SELECT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS debate -
Thursday, 9 Mar 2006

Employment Permits Bill 2005: Committee Stage (Resumed).

Chairman

I welcome Deputy Wilkinson. It is good to see him assisting the committee on such a serious Bill. The committee has received no apologies.

Today's meeting has been convened for the purpose of resuming our consideration of the Employment Permits Bill 2005. On behalf of the select committee, I welcome the Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for labour affairs, including training, Deputy Killeen, and his officials. It is proposed that we consider the Bill until 10.45 a.m. Is that agreed? Agreed.

SECTION 16.

Mr. Hogan

I move amendment No. 99:

In page 14, subsection (2), line 19, to delete "within 14 days" and substitute "within 28 days".

This amendment relates to the submission time required, which may be too short for translation purposes.

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

I am well disposed to this amendment and will revert to it on Report Stage as it makes sense.

Mr. Hogan

I will withdraw my amendment due to the Minister of State's good start.

Amendment, by leave, withdrawn.

Amendment No. 100 not moved.

Section 16 agreed to.

Section 17 agreed to.

SECTION 18.

Amendments Nos. 101 to 105, inclusive, not moved.

Question proposed: "That section 18 stand part of the Bill."

Mr. Morgan

I wish to say something before we leave this section.

Chairman

Deputy Morgan is youthful looking.

Mr. Morgan

I am hard of hearing. It is a terrible affliction.

Chairman

It probably happens if you are from that part of the country.

Mr. Howlin

There is only a loud noise as it goes past.

Mr. Morgan

Is there anything we can do in this section? I will ask the Minister of State for guidance. In terms of situations in which an employer pretends to have renewed a work permit but has not done so and the employee becomes illegal, could anything be done to ease the burden on the employee? The person would be regarded as illegal through no fault of his or her own. Will the Minister of State examine this specific matter?

Chairman

That is a good point.

Mr. Howlin

I am trying to grapple with a case of exactly that nature. The Minister of State's attention has been drawn to it as it has gained notoriety in my constituency. A Chilean national was, ironically, displaced by Latvians when Irish Ferries decided to change its employment practices. While the individual has worked here for seven years and paid full PRSI and tax, he is not entitled to claim social welfare because the Department of Social and Family Affairs claims that under the habitual residence clause, not only does someone need to show past habitual residence, but the prospect and expectation of residence in the future. Since the man has no work permit, he has no entitlement to work. After some leverage, he is living on a special needs payment from the HSE on an exceptional basis. I hope this case will be dealt with expeditiously by the Minister of State's Department when the man's legal status has been decided. Deputy Morgan's point was fair.

Mr. Killeen

In some respects, section 17 provides for the prohibition on forgery, fraudulent alteration and so on. While I take Deputy Morgan's point that the employee might not be aware that the work permit has expired, such would seem to be impossible under the terms of this legislation. We will examine the issues raised by the Deputy in that context.

Deputy Howlin raised a slightly different issue in that it cuts across a number of Departments, such as Social and Family Affairs and Justice, Equality and Law Reform. If he gives us the details of the case, we will pursue it and determine whether we can do anything. I will revert to Deputy Morgan if something arises from his comments.

Mr. Howlin

This individual has received another job offer but clearly cannot take it as he is not here legally.

Mr. Killeen

Yes. That he has been here for seven years is undoubtedly an unusual factor.

Chairman

Is there an onus on the employer to inform the employee?

Mr. Morgan

A copy of the work permit could be given to him or her.

Mr. Killeen

Yes.

Mr. Morgan

If such a wayward employer would mislead the employee in the first instance, the chances are that it will stall or delay its obligation in that context.

Question put and agreed to.

SECTION 19.

Amendment No. 106 not moved.

Mr. Killeen

I move amendment No. 107:

In page 15, lines 42 and 43 and in page 16, lines 1 to 5, to delete subsection (3) and substitute the following:

"(3) The period for which an employment permit may be renewed shall, subject to subsection (4), not exceed 3 years or such longer period as may be specified by regulations under section 13.”.

Amendment agreed to.

Amendment No. 108 not moved.

