Labour Services (Amendment) Act 2009

1. Definition.

1.— In this Act “Principal Act” means the Labour Services Act 1987.

2. Amendment of section 1 of Principal Act.

2.— Section 1 of the Principal Act is amended by the insertion, in subsection (1), of the following definitions:

“ ‘Act of 1995’ means the Ethics in Public Office Act 1995;

‘material interest’ shall be construed in accordance with section 2(3) of the Act of 1995;

‘serious wrongdoing’ includes breach of duty by a member or member of staff of An Foras, or a consultant, adviser or other person, in relation to An Foras.”.

3. Amendment of section 6 of Principal Act.

3.— Section 6 of the Principal Act is amended by the insertion of the following subsections:

“(6) The Director General shall hold office for such period, not exceeding 5 years from the date of his appointment, as the Minister shall determine.

(7) Subject to subsection (8), where the Director General’s term of office expires by the effluxion of time he shall be eligible to be reappointed to that office.

(8) Where the Director General has served 2 terms of office (including a term of office commenced or completed before the commencement of section 3 of the Labour Services (Amendment) Act 2009) he shall not be eligible to be reappointed to that office.

(9) The Director General shall, ex officio, be a member of An Foras.”.

4. Accountability of Director General of An Foras Áiseanna Saothair to Committee of Public Accounts.

4.— The Principal Act is amended by the insertion of the following section:

“6A.— (1) The Director General shall, whenever required in writing to do so by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General (hereafter in this section referred to as the ‘Committee’), give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General that An Foras is required by this Act to prepare,

(b) the economy and efficiency of An Foras in the use of its resources,

(c) the systems, procedures and practices employed by An Foras for the purpose of evaluating the effectiveness of its operations, and

(d) any matter affecting An Foras referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993, or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) In the performance of his duties under this section, the Director General shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.”.

5. Accountability of Director General of An Foras Áiseanna Saothair to other committees of Houses of Oireachtas.

5.— The Principal Act is amended by the insertion of the following section:

“6B.— (1) In this section ‘Committee’ means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee referred to in section 6A (inserted by section 4 of the Labour Services (Amendment) Act 2009) or the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) or a subcommittee of such a Committee.

(2) Subject to subsection (3), the Director General shall, at the request in writing of a Committee, attend before it to give an account in respect of matters relating to the general administration of An Foras that fall within the terms of reference of the Committee.

(3) The Director General shall not be required to give an account before a Committee in respect of any matter that has been, or is or is likely to be, the subject of proceedings before a court or tribunal in the State.

(4) Where the Director General is of the opinion that a matter in respect of which he is requested to give an account before a Committee is a matter to which subsection (3) applies, he shall, as soon as may be after the making of the request, inform the Committee in writing of that opinion and the reasons for the opinion, unless the information is conveyed to the Committee at a time when the Director General is before it.

(5) Where the Director General has informed a Committee of his opinion in accordance with subsection (4) and the Committee wish to proceed with the request concerned, the Chairperson of the Committee may, on behalf of the Committee, apply to the High Court in a summary manner for a determination of the question whether the matter is one to which subsection (3) applies, and the High Court shall determine the matter.

(6) Where the Director General informs a Committee, in accordance with subsection (4), that he is of the opinion that a matter in respect of which he is requested to give an account before the Committee is a matter to which subsection (3) applies, then, subject to subsection (7), he shall not attend before the Committee to give an account in respect of the matter.

(7) If, upon an application under subsection (5), the High Court determines that the matter concerned is one to which subsection (3) applies, the Committee shall withdraw the request referred to in subsection (2), but if the High Court determines that subsection (3) does not apply, the Director General shall attend before the Committee to give an account in respect of the matter.”.

6. Disclosure of interests.

6.— The Principal Act is amended by the insertion of the following new sections:

“Disclosure by members of An Foras of certain interests.

9A.— (1) Where at a meeting of An Foras any of the following matters arises, namely—

(a) an arrangement to which An Foras is a party or a proposed such arrangement, or

(b) a contract or other agreement with An Foras or a proposed such contract or other agreement,

then, any member of An Foras present at the meeting who otherwise than in his capacity as such a member has a material interest in the matter shall—

(i) at the meeting, disclose to An Foras the fact of such interest and the nature thereof,

(ii) absent himself from the meeting or that part of the meeting during which the matter is being discussed,

(iii) take no part in any deliberation of An Foras relating to the matter, and

(iv) not vote on a decision relating to the matter.

