose and which the person knows to be false or does not believe to be true shall be guilty of an offence.

(4) A person to whom a notice under paragraph 2(8) of Schedule 2 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence.

(5) A person guilty of an offence under subsection (1) or (2) shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both.

(6) A person guilty of an offence under subsection (3) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(7) A person guilty of an offence under subsection (4) shall be liable on summary conviction to a class A fine.

(8) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—

(a) a person named in the document was, by a notice under paragraph 2(8) of Schedule 2, required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both,

(b) a sitting of the Labour Court was held on that day and at that time and place, and

(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or wilfully failed to produce the document,

shall, in a prosecution of the person under subsection (4), be evidence of the matters so stated without further proof unless the contrary is shown.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 6 arises out of committee proceedings. Amendment No. 7 is related, therefore, amendments Nos. 6 and 7 may be discussed together by agreement.

Deputy Alan Shatter

I move amendment No. 6:

In page 28, line 16, to delete "19(1)" and substitute "19(1)(b)”.

Amendments Nos. 6 and 7 propose to clarify the references in the Schedule to offences under sections 19 and 34 of the Investment Intermediaries Act 1995. Amendment No. 6 is a technical drafting amendment to refer more clearly to the offence under section 19(1)(b) of the Investment Intermediaries Act 1995 which is the only offence contained in section 19. The offence relates to contravention of the requirement on investment business firms to keep certain books and records specified by the Central Bank.

Amendment No. 7 proposes to broaden the scope of the provision to cover all offences under section 34 of the 1995 Act. The effect of the amendment is that, in addition to the offence under subsection (1) of section 34 which relates to the making of false or misleading statements to the auditors of an investment business firm, the offence under subsection (3) of section 34 will also be a relevant offence for the purposes of the Bill. That offence relates to the failure of an officer or employee of an investment business firm to provide required information or explanations to the firm's auditors.

Amendment agreed to.

Deputy Alan Shatter

I move amendment No. 7:

In page 28, line 16, to delete "34(1)" and substitute "34".

Amendment agreed to.

Deputy Alan Shatter

I move amendment No. 8:

In page 30, after line 10, to insert the following:

"SCHEDULE 2 REDRESS FOR CONTRAVENTION OF SECTION 20(1)

Complaints to rights commissioner

1. (1) An employee (or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian, with his or her consent) or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened section 20(1) in relation to the employee.

(2) Where a complaint under subparagraph (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to take a specified course of action, which may include, in a case where the penalisation constitutes a dismissal, reinstatement or re-engagement;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977;

and the references in clauses (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) Subject to subparagraph (5), a rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Where a delay by an employee in presenting a complaint under this Schedule is due to any misrepresentation by the employer, subparagraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice.

(6) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances.

(7) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister for Jobs, Enterprise and Innovation.

(8) A copy of a notice under subparagraph (7) shall be given to the other party concerned by the rights commissioner.

(9) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.

(10) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subparagraph (2).

Appeals from decision of rights commissioner

2. (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under paragraph 1(2) and, if the party does so, the Labour Court shall—

(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision,

(2) An appeal under this paragraph shall be initiated by the party concerned giving, within 6 weeks (or such greater period as the Labour Court may determine in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under clauses (e) and (f) of subparagraph (4) and stating the intention of the party concerned to appeal against the decision.

(3) A copy of a notice under subparagraph (2) shall be given by the Labour Court to any other party concerned as soon as practicable after the receipt of the notice by the Labour Court.

(4) The following matters, and the procedures to be followed in relation to them, shall be determined by the Labour Court, namely:

(a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this paragraph;

(b) the times and places of hearings of such appeals;

(d) the publication and notification of determinations of the Labour Court;

(e) the particulars to be contained in a notice under subparagraph (2);

(f) any matters consequential on, or incidental to, the foregoing matters.

(5) The Labour Court may refer a question of law arising in proceedings before it under this paragraph to the High Court for its determination and the determination of the High Court shall be final and conclusive.

(6) A party to proceedings before the Labour Court under this paragraph may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.

(7) The Labour Court shall, on the hearing of any appeal referred to it under subparagraph (2), have power to take evidence on oath or on affirmation and for that purpose may cause persons attending as witnesses at that hearing to swear an oath or make an affirmation.

(8) The Labour Court may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice—

(a) to give evidence in relation to any appeal referred to the Labour Court under subparagraph (2), or

(b) to produce any document specified in the notice relating to the matter in the person’s possession or power.

(9) A witness at a hearing of an appeal before the Labour Court has the same privileges and immunities as a witness before the High Court.