Mr. Killeen

I move amendment No. 109:

In page 16, lines 12 and 13, to delete subsection (5) and substitute the following:

"(5) Subsection (4) shall not apply to an employment permit granted on foot of an application by a non-national.”.

Amendment agreed to.

Section 19, as amended, agreed to.

SECTION 20.

Amendment No. 110 not moved.

Question proposed: "That section 20 stand part of the Bill."

Mr. Morgan

The point I wish to raise is linked to what Deputy Howlin raised a moment ago. Should we have provision for the possibility of permanent residence after a work permit holder has lived here after a particular period?

Mr. Killeen

This is primarily a matter for the Department of Justice, Equality and Law Reform and is one of the issues we have tried to address across the Departments. We have received a considerable level of co-operation in doing so.

Question put and agreed to.

SECTION 21.

Chairman

Amendments Nos. 111 and 112 are related and may be discussed together.

Mr. Killeen

I move amendment No. 111:

In page 17, subsection (1), line 11, after "Act" to insert "or the Act of 2003".

The purpose of these amendments is to enable authorised officers to be appointed for the purposes of the Employment Permits Act 2003 as well as this legislation, and to obtain information.

Amendment agreed to.

Mr. Killeen

I move amendment No. 112:

In page 17, subsection (4), line 27, after "Act" to insert "or the Act of 2003".

Amendment agreed to.

Question proposed: "That section 21, as amended, stand part of the Bill."

Mr. Morgan

Can any amendment be made to this legislation to effect a correlation between the number of authorised officers, or inspectors, and workers? Legislation is worthless unless a sufficient number of inspectors are appointed to check the legislation is being enforced.

Mr. Killeen

It is not the norm for primary legislation to provide for such matters. This is ultimately a question of the resources available. Deputy Morgan is correct in highlighting the issue of resources, about which we must do more. We need to take more action regarding the mandate and both matters are currently under review. We will see progress in the short term.

Question put and agreed to.

SECTION 22.

Amendment No. 113 not moved.

Mr. Howlin

I move amendment No. 114:

In page 19, subsection (3), line 46, after "(2)” to insert the following:

"or any other person on behalf of such person or otherwise acting without the permission of the Minister".

This amendment concerns the prohibition on deduction of remuneration and retention of personal documents. Section 22(3) refers to the unlawful holding of passports and personal documents, which are of great importance to any individual. The section, as drafted, prohibits anyone mentioned in sections 22(1) and 22(2), the employer or the person arranging a job offer, from withholding a passport. I am suggesting that any third party who does so, without the lawful authority of the Minister, should be committing an offence.

Mr. Killeen

I agree it is entirely unacceptable that any person acting on behalf of the employer should hold or retain personal documents. I am not certain this is the wording I favour and, if Deputy Howlin does not object, I will revert to it on Report Stage with the intention of including it.

Mr. Morgan

I acknowledge the point made by Deputy Howlin. How could we define personal documents? Should a driving licence be included?

Amendment, by leave, withdrawn.

Amendment No. 115 not moved.

Section 22 agreed to.

SECTION 23.

Amendments Nos. 116 and 117 not moved.

Question proposed: "That section 23 stand part of the Bill."

Mr. Hogan

For clarification, if one were fired and had to surrender the permit, would the document remain in the possession of the employer? The documents should not be in the possession of the employer, instead, the employee should have the mobility to find another job.

Mr. N. O’Keeffe

I want the Minister to clarify the position on the choice between Irish and non-national workers, and the displacement of Irish workers, an issue I have raised in the media. This section will cover that situation. If the going rate for a position is €14 and the minimum wage is approximately €9, employers choose the foreign national over the Irish person.

Chairman

Is the Deputy seeking clarification on section 23?

Mr. N. O’Keeffe

Yes. The Bill is very complicated. Deputy Morgan referred to inspectors and permits. What is the legal situation? I discovered this practice is rampant throughout the country after highlighting the issue. I was just ahead of the leader of the Labour Party in raising the matter.

