Select Committee on Jobs, Enterprise and Innovation debate -
Thursday, 26 Jun 2014

Employment Permits (Amendment) Bill 2014: Committee Stage

Chairman

The meeting has been convened for the purpose of consideration by the select committee of the Employment Permits (Amendment) Bill 2014 which was referred to it by order of the Dáil on 27 May. Apologies have been received from Deputy Anthony Lawlor.

I welcome the Minister of State at the Department of Jobs, Enterprise and Innovation, Deputy Sean Sherlock, and his officials and thank them for attending. A total of 184 amendments have been tabled and I propose that we consider the Bill until Committee Stage is concluded. Is that agreed? Agreed.

I refer members to the amendment groupings which have been circulated. There will be ample time for issues to be discussed.

SECTION 1

Chairman

Amendments Nos. 1 to 3, inclusive, are related and will be discussed together.

Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Sean Sherlock)

I move amendment No. 1:

In page 5, lines 20 and 21, to delete "Minister for Jobs, Enterprise and Innovation" and substitute "Minister".

This a technical amendment, as the full title of the Minister is to be included in the definitions in section 2 and addressed in amendment No. 3. Amendment No. 2 is a consequential amendment to amendment No. 3 which inserts a definition for the word "Minister".

Amendment agreed to.

Section 1, as amended, agreed to

SECTION 2

Deputy Sean Sherlock

I move amendment No. 2:

In page 5, line 27, to delete "2006." and substitute "2006;".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 3:

In page 5, after line 27, to insert the following:

" "Minister" means the Minister for Jobs, Enterprise and Innovation.".

Amendment agreed to.

Section 2, as amended, agreed to.

NEW SECTION

Deputy Sean Sherlock

I move amendment No. 4:

In page 6, between lines 2 and 3, to insert the following:

“Amendment of section 2 of Act of 2003

3. Section 2 of the Act of 2003 is amended—

(a) in subsection (1A), by inserting the following paragraph after paragraph (a):

“(aa) the foreign national being employed outside the State by a foreign employer and being required by the foreign employer to carry out duties for, or participate in a training programme provided by, a person in the State who is connected to the foreign employer,”,

(b) by inserting the following subsection after subsection (2B):

“(2C) A person shall not permit a foreign national who is employed outside the State by a foreign employer to carry out duties for, or participate in a training programme provided by, that person where that person is connected to the foreign employer, except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.”,

(c) in subsection (3)—

(i) by substituting “, (2) or (2C)” for “or (2)”, and

(ii) in paragraph (b), by substituting “(2) or (2C)” for “(2)”,

(d) by inserting the following subsection after subsection (3):

“(3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).”,

(e) in subsection (4), by substituting “subsection (2) or (2C)” for “subsection (2)”,

(f) by inserting the following subsections after subsection (10A):

“(10B) Without prejudice to any other provision of this Act, this section does not apply to—

(a) a foreign national who is in the State pursuant to the Diplomatic Relations and Immunities Act 1967, and

(b) the Minister for Foreign Affairs and Trade has certified in writing that the foreign national referred to in paragraph (a) falls within a reciprocal arrangement that permits a foreign national who is a member of the family of an assigned person, forming part of his or her household, to be in employment in the State.

(10C) A foreign national referred to in subsection (10B) shall be entitled to be in employment in the State without an employment permit for the duration of the assignment to official duties in the State of the assigned person concerned.

(10D) In subsections (10B) and (10C)—

‘assigned person’ means a person who is assigned, by a government of another state, to carry out official duty in the State on behalf of the government of that other state;

‘reciprocal arrangement’ means an arrangement (whether in the form of a memorandum of understanding or otherwise) that is entered into by the Government with another state.”,

and

(g) by substituting the following subsection for subsection (15):

“(15) In this section—

‘connected’ has the meaning assigned to it by the Act of 2006;

‘foreign employer’ has the meaning assigned to it by the Act of 2006;

‘place’ includes any dwelling or any building or part of a building.”.”.

The amendment amends section 2(1A) of the 2003 Act by inserting a new paragraph (aa) and ensures the transfer of a foreign national in an intra-company transfer is clearly included in the general requirement to have an employment permit. The Bill explicitly provides for a permit type in intra-company transfers. While the intra-company transfer employment permit holder’s employer is outside the State, that is, a foreign employer, the employment permit holder is carrying out duties for, or participating in a training programme with, the connected person, that is, the Irish entity. It is the Minister's intention that the provisions of the Bill relating to intra-company transfer employment permits respect the employer-employee contractual relationship between the foreign employer and intra-company transfer employment permit holder. For this reason, any reference to the connected person that could suggest it was the employer has been removed and sections have been redrafted accordingly. Many of the Committee Stage amendments are drafted to achieve this aim.

The new subsection (b) provides that a foreign national employed outside the State by a foreign employer to carry out duties for, or participate in, a training programme provided by the connected person shall not be permitted to do so except in accordance with an intra-company transfer employment permit and that to do otherwise is an offence. The new subsection (c) applies the offence provisions where a foreign national employed outside the State by a foreign employer to carry out duties for, or participate in, a training programme provided by the connected person does not have the required intra-company transfer employment permit.

The new subsection (d) will provide a defence to a foreign national working without an employment permit who can prove he or she took all reasonable steps to ensure compliance with section 2. This defence is already provided in the 2003 Act to an employer who employs someone without an employment permit. This provision addresses an issue raised by Mr. Justice Hogan in his 2012 ruling in the Younis case, which he referred to the Oireachtas and the Minister.

Acceptance of amendment No. 4 will involve the deletion of section 3 of the published Bill.

The new subparagraph (e) in section 3 of the Bill applies the defence provisions of section 2(4) of the 2003 Act to the new subsection 2C. Subsection 2C makes it an explicit requirement that a foreign national employed by a foreign employer who undertakes duties for, or training with, a connected person in the State has a valid employment permit. The effect of this is to provide a defence for those charged with an offence consisting of a contravention of the new subsection 2C.

The new subparagraph (f) in subsection 3 of the Bill is required to address the variance which exists between existing employment permits legislation and the State's obligations under international agreements concerning the employment of dependants of State employees assigned on official duty overseas, often referred to as working spouse or working dependant agreements, particularly the treaty agreement in place between Ireland and the US. The amendment provides an exemption from the terms of the proposed Act for foreign nationals in the State under the terms of the Diplomatic Relations and Immunities Act 1967 who are assigned to a mission in a country with which the Government has entered into a working dependant agreement. Under the terms of the working dependant agreement with the US and Canada, both of which predate the employment permits legislation, relevant dependants of officials assigned abroad are entitled to an authorisation to work in the other country. This system has been applied in full to Irish dependants overseas, but following the introduction of the Employment Permits Acts, applications by relevant embassies based here must be accompanied by a formal job offer, in contradiction of the terms of these international agreements. While our partners in the US and Canada implement the terms of working dependant agreements in full, our legislation as it stands means Ireland cannot fulfil its obligations to our partners. The US has noted on several occasions that Ireland's insistence on receipt of a formal job offer before issuing the employment permit is in breach of the agreement being implemented in full by the US. It is not expected that the amendment will lead to a substantial increase in non-Irish nationals seeking work under the terms of working dependant agreements. In addition, the exemption ends upon completion of the posting of the assigned person, usually a four-year duration.

The new subsection (g) in section 3 of the Bill assigns the definitions of new terms used in the legislation, which fall out of the treatment of the intra-company transfer situation in the Bill. I am considering further minor amendments to section 3 of the Bill and will revert on Report Stage.

Chairman

That is the short version.

Deputy Dara Calleary

Could we have that in English, please? What are the practical implications of it? Will there be a danger - a possible unintended consequence - that people employed by multinationals might be affected with regard to temporary placements, which might affect their capacity to come here for training? Will we create a different tier of legislation for people with diplomatic immunity? Will they, their spouses and their families be treated differently from those who may not have diplomatic connections?

Deputy Sean Sherlock

In essence, in language which is legislative with regard to speaking on the record, the nub of the issue is that multinational companies have welcomed the clarity we will provide on issuing permits. Notwithstanding the language used, it provides greater clarity for workers.

Deputy Dara Calleary

We believe the Minister of State.

Deputy Sean Sherlock

We have engaged with stakeholders on it and through this engagement it is necessary to use legislative language, but I assure the Deputy it does provide clarity.

Amendment agreed to.

Section 3 deleted.

SECTION 4

Chairman

Amendments Nos. 5 to 15, inclusive, are related and will be discussed together.

Deputy Sean Sherlock

I move amendment No. 5:

In page 6, line 11, to delete "following section" and substitute "following sections".

Amendment No. 5 is a technical amendment and consequential to the insertion of two sections in the 2003 Act, section 2B in the published Bill and section 2C under amendment No. 14. Amendment No. 6 is a drafting amendment to the new section 2B inserted into the 2003 Act by section 4 of the Bill and ensures consistency with use of the term "service" in these provisions. With regard to amendment No. 7, I have followed the Younis case closely and we all agree it was shocking. We were shocked at the exploitation and injustice it highlighted. The objective of the new section 2B is to further deter employers from employing foreign nationals without an employment permit by permitting the foreign national and the Minister to take civil action for compensation against the employer, notwithstanding the illegality of the contract. This is in addition to potential criminal prosecution of the employer.

Deputy Tóibín's amendment deals specifically with this. Without necessarily speaking too much on the amendment until the Deputy proposes it, it would raise the bar in terms of what a foreign national or the Minister, in deciding whether to take a case on behalf of a foreign national under the new provision, has to prove before a court to get paid compensation. I will leave it at that until Deputy Tóibín speaks on his amendment.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 6:

In page 6, line 26, after "employment" where it firstly occurs to insert "or service".

Amendment agreed to.

Chairman

Amendments Nos. 5 to 15, inclusive, should have been discussed together, but I will allow Deputy Tóibín to speak on the amendments in his name.

Deputy Peadar Tóibín

I move amendment No. 7:

In page 7, line 1, to delete "section 2(1A)(b)." and substitute the following:

"section 2(1A)(b), or the employer has been found to have engaged in exploitative work practices which the foreign national was subjected to.".

I know it was not meant by the Minister of State, but our offices received an avalanche of amendments in recent days, which makes oversight on our part difficult. The purpose of amendment No. 7 is to name the wrongdoing - the exploitative work practices, as such - by the employer against whom a civil action has been taken.

With regard to amendment No. 8, the legislation allows for compensation to be awarded on the basis of the minimum wage or the minimum rates provided by statute or registered employment agreements. I understand why the Minister of State seeks to do this.

However, we tabled this amendment for a reason. For example, although everyone else working in a restaurant might be getting paid between €10 and €12 per hour, one waiter might only be getting the minimum wage. The compensation should reflect the real wage being paid to comparable staff members and not the minimum wage that could be expected in that sector. Otherwise, if someone seeking to exploit a person must pay compensation, that amount would still not match the cost of what should have been paid in the first place.

Chairman

Amendment No. 15 is also being discussed, if the Deputy wishes to address it. To clarify, we are discussing amendments Nos. 5 to 15, inclusive. It will be our last discussion on them.

Deputy Peadar Tóibín

Amendment No. 15 is important for us. While we accept that the compensation will not be treated as a reckonable payment within the meaning of the social welfare legislation, a particular concern arises. If an individual cannot access the infrastructure that the Minister of State is providing to ensure that his or her rights are achieved, the process is not worth the paper on which it is written. If people must go a long time without being able to feed their families, pay their rents or cover other costs before judgments are made, they will be radically disempowered from raising their concerns in the first place and we will end up with hundreds more Muhammad Younis cases. At our meeting on Tuesday, someone from the Irish Immigrant Support Centre, Nasc, indicated that 30,000 people were in this undocumented space, although not how many were experiencing these levels of exploitation. It is important that people have the financial facility to access the process. Otherwise, it will not be a real opportunity for them.

Chairman

Do others wish to comment? If not, I call the Minister of State.

Deputy Sean Sherlock

I propose to deal with the amendments numerically. Deputy Tóibín’s amendment would place the onus on the foreign national of proving that exploitative work practices took place. Currently, the foreign national does not have to prove that this occurred in order to avail of the provision. Unscrupulous employers who employ illegal non-EEA nationals continue to face the possibility of prosecution under the employment permits legislation. If found guilty of an offence, such employers face a fine of up to €250,000, imprisonment for a term of up to ten years or both. An Garda Síochána and the National Employment Rights Authority, NERA, actively pursue breaches under the legislation and welcome information concerning possible breaches. On this basis, we will not accept amendment No. 7.

Regarding amendment No. 8, the new civil proceedings provide for compensation in a situation where there is no legal contract of employment – this point is important - and the compensation provided for is the national minimum wage or other mandatory statutory rate for the job. These are rates provided for in law and there is no ambiguity or complex standards of proof for a court in determining how much the compensation should be. It is also how the Labour Court determined Mr. Younis's compensation. The Deputy’s amendment would add complexity and ambiguity to a court's determination of what the rate for a "regularised employee engaging in the same employment" would be and could actually result in the applicant's claim failing if such a rate could not be established to the court's satisfaction. On the other hand, the national minimum wage is clear and unambiguous. It would be different if the contract of employment were legal, but in such a scenario it is not. We will not accept the amendment.

Amendment No. 9 provides for retrospective effect of the provision so that a person taking proceedings pursuant to the new section 2B of the 2003 Act can claim an amount of money for work done or services rendered during a period prior to, as well as after, the commencement of the section. The new section is providing a remedy to a defined class of persons who have not been properly recompensed for work done or services rendered by reason of the illegality of their contracts of employment. It covers those who never had permits and those whose permits lapsed through no fault of their own. The employer has benefitted from the work done or services rendered. If the employee had held an employment permit, the employer would have had to pay him or her at least the national minimum wage. As a matter of social justice, the Minister wishes to provide a remedy to the class of persons referred to in section 2B.

New subsections (6) to (9), inclusive, inserted into section 2B, impose limitations on the right of action conferred by section 2B and are proposed, following consultation with the Office of the Attorney General, for the purpose of making the section more likely to withstand challenge whether on constitutional or European Convention on Human Rights grounds. The new subsection (10) inserted into section 2B provides that, where the Minister institutes proceedings under section 2B, the court may award costs in favour of the Minister. We are considering some further amendments to these provisions and I will revert on this matter on Report Stage.

Amendments Nos. 10 to 12, inclusive, are drafting amendments falling out of amendment No. 9, which inserts new subsections (6) to (10), inclusive, into the new section 2B of the 2003 Act and relates to the bringing of an action against an employer. Amendment No. 13 is a drafting amendment and falls out of the insertion of a new subsection (14) into new section 2B, which is addressed in amendment No. 14. Amendment No. 14 defines terms used in section 2B. It also provides that proceedings taken against an employer under section 2B may be brought in the District Court for claims of up to €15,000 and in the Circuit Court for claims of up to €75,000.

We consulted the Courts Service regarding amendment No. 15. It has indicated that, in the cases provided for by this section, the only relevant interim relief would involve applying for an order preventing the employer dissipating or reducing his or her assets that might be required to meet the claim if the plaintiff were successful. Such relief would already be available by way of injunction in the High Court or Circuit Court. If by this amendment the Deputy is proposing that the plaintiff could apply for an advance of money that he or she might get in a settlement or court determination, the Courts Service has indicated that it is unaware of such relief being available where there is a dispute and pointed to the danger that allowing relief as proposed would pre-empt the outcome of the proceedings where the case remained to be determined. Therefore, on grounds that it is unnecessary or possibly ill advised, I am not accepting the proposed amendment.

The shoulder note for section 4 of the Bill as published must be amended to read: "Insertion into Act of 2003 of new sections 2B and 2C".

Deputy Dara Calleary

The Minister of State referred to the amendments as strengthening the law, particularly for the permit holder and people in exploitative relationships. While this is welcome, but he also referred to the Younis case. Mr. Younis was present during our consideration of this Bill, but he still has not received anything for what he went through. How many work permit exploitation cases have been successfully prosecuted in recent years? We have strong laws that are about to get stronger, but is there a risk that people are not equipped to pursue their rights under them? For example, they might not have the resources to go to court.

The bodies representing them do not have the resources. There is no sense in having this legislation in place if those whom it is meant to protect do not have the resources to utilise it, particularly in light of the large employers who will exploit it.