Paragraphs 1 and 2: Supplemental provisions

3. (1) Where a decision of a rights commissioner in relation to a complaint under this Schedule has not been carried out by the employer concerned in accordance with its terms and—

(a) the time for bringing an appeal against the decision has expired but no such appeal has been brought, or

(b) an appeal has been brought, but it has been abandoned,

the employee concerned (or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian, with his or her consent) or, with the consent of the employee, any trade union of which the employee is a member, may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.

(2) The bringing of a complaint before the Labour Court under subparagraph (1) shall be effected by giving to the Labour Court a written notice containing such particulars (if any) as may be determined by the Labour Court.

(3) The Labour Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under any of clauses (a), (b), (c), (d), (e) and (f) of subparagraph (4) of paragraph 2 (not being a determination as respects a particular appeal under that paragraph) and subparagraph (2).

Enforcement of determinations of Labour Court

4. (1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under paragraph 1 within 28 days from the date on which the determination is communicated to the parties, the Circuit Court shall, on application made to it in that behalf by—

(a) the employee concerned (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with his or her consent), or

(b) with the consent of the employee, any trade union of which the employee is a member,

without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to carry out the determination in accordance with its terms.

(2) The reference in subparagraph (1) to a determination of the Labour Court is a reference to a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned, and the reference in that subparagraph to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.

(3) In an order under this paragraph providing for the payment of compensation, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the employer concerned to pay to the employee concerned interest on the compensation (at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act 1840) for each day or part of a day beginning 28 days after the day on which the determination of the Labour Court is communicated to the parties and ending on the day immediately before the day on which the order of the Circuit Court is made.

(4) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade, business or occupation.

Provisions relating to winding up and bankruptcy

5. (1) There shall be included among the debts which, under section 285 of the Companies Act 1963 are, in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2 (1)(b) by the company to an employee, and that Act shall have effect accordingly.

(2) Formal proof of the debts to which priority is given under subparagraph (1) shall not be required except in cases where it may otherwise be provided by rules made under the Companies Act 1963.

(3) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1)(b) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly.

(4) Formal proof of the debts to which priority is given under subparagraph (3) shall not be required except in cases where it may otherwise be provided under the Bankruptcy Act 1988.

Amendment of Protection of Employees (Employers' Insolvency) Act 1984

6. (1) Section 1(1) of the Protection of Employees (Employers' Insolvency) Act 1984 (as amended by Schedule 2 to the Employment Permits Act 2006) is amended by the insertion of the following definition after the definition of "the Act of 2006":

"‘ Act of 2011’means the Criminal Justice Act 2011;”;

(2) Section 6 of the Protection of Employees (Employers' Insolvency) Act 1984 (as so amended) is amended—

(a) in subsection (2)(a)—

(i) in subparagraph (xxv), by the deletion of "and" after "of the Act of 2004,",

(ii) in subparagraph (xxvi), by the substitution of "that Schedule, and" for "that Schedule," and

(iii) by the insertion of the following subparagraph after subparagraph (xxvi):

"(xxvii) any amount which an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1(2)(b) of Schedule 2 to the Act of2011 or a determination by the Labour Court under paragraph 2(1)(b) of that Schedule.”,

(b) in subsection (2)(b), by the substitution of “, (xxvi) or (xxvii)” for “or (xxvi)”,

(d) in subsection (9), in the definition of “relevant date”, by the substitution of “, (xxvi) or (xxvii)” for “or (xxvi)”.”.

Amendment agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Deputy Dara Calleary

I commend the Minister on the amendments he introduced, many of which came on the back of contributions on Second Stage and on Committee Stage. For Members on this side of the House, it is good to see that the inputs are carried through. I commend the Minister, his officials and everybody involved.

Deputy Jonathan O’Brien

I concur with Deputy Calleary. I will not be popular for saying this but it is important that the Bill is enacted as soon as possible because there is a number of ongoing investigations. If that means coming back a little earlier for one day, then I do not think too many Members would complain.

Minister for Justice and Equality (Deputy Alan Shatter)

I thank both of the Deputies opposite for their co-operation in the enactment of this Bill, and for the constructive and helpful comments they made on Second Stage. I hope this is very much a precedent for the way we continue to deal with legislation in this House and that where there are constructive and helpful amendments proposed or suggested to future legislation, I look forward to the possibility of taking them on board.

I share the hope of the Deputies opposite that the Bill will pass through the Seanad trouble free and that we will not be faced with doing what Deputy O'Brien suggested, which is, bringing Members back in the month of August.

Question put and agreed to.

Dáil Éireann debate - Thursday, 14 Jul 2011

Criminal Justice Bill 2011: Report and Final Stages

Dáil Éireann debate -
Thursday, 14 Jul 2011