Industrial Training (Apprenticeship Levy) Act, 1994

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Number 3 of 1994

INDUSTRIAL TRAINING (APPRENTICESHIP LEVY) ACT, 1994

ARRANGEMENT OF SECTIONS

Number 3 of 1994

INDUSTRIAL TRAINING (APPRENTICESHIP LEVY) ACT, 1994

AN ACT TO PROVIDE FOR LEVY ON EMPLOYERS, TO BE KNOWN AS APPRENTICESHIP LEVY, IN SECTORS OF INDUSTRY TO BE DESIGNATED BY THE MINISTER FOR ENTERPRISE AND EMPLOYMENT TO FUND A NEW APPRENTICESHIP SCHEME TO BE RUN BY AN FORAS ÁISEANNA SAOTHAIR AND TO PROVIDE FOR THE MAKING OF REGULATIONS RELATING TO THE MANNER OF RECRUITMENT OF APPRENTICES. [24th March, 1994]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1.—(1) In this Act, except where the context otherwise requires—

“An Foras” means An Foras Áiseanna Saothair;

“apprentice” means a person employed by way of apprenticeship in a designated industrial activity (within the meaning of the Principal Act), and includes any person to whom regulations under section 28 of the Principal Act apply;

“the Collector-General” means the Collector-General appointed under section 162 of the Income Tax Act, 1967 ;

“contribution year” means a year of assessment within the meaning of the Income Tax Acts beginning with the year 1994–1995;

“designated sector of industry” shall be construed in accordance with section 3 ;

“employer” means any person paying reckonable earnings;

“employed contributor”, “employment contribution” and “employer's contribution” have the meanings assigned to them, respectively, in the Social Welfare (Consolidation) Act, 1993 ;

“enactment” means either or both a statute and a statutory instrument within the meaning in each case, respectively, of the Interpretation Act, 1937 ;

“levy” has the meaning assigned to it by section 2 ;

“the Minister” means the Minister for Enterprise and Employment;

“the Principal Act” means the Industrial Training Act, 1967 ;

“reckonable earnings” means reckonable earnings for the purposes of the Social Welfare (Collection of Employment Contributions by the Collector-General) Regulations, 1989 ( S.I. No. 298 of 1989 ).

(2) (a) A reference in this Act to a section is a reference to a section of this Act unless it is indicated that a reference to some other Act is intended.

(b) A reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

Apprenticeship levy.

2.—(1) Subject to and in accordance with the provisions of this Act and regulations made thereunder or under the Principal Act by virtue of this Act, there is hereby imposed on, and shall be payable in respect of every contribution year by, every employer in a designated sector of industry in respect of every employed contributor who is employed by the employer in the industry concerned, a levy (which shall be known as the “Apprenticeship Levy” and in this Act is referred to as the “levy”).

(2) An employer shall not deduct from the reckonable earnings of an employed contributor or recover from such employed contributor any sum in respect of levy paid or payable under this Act.

Designated sectors of industry.

3.—(1) (a) The Minister may from time to time, by order declare that a designated industrial activity under section 23 of the Principal Act, or a specified part of such an activity, be a designated sector of industry for the purposes of this Act.

(b) The Minister shall, before making an order under paragraph (a), consider the following matters, that is to say—

(i) the potential for the recruitment of men and women in the sector or sectors of industry to be designated;

(ii) whether or not, having taken into account the state of technological development or other factors that the Minister considers relevant, the sector or sectors of industry to be designated are in a new or developing area of industrial activity;

(iii) the potential for developing the skills of apprentices in the sector or sectors of industry to be designated so as to make it possible for them to adapt to technological and other developments;

and the Minister shall, before making such an order, take into account such matters as the Minister considers appropriate to take account of in the circumstances.

(2) Before an order is made under subsection (1) the Minister shall—

(a) consult with An Foras,

(b) either or both make such enquiries as the Minister thinks proper and cause An Foras to make, and it shall make, such enquiries as it thinks proper, and

(c) either or both consult and cause An Foras to consult, and it shall consult, any organisation or association of organisations appearing to either or both the Minister and An Foras (as the case may be) to be—

(i) representative of substantial numbers of employers in the sector of industry concerned, and

(ii) representative of substantial numbers of persons employed in the sector of the industry concerned.

(3) The Minister may by order revoke or amend an order under this section, including an order under this subsection.

(4) (a) An order made under subsection (1) or (3) shall apply and take effect from the beginning of the contribution year next following that in which the order was made or, where specified in the order, from the beginning of such subsequent contribution year as is so specified.