Mr. Killeen

Concerning Deputy Hogan's point, according to the legislation, the original of the permit ought to be with the employee and a copy of the permit with the employer. It is possible that an original or a copy might be lost but this section deals with the surrender of a permit. The scenario raised by Deputy Hogan will not arise in this instance.

Regarding Deputy Ned O'Keeffe's point, the enforceable minimum rates are the national minimum wage for areas that are not covered by registered employment agreements. The minimum wage and the registered employment agreements are the only enforceable rates. Workplace norms exist in several occupations but these are not enforceable.

Mr. N. O’Keeffe

Is there an equality issue? Does the employer have the right to advertise a position and select only foreign workers, who can be employed at cheaper rates? This is why I called for permits. This is the real issue.

Mr. Killeen

Citizens of EU states have the same rights and entitlement as Irish citizens. It is not possible to differentiate between Irish and other EU citizens. Third country nationals are covered by the work permit legislation. Safeguards are built into this legislation to ensure the employer is paying appropriate rates.

Chairman

Yesterday we discussed the need to advertise for four weeks outside the EU. Does that answer Deputy Ned O'Keeffe's point?

Mr. N. O’Keeffe

If I advertise a position, am I obliged to call all applicants for an interview or can I ignore the Irish applicants?

Chairman

Is the Deputy referring to EU citizens or those from outside the EU?

Mr. N. O’Keeffe

Both.

Mr. Killeen

There are no specific requirement for Irish citizens. The same requirements apply to all EU citizens prior to the employer deciding to employ a worker from outside the EU.

Chairman

What is the case with citizens from outside the EU?

Mr. Killeen

That would entail applying for a work permit.

Mr. N. O’Keeffe

If I advertise a position in the newspaper and receive 40 responses, 19 Irish applicants and 21 EU citizens, can I ignore the 19 Irish and employ the foreign workers, who are more attractive to an employer in terms of employment conditions, discipline and wage rates?

Mr. Howlin

No, one cannot.

Mr. N. O’Keeffe

Who is to decide I cannot do so?

Mr. Howlin

The displacement issue is a major, difficult issue.

I wish to ask the Minister of State a question on registered employment agreements. It concerns the situation outlined by Deputy O'Keeffe, all citizens of the European Union have equal status. In one dispute, people went to prison after picketing a building site in south Dublin because those employed were not local but from Wicklow. Citizenship can be considered as being extremely narrow when it comes to discrimination. I am concerned that registered agreements do not provide fair competition for EU citizens. We signed up to the notion that every citizen of the European Union is equal and we cannot make fish of one and fowl of another. It is illegal under the equality legislation to discriminate against and disregard anyone simply because he or she is Irish. The point which generated much focus was the growing practice of employing people at the minimum wage and setting that wage as a ceiling in a range of employment sectors.

By way of parliamentary question I sought details of registered employment agreements from the Minister and received an unhelpful response. I received a much more helpful response when I wrote directly to the Minister afterwards. The Department does not know how many workers are covered by registered employment agreements. We should know that number. Has that information been gathered since? If we do not have a clear purpose in setting acceptable wage rates for sectors of the economy, people willing to work for the minimum wage will set a new wage rate.

The first issue covered in the policy document published by the Labour Party is to establish registered employment agreements under the 1947 Act in as many sectors as possible. People can then expect that the proper wages negotiating over time by the trade union movement will not be undermined by allowing people to work for the minimum wage in a way that makes it a ceiling rather than the floor it was intended to be. I advocate that position.

Mr. Killeen

It was the intention that the minimum wage would be a floor rather than a ceiling. The registered employment agreements also intend to set minimum rates for particular sectors. I agree with Deputy Howlin that in principle the minimum wage is a minimum.

It is difficult to obtain accurate numbers. I accept Deputy Howlin's point that we cannot provide detailed information on the numbers employed under the various registered employment agreements. We are examining methods of obtaining good quality up-to-date data and a major survey will be undertaken later this year, which will be helpful. However, numbers change quickly in some employment sectors. Thankfully, those changes involve increases.

Discrimination between people of different races is clearly covered by equality legislation under the seven or eight grounds laid out. It is illegal to discriminate against an Irish or Polish person on the basis of race.