Deputy Sean Sherlock

I am sure the Deputy will accept that as the Younis case is sub judice I am limited in terms of what I can say in that regard. In regard to the Deputy's point generally in terms of the robustness of the provisions when a complaint is made, it is the responsibility of NERA to investigate complaints and to ensure that the system stands up to scrutiny. In regard to the compensatory element of the Deputy's question, the particular case mentioned - I am couching my language-----

Deputy Dara Calleary

I do not expect the Minister of State to comment on particular cases but to respond only in general to the point. I have absolute confidence in NERA but despite the fact that there is strong legislation in place in this area, those involved in an exploitative situation such as what we are discussing may not have either the resources or physical ability to utilise this law, particularly against large companies per se. A person can bring a complaint to NERA but to obtain compensation he or she must go through the court process.

Deputy Sean Sherlock

The Minister can also take a case if there has been a breach of the law. This is where NERA comes into the equation. When a complaint is made, there is a robust investigation of potential exploitation with clear outcomes.

On the compensation issue, the compensation provided for is the national minimum wage or other mandatory statutory rates of pay for the job. We determined this when dealing with Deputy Tóibín's amendments. This is provided for in law so that there is no ambiguity. The complex standards of proof arise where a court is determining how much compensation should be paid. It is necessary to remove that ambiguity. In terms of the specific case mentioned, the question that arises is whether there is a legal contract of employment. What we are doing is moving to a situation whereby a person who makes a complaint and has acted reasonably in terms of his or her employment conditions and had a reasonable expectation of having a contract will also be covered by this legislation. We are putting a belt and braces approach around the existing legislation such that there is a comfort for anybody who finds themselves in an exploitative situation that they can come forward and make a complaint and that there is a corpus of law that does not put a prohibitive cost on them in so doing because there is a statutory body, namely, NERA, that exists to err on their side where exploitation occurs.

Deputy Peadar Tóibín

I do not accept the Minister of State's point with regard to amendment No. 8, namely, that an amount equal to that paid by regularised employees would somehow negate the court case or lead to it falling. The legislation as drafted provides for an amount equal to the greater of the two options set out. All we are proposing is the addition of a third option. It is not the case that if that option is impossible to identify, there are not other options to enable a decision to be made or that this would lead to the collapse of the whole process. Surely that is not the case.

The issue of comparable wages is already provided for in legislation. The JLCs are built on the idea of comparable wages, such that this complexity is already understood and catered for in legislation. If it were the case that we could not enact legislation owing to complexities, we would have little to do here today.

Deputy Sean Sherlock

It is an illegal scenario. The distinction that must be made is that this applies where no legal contract exists. I will try to clarify the matter. It is not the intention of the civil proceedings to provide compensation based on the market or statutory rate for the job but rather to provide compensation in a situation where there is no legal contract. The national minimum wage is clear and unambiguous. If there are other statutory provisions that apply to certain rates for certain types of jobs, then there is no ambiguity.

Deputy Peadar Tóibín

There is no ambiguity in respect of comparable wages. If an employer employs an immigrant at the rate of €2 or €3 less than-----

Deputy Sean Sherlock

If there is a contract of employment-----

Deputy Peadar Tóibín

-----what everybody else is earning, that employer, even if he or she has to pay compensation, is quids in by having employed the person because he or she will have saved money compared to the remainder of the staff.

Deputy Sean Sherlock

That is on the basis that there is a legal contract in place. If an employer provides an employee with a contract of employment, there is a rate for the job inherent in that contract. We are providing for a situation in which no legal contract is provided and to allow in respect of an employee who has no legal contract and is exploited for him or her to be compensated on the basis of the national minimum wage or as provided by statute.

Deputy Peadar Tóibín

I do not see how what I am proposing is incongruous to the other two options.

Deputy Sean Sherlock

While I accept the spirit of the amendment, I respectfully suggest that it is incongruous.

Deputy Peadar Tóibín

We will have to disagree on that.

Chairman

Perhaps the Minister of State would undertake to forward a note on the matter to the Deputy prior to Report Stage. If other employees of the same employer have contracts which specify a higher rate of pay for a particular job, will that rate or the minimum wage apply?

Deputy Sean Sherlock

The purpose of this legislation is to provide for cases where there is no legal contract.

Deputy Peadar Tóibín

That is understood. My argument is if an individual has no contract and uses the infrastructure to seek compensation, then that compensation will under this legislation be based on either the minimum wage or REA. I am suggesting that that compensation should also be based on the wages of other staff who are possibly earning above the REA or the national minimum wage. I believe this third option should be available to the judge in determining the wage on which the compensation shall be based.

Deputy Sean Sherlock

Is the Deputy by virtue of his amendment placing the burden of proof on the person who is being exploited to prove that another employee has a different contract? What submissions will in this regard be made to the court?

Deputy Peadar Tóibín

The person's colleagues would have to confirm that they are in receipt of X wage.

Deputy Sean Sherlock

How would that be done before a court of law?

Deputy John Lyons

While I agree with the point being made by Deputy Tóibín, what he is suggesting would be exceptionally difficult to prove. Other than when there is an REA or defined payment for all, it is often the case in a particular type of employment that people might be on different wages. Proving that a complainant should be on the comparable wage chosen would be very difficult to do.

Deputy Peadar Tóibín

I am not saying that in certain cases it would not be difficult to prove, but in others colleagues would confirm, by contract, wage information to be submitted to the court as evidence. Even if it is difficult to prove, the Government can fall back on sections 1 and 2 which refer to the national minimum wage and the statutory wage. The case will not fall if proof is unattainable. It will still lead to an incentive for an employer to go down the road of exploitation if we enact this legislation as it is. It will still lead to a loss of earnings in the long run for an immigrant compared to the rest of the staff.

Deputy Dara Calleary

Could there be a consequence for others who have nothing to do with the case - colleagues in the workplace - in being drawn in to prove a salary? I might be exploited, but my colleague may be oblivious to this. Could information on terms and conditions be drawn into the court case?

Deputy Peadar Tóibín

It could be the case that the terms and conditions of others within a company could be used-----

Deputy Dara Calleary

They may have nothing to do with it, but be drawn in through court documents.

Deputy Peadar Tóibín

Yes, that could be the case.

Deputy Sean Sherlock

I genuinely take the amendment in the spirit in which it is proposed, but one must consider the legislation in its entirety. For the first time we are providing clarity for the courts where exploitation takes place and a judgment is made in a case in which there is no contract. We are bolting to it, for want of a better term, a de minimis compensatory regime which will at least allow a person where there is a finding in his or her favour to receive compensation based on statutory provisions. In previous court cases there was a lack of clarity. I respectfully contend the amendment as proposed by Deputy Peadar Tóibín could provide for a case in which proceedings could be delayed or the burden of proof on the person being exploited or who could be potentially exploited could become completely unwieldy, as clarity could not be provided for. The sections before us provide clarity and there is absolutely no ambiguity about the rate of compensation being provided for where there is no legal contract. It is on that basis that we are not accepting amendment No. 8.

Amendment put and declared lost.

Deputy Peadar Tóibín

I move amendment No. 8:

In page 7, between lines 13 and 14, to insert the following:

“(iii) an amount equal to that paid to regularised employees engaged in the same work in the same employment, or”.

Amendment put and declared lost.

Deputy Sean Sherlock

I move amendment No. 9:

In page 7, between lines 27 and 28, to insert the following:

“(6) Proceedings under this section shall not be brought after the expiration of 2 years from the day on which the foreign national ceased his or her employment or service with the employer, a person referred to in section 2(1A)(a) or contractor referred to in section 2(1A)(b).

(7) Proceedings under this section shall not be brought in respect of any work, or services, done or rendered more than 6 years prior to the day on which the proceedings are instituted.

(8) Subsection (7) shall apply to proceedings under this section whether the work was done or the services were rendered before or on or after the coming into operation of section 4 of the Employment Permits (Amendment) Act 2014.

(9) Without prejudice to subsection (6), proceedings under this section shall not be brought where—

(a) the foreign national, in respect of any right of action he or she may have and whether such right of action arises pursuant to any enactment or otherwise, has—

(i) instituted proceedings in relation to the same, or substantially the same, work done or services rendered as referred to in this section, or

(ii) otherwise commenced an action or other claim in relation to the same, or substantially the same, work done or services rendered as referred to in this section,

and

(b) those proceedings have, or that action or claim has, not been finally determined.

(10) In proceedings instituted by the Minister under this section the court shall not award costs in favour of the foreign national but may award costs in favour of the Minister.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 10:

In page 7, line 28, to delete “(6) The amount” and substitute “(11) The amount”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 11:

In page 7, line 32, to delete “(7) In proceedings” and substitute “(12) In proceedings”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 12:

In page 7, line 37, to delete “(8) Subsection (5)” and substitute “(13) Subsection (5)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 13:

In page 7, to delete line 39 and substitute “behalf.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 14:

In page 7, after line 39, to insert the following:

“(14) In this section—

‘Act of 2006’ means the Employment Permits Act 2006;

‘national minimum hourly rate of pay’ has the meaning assigned to it by the Act of 2006.

Section 2B: supplemental provisions

2C. (1) The District Court has jurisdiction to hear and determine proceedings under section 2B where the amount claimed in the proceedings does not exceed €15,000.

(2) The jurisdiction of the District Court under this section shall be exercised by the judge of the District Court for the time being assigned to the district court district in which the person against whom the proceedings are brought resides or carries on business.

(3) The Circuit Court has jurisdiction to hear and determine proceedings under section 2B where the amount claimed in the proceedings does not exceed €75,000.

(4) The jurisdiction of the Circuit Court shall be exercised by the judge of the Circuit Court for the time being assigned to the circuit in which the person against whom the proceedings are brought resides or carries on business.”.”.

Amendment agreed to.

Deputy Peadar Tóibín

I move amendment No. 15:

In page 7, after line 39, to insert the following:

“(9) A foreign national who has engaged in civil proceedings as referred to in this section may apply to the court for interim relief.”.”.

Amendment put:

The Committee divided: Tá, 2; Níl, 6.

Tá

• Calleary, Dara.
• Tóibín, Peadar.

Níl

• Conaghan, Michael.
• English, Damien.
• Kyne, Seán.
• Lawlor, Anthony.
• Lyons, John.
• Sherlock, Sean.

Amendment declared lost.

Section 4, as amended, agreed to.

SECTION 5

Chairman

Amendment No. 16 is in the name of the Minister. Amendments Nos. 16, 17, 20 to 23, inclusive, 29 to 31, inclusive, 48 to 50, inclusive, 52, 72, 99 to 101, inclusive, 103, 104, 107, 108, 113, 114, 118, 119, 156 to 159, inclusive, 161 and 162 are related and may be discussed together by agreement. Members have the list in front of them for clarification.

Deputy Sean Sherlock

I move amendment No. 16:

In page 8, between lines 12 and 13, to insert the following:

" 'civil partnership registration' has the meaning assigned to it by the Act of 2010;

‘connected’, in relation to the connection between a connected person and a foreign employer, means—

(a) the connected person is a subsidiary of the foreign employer,

(b) the foreign employer is a subsidiary of the connected person,

(c) the connected person and the foreign employer are both subsidiaries of a holding company that carries on business in the State or outside the State, or

(d) the connected person and the foreign employer have entered into an agreement with another person whereby each of them agree to carry on business or provide services with each other in more than one state and to carry on business or provide services in the manner provided for in the agreement;”.

The Bill explicitly provides for a permit type in intra-company transfer situations. While the intra-company transfer employment permit holder's employer is outside the State, that is a foreign employer, the employment permit holder is carrying out duties for, or participating in a training programme with, the connected person, that is the Irish entity.

The provisions of the Bill regarding to intra-company transfer employment permits must respect the employer-employee contractual relationship that exists between the foreign employer and intra-company transfer employment permit holder. For this reason, any reference in the Bill to the connected person, that could suggest that it was the employer, have been removed and a number of sections redrafted accordingly.

Amendment No. 16 defines the term "connected", which refers to the affiliation between a foreign and an Irish company for the purposes of granting an intra-company transfer employment permit. The intention of the amendment is to tighten up and more clearly define the nature of the connections between the foreign employer and connected person, and consequently the definition of the terms "holding company" at amendment No. 21 and "subsidiary" at amendment No. 23 are required.

Amendment No. 16 also defines "civil partnership registration" in terms of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The term is used throughout the Bill in the context of the dependant, partner or spouse employment permit. Amendment No. 21 also defines the terms "health insurance", "health insurer" and "medical treatment" as these terms need to be defined in the context of the revised definition of remuneration at amendment No. 24, which I will address later.

Amendments Nos. 17 and 20 further amend the definitions of connected person and foreign employer and are consequential to amendment No. 16. Amendment No. 22 is consequential to amendment No. 23. Amendments Nos. 29 to 31, inclusive, are drafting amendments and are consequential. Amendment No. 48 is a consequential technical amendment.

Amendment No. 49 provides for sector-specific employment permits. Amendment No. 50 provides for the duration of an employment permit in respect of an intra-company transfer to be set out on that permit. Amendment No. 52 specifies the persons to whom copies of an employment permit should issue. With regard to amendments Nos. 72 and 104, it is critical that the Minister is satisfied that the intra-company transfer employment permit holder is adequately provided for in terms of board and-or accommodation for the duration of the permit holder's stay in the State.

Amendments Nos. 99 to 101, inclusive, are consequential technical amendments. Amendment No. 103 brings the connected person and relevant person, that is, the person in the State with whom a contractor has entered into a contract of service, into the scope of the revocation provisions of section 16 of the Act of 2006. Amendment No. 107 is a technical amendment and is consequential to amendment No. 106.

Amendment No. 108 is consequential to the treatment of the intra-company transfer in the Bill. It provides that the Minister may revoke-----

Deputy Peadar Tóibín

Is my amendment No. 49 included this grouping?

Chairman

No.

Deputy Peadar Tóibín

Apologies.

Deputy Sean Sherlock

Shall I just go through the amendments and then come back?

Chairman

Yes. Is the Minister of State near the end of his speaking note?

Deputy Sean Sherlock

Yes. Amendment No. 162 provides that failure by the connected person to comply with new record keeping requirements is an offence under section 27(8).

Please forgive me but I have omitted a few amendments. Amendment No. 113 allows the connected person to apply for a review. Amendment No. 114 is a consequential amendment following on from the treatment of the intra-company transfer in the Bill. Amendment No. 118 is a technical amendment consequential to amendment No. 119. Amendment No. 156 is a technical amendment consequential to amendment No. 157 which inserts a new subsection (3A). Amendment No. 158 provides that the connected person who contravenes subsection (3A) is guilty of an offence.

Amendment No. 159 requires the connected person to surrender the copy of the employment permit where the employment it concerns has been, for any reason, terminated by the foreign employer or the foreign national ceases to carry out duties for, or participate in a training programme provided by, the connected person. Also, failure by the connected person or the permit holder to do so is an offence under section 24(2), as amended by section 24(c) of the Bill. The amendment guards against abuse of the permits system by ensuring that all parties are aware of the employment status of foreign nationals who are permit-required.

Amendment No 161 requires the connected person to retain records pertaining to the intra-company transfer employment permit holder's duties or training programme and the employment concerned. Amendment No. 162 provides that failure by the connected person to comply with new record keeping requirements is an offence under section 27(8), as amended by section 27 of the Bill.

Chairman

Has anyone any questions?

Deputy Peadar Tóibín

I should like to speak to amendment No. 49, if possible. The Minister of State will be aware if an employee - any employee - has a contract and an ability to work only with one employer. The nature of that relationship will be quite different than if a worker has the ability to work with a number of different employers.

It leaves the door wide open for exploitation. If we had a choice, we would not accept that we had to work for one employer but would choose to go from employer to employer to improve our conditions or even as leverage to guarantee that our rights are maintained. The bondage, which is literally part of this process, in tying the employee to the employer is a negative element. I do not see the logic of preventing an employee from being able to work for a different employer within the same sector because we are basically looking at many of the rights to work on the basis of sectors and needs within those sectors. If the Minister of State had a choice, would he like to be tied to one employer or would he like the option to work with other employers? How does he think his rights would be affected?

