Protection of Employees (Temporary Agency Work) Act 2012

SCHEDULE 2

Redress for certain contraventions of Act

Section 25 .

Complaints to rights commissioner.

1. (1) (a) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee’s employer has contravened section 6 , 13 (1) or 23 in relation to the employee and, upon the presentation of such a complaint, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint.

(b) An agency worker or any trade union of which the agency worker is a member, with the consent of the agency worker, may present a complaint to a rights commissioner that the hirer of the agency worker has contravened section 11 , 14 or 24 in relation to the agency worker and, upon the presentation of such a complaint, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint.

(c) References to employee and employer in the subsequent provisions of this Schedule shall, in so far as they relate to a complaint to which clause (b) applies, be construed as references to agency worker and hirer respectively.

(2) Where a complaint under subparagraph (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) make a decision in relation to the complaint and communicate that decision in writing to the parties, and

(c) communicate the decision to the parties.

(3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to take a specified course of action (including reinstatement or reengagement of the employee in circumstances where the employee was dismissed by the employer), or

(c) require the employer to pay to the employee 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 employee’s employment,

and the references in the foregoing clauses 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) A rights commissioner shall not entertain a complaint under this paragraph 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) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 12 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.

(6) 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.

(7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner concerned.

(8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.

(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subparagraph (2).

Appeal from decision of rights commissioner.

2. (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under paragraph 1 and, if the party does so, the Labour 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, and

(c) communicate the determination to the parties.

(2) An appeal under this paragraph shall be initiated by the party concerned, giving, not later than 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 Labour Court containing such particulars as are determined by the Labour Court under subparagraph (4) and stating the intention of the party concerned to appeal against the decision.

(3) A copy of a notice under subparagraph (2) shall be given by the Labour Court to any other party concerned as soon as may be after the receipt of the notice by the Labour Court.

(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Labour Court, namely—

(a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this paragraph,

(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 Labour Court,

(e) the particulars to be contained in a notice under subparagraph (2), and

(f) any matters consequential on, or incidental to, the foregoing matters.

(5) The Minister may, at the request of the Labour Court, refer a question of law arising in proceedings before it under this paragraph 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 Labour Court under this paragraph may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.

(7) Section 39(17) of the Redundancy Payments Act 1967 shall apply in relation to proceedings before the Labour Court under this Schedule as it applies to matters referred to the Employment Appeals Tribunal under that section with—

(a) the substitution, in that provision, of references to the Labour Court for references to the Tribunal,

(b) the deletion, in paragraph (d) of that provision, of “registered”, and

(c) the substitution, in paragraph (e) of that provision, of “a class A fine” for “a fine not exceeding twenty pounds”.

Paragraphs 1 and 2: supplemental provisions.

3. (1) Where a decision of a rights commissioner in relation to a complaint under this Schedule—

(a) has not been carried out by the employer concerned in accordance with its terms, and

(b) the time for bringing an appeal against the decision has expired and no such appeal has been brought,

the employee concerned may bring the complaint before the Labour Court and the Labour 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.

(2) The bringing of a complaint before the Labour Court under subparagraph (1) shall be effected by giving to the Labour Court a notice in writing containing such particulars (if any) as may be determined by the Labour Court.

(3) The Labour Court shall publish, in such manner as it considers appropriate, particulars of any determination made by it under clause (a), (b), (c), (e) or (f) of subparagraph (4) of paragraph 2 (not being a determination as respects a particular appeal under that paragraph) or subparagraph (2).

Enforcement of determinations of Labour Court.

4. (1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under paragraph 1 before the expiration of the period of 6 weeks from the date on which the determination is communicated to the parties, the Circuit Court shall—

(a) on application to it in that behalf by the employee concerned,

(b) on application to it in that behalf by any trade union of which the employee is a member, made with the consent of the employee, or

(c) on application to it in that behalf by 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 subparagraph (1) to a determination of the Labour Court is a reference to a determination in relation to which, at the expiration of the time for bringing an appeal against that determination, no such appeal has been brought or, if such an appeal has been brought it has been abandoned and the references 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 references to the date of such abandonment.

(3) If in all the circumstances the Circuit Court considers it appropriate to so do, it may, in an order under this paragraph providing for the payment of compensation, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act 1981 , in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(4) An application under this paragraph 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, business or occupation.

Provisions relating to winding up and bankruptcy.

5. (1) There shall be included among the debts which, under section 285 of the Companies Act 1963 (as amended by section 10 of the Companies (Amendment) Act 1982 and section 134 of the Companies Act 1990 ) 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 paragraph 1(2) or a determination under paragraph 2(1) by the company to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided by rules made under that Act.

(2) 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 paragraph 1(2) or a determination under paragraph 2(1) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.

Amendment of Protection of Employees (Employers’ Insolvency) Act 1984.

6. Section 6 of the Protection of Employees (Employers’ Insolvency) Act 1984 is amended, in paragraph (a) of subsection (2), by the substitution of the following subparagraph for subparagraph (xxvi):

“(xxvi) any amount that an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1 (2) of Schedule 2 to the Protection of Employees (Temporary Agency Work) Act 2012 or a determination by the Labour Court under paragraph 2(1) of that Schedule.”.