Mr. Howlin

Or a Wicklow person.

Mr. Killeen

That is an interesting example. No non-Irish employees worked on the site in question.

Question put and agreed to.

NEW SECTION.

Mr. Hogan

I move amendment No. 118:

In page 20, before section 24, to insert the following new section:

"24.—(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.”.

This amendment seeks to clarify the time a person can remain in the State after the work permit has expired. I suggest eight weeks.

Mr. Killeen

I understand what Deputy Hogan wants to achieve. Ultimately, the right to remain after the expiry of a permit, or in any circumstances, is a matter for the Minister for Justice, Equality and Law Reform. It would not be appropriate to place it in legislation introduced by my Department.

Mr. Howlin

From my perspective, this is a helpful amendment. It fits exactly the case I put. My Chilean national, who no longer has valid authority to remain in the State on foot of a work permit, is denied social welfare even though he paid tax and social insurance for seven years. Giving him the right to remain and apply for a new work permit would regularise an anomaly. He has a job offer.

I am concerned that the Minister of State replied that it was a matter for the Department of Justice, Equality and Law Reform. That Department contacted the man in question to ask whether he had a work permit, which is a matter for the Department of Enterprise, Trade and Employment. The Department of Social and Family Affairs stated that having paid seven years' contributions he is entitled in law to social welfare. However, under the habitual residence clause he has no legitimate expectation to stay, which is a matter for the Department of Justice, Equality and Law Reform. It is a circular movement. I have dealt with three Departments on this matter. I am grateful to Deputy Hogan. His proposal provides a vehicle to capture this situation and gives some breathing space to the people who are affected. This is not theoretical. I know of one case and there will be many more.

Mr. Killeen

I understand the point being made. The Minister for Justice, Equality and Law Reform indicated he will bring forward amending legislation in this area, which is likely to cover this area and will give the Oireachtas an opportunity to consider what ought to be included. We all have experience of similar situations to that outlined by Deputy Howlin. In my experience, the Garda authorities take a sensible approach when it is indicated that measures to clear up work permits are underway.

Mr. Hogan

We should not wait for the Minister for Justice, Equality and Law Reform to take action on employment permits. Officials or the Minister of State at the Department of Enterprise, Trade and Employment should speak with the Minister for Justice, Equality and Law Reform before Report Stage to see whether a measure acceptable to both Departments can be introduced. Why not consider issues which affect both Departments now, particularly if these issues are already under review? We will not have an opportunity to amend this legislation for a long time. We should include some certainty at this stage.

Mr. Killeen

I understand a provision of this nature will be included in promised legislation from the Department of Justice, Equality and Law Reform.

Chairman

Will the Minister or State further inform the Deputies on this issue on Report Stage?

Mr. Killeen

I will.

Amendment, by leave, withdrawn.

Section 24 agreed to.

NEW SECTION.

Chairman

Amendments Nos. 119 and 147 are related and may be discussed together.

Mr. Killeen

I move amendment No. 119:

In page 20, before section 25, to insert the following new section:

"25.—(1) In this section "penalisation" includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), “penalisation” in this section includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to member of the Garda Síochána or the Minister that a provision of the Act of 2003 or this Act is not being complied with,

(b) giving evidence in any proceedings under the Act of 2003 or this Act, or

(c) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(4) Schedule 2 has effect in relation to an alleged contravention of subsection (3) and matters consequential thereon and includes amendments of other enactments.

(5) If a penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee in respect of that penalisation both under Schedule 2 and under those Acts.”.

I propose this amendment and the new Schedule provided for in amendment No. 147 to protect employees who report wrongdoing by employers in respect of this Act or the Employment Permits Act 2003 and to make provision for them in the event of bankruptcy or insolvency.

Mr. Howlin

Will the Minister or State explain the difference between the existing section 25 and the new section 25?

Mr. Killeen

The new section is an addition. Section 25 will now become section 26.

Amendment agreed to.

SECTION 25.

Amendments Nos. 120 to 128, inclusive, not moved.

Chairman

Amendments Nos. 129 and 131 are related and may be discussed together.