Deputy Sean Sherlock

I work for many employers in Cork East and I hope they will keep employing me.

In regard to amendment No. 49, providing for sector-specific employment permits would only be possible were the Department to waive all checks on the employer, which the Minister cannot accept. Currently, all employers of permit holders are on the Department's database which is regularly checked by the National Employment Rights Authority as part of their compliance with the permits legislation. Part of the evaluation of the employment permit application is to check the bona fides of the employer as well as establishing that there are actual labour shortages for the job to be filled. Refusals arise where the employer is not deemed to be operating legitimately and where no such labour shortage is demonstrated.

The Minister considers that the Deputy's amendment would make a targeted approach to meeting labour market skills shortages through the permit system impossible. It would also significantly weaken the ability of the State to control and monitor employers of permit holders. It is on that basis that we cannot accept the proposed amendments. However, it must be said that we exercise discretion in humanitarian circumstances and where it is less than 12 months-----

Deputy Peadar Tóibín

Where what is less than 12 months?

Deputy Sean Sherlock

If we go back to the bondage element, as the Deputy so described it, section 12(1)(e) of the 2006 Act provides that, in respect of the foreign national’s first employment permit, he or she remains with the employer for a minimum period of 12 months and the Minister can refuse an application for a second employment permit made during that period and the foreign national already has an employment permit in force. It should be noted that this is a “may” provision - this allows the Department to consider such an application within the 12 month period where the Department has exception policies that have general effect - for example, humanitarian grounds where the employer has moved to a different location in the country. Such exceptions to section 12(1)(e), when finalised, will be made publicly available. However, in such an instance, the foreign national will have to apply for a new permit and will have to adhere to the conditions applying to that permit where applicable - in other words, where there is a labour market needs test.

Deputy Peadar Tóibín

Does the Minister of State accept that the nature of the relationship of a permit holder, when tied to one employer, is different to the nature of the relationship of a permit holder or any other worker in society, where he or she can choose employers?

Deputy Sean Sherlock

Again, we should go back to the body of the legislation. What is the purpose of permits legislation?

Deputy Peadar Tóibín

I understand the purpose of it but we also need to-----

Deputy Sean Sherlock

Will the Deputy relay what he understands to be the meaning of this legislation in regard to permits so that I can understand his point? A permit is to fill a position.

Deputy Peadar Tóibín

It is but it is also important that the human rights of individuals are respected. We have to give workers, whether they are from Cork, New York or Papua New Guinea, certain human rights and we need to ensure that the nature of the relationship between the worker and the employer is in some way level. If one forces a worker to be tied to a specific employer, it puts that employer in a position of great power, which can be exploited. We are not just simply filling an economic need in this legislation. We are also looking to afford people common decency.

Deputy Sean Sherlock

That is a given. Regardless of the political party from which we come or our political hue or political persuasion, as citizens, we all subscribe to the notion that the human rights and the employment conditions under which any worker works comply with the law and that he or she enjoys full entitlements inherent in any contract he or she has. However, that still does not answer the Deputy's question. The binding arrangement - to use those words - is for the first 12 months only.

Deputy Peadar Tóibín

My view is that it would be a healthier relationship if an employee in a permit situation was like an employee elsewhere and was able to choose his or her employer.

Deputy Sean Sherlock

They are.

Deputy Peadar Tóibín

They are to a certain extent. It is a limited. I accept the worries some people have that this is to fill an economic need and that is why the amendment specifies the sector. I do not know if we will see eye to eye on this.

Chairman

I am afraid we will have to move on.

Deputy Dara Calleary

We may table amendments to section 8 on Report Stage.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 17:

In page 8, to delete lines 14 to 25 and substitute the following:

"who is connected to a foreign employer;".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 18:

In page 8, between lines 29 and 30, to insert the following:

" 'date of dismissal', in relation to a foreign national who is dismissed by reason of redundancy, has the meaning assigned to it by section 2 of the Act of 1967;".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 19:

In page 9, between lines 3 and 4, to insert the following:

" 'dismissed by reason of redundancy' means?—

(a) the dismissal by an employer from employment within the meaning of section 9 of the Act of 1967, and

(b) the dismissal is -

(i) attributable wholly or mainly to the condition specified in paragraph (a), (b), (c), (d) or (e) of section 7(2) of the Act of 1967, or

(ii) a dismissal referred to in section 21 of the Act of 1967;".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 20:

In page 9, lines 14 to 17, to delete all words from and including "who" in line 14 down to and including "State" in line 17.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 21:

In page 9, between lines 17 and 18, to insert the following:

" 'health insurance' means insurance providing for the costs and charges of medical treatment;

'health insurer' means a person entered in the Register of Health Benefits Undertakings referred to in section 14 of the Health Insurance Act 1994;

'holding company' has the meaning assigned to it by section 155 of the Companies Act 1963;

'medical treatment' includes medical services or medical care;".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 22:

In page 9, line 41, to delete "permission."," and substitute "permission;".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 23:

In page 9, after line 41, to insert the following:

" 'subsidiary' has the meaning assigned to it by section 155 of the Companies Act 1963.",".

Amendment agreed to.

Chairman

Amendments Nos. 24, 25, 37, 38, 73 to 76, inclusive, 81 to 85, inclusive, 94, 102, 105, 106, 109 to 112, inclusive, and 116 are related and may be discussed together by agreement.

Deputy Sean Sherlock

I move amendment No. 24:

In page 10, to delete lines 7 to 15 and substitute the following:

"(e) by substituting the following definition for the definition of "remuneration":

" 'remuneration' shall be construed in accordance with section 1A;",

(f) by deleting the definition of "employment regulation order", and

(g) by deleting the definition of "registered employment agreement".".

The Minister's preference is for all employment holders to be employed, salaried and paid under an Irish employment contract. However, in the case of the intra-company transfer employment permit and contract for services employment permit, he acknowledges that the employment in the State is temporary and so facilitates the permit holder remaining on the foreign payroll. However, this concession has, in practice, introduced a level of complexity to the evaluation of documentation submitted to support such applications. This has resulted in considerable engagement with applications leading to delay and in some cases refusal.

Amendment No. 24 provides for the insertion of a new section 1A into the Act of 2006. Amendment No. 25 provides the new definition of remuneration for the purposes of the employment permits Acts and fulfils two important functions.

On the one hand, it offers a clear definition of what is meant by remuneration and how it is to be provided for all categories of employment permit. This provides clarity and certainty to employers. On the other hand, it introduces clear rules for those applying for intra-company transfer and contract for services employment permits, covering remuneration, duration of time with foreign employer, requirements to top up to Irish statutory minimum wages as well as €40,000 minimum remuneration threshold, before a permit will be issued.

Amendments Nos. 37 and 38 set out the principles applying to the remuneration paid to the holders of intra-company transfer employment permits and contract for services employment permits. Amendment No. 73 makes it imperative that the intra-company transfer employment permit holder is adequately provided for in terms of health insurance for the duration of the permit holder’s stay in the State. Amendments Nos. 74 and 76 enable the Minister to refuse to grant an intra-company transfer employment permit or contract for services employment permit where he or she is satisfied that the health insurance provided is not similar to that provided by a registered health insurer in the State. Amendment No. 75 is consequential to amendment No. 74, while amendment No. 81 is consequential to amendment No. 82. Amendment No. 82 allows the Minister to refuse to grant an employment permit for an intra-company transfer or a contract for services where the conditions relating to remuneration and the provision of information on remuneration set out in the amendments to section 6 of the 2006 Act are not met. Amendments Nos. 83 and 84 are also both consequential to amendment No. 82. Amendment No. 102 removes a reference to "other benefits" that can be taken into account so as to make it clear that only accommodation, board and health insurance are reckonable components for computing the remuneration to be paid to a foreign national.

Amendments Nos. 105 and 106 provide the Minister with revocation grounds if the holder of the intra-company transfer or contract for services permit is not adequately provided for in terms of health insurance for the duration of his or her stay in the State. Amendment No. 109 clarifies that the remuneration in question is the salary as set out in the definition of remuneration at new section 1A to be inserted into the Act of 2006 and that the salary must not be less than national minimum wage. Amendment No. 110 inserts a cross-reference to section 12(6)(b) which pertains to the hourly rate specified under an enactment, such as any successor to the employment regulation orders or registered employment agreements.

Amendment No. 111 is a consequential amendment to amendment No. 112. The latter amendment provides for the revocation of an employment permit where the required statement of earnings does not comply with the requirements of new section 3D(1)(c) or section 3E(1)(b) to be inserted into the Act of 2006 in respect of intra-company transfer or contract for services employment permits.

Finally, amendment No. 116 provides for information, documents and evidence to be prescribed under section 29 at renewal stage and the provision of such information within a prescribed period. It also requires the provision, at renewal stage, of information on the remuneration paid to the foreign national during the period for which a intra-company transfer or a contract services employment permit was granted.

I am considering some further minor amendments to section 5 of the Bill and will revert at Report Stage on these.

Amendment agreed to.

Section 5, as amended, agreed to.

NEW SECTION

Deputy Sean Sherlock

I move amendment No. 25:

In page 10, between lines 15 and 16, to insert the following:

“Insertion into Act of 2006 of new section 1A

6. The Act of 2006 is amended by inserting the following section after section 1:

“Definition of ‘remuneration’

1A. (1) In this Act ‘remuneration’ means—

(a) subject to paragraph (b), the total amount of—

(i) the salary that is paid to the foreign national, the hourly rate of which shall not be less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to in section 12(6)(b), and

(ii) a payment for health insurance in respect of a foreign national should he or she require medical treatment for illness or injury during the period for which the employment permit is in force and which is made to a health insurer by the person who made the offer of employment,

or

(b) in respect of an employment permit granted for the purposes referred to in section 3A(2)(d) and 3A(2)(e), the total amount of—

(i) the salary that is paid to the foreign national, the hourly rate of which shall be not less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to in section 12(6)(b),

(ii) a payment for board and accommodation, or either of them, or the monetary value of board and accommodation directly provided by the connected person, foreign employer or contractor, and

(iii) a payment for health insurance in respect of a foreign national should he or she require medical treatment for illness or injury during the period for which the employment permit is in force and which is made by the foreign employer or the connected person or both of them or by the contractor to—

(I) a health insurer, or

(II) a person outside the State who provides insurance for medical treatment in respect of the foreign national that has the same, or similar, effect as the health insurance provided by a health insurer.

(2) In this Act—

(a) references to remuneration in relation to an application for the grant of an employment permit and the consideration of such application by the Minister shall be construed as the remuneration, specified in that application, that is proposed to be paid by—

(i) the person who has made the offer of employment in respect of which the application is made,

(ii) in the case of an employment permit for the purpose referred to in section 3A(2)(d), the foreign employer, in accordance with section 3D and the payments in respect of the remuneration to be paid, in accordance with section 3D, by the connected person, or

(iii) in the case of an employment permit for the purpose referred to in section 3A(2)(e), the contractor in accordance with section 3E,

and

(b) references to remuneration after a permit has been granted shall be construed as the remuneration paid to the holder of the permit by an employer, a foreign employer in accordance with section 3D, a connected person in accordance with section 3D, or a contractor in accordance with section 3E, during the period for which the employment permit has been granted in respect of the employment for which the employment permit was granted.”.”.

Amendment agreed to.

SECTION 6

Deputy Sean Sherlock

I move amendment No. 26:

In page 10, line 32, to delete “for which a high level of remuneration is paid” and substitute “that are in critical short supply in the State,”.

Amendment agreed to.

Chairman

Amendments Nos. 27 and 28 are related and may be discussed together by agreement.

Deputy Peadar Tóibín

I move amendment No. 27:

In page 11, line 5, to delete “or civil partner,” and substitute the following:

“, civil partner, or the former spouse or civil partner where a separation has occurred during the period of employment in the state”.

The logic of the legislation allows for, in certain situations, a partner to work when he or she comes with the permit holder to this country. Obviously there is a difficulty in that situation if there is a relationship breakdown in that one of the partners might find himself or herself in a nowhere zone. The aim of this amendment is to ensure that the civil partner, former spouse or civil partner, in the event of a separation occurring during the period of employment, would be able to gain access to work. It would be shocking to contemplate that a partner would be living here for a number of years, would possibly have children here but would have to leave a job or indeed, leave the country in the event of a relationship breakdown.

Deputy Sean Sherlock

Regarding amendment No. 27, the purpose of providing access to the Irish labour market to the spouses, civil partners and dependants of critical skills employment permit holders and third country researchers under Council Directive 2005/71/EC is to differentiate Ireland by enhancing its attractiveness as a destination for this cohort of highly-skilled migrants when compared with our competitors. As such, this is a deliberate policy decision. During drafting of the Bill, the issue of separation and divorce was considered. The legal advice the Department received was that the Bill cannot cross over into the legislative domain of the Minister for Justice and Equality determining or defining separation or divorce. Second, the question for the Minister for the purposes of the dependant, partner or spouse employment permit is whether there is a subsisting relationship of spouse, partner or dependant, that is, it is for the applicant of such permit to satisfy the Minister that he or she is a spouse, partner or dependant at the time of application or renewal.

The status of relationships between the primary permit holder and his or her family members is a matter for the Irish Immigration and Naturalisation Service under the auspices of the Minister for Justice and Equality. The situation pertaining to the presence in the State of former partners or spouses of primary permits holders is in the first instance a matter for that Minister. Establishing the situation of a spouse or civil partner whose relationship with the primary permit holder has come to an end is beyond the remit of the employment permits system. However, the reactivation employment permit scheme should facilitate such individuals whose circumstances have changed and who have obtained permission from the Department of Justice and Equality to remain in the State in their own right. On this basis, the majority of cases of separated spouses will be capable of being catered for in the new permits system and as such, I am not accepting the Deputy’s amendment

Deputy Peadar Tóibín

I take the Minister of State's point that some of the definitions are outside of the remit of the Department of Jobs, Enterprise and Innovation. However, he is asking us to allow a situation whereby individuals in a healthy relationship come to this State in good faith to take up particular role, deliver on their responsibilities, have a family and put down roots of some sort. Then, if through no fault of their own, the relationship breaks down, their economic future and that of their children is completely destabilised. I understand that reactivation is a possibility for some of these individuals but I imagine that the reactivation process also takes into consideration sector-specific needs. What if the skills-set of the individual does not suit the sectors catered for in the legislation? Will these individuals still be able to seek reactivation?

Deputy Sean Sherlock

The reactivation employment permit scheme would have to take account of the circumstances described by the Deputy where, through no fault of his or her own, a person's relationship has broken down. We are trying to deal with their situation humanely.

Deputy Peadar Tóibín

Will the sector be a factor in the judgment? In other words, will it be sector-specific?

Deputy Sean Sherlock

No. There is no labour market needs test. The statutory provisions still apply. To be clear, a labour market needs test is not required for a reactivation employment permit. For the record, the main criterion to be applied to reactivation is that the remuneration must be the national minimum wage or higher. This applies to applications for employment permits in respect of all occupations except occupations in a domestic setting. The prospective employee must possess the relevant qualifications, skills or experience required for the employment. Applications will only be accepted in respect of employees who previously entered the legal market legally on foot of an employment permit, are holders of a temporary stamp 1 and have a reactivation employment permit letter from the Department of Justice and Equality.

Deputy Peadar Tóibín

Is the Minister of State confident that people who entered the country legally and in good faith and carried out their responsibilities but whose relationships have now ended will be able to apply and will be successful in gaining permits to continue working in Ireland?

Deputy Sean Sherlock

As long as they meet the conditions, yes, absolutely. There is an understanding that people who come into the country put down roots and have families. They are embedded in the community. Should the relationship break down, there is a sense that it will be dealt with humanely, allowing for all factors to be taken into consideration.

Deputy Peadar Tóibín

I will do more work on this amendment and will resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 28 not moved.

Deputy Sean Sherlock

I move amendment No. 29:

In page 11, lines 28 and 29, to delete “in employments that”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 30:

In page 11, line 30, to delete “are” and substitute “in employments that are”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 31:

In page 11, line 33, to delete “require” and substitute “in employments that require”.

Amendment agreed to.

Deputy Peadar Tóibín

I move amendment No. 32:

In page 12, between lines 10 and 11, to insert the following:

“(v) who has entered into civil proceedings as referred in section 2B of the Act of 2003;”.

