S.I. No. 173/1985 - Industrial Training Levy (Construction Industry) Order, 1985.

S.I. No. 173 of 1985.

INDUSTRIAL TRAINING LEVY (CONSTRUCTION INDUSTRY) ORDER, 1985.

An Chomhairle Oiliúna, in exercise of the powers conferred on it by Section 21 of the Industrial Training Act, 1967 (S.I. No. 5 of 1967), after consultation with the Construction Industry Training Committee and after a draft of the order has been approved by the Minister for Labour, hereby makes the following order:

1. (1) This Order may be cited as the Industrial Training Levy (Construction Industry) Order, 1985.

(2) This Order shall come into operation on the 1st day of August, 1985.

2. (1) In this Order:—

"an appeal tribunal" means a tribunal established under Section 22 of the Industrial Training Act, 1967 (No. 5 of 1967);

"An Chomhairle" means An Chomhairle Oiliúna;

"assessment" means an assessment of an employer to the levy;

"business" means any activity of industry or commerce;

"emoluments" means salaries, fees, wages or perquisites, other than pensions, in respect of which income tax under Schedule E may be charged, whether or not tax in fact falls to be charged in respect of the whole or any particular payment or part thereof;

"employed" means a person who, at any time during the fourteenth levy period is an employer in the construction industry;

"establishment" means an establishment to which this Order applies;

"local authority" has the meaning assigned to that expression in paragraph 1 (i) of the Schedule to the Industrial Training (Construction Industry) Order, 1969;

"the fourteenth base period" means the period of twelve months which began on the 1st day of July, 1983;

"the fourteenth levy period" means the period beginning on the day on which this Order comes into force and ending on the 31st day of July, 1986;

"construction industry" means any activity or activities of the construction industry which, or each of which, is declared by the Industrial Training (Construction Industry) Order, 1969 ( S.I. No. 47 of 1969 ) to be a designated industrial activity.

(2) Any reference in this Order to an establishment which commences to carry on business or to an establishment which ceases to carry on business shall not be taken as applying where the location of an establishment is changed but its business is continued wholly or mainly at or from the new location, or where the suspension of its activities is of a temporary or seasonal nature.

(3) Where an establishment is taken over (whether directly or indirectly) by an employer in succession to, or jointly with, another person, the person or persons carrying on the establishment on the day upon which this Order comes into operation or, if no person is then carrying on the establishment, who last employed any person at or from the establishment prior to that day, shall, for the purposes of this Order, be deemed—

( a ) to have been the employer of any person who, at any time in the fourteenth base period, was employed at or from the establishment under a contract of service or of apprenticeship by the person then carrying on the establishment;

( b ) to have paid any sums that were paid by any person carrying on the establishment in the fourteenth base period on foot of the labour content of all construction contracts relating to any construction operations, as defined in Section 17 of the Finance Act, 1970 , amended by Section 21 of the Finance Act, 1971 , Sections 20 and 21 of the Finance Act, 1976 and Section 7 of the Finance Act, 1981 , carried out at or from the establishment, (but excluding payments to any person holding certificates issued under Section 17 (7) of the Finance Act, 1970 and Sections 20 and 21 of the Finance Act, 1976 ).

3. This Order applies to—

(1) an establishment in the State not being that of a local authority which—

( a ) in the fourteenth base period was engaged wholly or mainly in the construction industry for a total of not less than twenty-seven weeks, or

( b ) commenced to carry on business in the fourteenth base period and was, during that period, engaged wholly or mainly in the construction industry for a total number of weeks which exceeded one half of the number of weeks in the period beginning on the day on which the establishment commenced to carry on business and ending on the last day of the fourteenth base period.

(2) a local authority which carries on any activity or activities of the construction industry, wherever such activity or activities may be carried out, and such authority shall be deemed to be carrying on such activity or activities from a single establishment in the State.

4. Subject to Article 2 (3) of this Order, there is hereby imposed on every employer, a levy (in this Order referred to as the levy) which shall be assessed and shall be payable in accordance with the following provisions of this Order.

5. (1) The levy shall be assessed by An Chomhairle separately in respect of each establishment of an employer: provided that, in case an employer agrees to a single assessment being made to cover any two or more such establishments, such an assessment may be made.

(2) In case an assessment is made to cover two or more establishments, the establishments to which the assessment relates shall, for the purposes of this Order, be deemed to be one establishment.

(3) The levy assessed in respect of an establishment of an employer, not being a local authority, shall be an amount equal to—

( a ) in case the employer has, before the 31st day of October, 1985, made a return of

(i) the sum of the emoluments of all persons employed by the employer at or from that establishment in the fourteenth base period —— 1.25 per cent of that sum, or

(ii) the sum of the emoluments of all persons employed by the employer at or from that establishment in any continuous twelve month period ended on or after the 1st July, 1984, but not later than 31st December, 1984, and such sum is acceptable to An Chomhairle for the purposes of assessment —— 1.25 per cent of that sum, and

(iii) the sum of the amounts paid by the employer in the said base period on foot of the labour content of all construction contracts relating to any construction operations, as defined in Section 17 of the Finance Act, 1970 , amended by Section 21 of the Finance Act, 1971 , Sections 20 and 21 of the Finance Act, 1976 and Section 7 of the Finance Act, 1981 , carried out at or from the establishment (but excluding payments to any person holding certificates issued under Section 17 (7) of the Finance Act, 1970 and Sections 20 and 21 of the Finance Act, 1976 ) —— 1.25 per cent of that sum,

( b ) in any other case —— 1.25 per cent of the sum estimated by An Chomhairle to be the sum of the emoluments of all persons so employed in such base period and the sum of the amounts so paid in such period.

