Dáil Éireann Debate, Tuesday - 1 July 2014
212. Deputy Pearse Doherty asked the Minister for Jobs, Enterprise and Innovation the reason the National Employment Rights Authority inspectorate came to an agreement with a company (details supplied) not to pursue arrears of earnings of apprentices who were paid below the legal registered employment agreement rates; and if he will make a statement on the matter. [27864/14]
Amharc ar fhreagra213. Deputy Pearse Doherty asked the Minister for Jobs, Enterprise and Innovation the reason a company (details supplied) was not pursued by the National Employment Rights Authority on foot of a breach of an agreement to pay apprentices the legal registered employment agreement rates in view of the fact that the company in question subsequently registered in another jurisdiction to avoid its obligations under this agreement; and if he will make a statement on the matter. [27865/14]
Amharc ar fhreagraI propose to take Questions Nos. 212 and 213 together.
The National Employment Rights Authority (NERA) carries out inspections of employer records with a view to determining compliance with employment rights legislation. NERA aims to achieve voluntary compliance with employment law through the provision of education and awareness, inspection of employers’ employment records and enforcement where necessary.
Having regard to the provisions of the Data Protection Acts, it is not possible to provide information on specific cases. It should be noted, however, that where there is reason to believe that that employees have been paid less than the minimum amount provided by law, NERA seeks to recover unpaid wages, as soon as possible, for all employees (both current and former) in respect of whom the underpayments have been identified.
The recovery of arrears is an important part of any case and is pursued by means of direct engagement with the employer and, where necessary, by the initiation of legal proceedings. In the majority of cases employers pay the arrears due without recourse to such action. Prosecution is, therefore, an important part of enforcement and can be used to deal with employers who refuse to comply with the law. Decisions about prosecuting an employer for breaching employment laws are based on a consistent proportionate and fair assessment of the seriousness of the alleged breach. Mitigating factors such as the level of cooperation received, the previous history of breaches, whether an employer has rectified the breaches, whether employees have received redress in the form of unpaid wages or other entitlements, are all taken into account in arriving at a decision.
Neither NERA, nor its Inspectors has the power or authority to agree a compromise sum in respect of unpaid wages due to employees, or to negotiate away any part of an employee's legal entitlements. Unlike cases prosecuted under the National Minimum Act (or those taken under the former Employment Regulation Orders), the legislation at that time governing Registered Employment Agreements did not give the District court, on conviction, the power to direct the employer to pay arrears in respect of breaches of an REA.
The Industrial Relations (Amendment) Act 2012 introduced amendments to the enforcement provisions relating to breaches of REAs that were contained in the Industrial Relations Act 1946. In cases where an employer failed to comply with a Labour Court order, the 2012 Act provided for the Circuit Court to make an order directing the employer to comply with the original Labour Court order, including the obligation to pay any sum due to a worker for remuneration in accordance with an REA.
However, in the judgment delivered on 9 May 2013 in the McGowan case, the Supreme Court held that Part III of the Industrial Relations Act 1946 was invalid having regard to Article 15.2.1 of the Constitution. The effect of this decision was to invalidate the registration of employment agreements previously registered under Part III of the 1946 Act. As a result, REAs no longer have any application beyond the subscribing parties and are no longer enforceable in law.