During our previous discussion on relief, the Minister of State mentioned that it would be impractical to provide relief to individuals who sought justice. At the outset I made the point that if it was not accessible and not financially doable for individuals who are being exploited, it will not be used. Therefore, the exploitation will continue.

The Minister rejected the previous amendment which would allow for relief for an individual who proceeded down this road. This is an alternative. This amendment would enable a foreign national who has embarked on civil proceedings against an employer to seek work so that he or she would be able to feed the family, pay the rent and provide school books and clothing for his or her young children. It would ensure that it would be achievable for an individual to use this infrastructure.

Deputy Sean Sherlock

The conditions pertaining to the issue of a permit under the new section 3A are all mandatory. This is to deter abuses of the proposed reactivation employment permit. An application cannot be considered if the foreign national does not meet all of the criteria. Deputy Tóibín's amendment would result in an additional mandatory provision that very few foreign nationals would be able to meet - that is, only foreign nationals who have entered into civil proceedings, which would significantly narrow the field of potential applicants under this permit type. The Minister's intention in creating this type of employment permit is to facilitate those foreign nationals who have fallen out of the employment permit system to re-enter employment in line with employment permits legislation. It is not a back door for illegal economic migrants who have not been, or would not be under current legislation, granted employment permits. An amendment to facilitate this would run counter to the Government's broad policy on employment permits. It is on that basis that I cannot accept this amendment.

Deputy Peadar Tóibín

What does one do if one cannot afford to access the provisions of the legislation?

Deputy Sean Sherlock

There is a provision in the legislation to allow for the Minister to take the case.

Deputy Peadar Tóibín

I appreciate that. Is it the expectation that a person who is being exploited but cannot afford to take proceedings contacts the Minister and asks him to take the case on his or her behalf?

Deputy Sean Sherlock

The answer to the Deputy's query is. A case can be made to the Minister.

Deputy Peadar Tóibín

It seems cumbersome that the office of the Minister must be used so that a non-citizen can look to maintain his rights. I understand the Minister of State's concerns about parts of this legislation, but if a person does not feel it is achievable financially to take this route, in the main I expect that most people will not go this route.

This amendment does not propose to narrow any definition of who can access reactivation of a permit. It seeks to allow a person who is in similar circumstances to Mohammed Younis to maintain his or her family if there is a lengthy court case.

Deputy Sean Sherlock

To ensure there is no ambiguity, in saying that a case can be made to the Minister, I mean that a case can be made from a legislative perspective through the National Employment Rights Authority, NERA. That is not cumbersome. We are not talking about the Minister's private office.

Chairman

Is the amendment being pressed?

Deputy Peadar Tóibín

Yes.

Amendment put and declared lost.

Chairman

As there is a vote in the Dáil, I will suspend the meeting.

Sitting suspended at 11.29 a.m and resumed at 12.14 p.m.

Chairman

We will resume in public session. Sorry about the delay. We have said we will try to bring our consideration of this Bill to a conclusion today, if possible. I remind Deputies that we must vacate this room at 2 p.m. We will adjourn the Committee Stage debate if we do not get through all the amendments by 2 p.m. As amendments Nos. 33 to 35, inclusive, and amendments Nos. 77 to 80, inclusive, are related, they may be discussed together.

Deputy Sean Sherlock

I move amendment No. 33:

In page 12, to delete line 24.

The internship employment permit is designed to facilitate the employment in the State of foreign nationals who are full-time students enrolled in a third level institution outside the State for the purpose of gaining work experience. Amendments No. 33 and 35 are consequential to amendment No. 34. Amendment No. 34 ensures this type of permit is expressly linked to skills shortages clearly identified by the expert group on future skills needs. Amendment No. 36 restricts its duration to a period of 12 months. Amendment No. 77 is consequential to amendment No. 78, which enables the Minister to refuse to grant an internship employment permit if he or she is not satisfied that the course or the employment in question relates to skills that are designated by regulations and clearly identified by the expert group on future skills needs to be in short supply. Amendment No. 79 is consequential to amendment No. 78. Amendment No. 80 provides for the 12-month duration of an internship employment permit. I am considering further minor amendments to section 6 of the Bill. I will revert to the Dáil on the matter on Report Stage.

Deputy Dara Calleary

I presume the reference in amendment No. 34 to "a course of study" means a course that is regulated through FETAC, as opposed to one that can be established-----

Deputy Sean Sherlock

I ask the Deputy to bear with me for a moment.

The joint committee went into private session at 12.16 p.m. and resumed in public session at 12.17 p.m.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 34:

In page 12, to delete lines 25 to 27 and substitute the following:

"(ii) pursuing a course of study that is wholly or substantially concerned with the qualifications or skills referred to in section 15(1)(c) and the Minister is satisfied, having regard to section 15(1)(d), there is a shortage of those skills or qualifications, and

(iii) required, for the completion of that course of study, to obtain experience in the practice of those skills or qualifications with which the course of study is concerned for a period of not more than 12 months in an employment that requires the practice of those skills or qualifications,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 35:

In page 12, lines 28 and 29, to delete all words from and including "and" where it firstly occurs in line 28 down to and including "concerned" in line 29.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 36:

In page 12, line 30, to delete "internship programme" and substitute "period of 12 months".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 37:

In page 14, to delete lines 14 to 19 and substitute the following:

“Supplemental provisions relating to the grant of employment permit for purpose referred to in section 3A(2)(d)

3D. (1) Where a foreign employer requires a foreign national employed by him or her outside the State to carry out duties for, or participate in a training programme provided by, a connected person without prejudice to any other requirement under this Act or to the employment outside the State of the foreign national—

(a) notwithstanding that the remuneration, in so far as it relates to salary is to be paid by the foreign employer, it shall be a condition of the grant of the employment permit for the purpose referred to in section 3A(2)(d) that, in respect of the remuneration, in so far as it relates to the salary to be paid to the foreign national by the foreign employer for the period for which the employment permit is granted, the hourly rate of that salary shall be not less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to in section 12(6)(b),

(b) in respect of the payment of the remuneration to the foreign national in so far as it relates to—

(i) board and accommodation, or either of them, the payment may be made by the foreign employer and the connected person or by either of them, and

(ii) health insurance, the payment may be made by the foreign employer and the connected person or by either of them, and

(c) it shall be a condition of the grant of the permit that the statement of earnings provided by the foreign employer to the foreign national during the period for which the employment permit is in force shall, in addition to the information on the gross amount of the remuneration and the deductions made from it, specify—

(i) the amount of the additional payment referred to in subsection (4)(b),

(ii) the total amount referred to in subsection (4)(c), and

(iii) the amount of the deductions referred to in subsection (4)(d).

(2) Where—

(a) in respect of the remuneration, in so far as it relates to the salary, to be paid to a foreign national in respect of whom an application for the grant of an employment permit for the purpose referred to in section 3A(2)(d) is made, and

(b) the condition referred to in subsection (1)(a),

the hourly rate of the salary paid outside the State by the foreign employer to the foreign national is less than the national minimum hourly rate of pay, the foreign employer shall, in respect of that condition, make an additional payment to the foreign national for the period for which the employment permit is in force so that the hourly rate of the salary to be paid by the foreign employer to the foreign national during the period for which the employment permit is in force is not less than the national minimum hourly rate of pay.

(3) Where, in respect of the remuneration, in so far as it relates to the salary, to be paid to a foreign national in respect of whom an application for the grant of an employment permit for the purpose referred to in section 3A(2)(d) is made and the condition referred to in subsection (1)(a)—

(a) the appropriate hourly rate of pay for the employment in respect of which the application is made is the hourly rate referred to in section 12(6)(b), and

(b) the hourly rate of the salary paid outside the State by the foreign employer to the foreign national is less than that hourly rate of pay,

the foreign employer shall, in respect of that condition, make an additional payment to the foreign national for the period for which the employment permit is in force so that the hourly rate of the salary to be paid by the foreign employer to the foreign national during the period for which the employment permit is in force is not less than the hourly rate referred to in section 12(6)(b).

(4) Without prejudice to section 6, the connected person shall, when making an application pursuant to section 4(2)(b), provide, in addition to the information required under section 6(e), information and documents, including any information and documents as may be specified in regulations under section 29, in respect of—

(a) the amount of the salary that is paid, on the day the application is made, by the foreign employer to the foreign national in respect of whom the application is made, in such form as may be specified in regulations under section 29,

(b) where, having regard to the amount of salary referred to in paragraph (a) and the number of hours worked by the foreign national, the hourly rate of that amount of salary is less than—

(i) the national minimum hourly rate of pay and an additional payment referred to in subsection (2) is to be made, or

(ii) where appropriate, an hourly rate referred to in subsection (3), and an additional payment referred to in subsection (3) is to be made, the amount of the additional payment to be made by the foreign employer to the foreign national for the period for which the employment permit is in force, in such form as may be specified in regulations under section 29,

(c) the total amount of the amounts referred to in paragraphs (a) and (b) in such form as may be prescribed,

(d) all deductions to be made by the foreign employer to—

(i) the amount referred to in paragraph (a), and

(ii) where an additional payment referred to in paragraph (b) is required to be made, the amount of that additional payment, referred to in paragraph (b),

(e) in respect of the total amount referred to in paragraph (c), the amount to be paid to the foreign national during the period for which the employment permit is in force after the deductions referred to in paragraph (d) have been made, in such form as may be specified in regulations under section 29,

(f) the payment of board and accommodation, or either of them, and where either or both are provided directly by the connected person or the foreign employer, or both of them, the monetary value of the board and accommodation, or, as the case may be, either of them, and

(g) the arrangements for making the additional payment referred to in paragraph (b)(i) or (b)(ii).

(5) A foreign national referred to in section 3A(2)(d) shall be employed by the foreign employer concerned for a period that is not less than the minimum period of employment specified in regulations made under section 14 before an application for an employment permit may be made in respect of him or her.

(6) In this section ‘statement of earnings’ means the statement of the remuneration paid by a foreign employer to a foreign national—

(a) that is provided to the foreign national by the foreign employer to demonstrate that the foreign employer has paid the foreign national his or her remuneration, and

(b) that accompanies the periodic payment of that remuneration and specifies in writing the gross amount of the remuneration paid and any deductions made from that gross amount.".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 38:

In page 14, to delete lines 20 to 25 and substitute the following:

"Supplemental provisions relating to the grant of employment permit for purpose referred to in section 3A(2)(e)

3E. (1) Where, pursuant to the employment outside the State by a contractor of a foreign national, the contractor requires the foreign national to carry out duties in the State that arise out of a contract service agreement without prejudice to any other requirement under this Act or to the employment outside the State of the foreign national—

(a) notwithstanding that the remuneration in so far as it relates to salary, is paid to the foreign national outside the State, it shall be a condition of the grant of the employment permit for the purpose referred to in section 3A(2)(e) that, in respect of the remuneration, in so far as it relates to the salary to be paid to the foreign national by the contractor for the period for which the employment permit is granted, the hourly rate of that salary shall be not less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to in section 12(6)(b), and

(b) it shall be a condition of the grant of the permit that the statement of earnings, within the meaning of section 3D, provided by the contractor to the foreign national during the period for which the employment permit is in force shall, in addition to the information on the gross amount of the remuneration and the deductions made from it, specify—

(i) the amount of the additional payment referred to in subsection (4)(b),

(ii) the total amount referred to in subsection (4)(c), and

(iii) the amount of the deductions referred to in subsection (4)(d).

(2) Where—

(a) in respect of the remuneration, in so far as it relates to the salary, to be paid to a foreign national in respect of whom an application for the grant of an employment permit for the purpose referred to in section 3A(2)(e) is made, and

(b) the condition referred to in subsection (1)(a),

the hourly rate of the salary paid outside the State by the contractor to the foreign national is less than the national minimum hourly rate of pay, the contractor shall, in respect of that condition, make an additional payment to the foreign national for the period for which the employment permit is in force so that the hourly rate of the salary to be paid by the contractor to the foreign national during the period for which the employment permit is in force is not less than the national minimum hourly rate of pay.

(3) Where, in respect of the remuneration, in so far as it relates to the salary, to be paid to a foreign national in respect of whom an application for the grant of an employment permit for the purpose referred to in section 3A(2)(e) is made and the condition referred to in subsection (1)(a)—

(a) the appropriate hourly rate of pay for the employment in respect of which the application is made is the hourly rate referred to in section 12(6)(b), and

(b) the hourly rate of the salary paid outside the State by the contractor to the foreign national is less than that hourly rate of pay, the contractor shall, in respect of that condition, make an additional payment to the foreign national for the period for which the employment permit is in force so that the hourly rate of the salary to be paid by the contractor to the foreign national during the period for which the employment permit is in force is not less than the hourly rate referred to in section 12(6)(b).

(4) Without prejudice to section 6, the contractor shall, when making an application pursuant to section 4(2)(a), provide, in addition to the information required under section 6(e), information and documents, including any information and documents as may be specified in regulations under section 29, in respect of—

(a) the amount of the salary that is paid, on the day the application is made, by the contractor to the foreign national in respect of whom the application is made, in such form as may be specified in regulations under section 29,

(b) where, having regard to the amount of salary referred to in paragraph (a) and the number of hours worked by the foreign national, the hourly rate of that amount of salary is less than—

(i) the national minimum hourly rate of pay and an additional payment referred to in subsection (2) is to be made, or

(ii) where appropriate, the hourly rate referred to in subsection (3), and an additional payment referred to in subsection (3) is to be made, the amount of the additional payment to be made by the contractor to the foreign national for the period for which the employment permit is in force, in such form as may be specified in regulations under section 29,

(c) the total amount of the amounts referred to in paragraphs (a) and(b) in such form as may be prescribed,

(d) all deductions to be made by the contractor to—

(i) the amount referred to in paragraph (a), and

(ii) where an additional payment referred to in paragraph (b) is required to be made, the amount of that additional payment, referred to in paragraph (b),

(e) in respect of the total amount referred to in paragraph (c), the amount to be paid to the foreign national during the period for which the employment permit is in force after the deductions referred to in paragraph (d) have been made in such form as may be specified in regulations under section 29,

(f) the payment of board and accommodation, or either of them, and where either or both are provided directly by the contractor, the monetary value of the board and accommodation, or as the case may be, either of them, and

(g) the arrangements for making the additional payment referred to in paragraph (b)(i) or (b)(ii).

(5) A foreign national referred to in section 3A(2)(e) shall be employed by the contractor concerned for a period that is not less than the minimum period of employment specified in regulations made under section 14 before an application for an employment permit may be made in respect of him or her.".

Amendment agreed to.

Section 6, as amended, agreed to.

SECTION 7

Chairman

As amendments Nos. 39 to 41, inclusive, and amendments Nos. 43 to 45, inclusive, are related, they may be discussed together.

Deputy Sean Sherlock

I move amendment No. 39:

In page 15, line 32, to delete "subsection" and substitute "subsections".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 40:

In page 15, between lines 33 and 34, to insert the following:

“(5) An application shall not be made for the grant of an employment permit in respect of an employment where, in the 6 months preceding the day on which the application is made—

(a) a person was employed in the employment that is the subject of the application, and

(b) that person was dismissed by reason of redundancy from that employment within that period of 6 months.".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 41:

In page 15, to delete line 34 and substitute "(6) Where—".

Amendment agreed to.

Section 7, as amended, agreed to.

SECTION 8

Deputy Sean Sherlock

I move amendment No. 42:

In page 17, line 14, to delete "or documents" and substitute ", documents and evidence to verify such information and documents".

Deputy Dara Calleary

I want to mention that we intend to propose amendments to section 8 on Report Stage.

Chairman

That is fine.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 43:

In page 17, to delete line 19.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 44:

In page 17, line 22, to delete "section 4(3)."." and substitute "section 4(3), and".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 45:

In page 17, between lines 22 and 23, to insert the following:

"(i) provide the Minister with information, documents and evidence, as to whether, in respect of section 4(5)—

(i) a person was, in the period referred to in section 4(5), employed in the employment that is the subject of the application, and

(ii) that person was not, within such period, dismissed by reason of redundancy from that employment.".".

Deputy Peadar Tóibín

Can the Minister of State explain amendment No. 45?

