Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007

PART 1 Preliminary and General

1.. Short title, construction and collective citation.

1.— (1) This Act may be cited as the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007.

(2) The Protection of Employment Act 1977, together with the Protection of Employees (Part-Time Work) Act 2001 and this Act (insofar as they apply to the first-mentioned Act), shall be construed together as one and may be cited together as the Protection of Employment Acts 1977 to 2007.

(3) The Redundancy Payments Acts 1967 to 2003 and this Act (insofar as it relates to those Acts) shall be construed together as one and may be cited together as the Redundancy Payments Acts 1967 to 2007.

(4) The Unfair Dismissals Acts 1977 to 2005 and this Act (insofar as it relates to those Acts) shall be construed together as one and may be cited together as the Unfair Dismissals Acts 1977 to 2007.

(5) The Employment Equality Acts 1998 and 2004 and this Act (insofar as it relates to those Acts) shall be construed together as one and may be cited together as the Employment Equality Acts 1998 to 2007.

2.. Definitions.

2.— In this Act—

“employee representatives” has the same meaning as in section 2(1) of the Protection of Employment Act 1977;

“industrial action” means—

(a) a cessation of work by any number or body of workers acting in combination or a concerted refusal or a refusal under a common understanding of any number of workers to continue to work for their employer done as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment, or

(b) the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by that employer in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by that other employer, to accept terms or conditions of or affecting employment;

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

“Secretary General” means the Secretary General of the Department of Enterprise, Trade and Employment.

3.. Duration of effect of Part 2 and related matters.

3.— (1) Subject to this section, Part 2 has effect only for the period of 3 years from the commencement of this Act.

(2) The Minister may, by order made before the expiration of the period mentioned in subsection (1) or of any extension of that period under this subsection, extend that period or periods for a further period of 3 years if—

(a) both the Irish Congress of Trade Unions and the Irish Business and Employers Confederation have requested the extension; and

(b) the Minister is satisfied that the continued operation of Part 2 would be conducive to the continued orderly conduct of industrial relations.

(3) If—

(a) on any day, Part 2 ceases to have effect in accordance with subsection (1), and

(b) on that day, any action remains to be taken under that Part in relation to a redundancy proposal in respect of which action had commenced to be taken under thatPart,

Part 2 continues in force to the extent necessary for completing the taking of that action, and any subsequent action provided for by that Part, in respect of that redundancy proposal and, for that purpose, the Redundancy Panel as constituted immediately before that day continues in existence for such time as is necessary for it to take any outstanding action in accordance with that Part.

PART 2 Exceptional Collective Redundancies

4.. What constitutes exceptional collective redundancies.

4.— (1) Subject to subsection (2), dismissals proposed by an employer together constitute exceptional collective redundancies for the purposes of this Part if, were they to take effect, they would be dismissals of the kind referred to in section 7(2A) of the Redundancy Payments Act 1967 (inserted by section 16).

(2) For the avoidance of doubt, it is declared that this Part does not apply to—

(a) the employment of agency workers for temporary or recurring business needs, or

(b) the use of outsourcing, contracting-out or other forms of business restructuring,

in circumstances other than those referred to in section 7(2A) of the Redundancy Payments Act 1967.

5.. Redundancy Panel.

5.— (1) For the purposes of this Part, there is established a Redundancy Panel.

(2) The Redundancy Panel consists of the following members:

(a) a Chairman appointed, in writing, by the F1[Minister];

(b) a member appointed, in writing, by the Irish Congress of Trade Unions;

(c) a member appointed, in writing, by the Irish Business and Employers Confederation.

(3) Each member of the Redundancy Panel shall have a deputy appointed, in writing, by the F2[person] by which that member was appointed, who shall act as a member of the panel on any occasion when that member is unable to attend a meeting of the panel, and, in subsections (4) to (9), a reference to a member includes a reference to a deputy of a member.

(4) Subject to subsections (5) to (10), a member—

(a) holds office for such period, not exceeding 3 years, as is specified in the relevant instrument of appointment, and

(b) is eligible for re-appointment.

(5) A member may resign by letter addressed to the relevant appointing authority, and the resignation shall take effect on the date of receipt of the letter.

(6) A member shall, unless he or she sooner dies, resigns or otherwise ceases to be a member, hold office until the expiration of his or her term of office.

(7) A person is not eligible to be appointed, or to continue to hold office, as a member of the Redundancy Panel if that person—

(a) is, or accepts nomination as, a member of Seanad Éireann,

(b) is, or is nominated as, a candidate for election as a member of either House of the Oireachtas or to be a member of the European Parliament,

(c) is regarded, under Part XIII of the Second Schedule to the European Parliament Elections Act 1997, as having been elected to that Parliament, or

F3[(d) is or becomes a member of a local authority within the meaning of theLocal Government Act 2001(as amended by the Local Government Reform Act 2014),]

and a member who ceases, under this subsection, to be eligible to continue to hold office as a member shall thereupon cease to be a member of the Redundancy Panel.