Mr. Hogan

I move amendment No. 129:

In page 21, subsection (5) (a), line 26, to delete “5” and substitute “2”.

This section deals with keeping and retaining records. Why is it necessary to keep files for up to five years after the worker has left that employment? Is it possible to reduce that length of time?

Mr. Killeen

For taxation purposes, employers are required to retain records for a minimum of five years. As a general principle, it is better to indicate that we are serious about long-term record keeping. Two years could be too short in view of how matters proceed on occasion.

Amendment, by leave, withdrawn.

Amendments Nos. 130 and 131 not moved.

Mr. Killeen

I move amendment No. 132:

In page 21, subsection (5)(b), line 30, after “for” to insert “a period equal to”.

This is a technical amendment, proposed on the advice of the Parliamentary Counsel.

Amendment agreed to.

Amendment No. 133 not moved.

Mr. Killeen

I move amendment No. 134:

In page 21, lines 35 to 38, to delete subsection (7).

Amendment agreed to.

Section 25, as amended, agreed to.

Amendments Nos. 135 to 137, inclusive, not moved.

Section 26 agreed to.

SECTION 27.

Mr. Hogan

I move amendment No. 138:

In page 23, lines 6 to 22, to delete subsection (3).

This refers to previous amendments regarding the system for adjudication of applicants. The amendment deletes subsection (3) because it is unnecessary.

Mr. Killeen

It is an enabling provision. The amendment would remove subsection (3), which is necessary to provide a legal basis for the making of regulations regarding procedures and also for the making of submissions for a review of a decision to refuse, under section 12, or to revoke, under section 16. The legal basis and the procedures are necessary in this instance.

Amendment, by leave, withdrawn.

Section 27 agreed to.

Section 28 agreed to.

SECTION 29.

Mr. Killeen

I move amendment No.139:

In page 24, subsection (2), line 15, to delete "1963 to 2003"

The Parliamentary Counsel has advised that company law legislation is described collectively as the company Acts.

Amendment agreed to.

Section 29, as amended, agreed to.

SECTION 30.

Chairman

Amendments Nos. 140 and 141 are related and may be discussed together.

Mr. Hogan

I move amendment No. 140:

In page 24, subsection (3), line 32, to delete "within 12 months" and substitute "within 24 months".

This indicates that a time limit of 12 months is quite short, where one is dealing with proceedings and penalties under law. A person could be outside the country at that stage, following the expiry of his or her work permit. One year is very short and two years might be more appropriate. It is a notional time, admittedly, but 12 months is too short.

Mr. Howlin

My amendment, No. 141, is an alternative to that. There are two separate elements in my proposition. I agree with Deputy Hogan that a 12 month period for prosecution is too limited. We are dealing with relatively serious offences under section 17(2), section 18(3) and sections 22 and 24. A period of 12 months is a tight timeframe to bring prosecutions. I suggest a period of five years is more appropriate and that the starting date should be from a date at which the facts sufficient to justify a prosecution are brought to the attention of the prosecuting authority. Otherwise, many breaches of sections 17, 18, 22 and 24 will go unpunished and will be unpunishable within the narrow timeframe in the Bill.

It is appropriate to debate this issue in light of reports in the press today on how times and dates are so important as they relate to serious prosecutions. If we go to the bother of prescribing offences for the protection of employers and employees, we should not make it simple for people to circumvent the intentions of the Oireachtas and avoid prosecution for breaches of the Act.

Mr. Killeen

I am disposed to conceding the principle put forward by Deputies Hogan and Howlin. I am not sure in what terms that principle would be best couched but if the Deputies are agreeable, we will revert to the issue on Report stage.

Amendment, by leave, withdrawn.

Amendment No. 141 not moved.

Chairman

Amendment No. 142 was discussed with amendment No. 82.

Mr. Howlin

I do not recall discussing it. I move amendment No. 142:

In page 24, between lines 35 and 36, to insert the following subsection:

"(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.".

The amendment refers to a pressing issue. It aims to insert the provision that a dispute between an employer and employee regarding the application of this Act may be referred to a rights commissioner and thereafter, the Labour Court. It is based on the belief that the normal labour mechanisms should have a role in dispute arbitration.