Deputy Sean Sherlock

This amendment section 8 will insert a new subsection (i) into section 6 of the 2006 Act to require that information, documents and evidence pertaining to a position that was the subject of a redundancy be submitted upon application.

To provide greater context, this goes back to previous amendments. Amendments Nos. 18 and 19, respectively, define the date of dismissal and dismissal by reason of redundancy, in terms of the Redundancy Payments Act 1967. This is required in the context of provisions in section 22 of the Bill dealing with holders of critical skills employment permits and general employment permits who have been made redundant, as well as provisions in section 7 of the Bill that prohibit an employment permit application being made where the employment concerned was the subject of redundancy in the preceding six months.

To provide further clarification on amendment No. 40, it ensures that employment permits are not issued in respect of vacancies that have arisen through or were positions subject to redundancy in the preceding six months. It is designed to prevent the possibility of an employer making existing staff redundant in order to replace them with non-EEA nationals. It is important that the legislation has safeguards against distortions to the labour market. This is one such safeguard.

Amendment No. 45 adds a requirement that information regarding any recent redundancies which may relate to a vacancy for which an application is being made be submitted as part of the employment permit.

Deputy Peadar Tóibín

A tangential issue has arisen recently, where, for example, company A would employ a number of staff on a particular wage and then company B would be formed, with roughly the same directors and owners as company A, employing staff at a far lower rate. Then company A would make its staff redundant. Through this example, I want to bring to the attention of the Minister of State a system whereby people are effectively using company law to constructively dismiss their staff from one company. This is legal currently, but I suggest the Minister of State should examine the situation. I am not sure this is the right place to deal with it. I imagine it is something that could be used when dealing with non-EEA residents.

Deputy Sean Sherlock

I would like to tease out the scenario the Deputy paints a little. Does he have a specific case in mind? This should be covered by other law, but if there is a lacuna, that is something that could be raised.

Deputy Peadar Tóibín

There is a lacuna currently and I have a specific case in mind. Perhaps I could provide the Minister of State with the details of the specific case.

Deputy Sean Sherlock

That would be my instinct, because I do not know if it is appropriate to the purposes of this legislation. It may not be applicable.

Deputy Peadar Tóibín

I will bring the details of the specific case to the Minister of State before Report Stage.

Deputy Sean Sherlock

We will consider some amendments to section 8 for Report Stage.

Amendment agreed to.

Section 8, as amended, agreed to.

SECTION 9

Chairman

Amendments Nos. 46 and 47 are related and will be discussed together.

Deputy Sean Sherlock

I move amendment No. 46:

In page 17, line 25, after “10A,” to insert “12, 14, 20A and 20B”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 47:

In page 17, line 25, after “sections 10,” to insert “12 and 14,”.

Amendment agreed to.

Chairman

Amendment No. 48, in the name of the Minister, has already been discussed with amendment No. 16. However, I would like to clarify for Deputy Tóibín that if amendment No. 48 is agreed, amendment No. 49 cannot be moved.

Deputy Sean Sherlock

I move amendment No. 48:

In page 17, to delete lines 28 to 40 and substitute the following:

“ “(2) The employment permit so granted shall operate to permit the employment in the State of the foreign national in the employment specified in the application —

(a) by —

(i) the person, specified in the application, who made the offer of employment,

(ii) in the case of an application referred to in section 4(2)(a), the contractor concerned, or

(iii) in the case of an application referred to in section 4(2)(c), the person party to the arrangement referred to in that section who made the application,

or

(b) in the case of an application referred to in section 4(2)(b), to permit the foreign national to carry out duties for, or participate in a training programme provided by, the connected person concerned.”.”.

Amendment put:

The Committee divided: Tá, 7; Níl, 1.

Tá

• Calleary, Dara.
• Conaghan, Michael.
• English, Damien.
• Kyne, Seán.
• Lawlor, Anthony.
• Lyons, John.
• Sherlock, Sean.

Níl

• Tóibín, Peadar.

Amendment declared carried.

Amendment No. 49 not moved.

Deputy Sean Sherlock

I move amendment No. 50:

In page 17, after line 40, to insert the following:

“(3) Section 8 of the Act of 2006 is amended by inserting the following subsection after subsection (4):

“(4A) An employment permit granted for the purpose referred to in section 3A(2)(d) shall specify the period for which the foreign national concerned may carry out duties for, or participate in a training programme provided by, the connected person, pursuant to the permit and the permit shall, subject to the provisions of this Act, remain in force for that period accordingly.”.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 51:

In page 18, to delete lines 31 to 36 and substitute the following:

“(8) Where in the case of a transfer to which the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) applies, that takes effect during the period for which an employment permit is in force and pursuant to that transfer there is a change to the name of—

(a) the employer or, as the case may be, the connected person, specified in the employment permit—

(i) the employer or, as the case may be, the connected person, shall notify the Minister of that change of name, and

(ii) the Minister may amend the employment permit to reflect that change of name of the employer or, as the case may be, the connected person and may request such information and documents, as may be prescribed, in respect of such change of name,

or

(b) the relevant person—

(i) the contractor shall notify the Minister of that change of name, and

(ii) the Minister may amend the employment permit to reflect that change of name of the relevant person and may request such information and documents, as may be prescribed, in respect of such change of name.”.

Amendment agreed to.

Question proposed: "That section 9, as amended, stand part of the Bill."

Deputy Sean Sherlock

There will be further amendments on Report Stage.

Question put and agreed to.

Deputy John Lyons took the Chair.

NEW SECTION

Deputy Sean Sherlock

I move amendment No. 52:

In page 19, to delete lines 2 and 3 and substitute the following:

“10. (1) Section 9(1) of the Act of 2006 is amended by substituting the following paragraph for paragraph (b):

“(b) a copy of the permit so granted to be issued to—

(i) the person referred to in section 8(2)(a)(i),

(ii) in the case of an application referred to in section 4(2)(a), the contractor referred to in section 8(2)(a)(ii),

(iii) in the case of an application referred to in section 4(2)(c), the person referred to in section 8(2)(a)(iii), or

(iv) in the case of an application referred to in section 4(2)(b), the connected person referred to in section 8(2)(b).”.”.

Amendment agreed to.

SECTION 10

Deputy Sean Sherlock

I move amendment No. 53:

In page 19, between lines 14 and 15, to insert the following:

“(3) Section 9(3) of the Act of 2006 is amended by substituting “an employee” for “the employee”.”.

Amendment agreed to.

Section 10, as amended, agreed to.

SECTION 11

Vice Chairman

Amendments Nos. 54 to 56, inclusive, and 123 to 129, inclusive, are related and will be discussed together by agreement. It takes a while to warm up when we swap over. I am used to what I have to say as a committee member but now that I have to give out instructions it gets a little more difficult. Amendments Nos. 54 and 55 are consequential on amendment No 56. Amendments Nos. 123 and 125 to 129, inclusive, are consequential on amendment No 124.

Deputy Dara Calleary

How can amendments be consequential on amendments that come afterwards? I imagine something would only be consequential on something that comes before it, would it not?

The select committee went into private session at 12.35 p.m. and resumed in public session at 12.40 p.m.

Deputy Sean Sherlock

I move amendment No. 54:

In page 19, line 18, after “subsection (2A)” to insert “and (2B)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 55:

In page 20, line 10, to delete “State.”.” and substitute “State.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 56:

In page 20, between lines 10 and 11, to insert the following:

“(2B) In the case of an application for an employment permit in respect of the purpose referred to in paragraph (b), (c), (f) or (h) of section 3A(2), subsection (2) shall not apply to such application where—

(a) on the day on which the application is made the person referred to in subsection (2)(a) has no employees,

(b) the foreign national in respect of whom the application for the grant of the employment permit is made will be the sole employee of the person referred to in subsection (2)(a) on the date on which the employment that is the subject of the application is to commence,

and

(c) the Minister is satisfied that having regard to the employment in respect of which the application is made, the foreign national concerned will be the sole employee of the employer concerned, and the person making the application shall, in addition to any information required under section 6 or as may be prescribed in respect of an application, provide the Minister with any information and documents the Minister may require to satisfy himself or herself of the matters specified in paragraphs (a) to (c).”.”.

Amendment agreed to.

Question proposed: "That section 11, as amended, stand part of the Bill."

Deputy Sean Sherlock

I will propose some minor amendments to the section on Report Stage.

Question put and agreed to.

SECTION 12

Vice Chairman

Amendments Nos. 57 to 70, inclusive, are related and will be discussed together.

Deputy Sean Sherlock

I move amendment No. 57:

In page 20, to delete lines 24 to 28 and substitute the following:

“(2) Subject to subsections (6) and (7), the Minister shall not grant an employment permit referred to in subsection (1) unless the Minister is satisfied that a notice of the offer of the employment that is the subject of the application has been published in accordance with this section before the application referred to in subsection (1) is made and the application is made within the period referred to in subsection (5).”.

The labour market needs test, LMNT, seeks to ensure an offer of employment is first made to persons already in the local and European economic area, EEA, labour markets before an application is made for an employment permit to employ a non-EEA national. This supports Government policy to ensure Irish and EEA nationals currently in the labour market are the first cohort employers should look to. Amendments Nos. 57 to 60, inclusive, are technical. Amendment No. 62 is also technical. Amendment No. 63 is a drafting amendment. Amendments Nos. 64, 65, 69 and 70 are technical and consequential to amendment No. 62. Amendments Nos. 66 and 68 are drafting amendments and replace the word “advertise” with the term “publish a notice”. Amendment No. 67 describes what Ministers can set out in the regulations.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 58:

In page 20, to delete lines 29 and 30 and substitute the following:

“(3) Where an application referred to in subsection (1) is made—”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 59:

In page 20, line 33, to delete “shall offer” and substitute “shall satisfy the Minister that he or she has, before making the application, offered”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 60:

In page 21, to delete lines 3 and 4 and substitute the following:

“by causing a notice of the offer of the employment concerned to be published in accordance with subsection (4).”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 61:

In page 21, between lines 4 and 5, to insert the following:

“(4) The person referred to in subsection (3)(a) or, as the case may be, the contractor referred to in subsection (3)(b)—

(a) shall cause the notice referred to in subsection (3) to be published—

(i) in at least one national newspaper circulating in the State,

(ii) on one or more websites, as may be specified in regulations under this section, the principal purpose of which is to publish offers of employments to citizens and foreign nationals referred to in subsection (3)(ii), and

(iii) in, or on, one of the following:

(I) at least one newspaper circulating in the area in which the employment is to be carried out; or

(II) at least one website, other than a website referred to in subparagraph (ii), the principal purpose of which is to publish offers of employment,

(b) shall, in respect of the publication of that notice on a website referred to in paragraph (a)(ii), place the notice referred to in subsection (3) for publication with one or more persons, as may be specified in regulations under this section,

(c) shall publish the notice referred to in subsection (3) in accordance with paragraph (a) for a period that is not less than the period, as may be specified in regulations under this section, for which the notice is to be published, and

(d) may, in addition to the publication under paragraphs (a), (b) and (c), publish the notice in such other manner as may be specified in regulations under this section.

(5) Where, following the publication of the notice referred to in subsection (3), an application referred to in subsection (1) is made under section 4, that application shall be made within the number of days, as may be specified by the Minister in regulations under this section, from the date on which that notice was first published on a website referred to in subsection (4)(a)(ii).”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 62:

In page 21, line 5, to delete “(4) Subsection (2)” and substitute “(6) Subsection (2)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 63:

In page 21, line 11, to delete “concerned,” and substitute “concerned”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 64:

In page 21, line 13, to delete “(5) Subsection (2)” and substitute “(7) Subsection (2)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 65:

In page 21, line 18, to delete “section 14(7)” and substitute “section 14(6)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 66:

In page 21, to delete lines 34 to 36 and substitute the following:

“and the Minister is satisfied that having regard to the circumstances of that person and that foreign national, it is not appropriate to publish a notice of the offer of that employment.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 67:

In page 21, to delete lines 37 to 41 and in page 22, to delete lines 1 to 12 and substitute the following:

“(8) The Minister may, without prejudice to the generality of section 29(1), make regulations under this subsection for the publication of the notice referred to in subsection (3), that is required to be carried out before an application for the grant of an employment permit referred to in subsection (1) is made, to provide for—

(a) one or more persons with whom such notice shall be placed for publication on a website referred to in subsection (4)(a)(ii) where such person or persons own or operate the website or publish notices on such website,

(b) one or more websites, referred to in subsection (4)(a)(ii), on which such notice is to be published,

(c) the duration of the period, referred to in subsection (4)(c), for which such notice shall be published—

(i) in a newspaper referred to in subsection (4),

(ii) on a website referred to in subsection (4)(a)(ii) which shall be not less than 14 days, and

(iii) on a website referred to in subsection (4)(a)(iii),

which the Minister considers to be sufficient to afford an opportunity to citizens and the foreign nationals referred to in subsection (3)(ii) to apply for the employment concerned,

(d) the publication referred to in subsection (4)(d) of such notice, including the period for the publication of such notice, and different provision may be made for different classes of publication for any such notice including publication by electronic means and different provision may be made for such publication of the offer of

employment to citizens and foreign nationals referred to in subsection (3)(ii),

(e) the form, procedure for and the manner in which the publication of the offer of employment, referred to in subsection (2), to citizens and foreign nationals referred to in subsection (3)(ii) is to be made,

(f) the number of days within which the application referred to in subsection (1) shall be made after the first day the notice referred to in subsection (3) has been published on a website referred to in subsection (4)(a)(ii),

(g) information and documents as the Minister may require to satisfy himself or herself that the notice was published in accordance with this section and the application was made within the period referred

to in subsection (4) and without prejudice to the generality of the foregoing such information and documents may include—

(i) information and documents demonstrating that the notice was placed with the persons specified by the Minister in regulations under that section, and

(ii) documents identifying that the notice was published in a newspaper and a website as required under that section,

and

(h) evidence that the Minister may reasonably require in order to verify any information or documents to be furnished to the Minister pursuant to this section.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 68:

In page 22, lines 13 and 14, to delete “(7) Before advertising an employment for a purpose referred to in subsection (1)” and substitute “(9) Before publishing a notice referred to in subsection (3)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 69:

In page 22, line 18, to delete “(8) The Minister” and substitute “(10) The Minister”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 70:

In page 22, line 21, to delete “(9) Section 10(3) applies” and substitute “(11) Section 10(3) applies”.

Amendment agreed to.

Section 12, as amended, agreed to.

Section 13 agreed to.