(b) Nothing in paragraph (a) shall be construed so as to prevent the making of an order under subsection (3) revoking or amending an order, or a part thereof, at any time before it would take effect.

(5) Where an order under this section is proposed to be made, a draft of the proposed order shall, with the approval of the Minister for Finance, be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

Regulations relating to manner of recruitment of apprentices.

4.—(1) The Minister may by regulations provide for requirements to be complied with for the purpose of ensuring that, in respect of the recruitment of apprentices in one or more than one designated sector of industry specified in the regulations, such recruitment is carried out in an equitable and fair manner.

(2) Where regulations under this section are proposed to be made, a draft of the proposed regulations shall, with the approval of the Minister for Finance, be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

Use of levy proceeds.

5.—(1) The proceeds of levy shall be used by An Foras for or towards—

(a) off-the-job wages or training allowances of apprentices employed by employers who are liable to pay levy,

(b) costs incurred by apprentices while in training in a training or educational establishment approved of by An Foras for such training,

(c) the monitoring, assessment and certification costs of the apprenticeship system operated by An Foras, and

(d) such other expenditure in relation to the training of apprentices as the Minister may, with the consent of the Minister for Finance, determine after consultation with such organisation or association of organisations as appears to the Minister to be—

(i) representative of substantial numbers of employers in the sector of industry concerned, and

(ii) representative of substantial numbers of persons employed in the sector of the industry concerned.

(2) In subsection (1) (a), “off-the-job wages or training allowances” means wages or allowances paid to an apprentice while the apprentice undergoes training or instruction as part of a scheme of training or instruction, in circumstances where the production of any thing or provision of any service in the ordinary course of business is not the primary objective of such scheme, and where such training or instruction takes place at an establishment of An Foras or for the time being approved by An Foras or at an educational establishment approved by the Department of Education for the purposes of the Industrial Training Acts, 1967 and 1994.

Payment of levy.

6.—(1) Where in a contribution year levy is payable by virtue of this Act by an employer in a designated sector of industry in respect of the reckonable earnings of an employed contributor, it shall, subject to subsection (2), be so payable at the rate of 0.25 per cent. of the amount of those reckonable earnings.

(2) Where in a particular contribution year an employed contributor's reckonable earnings have amounted to a sum in respect of which levy has been paid by the employer and no employer's contribution is payable under the Social Welfare Acts by the employer in respect of reckonable earnings in excess of such sum, then no levy shall be payable on such excess by the employer in that contribution year.

(3) Levy payable in respect of reckonable earnings shall be deemed, for the purpose of the collection and recovery of levy, to be an employment contribution.

Exemption from payment of levy or part thereof.

7.—Notwithstanding any other provision of this Act, levy shall not be payable in respect of an employee where the employer is entitled to exemption in respect of that employee under section 10 (8) of the Social Welfare (Consolidation) Act, 1993 .

Variation of rates of levy.

8.—(1) The Minister may by regulations vary generally the rate of levy and, where regulations under this subsection are in force, this Act shall have effect in accordance with the regulations.

(2) A rate varied by regulations under this section shall take effect at the beginning of the contribution year next following that in which the regulations were made.

(3) (a) Where regulations under this section are proposed to be made, a draft of the proposed regulations shall, with the approval of the Minister for Finance, be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

(b) A draft of regulations proposed to be made under this section shall not be laid before both Houses of the Oireachtas in accordance with paragraph (a) unless the Minister has consulted with, and received the agreement to the draft of, such organisation or association of organisations as appears to the Minister to be—

(i) representative of substantial numbers of employers in the sectors of industry concerned, and

(ii) representative of substantial numbers of persons employed in the sectors of the industry concerned.

Suspension of levy.

9.—(1) The Minister may by regulations suspend generally the payment of levy and, where regulations under this subsection are in force, this Act shall have effect in accordance with the regulations.

(2) Nothing in subsection (1) shall be construed as restricting the right to recover unpaid levy in accordance with this Act and, accordingly, such unpaid levy shall be recoverable as if there had been no suspension of levy.

(3) Where levy is suspended by regulations under this section the suspension shall take effect at the beginning of the contribution year next following that in which the regulations were made.

(4) Regulations made under subsection (1) may provide for ancillary or incidental matters that are of a transitional nature including, where appropriate, the disposal for the benefit of the Exchequer in such manner as the Minister for Finance shall direct of any proceeds of levy not used.

(5) Where regulations under this section are proposed to be made, a draft of the proposed regulations shall, with the approval of the Minister for Finance, be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

Collection of levy, etc.

