Harbours (Amendment) Act 2009
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Amendments to Principal Act relating to directors, etc. |
11.— (1) Section 30 of the Principal Act is amended— | |
(a) by substituting the following for subsection (1): | ||
“(1) (a) (i) An election shall only be held by a company under the Fifth Schedule where, in the opinion of the directors of the company, the average number of its employees is expected to exceed 30 in the accounting year of the company that immediately follows the accounting year in which the election is, subject to this subparagraph, due to be held. | ||
(ii) For the purposes of this paragraph the average number of persons to be employed by a company in its accounting year following the election shall be estimated— | ||
(I) by dividing the relevant annual number by the projected number of weeks in that year, where the relevant annual number is ascertained by estimating, for each week of the accounting year of the company following the election, the number of persons expected to be employed under contracts of service by the company in that week (whether throughout the week or not) and adding together all the weekly numbers, or | ||
(II) by establishing that more than 30 of its current full time employees are likely to continue to be so employed full time under contracts of service. | ||
(iii) There shall be included in the accounts for each accounting year of a company— | ||
(I) a statement of the average number of employees that are expected to be employed under contracts of service during the accounting year following that to which the accounts relate, or | ||
(II) a statement that more than 30 of its current full time employees are likely to continue to be so employed full time under contracts of service during the accounting year following that to which the accounts relate. | ||
(b) Subject to paragraph (a), the Minister shall as respects a company appoint to be a director of the company the employee of the company who is elected in accordance with the Fifth Schedule. | ||
(c) The Minister shall, as respects a company (other than a company to which paragraph (b) relates), appoint to be a director of the company a person who, in the opinion of the Minister, is representative of the interests of the employees of the company. | ||
(d) Before making any appointment under paragraph (c) the Minister shall consult with any recognised trade union or staff association concerned which, following such consultation, may recommend to the Minister that a particular person be appointed under the said paragraph and the Minister shall consider such a recommendation.”, | ||
(b) in subsection (3) by substituting “paragraph (b) of subsection (1)” for “paragraph (a) or (b) of subsection (1)”, | ||
(c) by deleting subsection (6), and | ||
(d) by inserting the following after subsection (7): | ||
“(8) (a) In this subsection— | ||
‘ commercial service ’ means a commercial service to a company (including any subsidiary) or to the port or ports of such company or to any person in connection with the use of the port or ports of the company; | ||
‘ recommending person ’ means the person making a recommendation of a person for appointment under subsection (7) as a director of a company. | ||
(b) Except where paragraph (c) applies, a recommending person shall not recommend a person to the Minister for appointment as a director of the company concerned if such person— | ||
(i) had a charge imposed by that company under section 13, | ||
(ii) was an employee of a person who had a charge so imposed, | ||
(iii) had, in the opinion of the person making the recommendation, provided a significant commercial service, or | ||
(iv) was an employee of a person who had provided such a service, | ||
at any time during the 3 years immediately preceding the date of the recommendation. | ||
(c) Where paragraph (b) applies but the period of 3 years would expire if the period were the period of 3 years before the date of the appointment (if made) rather than the date of the recommendation, then the person concerned may be recommended for appointment but may only be considered by the Minister for appointment if, subsequent to the recommendation being made, the person meets the selection requirements set out in paragraph (f). Where this paragraph applies to a recommendation, the recommending person shall advise the Minister in writing of the relevant facts no later than the time that the recommendation is made. | ||
(d) Where a recommending person is considering to recommend a person under subsection (7) and— | ||
(i) the person being so considered— | ||
(I) had, within the period referred to in paragraph (b), provided a commercial service, or | ||
(II) was or is an employee of a person who had provided such a service, | ||
and | ||
(ii) the recommending person is unable to form an opinion as to whether the service should be regarded as significant commercial service to the company, | ||
then the recommending person may recommend the person concerned to the Minister but only if the recommending person advises the Minister in writing of the relevant facts (including the inability to form an opinion) no later than the time that the recommendation is made. | ||
(e) Where a recommending person is of the opinion that the person being recommended— | ||
(i) had, within the period referred to in paragraph (b), provided a commercial service other than a significant commercial service, or | ||
(ii) was or is an employee of a person who had provided such a service, | ||
then, the recommending person may advise the Minister in writing of the relevant facts (including that opinion). | ||
(f) A person shall not be selected for appointment under subsection (7) as a director of the company concerned if such person— | ||
(i) had a charge imposed by that company under section 13, | ||
(ii) was an employee of a person who had a charge so imposed, | ||
(iii) had, in the opinion of the Minister, provided a significant commercial service, or | ||
(iv) was an employee of a person who had provided such a service, | ||
at any time during the 3 years immediately preceding the date when the appointment would take effect.”. | ||
(2) The Fifth Schedule to the Principal Act is amended— | ||
(a) by substituting the following for subparagraph (1) of paragraph 2: | ||
“(1) A poll shall be conducted for the purposes of the election where the number of candidates standing nominated in accordance with this Schedule exceeds one.”, | ||
(b) by deleting subparagraph (1) of paragraph 4, | ||
(c) by substituting the following for paragraph 6: | ||
“6. On receipt of a notification from the returning officer of the name of the candidate elected, or declared to be elected under paragraph 4, the Minister shall, in accordance with section 30, appoint the candidate to be a director of the company.”, | ||
and | ||
(d) by substituting the following for subparagraph (3) of paragraph 11: | ||
“(3) A candidate may be nominated by a recognised trade union or staff association or jointly by two or more such bodies but no such body shall be entitled both to nominate a candidate of its own accord and to nominate a candidate jointly with another such body or bodies.”. | ||
(3) Subject to subsections (4) and (5), nothing in this section shall affect the balance of the term of office of a director of a company appointed before the passing of this Act. | ||
(4) Where a person was, immediately before the passing of this Act, a director of a company and— | ||
(a) after such passing he or she ceases to be a director before completing his or her term of office as a director, and | ||
(b) that term of office was by virtue of being appointed pursuant to subsection (1) or (3) of section 30 of the Principal Act, | ||
then, no person shall be appointed under that subsection for the remainder of that term of office if, as a consequence, there would be more than one director appointed under either or both of those subsections. | ||
(5) Where, immediately before the passing of this Act, a person was a director of a company and— | ||
(a) after such passing he or she ceases to be a director before completing his or her term of office as a director, and | ||
(b) that term of office was by virtue of being appointed pursuant to subsection (6) of section 30 of the Principal Act, | ||
then, no person shall be appointed under that subsection for the remainder of that term of office. | ||
(6) The Port Companies (Appointment of Local Authority Directors) Regulations 1996 ( S.I. No. 335 of 1996 ) are revoked. |