SECTION 14

Deputy Sean Sherlock

I move amendment No. 71:

In page 23, between lines 12 and 13, to insert the following:

“(c) by substituting the following paragraph for paragraph (e):

“(e) the following 2 conditions are satisfied namely:

(i) a period of less than 12 months has elapsed since the foreign national concerned first commenced employment in the State pursuant to an employment permit granted to him or her; and

(ii) the application is made within the period referred to in subparagraph (i) and on the date of the application—

(I) the employment permit referred to in subparagraph (i) is in force, or

(II) the foreign national has surrendered, in accordance with section 24, the employment permit referred to in subparagraph (i), within the period referred to in subparagraph (i),”,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 72:

In page 24, line 28, to delete “has not made” and substitute “or the foreign employer has not, or both of them have not, made”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 73:

In page 24, to delete lines 34 to 38 and substitute the following:

“(ii) to provide appropriate health insurance, in respect of the foreign national should he or she require medical treatment for illness or injury during the period for which he or she will be in the State pursuant to the employment permit,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 74:

In page 24, between lines 38 and 39, to insert the following:

“(c) the Minister may refuse to grant an employment permit if the Minister is satisfied that the health insurance provided by the person referred to in paragraph (b)(iii)(II) of section 1A(1) does not have the same, or similar, effect as the health insurance provided by a health insurer,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 75:

In page 24, line 40, to delete “(c) the Minister” and substitute “(d) the Minister”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 76:

In page 25, to delete lines 11 to 20 and substitute the following:

“(1E) In the case of an application in respect of the purpose referred to in section 3A(2)(e), the Minister—

(a) may refuse to grant an employment permit if, in the opinion of the Minister, the contractor has not made appropriate arrangements—

(i) to provide appropriate accommodation and board, or either of them, for the foreign national while he or she is in the State to perform the duties arising from the contract service agreement,

or

(ii) to provide appropriate health insurance in respect of the foreign national should he or she require medical treatment for illness or injury during the period for which he or she will be in the State pursuant to the employment permit,

or

(b) may refuse to grant an employment permit if the Minister is satisfied that the health insurance provided by a person referred to in paragraph (b)(iii)(II) of section 1A(1) does not have the same, or similar, effect as the health insurance provided by a health insurer.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 77:

In page 25, line 26, to delete “or”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 78:

In page 25, to delete lines 27 to 29 and substitute the following:

“(ii) the course of study concerned is not wholly or substantially concerned with the qualifications or skills referred to in section 3A(2)(i), or

(iii) the employment in respect of which the application is made is not wholly or substantially concerned with the skills or qualifications referred to in subparagraph (ii),

(b) the Minister is not satisfied that there is a shortage of those qualifications or skills,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 79:

In page 25, line 31, to delete “(b) the Minister” and substitute “(c) the Minister”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 80:

In page 25, line 32, to delete “on completion of the internship programme,” and substitute “, at the end of the 12 month period,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 81:

In page 27, to delete line 19 and substitute “met.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 82:

In page 27, between lines 19 and 20, to insert the following:

“(1J) The Minister, in the case of an application for an employment permit for the purpose referred to in paragraph (d) or (e) of section 3A(2), shall—

(a) without prejudice to subsection (1)(j), refuse to grant an employment permit if the Minister is satisfied that the hourly rate of the remuneration, in so far as it relates to the salary to be paid to the foreign national, is less than the national minimum hourly rate of pay or, where appropriate to the employment in respect of which the application is made, the hourly rate referred to in subsection (6) (b),

(b) refuse to grant an employment permit where the connected person did not provide the information and documents referred to in section 3D(4) or the contractor did not provide the information and documents referred to in section 3E(4), or

(c) refuse to grant an employment permit where the Minister is not satisfied with the arrangements for the additional payment referred to in section 3D(4)(g) or, as the case may be, section 3E(4)(g).

(1K) The Minister shall refuse to grant an employment permit where he or she is satisfied that in the 6 months preceding the day on which the application was made—

(a) a person was employed in the employment that is the subject of the application, and

(b) that person was dismissed by reason of redundancy from that employment.”.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 83:

In page 27, line 21, to delete “(1I)” and substitute “(1K)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 84:

In page 27, to delete lines 23 to 25.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 85:

In page 27, between lines 35 and 36, to insert the following:

“(8) Section 12 of the Act of 2006 is amended in subsection (6) by substituting the following for paragraph (b):

“(b) if the hourly rate of pay fixed under or pursuant to any enactment that applies to the employment concerned is greater than the national minimum hourly rate of pay, the hourly rate of pay that is fixed under or pursuant to that enactment.”.”.

Amendment agreed to.

Deputy Dara Calleary

I move amendment No. 86:

In page 27, between lines 35 and 36, to insert the following:

“(8) The Minister shall establish an independent appeals mechanism for persons refused an employment permit under the provisions of subsection (1).”.

This amendment aims to open another appeals mechanism for persons who are refused a permit. It would make it possible for an outside body to consider it, particularly given the consequences of somebody’s application being turned down for his or her residency and status in the State.

Deputy Sean Sherlock

The conditions whereby an employment permit may be granted or refused are set out in clear detail in the legislation. Reviews of decisions on the granting of employment permits are provided for in section 13 of the Act of 2006. That section sets out that a review of a decision to refuse an employment permit shall be carried out by an officer of a grade senior to the grade of the person who made the refusal decision. The segregation of duties in the employment permits area is applied accordingly. The clarity imposed by the new provisions, in conjunction with this clear review structure, ensures the application, the refusal and the review process are based on transparent and explicit rules with a basis in law. In this context, it is the Minister’s view that setting up an independent process would create an unnecessary extra layer of administration with cost implications and no discernible benefits. On this basis, I do not accept the Deputy’s amendment.

Deputy Dara Calleary

The intention is not to create an extra layer of bureaucracy but to provide a final arena for assessment in which all of the checks the Minister of State has outlined could be considered by an independent person to ensure they were all covered. The consequences for the status of someone who loses a permit are significant.

Deputy Sean Sherlock

How in the Deputy’s mind would this occur?

Deputy Dara Calleary

If someone’s application is turned down, there could be a final court. I could include a time limit if the Minister of State wished and resubmit the amendment on Report Stage. The process takes such a long time and the consequences of losing an existing permit are so severe that this would cover all of the angles.

Deputy Sean Sherlock

I am informed that the refusal rate is approximately 12%. There is a 28 day time limit for appeals. Is the Deputy referring to the length of time it takes thereafter?

Deputy Dara Calleary

Yes.

Deputy Sean Sherlock

Forgive me if I am misunderstanding the amendment, but how does the Deputy envisage it working in practical terms? Would there be a designated person within the Department, a higher officer? Who would be the independent person?

Deputy Dara Calleary

It would be a higher officer in the Department, somebody with a fresh eye but with a knowledge of the system. I would be happy to return to this issue on Report Stage and clarify it in the meantime.

Amendment, by leave, withdrawn.

Question proposed: "That section 14, as amended, stand part of the Bill."

Deputy Sean Sherlock

We will table some minor amendments to the section on Report Stage.

Question put and agreed to.

SECTION 15

Vice Chairman

Amendments Nos. 87 to 91, inclusive, are related and may be discussed together.

Deputy Sean Sherlock

I move amendment No 87:

In page 28, line 4, to delete "or evidence" and substitute "or documents".

These amendments to section 15, which further amend the new subsection (2A) to be inserted in section 13 of the 2006 Act, are to replace the term "or evidence" with the term "or documents" in order to maintain consistency with the language used in section 13 generally.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 88:

In page 28, line 6, to delete "or evidence is" and substitute "is, or documents are,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 89:

In page 28, line 12, to delete "or evidence" and substitute "or documents".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 90:

In page 28, lines 14 and 15, to delete "or evidence" and substitute "or documents".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 91:

In page 28, line 27, to delete "evidence" and substitute "documents".

Amendment agreed to.

Section 15, as amended, agreed to.

SECTION 16

Vice Chairman

Amendments Nos. 92 and 93 are related and may be taken together.

Deputy Sean Sherlock

I move amendment No. 92:

In page 28, line 38, to delete "14A(1)" and substitute "14A".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 93:

In page 29, line 2, to delete "class" and substitute "such class".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 94:

In page 29, to delete lines 30 to 32 and substitute the following:

"employment permit in respect of it, and without prejudice to the generality of the foregoing, in respect of such minimum amount of remuneration—

(i) in so far as it relates to the salary referred to in paragraphs (a)(i) and (b)(i) of section 1A(1), the hourly rate for the salary shall be not less than the national minimum hourly rate of pay, or where appropriate to the employment or the category of employment, the hourly rate of pay referred to in section 12(6)(b), and

(ii) in so far as it relates to the payments for board and accommodation, referred to in section 1A(1)(b)(ii) and the payments for health insurance referred to in paragraphs (a)(ii) and (b)(iii) of section 1A(1), a maximum amount that may be paid in respect of those payments or the maximum amount of the value of such board and accommodation that are directly provided;”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 95:

In page 31, line 32, to delete "subsection."." and substitute "subsection.".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 96:

In page 31, between lines 32 and 33, to insert the following:

"(1H) Without prejudice to the generality of subsection (1A)(b), when specifying the employments for which an employment permit may be granted, including employments specified by reference to categories of employments and to one or more economic sectors, the Minister may specify such employments by reference to employments that require qualifications, experience or skills, referred to in section 15(1)(c), that are required for the proper functioning of one or more economic sectors and the Minister is satisfied that there is a shortage, referred to in section 15(1)(d), of those skills, experience or qualifications.

(1I) The Minister may, having regard to section 3A and the matters specified in section 15, make regulations providing that no permits shall be granted in respect of any purpose referred to in section 3A(2) for a period as the Minister shall specify in the regulations.

(1J) Where the Minister has made regulations under this section he or she shall from time to time carry out a review of the regulations having regard to section 15 and, without prejudice to the generality of the foregoing, the shortages and surpluses referred to in section 15(1)(d) in respect of the matters specified in the regulations pursuant to this section.

(1K) Where under subsections (1) and (1A)(a), the Minister makes regulations providing for the maximum number of employment permits that may be granted in respect of a purpose or specified employments or categories of employments, whether the maximum number is provided for on the basis of an economic sector or otherwise, the Minister shall specify a period during which that maximum number of employment permits shall be granted.".".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 97:

In page 31, to delete lines 33 to 41, and in page 32, to delete lines 1 to 3 and substitute the following:

"(3) Section 14 of the Act of 2006 is amended by substituting the following subsections for subsection (2):

"(2) In regulations under subsection (1) the Minister may, having regard to sections 3A and 14A and the matters specified in section 15, provide, in respect of each class of employment permit referred to in subsection (1), for—

(a) one or more of the matters specified in subsection (1A) other than the matters specified in paragraphs (a), (c) and (d) of that subsection, and

(b) any matter specified in subsections (1B) and (1D) to (1H),

in relation to the renewal, under section 20, of an employment permit and may, for each such class of employment permit in such regulations, make provision for such classes of employment permit in relation to any of the matters specified in paragraphs (a) and (b) in relation to such renewal that is different to the provision made by the Minister in relation to the grant of an employment permit under section 8 and may, in such regulations, make different provision for such classes of employment permit and such matters in relation to different cases and different classes of cases and different circumstances or different classes of circumstances.

(2A) The following modifications apply in respect of the regulations referred to in subsection (2):

(a) the substitution of references to an application for the renewal of an employment permit for references to an application for the grant of an employment permit;

(b) the substitution of references to a condition for the grant of the renewal of an employment permit for references to a condition for the grant of an employment permit;

(c) the substitution of references to the grant of the renewal of an employment permit for the grant of an employment permit.".".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 98:

In page 32, to delete lines 10 and 11 and substitute the following:

"(5) Section 14(4) of the Act of 2006 is amended—

(a) by deleting ", during a period such as is referred to in subsection (3),", and

(b) by inserting ", subject to this Act," after "be granted".".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 99:

In page 32, to delete lines 26 to 32.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 100:

In page 32, to delete line 33 and substitute "(6) Where—".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 101:

In page 33, line 16, to delete "(8) In this Act," and substitute "(7) In this Act,".

Amendment agreed to.

Section 16, as amended, agreed to.

SECTION 17

Deputy Sean Sherlock

I move amendment No. 102:

In page 33, lines 26 to 28, to delete all words from and including "and" where it secondly occurs in line 26 down to and including "categories" in line 28.

Amendment agreed to.

Section 17, as amended, agreed to.

Section 18 agreed to.

SECTION 19

Deputy Sean Sherlock

I move amendment No. 103:

In page 34, to delete lines 30 and 31 and substitute the following:

"(a) in paragraph (a), by inserting "or connected person" after "the employer",

(b) in paragraph (b)—

(i) by inserting ", connected person or relevant person" after "the employer",

and

(ii) by inserting "the Act of 2003, the Immigration Act 2004 or an enactment specified in Schedule 1," after "this Act,",

and".

For members' information, I intend to bring forward some additional minor amendments to this section on Report Stage.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 104:

In page 35, line 9, after "person" to insert "or the foreign employer".

Amendment agreed to .

Deputy Sean Sherlock

I move amendment No. 105:

In page 35, to delete lines 14 to 18 and substitute the following:

"(ii) provide appropriate health insurance in respect of the foreign national during some or all of the period for which the employment permit has been in force should he or she require

medical treatment for illness or injury during such period,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 106:

In page 35, to delete lines 26 to 30 and substitute the following:

"(ii) provide appropriate health insurance in respect of the foreign national during some or all of the period for which the employment permit has been in force should he or she require medical treatment for illness or injury during such period,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 107:

In page 35, line 33, to delete "permit, or" and substitute "permit,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 108:

In page 35, to delete lines 34 to 37 and substitute the following:

"(ii) employed by the person referred to in section 8(2)(a)(i), or, as the case may be, the contractor referred to in section 8(2)(a)(ii), or the person referred to in section 8(2)(a)(iii), or

(iii) employed by the foreign employer or is not carrying out the duties for, or participating in a training programme provided by, the connected person referred to in section 8(2)(b),".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 109:

In page 35, line 38, after "paid" to insert ", insofar as it relates to the salary referred to in paragraphs (a)(i) and (b)(i) of section 1A(1),"

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 110:

In page 35, line 39, to delete "pay," and substitute "pay or the hourly rate referred to in section 12(6)(b),".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 111:

In page 36, line 3, to delete "employer,"." and substitute "employer,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 112:

In page 36, between lines 3 and 4, to insert the following:

"(dg) the statement of earnings, referred to in section 3D or section 3E, does not comply with the requirements of section 3D(1)(c) or, as the case may be, section 3E(1)(b),".

(2) Section 16 of the Act of 2006 is amended in subsection (2) by inserting "or the connected person" after "the employer".".

Amendment agreed to.

Section 19, as amended, agreed to.

NEW SECTION

Deputy Sean Sherlock

I move amendment No. 113:

In page 36, between lines 3 and 4, to insert the following:

"Amendment of section 17 of Act of 2006

20. Section 17 of the Act of 2006 is amended in subsection (1) by substituting "the holder of the permit, the employer or the connected person" for "the holder of the permit or the employer".".

Amendment agreed to.

SECTION 20

Deputy Sean Sherlock

I move amendment No. 114:

In page 36, to delete lines 6 and 7 and substitute the following:

"(a) in subsection (1)—

(i) by deleting "(other than on foot of an application by a foreign national)", and

(ii) by inserting "or the connected person" after "the employer",

and".

Amendment agreed to.

Section 20, as amended, agreed to.

SECTION 21

Deputy Sean Sherlock

I move amendment No. 115:

In page 37, to delete lines 12 to 29 and substitute the following:

""(3A) In the case of the renewal of an employment permit granted in respect of an employment referred to in section 3A(2)(d)(i), where the Minister is satisfied that the duties to be carried out for the connected person will not be completed on the date of the expiration of the permit that is the subject of the application for renewal, the Minister may, subject to subsection (3C), renew the permit in accordance with this section, for the period referred to in subsection (3) or where the remaining period in which those duties are to be completed is less than the period referred to in subsection (3), for the lesser period.

(3B) In the case of the renewal of an employment permit granted in respect of the purpose referred to in section 3A(2)(e), where the Minister is satisfied that the duties to be performed in the State pursuant to the contract service agreement will not be completed on the date of the expiration of the permit that is the subject of the application for renewal, the Minister may, subject to subsection (3C), renew the permit, in accordance with this section, for the period referred to in subsection (3) or where the remaining period in which those duties are to be completed is less than the period referred to in subsection (3), for the lesser period.

(3C) The period for which an employment permit referred to in subsections (3A) and (3B) shall be in force whether granted or renewed, shall not exceed a period of 5 years from the date on which it was first granted.".".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 116:

In page 37, to delete lines 35 and 36 and substitute the following:

"permit shall—

(a) provide information, documents and evidence as may be specified in regulations under section 29 in respect of the renewal of an employment permit, within such period as may be specified in regulations under that section, and

(b) without prejudice to the generality of paragraph (a), in the case of an application for the renewal of an employment permit referred to in subsection (3A) or, as the case may be, subsection (3B), provide information, documents and evidence as may be specified in regulations under section 29, in respect of the payment of the additional payment referred to in section 3D(2) or 3D(3) or, as the case may be, section 3E(2) or 3E(3), during the period for which the employment permit, that is the subject of the application for renewal, has been granted.".

Amendment agreed to.

Deputy Peadar Tóibín

I move amendment No. 117:

In page 37, between lines 38 and 39, to insert the following:

"(6) Section 20 of the Act of 2006 is amended by inserting the following subsection after subsection (5):

"(5A) The Minister may, on application made to him or her, waive the prescribed fee.".".

The purpose of this amendment is to provide for hardship cases where applicants are seeking to renew permits but cannot afford the fee. This proposal empowers the Minister to waive the prescribed fee in such circumstances. The Minister of State might be better disposed towards this proposal than any of my other amendments.

Deputy Dara Calleary

There is always a first.

