Dáil Éireann Debate, Thursday - 22 November 2012
49. Deputy Sean Fleming asked the Minister for Jobs, Enterprise and Innovation if he is assured that all Exchequer funded construction projects are completed in accordance with registered employment agreements; and if he will make a statement on the matter. [43392/12]
View answerA Registered Employment Agreement (REA) is a collective agreement made between a trade union and an employer body (or bodies), which has been approved and registered by the Labour Court under the Industrial Relations Acts, 1946 to 2012. REAs involve the agreement of minimum rates of pay and conditions of employment which, once registered with the Labour Court, are legally binding on those operating in that sector.
Contractors working in the construction sector come within the terms of the REA for the Construction Industry where they are building or civil engineering undertakings which undertake any of the activities set out in the agreement. Contractors come within the terms of the REA for the Electrical Contracting Industry where the main activity of the business is the performance of electrical work on a contract or sub-contract basis for a third party.
There are a number of possible methods of securing compliance in respect of employers, engaged in public construction works contracts including measures provided for in the Public Works Contracts and inspections by National Employment Rights Authority (NERA).
The Government Public Works Contracts require all contractors and subcontractors engaged thereunder to comply with specific employment rights provisions. The conditions of these contracts place an obligation on the main contractor to ensure compliance with the REAs for all those employed on a construction site. This is not limited to the main contractor’s own employees but includes all sub-contractors who provide labour to the site. Contracting authorities are required to ensure that a certificate of compliance (titled ‘Rates of Pay and Conditions of Employment Certificate’) is received from the main contractor with each payment application and, in the event of non-compliance, to withhold payment until the matter is rectified. The ultimate sanction if a main contractor continues to be non-compliant is for the main contract to be terminated.
Where there is a suspicion that the provisions of a Public Works Contract are not being complied with a complaint should be raised, in the first instance, with the contracting authority that has the authority under the contract to obtain payment records for all those employed on site to establish whether there are issues to be addressed. Should there be substance to the complaint then the contracting authority may withhold payments in line with the conditions of the contract and NERA can be called upon to investigate the matter further.
NERA is responsible for enforcing minimum statutory employment rights entitlements in the State, and in undertaking that role carries out a range of functions including the provision of employment rights information and the inspection of employment related records. NERA operates a system of risk based inspections in sectors where there are identifiable risks. Inspections are also carried out in response to complaints received and routine inspections are undertaken as a control measure.
The Public Service Agreement 2010–2014 established a mechanism to monitor compliance with employment law, including REAs, in operations which are the subject of outsourcing. The Department of Public Expenditure and Reform notified each Department on 22 December 2011 of these arrangements.
It is a condition of any contract entered into by a public authority with a private sector entity (other than for operations that may reasonably be considered as small scale) that the entity is required to provide a right to certain information. This information should allow the authority to assess compliance with employment legislation, including relevant REAs, consistent with the requirements of EU and national law. Any sub-contractors employed are also required to adhere to these conditions.
When a contract is awarded, the public authority must notify a nominated trade union official of its award, using a standard form. The authority must also notify NERA and provide it with a copy of the form. A dedicated email address (notification@employmentrights.ie) has been setup in this regard. A total of 35 notifications have been provided to NERA to date.
The following table provides details of inspections carried out by NERA under the Construction and Electrical REAs for the period 2010 to end August 2012.
|
· Legislation |
Cases |
Compliance Level % |
Unpaid Wages Recovered € |
|
|
2010 |
Construction REA |
407 |
56% |
213,297 |
|
Electrical REA |
40 |
60% |
51,946 |
|
|
Totals |
447 |
56% |
265,243 |
|
|
* |
* |
* |
* |
* |
|
2011 |
Construction REA |
399 |
58% |
269,910 |
|
Electrical REA |
54 |
52% |
21,596 |
|
|
Totals |
453 |
57% |
291,506 |
|
|
* |
* |
* |
* |
* |
|
2012 (to end Aug) |
Construction REA |
183 |
49% |
99,344 |
|
Electrical REA |
30 |
63% |
35,226 |
|
|
Totals |
213 |
51% |
134,570 |
Compliance by contractors working on public contracts would be enhanced if NERA, and relevant Awarding Authorities of Government Public Works Contracts, could share appropriate information and thus provide for an effective utilisation of the provisions in public sector contracts designed to secure compliance with employment law. However, NERA are advised that there is a difficulty in sharing certain information with some contracting authorities, particularly from a data protection viewpoint.
As you may be aware, I have commenced a root and branch reform of the State’s Workplace Relations Services. This will include improved measures to secure compliance with employment law generally. The Scheme of the Workplace Relations Bill, which will give legislative effect to the new Workplace Relations structures, has been approved by Government for priority drafting and I hope to publish this Bill in early 2013.
It is my intention that the Workplace Relations Bill should provide for the new Workplace Relations Commission, to pass on to any contracting entity concerned, any firm information that the Commission may have as to non-compliance with employment legislation by any contractor of that contracting entity, so that the contracting entity can take such action under the contract as may be justified in the circumstances. Permitting such an exchange of information could enable the activation of the existing provisions within the Government Public Works Contracts whereby retention of monies may take place pending the proper payment to workers of monies due to them at the prevailing legal/REA rates. My officials are in discussions with the Offices of the Data Commissioner and Attorney General in this regard.
Subject to advices sought from the Attorney General, I also propose to provide for a legislative basis for the use of Compliance Notices. What I am proposing is that in circumstances where a Compliance Officer has formed an opinion that a scheduled contravention of employment law (including the non-payment of certain monies due to an employee under employment law), and the employer concerned fails or refuses to rectify the non-compliance the Compliance Officer shall issue a Compliance Notice setting out the steps the employer must take to effect compliance. It is also proposed to provide that an employer may appeal against all or any aspect of the notice to the Labour Court.
I am also proposing that if the employer does not appeal and fails or refuses to rectify or set out in writing how he or she proposes to rectify the matters set out in the notice, the Compliance Officer may make a complaint to the Labour Court. The Labour Court may hold a hearing where the employer and the Compliance Officer would be heard. The Court will be empowered to cancel, alter or confirm the Compliance Notice and make a binding order similar to the current provision of Section 32(1)(b) of the Industrial Relations Act 1946. Such an order could direct the employer to do such things (including the payment of any sum due to a worker for remuneration in accordance with the legislation) as will, in the opinion of the Court, result in the law being complied with by the employer. If the employer fails to implement the Labour Court order he or she shall be guilty of an offence prosecutable in the District Court. As well as possibly imposing a fine on the employer, if found guilty, the District Court may order the employer to pay to the worker(s) concerned such compensation as it considers fair and reasonable in respect of the employer’s non-compliance stated in the order of the Labour Court, in addition to the State’s costs associated with seeking to enforce the Compliance Notice. The reforms I am proposing are set out in detail in the policy document entitled, Legislating for a World-Class Workplace Relations Service which I submitted to the Oireachtas Committee on Jobs, Enterprise and Innovation in July 2012. I am confident that the measures which I propose to introduce in the Workplace Relations Bill will provide a legislative basis to facilitate the more effective enforcement of REAs for the construction sector in the context of Public Works Contracts.