(4) An establishment of an employer in respect of which either of the Returns referred to at Article 5 (3) (a) has been made or in respect of which a sum has been estimated under Article 5 (3) (b) shall be exempt from levy in any case in which the total sum so returned or estimated amounts to less than £37,500.

(5) The levy assessed in respect of a local authority shall be an amount equal to—

( a ) in case the local authority has, before the 31st day of October, 1985, made a return of—

(i) the sum of the emoluments of all persons employed in the fourteenth base period by the authority in the construction industry —— 1.25 cent of that sum, or

(ii) the sum of the emoluments of all persons employed by the authority in the construction industry in any continuous twelve month period ended on or after the 1st July, 1984, but not later than 31st December, 1984, and such sum is acceptable to An Chomhairle for the purposes of assessment —— 1.25 per cent of that sum, and

(iii) the sum of the amounts paid by the authority in the said base period on foot of the labour content of all construction contracts relating to any construction operations, as defined in Section 17 of the Finance Act, 1970 amended by Section 21 of the Finance Act, 1971 , Sections 20 and 21 of the Finance Act, 1976 , and Section 7 of the Finance Act, 1981 , (but excluding payments to any person holding certificates issued under Section 17 (7) of the Finance Act, 1970 and Sections 20 and 21 of the Finance Act, 1976 ) —— 1.25 per cent of that sum.

( b ) in any other case —— 1.25 per cent of the sum estimated by An Chomhairle to be the sum of the emoluments of all persons so employed in such base period and the sum of the amounts so paid in such period.

(6) A local authority in respect of which either of the returns referred to at Article 5 (5) (a) above has been made or in respect of which a sum has been estimated under Article 5 (5) (b) shall be exempt from levy in any case in which the sum so returned or estimated amounts to less than £37,500.

(7) The amount to be assessed in respect of the levy in relation to an establishment which ceases to carry on business in the fourteenth levy period shall be the amount which bears the same proportion to the amount which, but for this paragraph, would be due under this Article as the nunmber of days in the period beginning on the date of commencement of the said levy period and ending on the day of cessation of business bears to the number of days in the said levy period.

(8) For the purposes of paragraphs (3) and (5) of this Article no regard shall be had to the emoluments of any person employed as follows:—

( a ) in activities undertaken by any body or person in exercise of its authority by or under any enactment to act as a harbour authority,

( b ) in activities undertaken by any company, body or person in exercise of its authority by or under any enactment to construct, work, maintain or carry on any undertaking for the supply of electricity, gas or water, or any dock or harbour,

( c ) in the supply of food or drink for immediate consumption,

( d ) in activities of the Construction Industry to which Paragraph 2 (v) of the Industrial Training Order, 1978 relates.

6. (1) In case an assessment is made under this Order, the employer against whom the assessment is made shall be given notice (in this Order referred to as an assessment notice) in writing of the assessment.

(2) An assessment notice shall state the amount payable on foot of the levy by the employer to whom the notice is addressed, which amount shall, subject to paragraph (3) of this Article, be equal to the amount, or total of the amounts, payable in respect of the assessment or assessments to which the notice relates, and in case the notice relates to more than one assessment, the amount, if any, payable in respect of each assessment shall be specified.

(3) Where the amount first mentioned in paragraph (2) of this Article is not a whole number of pounds, the amount shall be rounded down to the nearest pound and the resulting amount shall be specified in the notice as being, and shall be, the amount payable by the employer to whom the notice is addressed in respect of the assessment or assessments, as the case may be, to which the notice relates.

(4) An assessment notice shall state the address to which notice of appeal against an assessment to which the notice relates or an application for an extension of time in which to so appeal may be sent.

(5) An assessment notice may be given to the person to whom it is addressed by—

( a ) delivering it to him,

( b ) leaving it at an address at which he ordinarily resides or carries on business,

or

( c ) by sending it by registered post in a prepaid envelope addressed to him at an address at which he ordinarily resides or carries on business.

(6) For the purposes of this Article a company registered under the Companies Act, 1963 (No. 33 of 1963), shall be deemed to be ordinarily resident at its registered office and every other body corporate and every unincorporated body of persons shall be deemed to be resident at its principal office or place of business.

7. Subject to Article 9 of this Order, the levy shall be due and payable to An Chomhairle one month after the date of the assessment notice.

8. (1) An employer assessed to the levy may appeal against the assessment to an appeal tribunal within one month beginning on the date on which he was given the relevant assessment notice.