Deputy Sean Sherlock

Mo bhrón, mo bhrón. The Department has considered the waiving of fees in exceptional circumstances. However, the Bill is intended to place the issue of employment permits on a clear, statutory basis to a level of detail which precludes consideration on a case-by-case basis of the widely varied circumstances of individual applicants. This is what would be required were the Deputy's amendment to be accepted. Furthermore, the grounds on which such a waiver might be applied would necessarily be based on a third-party and possibly unsubstantiated report into the circumstances of the applicant, or an investigation into those circumstances, which would likely cause considerable delay in the issuing of the permit and consequently might jeopardise the employment in prospect. The levels at which fees are set will be stipulated by regulations and the Minister is committed to carrying out a review of the fees for employment permits later in the year. More than 40% of applicants currently pay no fees.

Deputy Michael Conaghan

How much is the fee?

Deputy Sean Sherlock

It is €1,000 for a two-year period.

Deputy Peadar Tóibín

In a situation where an individual's permit has expired or something has gone wrong, a charge of €1,000 is significant.

Deputy Sean Sherlock

The system is a fair one. Where an employer is seeking to bring in somebody because he or she has a specific set of skills and no domestic candidate is suitable, then the employer will pay the fee if it wants the person badly enough.

Amendment put and declared lost.

Deputy Sean Sherlock

I move amendment No. 118:

In page 38, line 8, to delete "or".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 119:

In page 38, to delete lines 9 to 12 and substitute the following:

"(ii) employed by the person referred to in section 8(2)(a)(i), or, as the case may be, the contractor referred to in section 8(2)(a)(ii), or the person referred to in section 8(2)(a)(iii), or

(iii) employed by the foreign employer or is not carrying out duties for, or participating in a training programme provided by, the connected person referred to in section 8(2)(b),".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 120:

In page 38, line 19, to delete "or".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 121:

In page 38, line 23, to delete "employment."." and substitute "employment,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 122:

In page 38, between lines 23 and 24, to insert the following:

"(d) without prejudice to the generality of the foregoing, the granting of the application to renew the permit would contravene regulations under section 14 in so far as those regulations make provision for, pursuant to section 14(2), the renewal of an employment permit, or

(e) the information, documents and evidence referred to in paragraphs (a) and (b) of subsection (4A) were not provided as required under those paragraphs.".".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 123:

In page 38, line 32, to delete "made." and substitute "made,".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 124:

In page 39, between lines 29 and 30, to insert the following:

"(13) Notwithstanding the application, under subsection (8), of section 10 to the renewal of an employment permit, where—

(a) an application is made to renew an employment permit that was granted for the purpose referred to in paragraph (b), (c), (f) or (h) of section 3A(2),

(b) on the day the application to renew the employment permit is made the holder in respect of whom that application is made is the sole employee of the employer concerned, and

(c) at the time the application to grant the employment permit was made, section 10(2B) applied in respect of the grant of that employment permit,

section 10 shall not apply to that application to renew that employment permit.".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 125:

In page 39, line 30, to delete "(13) The period" and substitute "(14) The period".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 126:

In page 40, line 4, to delete "(14) Nothing in subsection (13)" and substitute "(15) Nothing in subsection (14)".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 127:

In page 40, line 7, to delete "subsection (13)" and substitute "subsection (14)".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 128:

In page 40, line 8, to delete "(15) Where, on" and substitute "(16) Where, on".

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 129:

In page 40, line 31, to delete "(16) Where, on" and substitute "(17) Where, on".

Amendment agreed to.

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

Deputy Sean Sherlock

We propose to submit further amendments to this section on Report Stage.

Deputy Dara Calleary

How many Report Stage amendments in total are envisaged and when will we see them?

Deputy Sean Sherlock

I am informed by my officials that there will be a handful of amendments.

Deputy Dara Calleary

There will be a handful of amendments to every section, by the looks of it. Is it a Kildare handful or a Cork handful?

Deputy Sean Sherlock

I cannot give an exact number but we will try to minimise it. They will be technical as opposed to substantive amendments.

Question put and agreed to.

SECTION 22

Deputy Sean Sherlock

I move amendment No. 130:

In page 41, line 2, to delete “within the meaning of section 7(2) of the Act of 1967” and substitute “from the employment concerned”.

These amendments are technical and semantic in nature. I want to make sure there is nothing that needs to be explained. We have discussed previously the redundancy provisions relating to a six month period and I do not propose to repeat those points.

Vice Chairman

The Minister of State does not have to speak to these amendments, unless he wishes to.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 131:

In page 41, to delete lines 4 to 10 and substitute the following:

“(2) Without prejudice to section 24, a foreign national to whom this section applies shall notify the Minister of the date of dismissal within 4 weeks of that date of dismissal and the notification shall be in such form as may be specified in regulations under section 29 and shall include the information and documents specified in section 20C.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 132:

In page 41, line 11, to delete “An application” and substitute the following:

“Where the Minister is satisfied that the foreign national was dismissed by reason of redundancy from the employment for which the employment permit referred to in subsection (1) was granted, an application”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 133:

In page 41, line 13, to delete “the dismissal by reason of redundancy taking effect” and substitute “the date of dismissal of that foreign national”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 134:

In page 41, line 14, after “be” to insert “for an employment permit”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 135:

In page 41, to delete lines 23 to 38 and substitute the following:

“(4) Where—

(a) on the date an application referred to in subsection (3) is made, the type of employment referred to in subsection (3)(a)—

(i) is no longer specified in regulations under section 14 as an employment, or no longer falls within a category of employment specified in those regulations, for which an employment permit may be granted in respect of the purpose referred to in subsection (1), or

(ii) is specified in regulations under section 14 as an employment, or falls within a category of employment, in respect of which an employment permit shall not be granted,

and

(b) the Minister is satisfied that the dismissal by the employer of the foreign national from the employment in respect of which the employment permit referred to in subsection (1) was granted, was a dismissal by reason of redundancy, the application may be made for that employment by a foreign national to whom this section applies notwithstanding that the employment is no longer an employment, or falls within a category of employment, for which an employment permit may be granted or is an employment, or falls within a category of employment specified in regulations under section 14 for which an employment permit shall not be granted.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 136:

In page 41, line 39, after “may” to insert “, subject to subsection (6),”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 137:

In page 42, between lines 5 and 6, to insert the following:

“(6) Without prejudice to subsection (3) or (4), where an application referred to in subsection (3) or (4) is made by a foreign national who has made a notification to the Minister under this section, the Minister shall not grant the employment permit concerned unless the Minister is satisfied that the foreign national was dismissed by reason of redundancy from the employment in respect of which the employment permit referred to in subsection (1) was granted.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 138:

In page 42, line 6, to delete “(6) Having regard” and substitute “(7) Having regard”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 139:

In page 42, line 14, to delete “(7) Nothing in” and substitute “(8) Nothing in”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 140:

In page 42, between lines 15 and 16, to insert the following:

“(9) Without prejudice to section 20C, a foreign national who makes an application referred to in subsection (3) or (4) shall provide the Minister with any information or documents that the Minister may require to satisfy himself or herself that the dismissal of the foreign national was a dismissal by reason of redundancy.”.

Amendment agreed to.

Deputy Peadar Tóibín

I move amendment No. 141:

In page 42, line 15, after “subsection (3).” to insert the following:

“Where an employer has failed to provide a P45 or other relevant document to a foreign national to whom an employment permit in respect of the purpose referred to in section 3A(2)(a) has been granted further to a dismissal by reason of redundancy within the meaning of section 7(2) of the Act of 1967 the Minister shall be responsible for acquiring such documentation from the employer.”.

This deals with cases where employers are not fulfilling their responsibilities. It also addresses instances of informal insolvencies where an employer may cease trading for a variety of reasons and not provide the permit holder with the necessary documentation to normalise his or her position. As the employer's relationship is with the Department, the amendment seeks to ensure the Department would pursue the employer for the necessary documentation.

Vice Chairman

This is the Deputy's opportunity to shine. He has been trying to do so all day, but he has not succeeded.

Deputy Peadar Tóibín

I thought I shone very well.

Deputy Sean Sherlock

The documentation required to be submitted within four weeks of the date of dismissal by reason of redundancy will be set out in regulations. Such documentation is likely to include a letter from the previous employer stating the permit holder has been made redundant within the past six months and an explanation as to why, the previous employer's certified copy of the permit issued for that permit holder and a copy of the P45 which must be dated within the past six months. The provision of this documentation establishes the bone fides of the circumstances applying. Only rarely does the Department come across instances where such documentation has not been forthcoming from previous employers. In practice, where this does arise, it will request that the documentation be forwarded directly and the matter is resolved in this manner. The amendment is not necessary.

Deputy Peadar Tóibín

Is the Minister of State satisfied that the matter will be dealt with by regulations?

Deputy Sean Sherlock

Absolutely.

Amendment, by leave, withdrawn.

Deputy Sean Sherlock

I move amendment No. 142:

In page 42, line 21, to delete “within the meaning of section 7(2) of the Act of 1967” and substitute “from the employment concerned”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 143:

In page 42, to delete lines 23 to 29 and substitute the following:

“(2) Without prejudice to section 24, a foreign national to whom this section applies shall notify the Minister of the date of dismissal within 4 weeks of that date of dismissal and the notification shall be in such form as may be specified in regulations under section 29 and include the information and documents specified in section 20C.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 144:

In page 42, line 30, to delete “An application” and substitute the following:

“Where the Minister is satisfied that the foreign national was dismissed by reason of redundancy from the employment for which the employment permit referred to in subsection (1) was granted, an application”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 145:

In page 42, line 32, to delete “the dismissal by reason of redundancy taking effect” and substitute “the date of dismissal of that foreign national”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 146:

In page 43, to delete lines 3 to 12 and substitute the following:

“(4) Where—

(a) at the time an application referred to in subsection (3) is made the type of employment referred to in subsection (3)(a) is specified in regulations under section 14 as an employment, or falls within a category of employment, in respect of which an employment permit shall not be granted, and

(b) the Minister is satisfied that the dismissal by the employer of the foreign national from the employment in respect of which the employment permit referred to in subsection (1) was granted was a dismissal by reason of redundancy,

the application may be made in respect of that employment by a foreign national to whom this section applies notwithstanding that the employment is an employment, or falls within a category of employment, that is specified in regulations under section 14 as an employment, or category of employment, for which an employment permit shall not be granted.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 147:

In page 43, line 13, after “may” to insert “, subject to subsection (6),”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 148:

In page 43, between lines 23 and 24, to insert the following:

“(6) Without prejudice to subsection (3) or (4), where an application referred to in subsection (3) or (4) is made by a foreign national who has made a notification to the Minister under this section, the Minister shall not grant the employment permit concerned unless the Minister is satisfied that the foreign national was dismissed by reason of redundancy from the employment in respect of which the employment permit referred to in subsection (1) was granted.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 149:

In page 43, line 24, to delete “(6) Having regard” and substitute “(7) Having regard”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 150:

In page 43, line 32, to delete “(7) Nothing in” and substitute “(8) Nothing in”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 151:

In page 43, between lines 33 and 34, to insert the following:

“(9) Without prejudice to section 20C, a foreign national who makes an application referred to in subsection (3) or (4) shall provide the Minister with any information or documents that the Minister may require to satisfy himself or herself that the dismissal of the foreign national was a dismissal by reason of redundancy.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 152:

In page 43, between lines 33 and 34, to insert the following:

“Information and documents to be provided with notification under section 20A or 20B of dismissal by reason of redundancy

20C. The information and documents to be provided to the Minister with the notification referred to in section 20A(2) and 20B(2) are—

(a) the date of dismissal,

(b) the reason for the dismissal by reason of redundancy as specified in paragraph (a), (b), (c), (d) or (e) of section 7(2) of the Act of 1967 or in section 21 of that Act,

(c) such information and documents as may be specified under section 29 that the Minister may require to satisfy himself or herself that the dismissal of the foreign national was a dismissal by reason of redundancy, and

(d) a statement specifying whether the foreign national has surrendered the employment permit in accordance with section 24.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 153:

In page 43, to delete line 35 and substitute “20D. Where—”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 154:

In page 43, to delete lines 39 to 42 and substitute the following:

“(b) following the coming into operation of those sections, a foreign national to whom such permit was granted is dismissed by reason of redundancy from the employment in respect of which the employment permit was granted, and”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 155:

In page 43, to delete line 43, and in page 44, to delete lines 1 to 6 and substitute the following:

“(c) the Minister is satisfied that—

(i) the dismissal is a dismissal by reason of redundancy, and

(ii) having regard to the employment in respect of which the employment permit referred to in paragraph (a) has been granted, that employment permit would, had it been granted after the coming into operation of section 6 and section 22 of the Employment Permits (Amendment) Act 2014, have been granted in respect of the purpose referred to in section 3A(2)(a) or 3A(2)(c),”.

Amendment agreed to.

Question proposed: "That section 22, as amended, stand part of the Bill."

Vice Chairman

Does the Minister of State wish to speak to the section?

Deputy Seán Sherlock

I again point out that we propose to submit some minor amendments to section 22 on Report Stage. The shoulder note for section 22, as published, must be amended to read, "insertion into Act of 2006 of new provisions 20A, 20B, 20C and 20D".

Question put and agreed to.

SECTION 23

Deputy Sean Sherlock

I move amendment No. 156:

In page 44, line 14, to delete “and”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 157:

In page 44, between lines 14 and 15, to insert the following:

“(c) by inserting the following subsection after subsection (3):

“(3A) A connected person shall not seek to recover from the holder of the employment permit any charge, fee or expense arising out of the application for the employment permit or the renewal of the permit under section 20 or any matter relating to or concerning such an application or the grant or renewal of the permit.”,

and”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 158:

In page 44, line 15, to delete “by deleting “, (2)” ” and substitute “by substituting “(3) or (3A)” for “(2) or (3)” ”.

Amendment agreed to.

Section 23, as amended, agreed to

NEW SECTION

Deputy Sean Sherlock

I move amendment No. 159:

In page 44, between lines 15 and 16, to insert the following:

“Amendment of section 24 of Act of 2006 24. Section 24 of the Act of 2006 is amended—

(a) in subsection (1), by deleting “(other than a permit granted on foot of an application by a foreign national)”,

(b) by inserting the following subsection after subsection (1):

“(1A) In the case of an employment permit granted for the purpose referred to in section 3A(2)(d), if—

(a) the employment of the foreign national is terminated by the foreign employer or the holder of the permit, or

(b) the foreign national ceases, for whatever reason, to carry out duties for, or participate in a training programme provided by, the connected person, there shall be surrendered to the Minister within 4 weeks from the date of termination or cessation—

(i) by the holder — the original of the permit, and

(ii) by the connected person — the copy of the permit.”,

and

(c) in subsection (2), by inserting “or (1A)” after “fails to comply with subsection (1)”.”.

This amends section 24 of the Act by removing references in that section to applications by foreign nationals. This ensures all applications from employers and employees will be treated on an equal basis and subject to the same rules when an employment permit is under consideration.

Vice Chairman

The process of tabling these amendments and adhering to the parliamentary procedure around them is very complicated. I would offer anyone this role if he or she felt the position of Vice Chairman was an easy job.

Amendment agreed to.

Section 24 deleted.

SECTION 25

Deputy Sean Sherlock

I move amendment No. 160:

In page 44, between lines 26 and 27, to insert the following:

“(d) in subsection (4), in paragraph (c)—

(i) by substituting “one or more foreign nationals are” for “more than one foreign national is”, and

(ii) by substituting “an employment permit” for “2 or more employment permits”,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 161:

In page 44, between lines 30 and 31, to insert the following:

“(e) by inserting the following subsections after subsection (5):

“(5A) A connected person shall keep, in relation to the foreign national to whom an employment permit for the purpose referred to in section 3A(2)(d) has been granted, a record of the employment concerned, a record of the duties carried out by the foreign national or the training programme concerned, the duration of the employment and particulars of the permit and that record shall be kept for the period specified in subsection (5).

(5B) Where the connected person makes, pursuant to section 3D(1)(b), the payment for board and accommodation, or either of them, or health insurance, the connected person shall—

(a) keep and have available for inspection by an authorised officer exercising his or her powers under this Act the records, specified in subsection (5C) in respect of the foreign national to whom the employment permit referred to in subsection (5A) has been granted at the premises or place of business of that connected person in or at which the duties or training programme is carried out in the State, and

(b) furnish, when requested by the Minister to do so, information to the Minister concerning the records referred to in paragraph (a).

