S.I. No. 116/1993 - Industrial Training Levy (Construction Industry) Order, 1993.

S.I. No. 116 of 1993.

INDUSTRIAL TRAINING LEVY (CONSTRUCTION INDUSTRY) ORDER, 1993.

An Foras Áiseanna Saothair, in exercise of the powers conferred on it by Section 21 of the Industrial Training Act, 1967 ( S.I. No. 5 of 1967 ) and Section 4 (2) of the Labour Services Act, 1987 (No. 15 of 1987), 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, 1993.

(2) This Order shall come into operation on the 3rd day of May, 1993.

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 Foras" means An Foras Áiseanna Saothair;

"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;

"employer" means a person who, at any time during the twenty-first 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 twenty-first base period" means the period of 12 months which began on the 6th day of April, 1990;

"the twenty-first levy period" means the period beginning on the day on which this Order comes into force and ending on the 31st day of December, 1993;

"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 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 twenty-first 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 twenty-first 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 twenty-first base period was engaged wholly of mainly in the construction industry for a total of not less than 27 weeks, or

( b ) commenced to carry on business in the twenty-first 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 twenty-first 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 Foras 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 May, 1993, made a return of

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

(ii) 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, or

(iii) the sum of the emoluments of all persons employed by the employer at or from that establishment in any continuous 12 month period ended on or after the 1st October, 1990, but not later than 30th September, 1991, and such sum is acceptable to An Foras for the purposes of assessment — 1.25 per cent of that sum, and

(iv) the sum of the amounts paid by the employer for the same period returned in accordance with (iii) above 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 Foras to be the sum of the empoluments 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 £56,000 or less.

(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 May, 1993 made a return of—

(i) the sum of the emoluments of all persons employed in the twenty-first base period by the authority in the construction industry — 1.25 per cent of that sum, and

(ii) 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 or 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, or

(iii) the sum of the emoluments of all persons employed by the authority in the construction Industry in any continuous 12 month period ended on or after the 1st October, 1990, but not later than 30th September, 1991, and such sum is acceptable to An Foras for the purposes of assessment — 1.25 per cent of that sum, and

(iv) the sum of the amounts paid by the authority for the same period returned in accordance with (iii) above 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 Foras 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) 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 £56,000 or less.

(7) The amount to be assessed in respect of the levy in relation to an establishment which ceases to carry on business in the twenty-first 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 number 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 authorty 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 as 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) as amended, 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 is principal office or place of business.

7. Subject to Article 9 of this Order, the levy shall be due and payable to An Foras 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 Foras, 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 Foras shall determine, to an appeal tribunal against an assessment to which the notice relates.

(3) In case An Foras 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 Foras under the said paragraph (2).

(4) In case in the twenty-first 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 Foras 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 Foras may, by notice in writing given to the employer, withdraw an assessment.

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

( a ) prevent An Foras 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 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 Foras had not been included therein.

(3) In case An Foras 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 Foras 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 Director General of An Foras, 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 Foras, 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 Foras Áiseanna Saothair this 30th day of April, 1993.

The Seal of An Foras Áiseanna Saothair was affixed in the presence of:—

CHRIS KIRWAN,

a member of An Foras Áiseanna

Saothairauthorisedby An Foras

Áiseanna Saothairto act in that behalf.

and

JOHN J. LYNCH,

an officer on An Foras Áiseanna

Saothair authorised by An Foras

Áiseanna Saothair to act in that behalf.

EXPLANATORY NOTE.

An Foras Áiseanna Saothair (The Training and Employment Authority) was established under the Labour Services Act, 1987 , to promote training and employment services.

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 the related functions of An Foras Áiseanna Saothair under the Industrial Training Act, 1967 and the Labour Services Act 1987 .

This Order further provides for the exemption from the industrial training levy for the twenty-first levy period for the Construction Industry of establishments in respect of which the total emoluments paid by the employer in the twenty-first base period were £56,000 or less.

The levy is to be imposed in respect of the twenty-first levy period commencing with the date upon which the Order comes into force and ending on 31st December, 1993. The levy will be assessed by An Foras Áiseanna Saothair and there will be a right of appeal against an assessment to an appeal tribunal.