(2) In case an appeal has not been taken within the period for appealing mentioned in paragraph (1) of this Article, An Chomhairle, on the application of an employer to whom an assessment notice has been given, and made within the period ending three months after the day on which he was given the notice, may, if it thinks fit, allow the employer to appeal, within such time as An Chomhairle shall determine, to an appeal tribunal against an assessment to which the notice relates.

(3) In case An Chomhairle refuses an application under paragraph (2) of this Article, the applicant may, within the period of one month beginning on the date of the refusal, appeal to an appeal tribunal against the refusal, and for the purpose of determining the appeal the appeal tribunal shall have powers similar to those of An Chomhairle under the said paragraph (2).

(4) In case in the fourteenth levy period an establishment ceases to carry on business not later than three months after the giving of an assessment notice relating to it, paragraph (2) of this Article shall, in relation to the establishment, be construed and have effect as if for the period of three months beginning on the day on which the assessment notice was given there were substituted the period of six months beginning on the day on which the establishment ceased to carry on business.

9. An amount shall not be recoverable in respect of an assessment appearing in an assessment notice by An Chomhairle from the employer to whom the notice was given before—

( a ) in case no appeal against the assessment is taken —— the expiration of a period of two months beginning on the day on which the notice was given,

( b ) in case such an appeal is taken either under paragraph (1) or by virtue of an application under paragraph (2) or paragraph (3) of Article 8 of this Order and is withdrawn before the expiration of the time for taking the appeal —— the day on which the period mentioned in paragraph (a) of this Article expires or the day on which the appeal is withdrawn, whichever is the later, or

( c ) in case an appeal against the assessment is taken and is not withdrawn during the time for taking the appeal —— the appeal is either withdrawn or determined.

10. In case an appeal tribunal in determining an appeal reduces an assessment to which the appeal relates, both the reduced assessment and the relevant assessment notice shall be as valid and effectual as if they were an assessment and assessment notice in each of which there had been specified, when the assessment was made or the notice was given, the smaller amount.

11. (1) An Chomhairle may, by notice in writing given to the employer, withdraw an assessment.

(2) In case An Chomhairle withdraws an assessment under paragraph (1) of this Article, the withdrawn assessment shall not operate to —

( a ) prevent An Chomhairle making a further assessment under this Order in respect of the establishment to which the withdrawn assessment relates, or

( b ) affect any other assessment which is not withdrawn and is comprised in the relevant assessment notice, and, subject to the necessary modifications, the notice shall thereafter be as valid and effectual as if the assessment withdrawn by An Chomhairle had not been included therein.

(3) In case An Chomhairle makes a further assessment under this Article, the following provisions shall apply in relation to the further assessment:

( a ) Article 7 of this Order shall be construed and have effect as if "seven days" were substituted for "one month";

( b ) Article 8 of this Order shall be construed and have effect as if—

(i) in paragraph (1) "seven days" were substituted for "one month",

(ii) in paragraph (2) "fourteen days" were substituted for "three months",

(iii) in paragraph (3) "seven days" were substituted for "one month"; and

( c ) Article 9 of this Order shall be construed and have effect as if in paragraph (a) "fourteen days" were substituted for "two months".

12. (1) In case an employer assessed to the levy discharges his liability under an assessment made under this Order, An Chomhairle shall, if so requested, issue to him a certificate to that effect.

(2) The production in any legal proceedings of a document purporting to be—

( a ) certified by the Chief Officer of An Chomhairle, or by a person authorised by him for the purpose, to be a true copy of an assessment under this Order or a notice or other document issued by An Chomhairle, or

( b ) a certificate mentioned in paragraph (1) of this Article, shall, unless the contrary is proved, be sufficient evidence of the document and of the facts stated therein.

GIVEN under the Seal of An Chomhairle Oiliúna this 17th day of June, 1985.

The Seal of An Chomhairle Oiliúna was affixed in the presence of:—

NIALL GREENE,

a member of An Chomhairle Oiliúna authorised by An Chomhairle Oiliúna to act in that behalf

and

J. B. GERAGHTY,

an officer of An Chomhairle Oiliúna authorised by An Chomhairle Oiliúna to act in that behalf.

EXPLANATORY NOTE.

An Chomhairle Oiliúna (The Industrial Training Authority) was established under the Industrial Training Act, 1967 , to promote training in industry and commerce.

This Order provides for the imposition of a levy upon employers in the Construction Industry for the purpose of meeting the expense in relation to the performance, as respects that industry, of An Chomhairle Oiliúna's functions under the Industrial Training Act, 1967 .

This Order further provides for the exemption from the industrial training levy for the fourteenth levy period for the Construction Industry of establishments in respect of which the total emoluments paid by the employer in the fourteenth base period were less than £37,500.

The levy is to be imposed in respect of the fourteenth levy period commencing with the date upon which the Order comes into force and ending on 31st July, 1986. The levy will be assessed by An Chomhairle Oiliúna and there will be a right of appeal against an assessment to an appeal tribunal.