(5C) The records referred to in subsection (5B) are—

(a) records relating to payment for—

(i) board and accommodation, or either of them, and

(ii) health insurance,

and

(b) if one or more foreign nationals are, pursuant to an employment permit granted for the purpose referred to in section 3A(2)(d), carrying out duties for, or participating in a training programme provided by, the connected person, records of the number for the time being, if any, of those foreign nationals who are nationals of a Member State referred to in subsection (4)(c)(i) or a state referred to in subsection (4)(c)(ii).”,”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 162:

In page 44, line 32, to delete “by deleting “, (2)” ” and substitute “by substituting “, (3), (5A) or (5B)” for “, (2) or (3)” ”.

Amendment agreed to.

Section 25, as amended, agreed to.

Section 26 agreed to.

SECTION 27

Deputy Sean Sherlock

I move amendment No. 163:

In page 45, to delete lines 36 to 39, and in page 46, to delete lines 1 to 3 and substitute the following:

“ “(ba) the production to the Minister, with an application under section 4, of information and documents—

(i) as the Minister may, without prejudice to the requirement under section 6(a), specify, in respect of the employment concerned and the terms, conditions and the duration of it,

(ii) as the Minister may, without prejudice to the requirement under section 6(c), specify, in respect of the qualifications, skills, knowledge and experience, of the foreign national in respect of whom the application is made,

(iii) as the Minister may, without prejudice to the requirement under section 6(e), specify, in respect of the remuneration that is proposed to be paid to the foreign national and deductions to be made from it,

(iv) as the Minister may, without prejudice to the requirement under section 6(f), specify, concerning—

(I) any permission given to the foreign national in respect of whom the application is made by the Minister for Justice and Equality to land in the State or to be in the State, and

(II) any application, made before the date on which the application under section 4 is made, to the Minister for Justice and Equality for which the foreign national has sought permission to land in the State or to be in the State,

(v) as the Minister may, without prejudice to the requirement under section 6(f), specify, concerning the employment in the State of the foreign national in respect of whom the application is made, at the time of the application or at any other time,

(vi) as the Minister may specify concerning the identity of the foreign national in respect of whom the application is made and without prejudice to the generality of the foregoing may include the production to the Minister of a copy of the passport of that foreign national and in respect of which the expiry date of that passport is not less than a period as the Minister may specify under paragraph (bi),

(vii) as the Minister may, without prejudice to the requirement under section 6(i), specify in respect of the requirement under section 4(5) in respect of the employment of any person in the employment that is the subject of the application in the period referred to in that section and that such person was not dismissed by reason of redundancy within that period including information and documents as the Minister may specify to satisfy himself or herself that the person employed in the employment that is the subject of the application was not, in the period referred to in section 4(5), dismissed by reason of redundancy, and

(viii) as the Minister may specify in respect of—

(I) without prejudice to subsection (1), the making of an application under section 4,

(II) without prejudice to the requirement under section 6, any matter specified in paragraphs (a) to (i) of section 6,

(III) the requirement under section 10 for the employees referred to in that section to be nationals of the states referred to in that section,

(IV) without prejudice to the generality of subsection (1), a purpose specified in section 3A(2), and

(V) any other requirement under this Act that, in respect of the grant of an employment permit, is required to be satisfied;

(bb) the production to the Minister, with an application under section 20 to renew an employment permit, of information and documents—

(i) as the Minister may specify, in respect of the employment that is the subject of such application and the terms and conditions of that employment,

(ii) as the Minister may specify, in respect of the qualifications, skills and knowledge, of the foreign national in respect of whom the application is made,

(iii) as the Minister may specify, in respect of—

(I) the remuneration that is proposed to be paid to the foreign national on and after such renewal and deductions to be made from such remuneration, and

(II) the remuneration paid to the foreign national in respect of whom such application is made, for all or part of the period commencing on the date on which the employment permit was granted and ending on the date on which such application was made,

(iv) as the Minister may specify that have been issued by the Revenue Commissioners in relation to the remuneration paid to, and tax paid in respect of such remuneration by, the foreign national in respect of whom such application is made, (v) as the Minister may specify concerning the permission given by

the Minister for Justice and Equality to the foreign national in respect of whom such application is made to land in the State or to be in the State during the period for which the employment permit has been in force,

(vi) as the Minister may specify concerning the identity of the foreign national in respect of whom such application is made and without prejudice to the generality of the foregoing may include the production to the Minister of a copy of the passport of that foreign national and in respect of which the expiry date of that passport is not less than a period as the Minister may specify under paragraph (bi), and

(vii) as the Minister may specify in respect of—

(I) without prejudice to the generality of subsection (1), the making of an application to renew an employment permit under section 20,

(II) without prejudice to the generality of subsection (1), the requirements under section 10 in relation to an application for the renewal of an employment permit,

(III) without prejudice to the generality of subsection (1), a purpose referred to in section 3A(2), and

(IV) any other requirement under this Act that, in respect of the renewal of an employment permit, is required to be satisfied;”.

These amendments address the Minister's powers to make regulations and provide specific vires to underpin the regulations consequent to the passing of this legislation.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 164:

In page 46, line 5, after “evidence” to insert “to verify such documents”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 165:

In page 46, line 18, to delete “evidence” and substitute “such evidence”

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 166:

In page 46, line 20, to delete “evidence” and substitute “such evidence”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 167:

In page 46, line 23, to delete “evidence” and substitute “such evidence”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 168:

In page 46, line 26, to delete “evidence” and substitute “such evidence”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 169:

In page 46, line 31, to delete “paragraph (bc);”.” and substitute “paragraph (bc);”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 170:

In page 46, between lines 31 and 32, to insert the following:

“(be) without prejudice to paragraph (ba), in the case of an application for an employment permit for the purposes referred to in paragraphs (d) and (e) of section 3A(2), the production to the Minister of information and documents as the Minister may specify in respect of—

(i) the remuneration paid to the foreign national concerned,

(ii) the currencies and exchange rate to be used in the description of the amount of such remuneration and in any computation and statement of remuneration,

(iii) the translations of any information or document relating to such remuneration,

(iv) the payment to the foreign national of the additional payment referred to in sections 3D(2), 3D(3), 3E(2) and 3E(3), and

(v) the arrangements for making the additional payment referred to in subparagraph (iv),

and, without prejudice to paragraph (a), the Minister may specify the form in which such information is to be provided to the Minister;

(bf) without prejudice to paragraph (bb), in the case of an application for the renewal of an employment permit for the purposes referred to in paragraphs (d) and (e) of section 3A(2), the production to the Minister of—

(i) information and documents as the Minister may specify in respect of—

(I) the remuneration that is proposed to be paid to the foreign national on and after such renewal and deductions to be made from such remuneration, and

(II) the remuneration paid to the foreign national in respect of whom such application is made, for all or part of the period commencing on the date on which the employment permit was granted and ending on the date on which such application was made,

(ii) documents, as the Minister may specify, issued by the Revenue Commissioners in relation to the remuneration paid to, and tax paid in respect of such remuneration by, the foreign national in respect of whom such application is made,

(iii) documents, as the Minister may specify, issued by the Revenue Commissioners in relation to the remuneration and tax paid by the connected person, the foreign employer, and contractor,

(iv) information and documents as the Minister may specify in respect of the currencies and exchange rate to be used in the description of the amount of such remuneration and in any computation and statement of remuneration, and

(v) information and documents as the Minister may specify in respect of the translations of any information or document relating to such remuneration, and without prejudice to paragraph (b), the form in which such information is to be provided to the Minister;

(bg) the form of the notification referred to in sections 20A and 20B and the information and documents the Minister may require to satisfy himself or herself—

(i) that, for the purposes of sections 20A and 20B, the dismissal by an employer of a foreign national referred to in section 20A or 20B is a dismissal by reason of redundancy, and

(ii) the date on which the redundancy takes effect;

(bh) without prejudice to the generality of subsection (1) and the period specified in regulations under section 10A(8)(f), the period, following the making of the offer of employment that is the subject of the application, within which an application under section 4 shall be made;

(bi) the specification of the minimum period for which a passport referred to in paragraphs (ba) and (bb) shall be in force on the date of an application for the grant, or renewal, of an employment permit;”.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 171:

In page 46, to delete lines 34 to 41 and substitute the following:

“ “(2A) Without prejudice to the generality of subsections (1) and (2), regulations under this section may provide for the production, within a specified period, with an application for the grant or renewal of an employment permit to the Minister of—

(a) in the case of an application for the grant or renewal of an employment permit for the purpose referred to in section 3A(2)(e), information and documents in respect of the contract service agreement concerned, and”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 172:

In page 47, line 4, after “person” to insert “, foreign employer”..

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 173:

In page 47, line 5, to delete “insurance” and substitute “health insurance referred to in section 1A(1)(b)(iii)”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 174:

In page 47, to delete line 6 and substitute “foreign nationals, and”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 175:

In page 47, between lines 6 and 7, to insert the following:

“(c) evidence as the Minister may reasonably require in order to verify such information or documents.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 176:

In page 47, to delete lines 7 to 10 and substitute the following:

“(2B) Without prejudice to the generality of subsections (1) and (2), regulations under this section, in respect of grant or renewal of an employment permit for the purpose referred to in section 3A(2)(b), provide for the production, within a specified period, to the Minister of information, documents and evidence to verify such information and documents with—”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 177:

In page 47, lines 23 and 24, after “subsection (2B)” to insert “that may be included in regulations under this section”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 178:

In page 47, line 24, after “evidence” to insert “verifying such information and documents”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 179:

In page 47, lines 35 and 36, to delete “referred to in the Act of 2010”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 180:

In page 48, to delete lines 33 to 40 and substitute the following:

“(2D) Without prejudice to the generality of subsections (1) and (2), regulations under this section may provide for the production to the Minister, within a specified period, of information, documents and evidence to verify such information and documents as the Minister may require to satisfy himself or herself—

(a) that the exchange agreement applies to the foreign national in respect of an application for the grant of an employment permit for the purpose referred to in section 3A(2)(g), and

(b) that, in respect of the purpose referred to in section 3A(2)(i)—

(i) the third level institution outside the State confirms—

(I) that the foreign national is enrolled as a full-time student at that institution and the name and description of the course of study in which the foreign national is enrolled,

(II) the qualifications or skills with which the course of study is wholly or substantially concerned,

(III) that the employment in respect of which the application is made is wholly or substantially concerned with the course of study on which the foreign national is enrolled,

(IV) the requirement referred to in section 3A(2)(i)(iii), and

(V) that the foreign national is required to return to that institution at the end of the 12 month period in order to complete that course of study,

and

(ii) the person who has made the offer of employment concerned confirms that—

(I) the employment is for a period not exceeding 12 months,

and

(II) the employment is wholly or substantially concerned with the skills or qualifications referred to in section 3A(2)(i).”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 181:

In page 48, to delete lines 41 and 42, and in page 49, to delete line 1 and substitute the following:

“(2E) The Minister may, in respect of the notification referred to in section 8(8), make regulations under this section specifying—

(a) the information and documents to be provided to the Minister that relate to the transfer, and the change of name, that arises pursuant

to such transfer, of—

(i) the employer or connected person specified in an employment permit referred to in that section, or

(ii) the relevant person,

(b) the form in which the notification under section 8(8) is to be made,

and

(c) the procedure for the making of that notification.”.

Amendment agreed to.

Deputy Sean Sherlock

I move amendment No. 182:

In page 49, to delete lines 2 to 8 and substitute the following:

“(2F) Without prejudice to subsections (1) and (2), in regulations under this section the Minister may provide for the production to the Minister, within a specified period, of information, documents and evidence to verify such information and documents, with an application for the grant or renewal of an employment permit concerning—

(a) compliance by a person who makes an offer of employment with an enactment, as the Minister may specify in the regulations, with which compliance is required by such person in order to carry on his or her business,

(b) compliance by a contractor, relevant person or connected person with an enactment, as the Minister may specify in the regulations, with which compliance is required by such contractor, relevant person or connected person in order to carry on his or her business,

(c) compliance by a person who makes an offer of employment with a requirement, as the Minister may specify in the regulations, with which compliance is required by such person in order to carry on his or her business, and

(d) without prejudice to paragraphs (a) and (b), compliance by a person who made the offer of employment, a contractor or connected person with the Act of 1997 that is in addition to the documents and evidence that may be specified in regulations under this section under subsections (2)(bc)(i) and (2)(bd), and the Minister may make different provision for different cases and different classes of cases and different circumstances and different classes of circumstances.

(2G) Without prejudice to subsection (1), when prescribing any fee payable in respect of an application for the grant, or renewal, of an employment permit, the Minister, having regard to the different purposes referred to in section 3A(2), may—

(a) make different provision for such fee, and

(b) provide for the procedure for the payment of such fee,

and may make different provision for different cases and different classes of cases and different circumstances and different classes of circumstances.”.”.

Amendment agreed to.

Question proposed: "That section 27, as amended, stand part of the Bill."

Deputy Sean Sherlock

I will be introducing a couple of further minor amendments to this section on Report Stage.

Deputy Anthony Lawlor

Many of these amendments involve changing words, etc. It is as if the Bill, as originally presented, was not examined properly by the Department. Surely some of these small technical changes should have been dealt with when the Bill was being drafted. I have no difficulty with substantial amendments but many of those with which we are dealing only involve changing words or whatever. I am not suggesting the Minister of State is at fault, rather the Department is not ensuring that these issues are dealt with when legislation is being drafted in the first instance.

Vice Chairman

I am deputy Whip and I am aware that the Office of the Parliamentary Counsel does its best. It has to be quite particular when dealing with legal issues and if there are any identifiers which have to be changed at a late stage, it is adamant about this being done in order that the law will still stand.

Deputy Anthony Lawlor

I am of the view that the more words we insert, the greater the possibility of difficulties arising.

Vice Chairman

Point taken.

Question put and agreed to.

Sections 28 to 30, inclusive, agreed to.

NEW SECTION

Deputy Sean Sherlock

I move amendment No. 183:

In page 49, after line 35, to insert the following:

“Amendment of Schedule 1 to Act of 2006

31. Schedule 1 to the Act of 2006 is amended—

(a) by substituting “Unfair Dismissals Acts 1977 to 2007” for “Unfair Dismissals Acts 1977 to 2005”, and

(b) by inserting the following after “Protection of Employees (Part-Time Work) Act 2001”:

“Protection of Employment Act 1977”.”.

Amendment agreed to.

Sections 31 and 32 agreed to.

SECTION 33

Deputy Sean Sherlock

I move amendment No. 184:

In page 51, after line 8, to insert the following:

“(5) Where, before the coming into operation of this section, an application had been made for the grant of an employment permit but a decision in respect of the application had not been made by the Minister, then the application shall be deemed to be an application under the Act of 2006 as amended by this Act and shall be dealt with accordingly and any act done by the Minister before such coming into operation in relation to the application (being an act required to be taken under the Act of 2006) shall be deemed to have been taken under the Act of 2006 as amended by this Act.

(6) Where evidence has been given through a live television link in accordance with section 35 of the Act of 2006 and has been video recorded in accordance with section 35(2) of the Act of 2006, the repeal of section 35(2) of the Act of 2006 by Section 32(e) shall not affect the validity of such video recording in respect of the proceedings concerned where such proceedings have not been finally determined before the coming into operation of section 32(e).”.

Amendment agreed to.

Question proposed: "That section 33, as amended, stand part of the Bill."

Deputy Sean Sherlock

I ask the select committee to note that I intend to bring forward Report Stage amendments on behalf of the Minister for Justice and Equality in order to provide for changes to the Immigration Act 2004 and the Illegal Immigrants (Trafficking) Act 2000. These amendments are technical in nature and provide for urgent and much needed efficiencies in the operation of the immigration system.

Question put and agreed to.

Title agreed to.

Vice Chairman

I thank the Minister of State, Deputy Sherlock, and his officials for attending and I also thank members for their contributions. At our next meeting on Thursday, 3 July 2014 we will be considering the Friendly Societies and Industrial and Provident Societies (Miscellaneous Provisions) Bill 2014.

Bill reported with amendments.