Chairman

Is the amendment being withdrawn?

Mr. Howlin

No. I wish to hear the advice of the Minister of State on the matter.

Mr. Killeen

I understand this amendment was discussed with amendment No. 87. It would be very unhelpful if I were to give different advice from that given by the Minister for Enterprise, Trade and Employment but I understand he told the committee that the amendments could not be accepted because the mechanisms and processes referred to are inappropriate for employment permits appeals, for which arrangements are set out in sections 12 and 16.

Chairman

How stands the amendment?

Mr. Howlin

I assume, from that question, that the Chairman is asking me to withdraw the amendment.

Chairman

I understood it was already withdrawn.

Mr. Howlin

An amendment cannot be withdrawn until it is reached. We have only reached it now.

Chairman

Does the Deputy wish to withdraw amendment No. 142?

Mr. Howlin

No. I understand from the argument made regarding Deputy Hogan's amendment that the Minister was unwilling to involve the normal labour relations mechanisms in disputes over work permits, although I do not recall hearing a convincing reason for that. However, I do not want to put the Minister of State in a bind. The Minister has already stated a position and I presume the Minister of State cannot resile from that but the issue might usefully be reflected on between now and Report Stage. With that charitable disposition, I withdraw the amendment.

Mr. Killeen

I do not think the amendment can be reconsidered. There is a strong distinction between the situation of somebody who is already in employment, who has the right to appeal to the Employment Appeals Tribunal, rights commissioners and so forth and someone who is submitting an application for a work permit. They are markedly different situations in terms of the kind of appeal process that one might be disposed to putting in place.

Mr. Howlin

If I may give clarity on the issue. I should have objected at the relevant time to amendments Nos. 82 and 142 being taken together. My amendment refers to the general penalties and proceedings section of the Bill and gives the right to recourse to the labour relations mechanisms for disputes between employers and employees regarding the application of this Act, in a general sense.

Mr. Killeen

If that is the case, I will examine the amendment again.

Mr. Howlin

That is the point.

Amendment, by leave, withdrawn.

Section 30 agreed to.

Section 31 agreed to.

NEW SECTIONS.

Mr. Killeen

I move amendment No. 143:

In page 25, before section 32, to insert the following new section:

"32.—In proceedings for an offence under section 2(3) of the Act of 2003, where evidence is given by—

(a) a member of the Garda Síochána ,

(b) an immigration officer (within the meaning of the Immigration Act 2004),

or

(c) an authorised officer under section 21,

that he or she observed a person doing an act in a particular place, being an act the doing of which, in the circumstances concerned, is consistent with that person's having been employed to do that act in that place, then it shall be presumed, until the contrary is shown, that that person was employed to do that act in that place.".

I propose this amendment following consultation with the Department of Justice, Equality and Law Reform and the Garda National Immigration Bureau. The experience of gardaí in visiting sites has been quite negative. They have uncovered situations where it is patently obvious to them that persons are employed by a particular employer but the said employer denies that fact. It is a particular difficulty that the Garda Síochána has been trying to deal with and this amendment will ensure that it can be adequately dealt with in future.

Amendment agreed to.

Mr. Killeen

I move amendment No. 144:

In page 25, before section 32, to insert the following new section:

"32.—(1) In any proceedings for an offence under this Act or the Act of 2003, a person, other than the accused, may, with the leave of the court, give evidence through a live television link if the person is outside the State.

(2) Evidence given under subsection (1) shall be video-recorded.

(3) In any proceedings referred to in subsection (1) in any circuit or district court district where the court is satisfied that leave should be granted for evidence to be given through a live television link pursuant to that subsection but the necessary facilities for doing so are not available in that circuit or district, the court may by order transfer the proceedings to a circuit or district court district where such facilities are available and, where such an order is made, the jurisdiction of the court to which the proceedings have been transferred may be exercised—

(a) in the case of the Circuit Court, by the judge of the circuit concerned, and

(b) in the case of the District Court, by the judge of that court for the time being assigned to the district court district concerned.