(8) The Government may, for stated reasons, at any time remove a member from office for misbehaviour or where they consider that—

(a) the member has become incapable through ill health of effectively performing the functions of a member, or

(b) the member’s removal is necessary for the effective performance by the Redundancy Panel of its functions.

(9) A member shall cease to be a member on—

(a) being adjudicated bankrupt,

(b) making a composition or arrangement with creditors,

(c) being sentenced to imprisonment on conviction on indictment, or

(d) ceasing to be ordinarily resident in the State.

(10) Whenever a vacancy occurs in the office of a member of the Redundancy Panel, the vacancy shall be filled, for the unexpired portion of the member’s term of office, by the member’s deputy, and the relevant appointing F4[person] shall appoint a new deputy.

(11) The Redundancy Panel shall act by majority decision.

(12) Subject to subsection (11), the practice and procedure of the Redundancy Panel shall be as determined by it.

(13) The Secretary General shall arrange for the provision to the Redundancy Panel of all secretarial and other services necessary for its efficient operation.

(14) A member of the Redundancy Panel shall be paid such remuneration (if any) as is determined by the Minister with the consent of the Minister for Finance.

6.. Reference to Redundancy Panel.

6.— (1) At any time during the period of 30 days referred to in section 9 or 12 of the Protection of Employment Act 1977 (as the case requires), a proposal to create collective redundancies may be referred to the Redundancy Panel—

(a) by employee representatives acting with the approval of the majority of those whom they represent who are affected by the redundancy proposal, or

(b) by the employer concerned,

by notice in writing addressed to the Chairman of the Panel in the care of the Secretary General and sent or delivered to the Secretary General at the principal office of the Department of Enterprise, Trade and Employment.

(2) The Secretary General shall arrange for a reference under subsection (1) to be forwarded without delay to the Chairman of the Redundancy Panel, and the Panel shall—

(a) within 1 working day of receipt by the Chairman of the reference—

(i) inform the Minister of the fact, and

(ii) invite affected parties to make submissions to it in relation to the proposal,

and

(b) within 7 working days of receipt by the Chairman of the reference—

(i) give notice in writing to the Minister that either requests the Minister to seek an opinion from the Labour Court whether the proposal is a proposal to which this Part applies or states that the Panel is of the view that the conditions for the making of such a request that are set out in subsection (3) have not been satisfied, and

(ii) give a copy of that notice to the party from which the reference was received and other affected parties.

(3) The Redundancy Panel may not make a request to the Minister under subsection (2)(b)(i) unless—

(a) it appears to the Panel that the proposed collective redundancies are exceptional collective redundancies, and

(b) the Panel is satisfied that, in relation to the proposal, the party from which the reference was received—

(i) has unsuccessfully sought to resolve the matter through local engagement, that is, all or any of the following:

(I) established dispute-resolution procedures;

(II) procedures in place, or availed of by custom or usual practice, in the employment concerned;

(III) ordinary consultative procedures,

(ii) has acted reasonably and has not acted in a manner that, in the opinion of the Panel, has frustrated the possibility of agreement to restructuring, or other changes, necessary to secure the viability of the business of the employer and, as a consequence, the best possible levels of employment and conditions, and

(iii) has not had recourse to industrial action since the proposal was referred to the Panel.

7.. Request by Minister for opinion of Labour Court.

7.— (1) The Minister may, either—

(a) within 7 working days of receiving a request from the Redundancy Panel under section 6, or

(b) subject to subsection (3), on the Minister’s own initiative, in the public interest,

request the Labour Court to issue an opinion whether collective redundancies proposed by an employer constitute exceptional collective redundancies.

(2) In subsection (1)(b), “ public interest ” includes—

(a) public order and the interests of national security,

(b) public health and safety,

(c) the need to protect the labour market, and

(d) the protection of statutory employment rights.

(3) The Minister may make a request under subsection (1)(b) only if—

(a) it appears to the Minister that the proposed collective redundancies are exceptional collective redundancies, and

(b) the relevant period specified in subsection (4) has not expired.

(4) For the purposes of subsection (3)(b), the relevant period is—

(a) if the period of 30 days specified in section 9(3) of the Protection of Employment Act 1977 has not expired and a reference to the Redundancy Panel has not been made under section 6(1) — that period of 30 days,

(b) if a reference to the Redundancy Panel has been made under section 6(1) but the Panel has not made a request under section 6(2) — the period of 7 working days specified in section 6(2).

8.. Hearings, and giving of opinions, by Labour Court.

8.— (1) Within 16 days of receiving a request under section 7, the Labour Court shall—

(a) hold a hearing into the matter, and

(b) either—

(i) issue to the Minister its opinion whether the proposed collective redundancies are exceptional collective redundancies, or

(ii) report to the Minister that, by reason of subsection (2), it is unable to issue an opinion, specifying in the report the circumstances attracting the operation of that subsection.