(2) A member of An Foras who, otherwise than in his capacity as such a member has a material interest in—

(a) an arrangement or proposed arrangement to which paragraph (a) of subsection (1) applies, or

(b) a contract or other agreement or a proposed contract or other agreement to which paragraph (b) of that subsection applies,

shall neither influence nor seek to influence any decision to be made by An Foras in relation thereto.

(3) Where a material interest is disclosed pursuant to this section, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the member by whom the disclosure is made shall not be counted in the quorum for the meeting.

(4) Where at a meeting of An Foras a question arises as to whether or not a course of conduct, if pursued by a member of An Foras, would constitute a failure by him to comply with the requirements of subsection (1), the question may, subject to subsection (5), be determined by the chairman of the meeting, whose decision shall be final, and where such a question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

(5) Where at a meeting of An Foras, the chairman of the meeting is the member in respect of which a question to which subsection (4) applies falls to be determined, then the other members of An Foras attending the meeting shall choose one of their number to be chairman of the meeting for the purpose of determining the question concerned.

Disclosure by directors of subsidiary of certain interests.

9B.— (1) Where at a meeting of the board of the subsidiary any of the following matters arises, namely—

(a) an arrangement to which the subsidiary is a party or a proposed such arrangement, or

(b) a contract or other agreement with the subsidiary or a proposed such contract or other agreement,

then, any director of the subsidiary present at the meeting who otherwise than in his capacity as such a director has a material interest in the matter shall—

(i) at the meeting, disclose to the board of the subsidiary the fact of such interest and the nature thereof,

(ii) absent himself from the meeting or that part of the meeting during which the matter is being discussed,

(iii) take no part in any deliberation of the board of the subsidiary relating to the matter, and

(iv) not vote on a decision relating to the matter.

(2) A director of the subsidiary who, otherwise than in his capacity as such a director has a material interest in—

(a) an arrangement or proposed arrangement to which paragraph (a) of subsection (1) applies, or

(b) a contract or other agreement or a proposed contract or other agreement to which paragraph (b) of that subsection applies,

shall neither influence nor seek to influence any decision to be made by the board of the subsidiary in relation thereto.

(3) Where a material interest is disclosed pursuant to this section, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the director by whom the disclosure is made shall not be counted in the quorum for the meeting.

(4) Where at a meeting of the board of the subsidiary a question arises as to whether or not a course of conduct, if pursued by a director of the subsidiary, would constitute a failure by him to comply with the requirements of subsection (1), the question may, subject to subsection (5), be determined by the chairman of the meeting, whose decision shall be final, and where such a question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

(5) Where at a meeting of the board of the subsidiary, the chairman of the meeting is the director in respect of which a question to which subsection (4) applies falls to be determined, then the other directors of the subsidiary attending the meeting shall choose one of their number to be chairman of the meeting for the purpose of determining the question concerned.

(6) Where An Foras is satisfied that a director of the subsidiary has contravened subsection (1) or (2), An Foras may, if it thinks fit, remove that director from office and, where a person is removed from office pursuant to this subsection, he shall thenceforth be disqualified for being a director of the subsidiary.

Disclosure by members of staff of An Foras of certain interests.

9C.— (1) Where a member of the staff of An Foras has a material interest, otherwise than in his capacity as such a member, in any contract, agreement or arrangement, to which An Foras is a party, or a proposed such contract, agreement or arrangement, that person shall—

(a) disclose to An Foras his interest and the nature thereof,

(b) take no part in the negotiation of the contract, agreement or arrangement or in any deliberation by An Foras or members of the staff of An Foras in relation thereto, and

(c) neither influence nor seek to influence a decision to be made in the matter nor make any recommendation in relation to the contract, agreement or arrangement.

(2) Subsection (1) shall not apply to contracts or proposed contracts of employment of members of the staff of An Foras with An Foras.

(3) Where a person contravenes this section An Foras may make such alterations to the person’s terms and conditions of employment as it considers appropriate or terminate the person’s contract of employment.

