I am grateful to the Senator for raising this matter. Neither I nor my predecessor gave any commitment to the former workforce at Comerama in respect of their entitlements under the redundancy payments legislation enacted in 2003.
On 12 December 2002, following the announcement of the closure of the Comerama factory with a loss of over 160 jobs, the Tánaiste, together with officials of the Department of Enterprise, Trade and Employment, met a SIPTU delegation representing the Comerama workers. As I understand from the official minutes of that meeting, the main concern of the workers, many, if not most, of whom had already been made redundant, was that if a deal on enhanced redundancy rates under partnership was made, it should be retrospective for the workers concerned. The Tánaiste gave an undertaking to do everything she could to ensure that the Comerama workers would get the retrospection. This undertaking was recorded in the official note of the meeting prepared by the official attending. It states:
An Tánaiste said that talks were on going in relation to the Statutory Redundancy issue. She gave an undertaking that if the legislation is changed she would do everything she could to ensure that the Comerama workers would be included in any amendment.
At the time, neither the Tánaiste nor the officials attending the meeting were aware of the legal principle established by the courts that the Legislature cannot impose retrospective financial obligations on employers or anybody else. This was subsequently confirmed in legal advice given to my Department.
The legal advice from the Attorney General was that the enhanced statutory redundancy payments require legislation to be enacted in order to be brought into effect and that as the payment of a statutory redundancy lump sum is a legal requirement on employers, it could not be imposed on them with retrospective effect. Employers are entitled to due notice — usually approximately two months — of the intention to require them legally to pay enhanced rates.
This legal position was communicated to the Comerama workers. The Tánaiste and I very much regret, therefore, that it was not possible to apply the new legislative provisions on enhanced redundancy payments to the Comerama workers or any other workers with retrospective effect after the new provisions came into effect in May 2003. A total of 154 of the workers at the Castlecomer plant were made redundant long before the new rates of redundancy came into effect and had received up to 3.2 times the then statutory rate in a settlement with the company.
My Department has paid the new enhanced rates to 13 workers made redundant by the liquidator of the company since May 2003. Subsequently, at the request of the Tánaiste, two officials from the Department met a delegation of workers and union representatives at the factory premises in Castlecomer, County Kilkenny, on Monday, 23 June 2003, to discuss the situation regarding the new rates of statutory redundancy for the employees of the company, who were made redundant in December 2002 and January 2003.
The union officials and the workers' representatives spoke at the meeting. They made the case that the workers who had already been made redundant up to January 2003 before the new enhanced rates came into force in May 2003 should be retrospectively paid these enhanced rates. However, the company had already paid these workers on a voluntary basis approximately 3.2 times the then statutory rate. The Comerama workers told the two officials who travelled to Castlecomer that they had, at the time of their negotiations with their employer on redundancy terms, been prepared to accept, in final settlement of their redundancy claim, the 60% rebate the employer was entitled to claim and receive from the social insurance fund.
No one save the employer has any say in what he does with the 60% refund paid from the social insurance fund, which he has claimed and to which he was legally entitled. The case was also made on behalf of these workers that if it was not legally possible to meet their claim for payment of the enhanced rates, the Government should consider bringing a scheme to the Oireachtas to enable them to be paid the enhanced rates from the social insurance fund, as a special case. This proposal was brought to the attention of the Tánaiste and actively considered but was ultimately deemed impractical. It would involve making a special case for the workers concerned on the basis that they had missed out by being made redundant some time before the Oireachtas passed the new enhanced rates into law. Many thousands of other workers are in a similar position and could make a case for special treatment. Unfortunately for the workers concerned, my Department is precluded from paying the enhanced rates of redundancy with retrospective effect.
Suggestions were made regarding the utilisation of the national implementation body in this matter. The role of that body is to ensure delivery of the stability and peace provisions of Sustaining Progress. As the redundancy element of Sustaining Progress contains no provisions regarding retrospection, the national implementation body has no role in this matter.
Many representations were made on this matter to me and my predecessor from Members of the Oireachtas representing Kilkenny — including recently from Deputy McGuinness — and from Liam Aylward MEP. Many parliamentary questions have also been tabled on the Comerama workers during the past two and a half years. Notwithstanding this, the position has not altered. The payment of a statutory redundancy lump sum is a legal requirement on employers and cannot be imposed on them with retrospective effect.
Having outlined the position, I am satisfied that everything possible was done to ensure the Comerama workers got their full redundancy entitlements and that no commitment was given, or could be given, to retrospectively enhance statutory redundancy repayments.