10.—The following provisions shall apply in relation to levy payable in accordance with this Act, that is to say—

(a) the provisions of any enactment relating to the inspection of records, or the estimation, collection and recovery of, or the furnishing of information in relation to, income tax shall, with any necessary modifications, apply in relation to levy required to be collected by the Collector-General as they apply in relation to income tax;

(b) in proceedings instituted by virtue of this Act, a certificate purporting to be signed by the Collector-General which certifies that a stated amount is due and payable by the defendant in respect of levy shall be evidence until the contrary is proved that the amount is so due and payable in respect of levy and the certificate shall be deemed unless the contrary is proved, to have been signed by him;

(c) for the purposes of this section the rules of court concerned for the time being applicable to civil proceedings shall apply to proceedings by virtue of this section.

Payment of levy into Social Insurance Fund and to An Foras.

11.—(1) Levy payable pursuant to this Act shall be paid into the Social Insurance Fund.

(2) All sums paid into the Social Insurance Fund under subsection (1) shall be paid to An Foras who shall keep it in a separate account.

Provisions relating to winding up and bankruptcy, etc.

12.—(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, levy payable pursuant to section 2 by the company during the 12 months before the relevant date (being the relevant date within the meaning of that section), and that Act shall have effect accordingly, and formal proof of the debts to which the priority is given under this provision shall not be required except in cases where it may otherwise be provided for by rules made under that Act.

(2) Subsection (1) shall not apply where a company is wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company.

(3) (a) 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 to be paid, subject to section 119 of that Act, in priority to all other debts, all levy payable pursuant to section 2 by the bankrupt during the period of 12 months before the date of the order of adjudication, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall comply with the provisions of the First Schedule to that Act and any rules of court relating to proof of debt.

(b) Paragraph (a) of this subsection shall be construed so as to apply to an arranging debtor in the same manner as it applies to a bankrupt and, accordingly, the reference in that paragraph to the period of 12 months before the date of the order of adjudication shall be construed as a reference to the period of 12 months before the date of the presenting of the petition for protection.

Appeals tribunals.

13.—(1) The Minister may make regulations under section 22 of the Principal Act—

(a) for the establishment of a tribunal or tribunals to determine appeals by employers liable to any levy imposed under this Act or under this Act and the Principal Act, or

(b) applying, with such modifications or amendments as the Minister considers appropriate, regulations made under the said section 22,

and the said section 22 shall be construed accordingly.

(2) Pending the making of regulations under section 22 of the Principal Act by virtue of this section, the regulations made by the Minister under the said section 22 and which are for the time being in force shall apply, with such modifications as are necessary, to levy imposed by virtue of this Act.

Supplying by Revenue Commissioners of certain information.

14.—So far as may be necessary for the proper administration of this Act, information regarding levy and reckonable earnings of employed contributors in respect of whom levy is payable by their employers which is obtained by the Revenue Commissioners in connection with the collection of income tax or levy may be supplied by them to any person having obligations imposed by any enactment in relation to the collection and recovery of levy.

Offences.

15.—(1) Without prejudice to the provisions of this Act or any regulations under it or to any other enactment referred to in this Act, if an employer—

(a) fails or refuses to comply with a requirement of this Act or of a regulation under this Act,

(b) knowingly makes any false statements or false representation, or knowingly conceals any material fact, in relation to any such requirement, or

(c) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information in relation to any such requirement which the employer knows to be false in a material particular,

that employer shall be guilty of an offence and shall be liable—

(i) on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both,

(ii) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding three years or to both.

(2) Where a person after conviction for an offence under this section continues the contravention, such person shall be guilty of an offence on every day on which the contravention continues and be liable for each such offence—

(a) on summary conviction, to a fine not exceeding £200,

(b) on conviction on indictment, to a fine not exceeding £2,000.

(3) A prosecution for a summary offence under this section may be brought by An Foras, the Collector-General or the Minister.

Expenses.

16.—(1) The expenses incurred by any Minister of the Government, other than the Minister for Finance, or by the Revenue Commissioners in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of monies provided by the Oireachtas.

(2) The expenses incurred by the Minister for Finance in the administration of this Act shall be paid out of monies provided by the Oireachtas.

Short title, commencement and collective citation.

17.—(1) This Act may be cited as the Industrial Training (Apprenticeship Levy) Act 1994.

(2) This Act shall come into operation on such day as may be fixed therefor by order made by the Minister under this section with the consent of the Minister for Finance and the Minister for Social Welfare.

(3) This Act and the Principal Act may be cited together as the Industrial Training Acts, 1967 and 1994.