Disclosure by members of staff of subsidiary of certain interests.

9D.— (1) Where a member of the staff of the subsidiary has a material interest, otherwise than in his capacity as such a member, in any contract, agreement or arrangement, to which the subsidiary is a party, or a proposed such contract, agreement or arrangement, that person shall—

(a) disclose to the subsidiary his interest and the nature thereof,

(b) take no part in the negotiation of the contract, agreement or arrangement or in any deliberation by the subsidiary or members of the staff of the subsidiary in relation thereto, and

(c) neither influence nor seek to influence a decision to be made in the matter nor make any recommendation in relation to the contract, agreement or arrangement.

(2) Subsection (1) shall not apply to contracts or proposed contracts of employment of members of the staff of the subsidiary with the subsidiary.

(3) Where a person contravenes this section the subsidiary may make such alterations to the person’s terms and conditions of employment as it considers appropriate or terminate the person’s contract of employment.”.

7. Protection of persons reporting certain matters.

7.— The Principal Act is amended by the insertion of the following sections:

“Protection from civil liability of persons who report certain misconduct.

13A.— (1) Where a person communicates his opinion, whether in writing or otherwise, to a member of the Garda Síochána or a member of An Foras that—

(a) an offence under this Act or any other enactment has been or is being committed,

(b) any provision of this Act or any other enactment or rule of law has been or is being contravened, or

(c) there has been other serious wrongdoing in relation to An Foras,

then, unless the person acts in bad faith, he shall not be regarded as having committed any breach of duty towards any other person, and no person shall have a cause of action against the first-mentioned person in respect of that communication.

(2) Where a person communicates his opinion, whether in writing or otherwise, to the Minister that a direction given by the Minister under this Act has been or is being contravened then, unless the person acts in bad faith, he shall not be regarded as having committed any breach of duty towards any other person, and no person shall have a cause of action against the first-mentioned person in respect of that communication.

(3) This section applies to a communication—

(a) that would, but for this section, constitute a breach of duty by the person who made it, or

(b) in respect of which, another person would, but for this section, have a cause of action against the person who made it.

Prohibition on penalisation.

13B.— (1) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to a member of the Garda Síochána or a member of An Foras that a provision of this Act, or any enactment or other rule of law, has been or is being contravened,

(b) making a complaint to the Minister that a direction given by him under this Act has been or is being contravened,

(c) making a complaint to a member of An Foras that there has been serious wrongdoing in relation to An Foras,

(d) giving evidence in any proceedings under this Act or any other enactment, or

(e) giving notice of his intention to do any of the things referred to in the preceding paragraphs.

(2) Schedule 2 (inserted by section 11 of the Labour Services (Amendment) Act 2009) shall have effect for the purposes of subsection (1).

(3) If the penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the employee in respect of that penalisation both under Schedule 2 and under those Acts.

(4) In this section—

‘employee’ means—

(a) in relation to An Foras, a member of the staff of An Foras, or

(b) in relation to the subsidiary, a member of the staff of the subsidiary;

‘employer’ means An Foras or the subsidiary;

‘penalisation’ means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his detriment with respect to any term or condition of his employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or administration of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

False statements.

13C.— (1) A person who states to a member of the Garda Síochána or a member of An Foras that—

(a) an offence under this Act or any other enactment has been or is being committed,

(b) a provision of this Act, a provision of any other enactment or any rule of law has been or is being contravened, or

(c) there has been serious wrongdoing by any person in relation to An Foras,

knowing the statement to be false shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.”.

8. Amendment of section 13 of Principal Act.

8.— Section 13 of the Principal Act is amended by the substitution of the following subsection for subsection (3):

“(3) Nothing in subsection (1) shall prevent the disclosure of information—

(a) in a report made to An Foras or by or on behalf of An Foras to the Minister, or

(b) by a member of An Foras to the Minister.”.

9. Amendment of Part I of Schedule to Principal Act.

9.— Part I of the Schedule to the Principal Act is amended by—

(a) the substitution of the following paragraph for paragraph 2:

“2. (1) An Foras shall consist of the following members, that is to say—

(a) a chairman, and

(b) 10 ordinary members (including the Director General).