(4) A person who, in giving evidence under subsection (1) from outside the State, makes a statement material in the proceedings which the person knows to be false or does not believe to be true shall be guilty of perjury.

(5) Proceedings for an offence under subsection (4) may be taken, and the offence may, for the purposes of the jurisdiction of the court, be treated as having been committed, in any place in the State.

(6) This section is without prejudice to any other enactment providing for the giving of evidence through a live television link.".

This amendment provides for a television link for a person who has already left the State to give evidence. There may be many cases, in this context, where the provision will be useful in achieving a successful prosecution.

Amendment agreed to.

Section 32 agreed to.

NEW SECTION.

Mr. Killeen

I move amendment No. 145:

In page 25, before section 33, to insert the following new section:

"33.—(1) Information held by the Minister for the purposes of this Act or the Act of 2003 may be supplied by the Minister to each of the following, namely—

(a) the Minister for Social and Family Affairs,

(b) the Minister for Justice, Equality and Law Reform, and

(c) the Revenue Commissioners,

if such supply is reasonably necessary for the purpose of the performance by the Minister of the Government referred to in paragraph (a) or (b) or, as the case may be, the Revenue Commissioners of functions under any enactment.

(2) Information held by—

(a) the Minister for Social and Family Affairs,

(b) the Minister for Justice, Equality and Law Reform, or

(c) the Revenue Commissioners,

may, notwithstanding any other enactment, be supplied by that Minister of the Government or, as the case may be, the Revenue Commissioners to the Minister if such supply is reasonably necessary for the purpose of the performance by the Minister of functions under this Act or the Act of 2003.".

This amendment provides for the reciprocal exchange of information between the Minister for Social and Family Affairs, the Minister for Justice, Equality and Law Reform or the Revenue Commissioners. It is a practice that would be very helpful in terms of dealing with some of the situations we have come up against in recent times.

Mr. Howlin

I support the Minister of State's intention in this regard. Is this a catch-all provision that enables other Departments to provide information or will we be obliged to put similar provisions into legislation relating to the Departments of Social and Family Affairs and Justice, Equality and Law Reform?

Mr. Killeen

We are advised that it is a catch-all provision in this instance.

Amendment agreed to.

Section 33 agreed to.

SECTION 34.

Question proposed: "That section 34 stand part of the Bill."

Mr. Hogan

The many amendments I tabled and withdrew concerned the redefinition of non-nationals as foreign nationals. I wanted to redefine the word "alien" by avoiding reliance on the Aliens Act 1935 and, by this means, bring the legislation into the 21st century.

Mr. Howlin

Hundreds of amendments have been proposed in respect of this issue. This might be the appropriate place to amend the parent legislation because the Minister's only cause for reluctance in accepting the reclassification of a non-national is because existing legislation may be damaged by doing so. Terminology evolves and there are instances where language which was acceptable a decade ago as regards describing minorities is not acceptable now. The notion that someone with no nationality is a non-national is inappropriate, as well as patently wrong. It is better to use either the phrase "foreign national", as proposed by Deputy Hogan, or "non-Irish national", as I proposed. I invite the Minister of State to reflect further on this issue because it is a matter of concern to the people thus classified.

Mr. Killeen

I listened to the Minister yesterday when he discussed the issues raised by amendment No. 2 and related amendments. He understands the points made but indicated that there would be implications for the 2003 Act and other legislation. He undertook to revisit the matter and the outcome of that will be reflected in the Bill.

Question put and agreed to.

Sections 35 and 36 agreed to.

NEW SCHEDULES.

Mr. Killeen

I move amendment No. 146:

In page 26, after section 36, to insert the following new Schedule:

SCHEDULE 1

ENACTMENTS OFFENCES UNDER WHICH FALL WITHIN SECTION 11(1)(C)

Employment Agency Act 1971

Carers Leave Act 2001

Minimum Notice and Terms of Employment Acts 1973 to 2005

National Minimum Wage Act 2000

Organisation of Working Time Act 1997

Payment of Wages Act 1991

Protection of Employees (Fixed-Term Work) Act 2003

Protection of Employees (Part-Time Work) Act 2001

Protection of Young Persons (Employment) Act 1996

Safety, Health and Welfare at Work Act 2005

Unfair Dismissals Acts 1977 to 2005.

