Industrial Relations (Amendment) Act 2012
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Enforcement of employment regulation orders. |
13.— The Act of 1946 is amended by inserting the following sections after section 45: | |
“Complaints to rights commissioner. | ||
45A.— (1) A worker (or, in the case of a worker who has not reached the age of 18 years, the worker’s parent or guardian, with his or her consent) or any trade union of which the worker is a member, with the consent of the worker, may present a complaint to a rights commissioner that the worker’s employer has contravened an employment regulation order in relation to the worker. | ||
(2) Where a complaint under subsection (1) is made, the rights commissioner shall— | ||
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, | ||
(b) give a decision in writing in relation to it, and | ||
(c) communicate the decision to the parties. | ||
(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following: | ||
(a) declare that the complaint was or, as the case may be, was not well founded; | ||
(b) require the employer to comply with the employment regulation order; | ||
(c) require the employer to pay to the worker compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 ; | ||
and the references in paragraphs (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership. | ||
(4) Subject to subsection (5), a rights commissioner shall not entertain a complaint under this section if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. | ||
(5) Where a delay by a worker in presenting a complaint under this section is due to any misrepresentation by the employer, subsection (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice. | ||
(6) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause. | ||
(7) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister. | ||
(8) A copy of a notice under subsection (7) shall be given to the other party concerned by the rights commissioner. | ||
(9) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public. | ||
(10) A rights commissioner shall furnish the Court with a copy of each decision given by the commissioner under subsection (2). | ||
(11) The Minister may by regulations provide for any matters relating to the proceedings under this section that the Minister considers appropriate. | ||
Appeal from decision of rights commissioner. | ||
45B.— (1) A party concerned may appeal to the Court from a decision of a rights commissioner under subsection (2) of section 45A and, if the party does so, the Court shall— | ||
(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, | ||
(b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, | ||
(c) communicate the determination to the parties. | ||
(2) An appeal under this section shall be initiated by the party concerned giving, within 6 weeks (or such greater period as the Court may determine in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Court containing such particulars as are determined by the Court under paragraphs (e) and (f) of subsection (4) and stating the intention of the party concerned to appeal against the decision. | ||
(3) A copy of a notice under subsection (2) shall be given by the Court to any other party concerned as soon as practicable after the receipt of the notice by the Court. | ||
(4) The following matters, and the procedures to be followed in relation to them, shall be determined by the Court, namely: | ||
(a) the procedure in relation to all matters concerning the initiation and the hearing by the Court of appeals under this section; | ||
(b) the times and places of hearings of such appeals; | ||
(c) the representation of the parties to such appeals; | ||
(d) the publication and notification of determinations of the Court; | ||
(e) the particulars to be contained in a notice under subsection (2); | ||
(f) any matters consequential on, or incidental to, the foregoing matters. | ||
(5) The Court may refer a question of law arising in proceedings before it under this section to the High Court for its determination and the determination of the High Court shall be final and conclusive. | ||
(6) A party to proceedings before the Court under this section may appeal to the High Court from a determination of the Court on a point of law and the determination of the High Court shall be final and conclusive. | ||
(7) The Court shall, on the hearing of any appeal under this section, have power to take evidence on oath or on affirmation and for that purpose may cause persons attending as witnesses at that hearing to swear an oath or make an affirmation. | ||
(8) The Court may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice— | ||
(a) to give evidence in relation to any appeal referred to the Court under subsection (2), or | ||
(b) to produce any document specified in the notice relating to the matter in the person’s possession or power. | ||
(9) A witness at a hearing of an appeal before the Court has the same privileges and immunities as a witness before the High Court. | ||
(10) Where a decision of a rights commissioner in relation to a complaint under section 45A has not been carried out by the employer concerned in accordance with its terms and— | ||
(a) the time for bringing an appeal against the decision has expired but no such appeal has been brought, or | ||
(b) an appeal has been brought, but it has been abandoned, | ||
the worker concerned (or, in the case of a worker who has not reached the age of 18 years, the worker’s parent or guardian, with his or her consent) or, with the consent of the worker, any trade union of which the worker is a member, may bring the complaint before the Court and the Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision. | ||
(11) The bringing of a complaint before the Court under subsection (10) shall be effected by giving to the Court a written notice containing such particulars (if any) as may be determined by the Court. | ||
(12) The Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under any of paragraphs (a), (b), (c), (e) and (f) of subsection (4) (not being a determination as respects a particular appeal under that subsection) and subsection (11). | ||
Enforcement of determinations of Labour Court. | ||
45C.— (1) If an employer fails to carry out in accordance with its terms a determination of the Court in relation to a complaint under section 45A within 28 days from the date on which the determination is communicated to the parties, the Circuit Court shall, on application made to it in that behalf by— | ||
(a) the worker concerned (or, in the case of a worker who has not reached the age of 18 years, the worker’s parent or guardian with his or her consent), | ||
(b) with the consent of the worker, any trade union of which the worker is a member, or | ||
(c) the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances, | ||
without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to carry out the determination in accordance with its terms. | ||
(2) The reference in subsection (1) to a determination of the Court is a reference to a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned, and the reference in that subsection to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment. | ||
(3) In an order under this section providing for the payment of compensation, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the employer concerned to pay to the worker concerned interest on the compensation at the rate specified for the time being in section 26 of the Debtors (Ireland) Act 1840 , for each day or part of a day beginning 6 weeks after the day on which the determination of the Labour Court is communicated to the parties and ending on the day immediately before the day on which the order of the Circuit Court is made. | ||
(4) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade, business or occupation. | ||
Provisions relating to winding up and bankruptcy. | ||
45D.— (1) There shall be included among the debts which, under section 285 of the Companies Act 1963 are, in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, all compensation payable by virtue of a decision under section 45A(2)(b) or a determination under section 45B(1)(b) by the company to a worker, and the Companies Act 1963 shall have effect accordingly. | ||
(2) Formal proof of the debts to which priority is given under subsection (1) shall not be required except in cases where it may otherwise be provided by rules made under the Companies Act 1963 . | ||
(3) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under section 45A(2)(b) or a determination under section 45B(1)(b) by the bankrupt or arranging debtor, as the case may be, to a worker, and the Bankruptcy Act 1988 shall have effect accordingly. | ||
(4) Formal proof of the debts to which priority is given under subsection (3) shall not be required except in cases where it may otherwise be provided under the Bankruptcy Act 1988 . | ||
References to rights commissioner by Minister. | ||
45E.— Where— | ||
(a) it appears to the Minister that an employer is not complying with an employment regulation order in relation to a particular worker, | ||
(b) a complaint under section 45A, in relation to the matter, has not been presented to a rights commissioner by that worker (or, in the case of a worker who has not reached the age of 18 years, the worker’s parent or guardian with his or her consent) or any trade union of which the worker is a member, and | ||
(c) the circumstances touching the matter are, in the opinion of the Minister, such as to make it unreasonable to expect the worker (or, in the case of a worker who has not reached the age of 18 years, the worker’s parent or guardian with his or her consent) or any trade union of which he or she is a member to present such a complaint, | ||
the Minister may present a complaint in relation to the matter to a rights commissioner and a complaint so presented shall be dealt with, and sections 45A to 45D shall, with any necessary modifications, apply to the complaint, as if it were a complaint presented by the worker concerned under section 45A.”. |