(2) The Court may not issue an opinion under subsection (1) unless it is satisfied that, in relation to the relevant proposal—

(a) the party from which the reference to the Panel was received has unsuccessfully sought to resolve the matter through local engagement, that is, all or any of the following:

(i) established dispute-resolution procedures;

(ii) procedures in place, or availed of by custom or usual practice, in the employment concerned;

(iii) ordinary consultative procedures,

(b) that party has acted reasonably and has not acted in a manner that, in the opinion of the Court, has frustrated the possibility of agreement to restructuring, or other changes, necessary to secure the viability of the business of the employer and, as a consequence, the best possible levels of employment and conditions, and

(c) no industrial action, on the part of that party, is current.

(3) For the purposes of this Part, section 21 of the Industrial Relations Act 1946 has effect as if in subsection (1) of that section “and under Part 2 of the Protection of Employment (ExceptionalCollective Redundancies and Related Matters) Act 2007” were inserted after “for the purposes of any proceedings before it under this Act”.

(4) No appeal shall lie from an opinion given by the Labour Court under this section, but nothing in this section affects the power of the Employment Appeals Tribunal to make a decision on any question referred to it under section 39 of the Redundancy Payments Act 1967.

(5) The Minister shall, within 7 working days of receiving an opinion from the Labour Court under subsection (1), notify affected parties, by such means as he considers appropriate, of the giving of the opinion and its content.

9.. Effect of opinion.

9.— (1) Where—

(a) the Labour Court issues an opinion that collective redundancies proposed by an employer are exceptional collective redundancies,

(b) the employer proceeds with the dismissals on the same basis as in the relevant proposal, and

(c) the employer applies to the Minister for a rebate under Part III of the Redundancy Payments Act 1967,

the Minister shall have regard to the opinion of the Labour Court when considering the employer’s application for the rebate.

(2) If the Minister refuses to pay the rebate, or pays a reduced rebate, the exemption from income tax provided by section 203 of the Taxes Consolidation Act 1997 does not apply in relation to lump sum payments made in pursuance of section 19 of the Redundancy Payments Act 1967 by the employer to employees dismissed as mentioned in subsection (1).

(3) Section 7 of the Unfair Dismissals Act 1977 has effect in relation to a dismissal that is one of a number of dismissals included in a collective redundancy that is determined by the Labour Court, in an opinion given under section 8, to be an exceptional collective redundancy as if—

(a) the following paragraph were substituted for paragraph (c) of subsection (1) of section 7:

“(c) payment by the employer to the employee of such compensation as is just and equitable having regard to all the circumstances but does not exceed in amount remuneration in respect of the employment from which the employee was dismissed (calculated in accordance with regulations under section 17 of this Act) for—

(i) in the case of an employee who, at the date of the dismissal, had not more than 20 years’ continuous service — 208 weeks, or

(ii) in the case of an employee who, at the date of the dismissal, had more than 20 years’ continuous service — 260 weeks.”,

and

(b) the following subsection were substituted for subsection (2)of section 7:

“(2) Without prejudice to the generality of subsection (1), in determining any reduction in the amount of compensation otherwise payable under paragraph (c) of that subsection regard shall be had only to the amount (if any) of severance or redundancy payment accepted by the employee in relation to the dismissal.”.

10.. Extension of time during which dismissal may not take place.

10.— (1) The first dismissal under a proposal for collective redundancies that is referred to the Redundancy Panel under section 6(1) shall not take effect earlier than the expiration of the latest of whichever of the following periods is applicable:

(a) the period of 7 working days commencing on the day on which reference of the proposal is received by the Panel;

(b) the period of 7 working days commencing on the day on which a request made by the Redundancy Panel under section 6(2) is received by the Minister; or

(c) the period of 16 days commencing on the day on which a request made by the Minister under section 7(1) is lodged with the Labour Court.

(2) Nothing in subsection (1) affects either—

(a) the operation of section 9(3) or 12(1) of the Protection of Employment Act 1977, or

(b) the right of an employer to dismiss an employee otherwise than in pursuance of the proposal for collective redundancies.

(3) An employer who effects a dismissal in pursuance of a proposal for collective redundancies before the expiration of such of the periods specified in subsection (1) and in sections 9(3) and 12(1) of the Protection of Employment Act 1977 as are applicable is guilty of an offence and liable on conviction on indictment to a fine not exceeding €250,000.

PART 3 Amendments of the Protection of Employment Act 1977

11.. Amendment of section 2 (interpretation) of the Protection of Employment Act 1977.

11.— Section 2 of the Protection of Employment Act 1977 is amended in subsection (1) by substituting the following for the definition of “the Minister”:

“‘ Minister ’ means the Minister for Enterprise, Trade and Employment;”.