Amendment agreed to.

Mr. Killeen

I move amendment No. 147:

In page 26, after section 36, to insert the following:

SCHEDULE 2

REDRESS FOR CONTRAVENTION OF SECTION 25(3)

Complaints to rights commissioner.

1. (1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 25(3) 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

(c) communicate the decision to the parties.

(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;

(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,

and the references in the foregoing clauses 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) 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) 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 reasonable cause.

(6) 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.

(7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner concerned.

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

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

Appeals from decisions of rights commissioner.

2. (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under paragraph 1 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

(2) An appeal under this paragraph shall be initiated by the party concerned, giving within 6 weeks (or such greater period as the 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 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, or 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,

(c) the representation of the parties to 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), and

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

(5) The Minister may, at the request of the Labour Court, 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.

Paragraphs 1 and 2: supplemental provisions.

3. (1) Section 39(17) of the Redundancy Payments Act 1967 shall apply in relation to proceedings before the Labour Court under paragraph 2 as it applies to matters referred to the Employment Appeals Tribunal under that section with—

(a) the substitution in that provision of references to the Labour Court for references to the Tribunal, and

(b) the substitution in paragraph (e) of that provision of “€3,000” for “£150”.

(2) 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, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the employee concerned 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.

(3) The bringing of a complaint before the Labour Court under subparagraph (2) 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.

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

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 6 weeks from the date on which the determination is communicated to the parties, the Circuit Court shall, on application to it in that behalf by—

(a) the employee concerned,

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

(c) the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances,

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 references to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be read as references 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 referred to in section 22 of the Courts Act 1981, in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(4) An application under this paragraph 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, 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 (as amended by section 10 of the Companies (Amendment) Act 1982) 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) by the company to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided by rules made under that Act.

(2) 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) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.

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 the European Communities (Protection of Employees (Employers' Insolvency)) Regulations 2005) is amended by inserting, after the definition of "the Act of 2004", the following:

""the Act of 2006" means the Employment Permits Act 2006;".

(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 (xxiv), after "of the Act of 1990," by deleting "and",

(ii) in subparagraph (xxv), by substituting "Act of 2004, and" for "Act of 2004.",

(iii) by inserting after subparagraph (xxv) the following:

"(xxvi) 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 of 2006 or a determination by the Labour Court under paragraph 2(1) of that Schedule.”,

(b) in subsection (2)(b), by substituting “, (xxv) or (xxvi)” for “or (xxv)”,

(c) in subsection (2)(c), by substituting “, (xxv) or (xxvi)” for “or (xxv)”, and

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

Amendment agreed to.

TITLE.

Chairman

Amendment No. 148 is in the name of Deputy Howlin. Amendment No. 149 is an alternative. Amendments Nos. 150 and 151 are related. Amendments Nos. 148 to 151, inclusive, may be discussed together.

Mr. Howlin

I move amendment No. 148:

In page 3, line 6, to delete "NON-NATIONALS" and substitute "NON-IRISH NATIONALS".

This amendment relates to the issue discussed yesterday and earlier today. I withdraw my amendment on the basis of the Minister of State's commitment to consider the matter further.

Amendment, by leave, withdrawn.

Mr. Hogan

I move amendment No. 149:

In page 3, line 6, to delete "NON-NATIONALS" and substitute "FOREIGN NATIONALS".

Amendment, by leave, withdrawn.

Amendments Nos. 150 to 152, inclusive, not moved.

Title agreed to.

Bill reported with amendments.

Chairman

I thank members and the Minister of State for their co-operation.

Mr. Killeen

I thank the Chairman and his officials and I thank members for their contributions on Second Stage, some of which were reflected in amendments brought forward by the Government. I also thank the officials in my Department for working hard to make my job easy.

Mr. Howlin

Can we ask the Department to avoid behaving like Dublin buses? By this I mean that we do not get any legislation for a long time and then four Bills arrive together. Better spacing would be welcomed.