Seán Sherlock (Cork East, Labour) | Oireachtas source

I am not in a position to adopt these amendments. The Bill is concerned with company law only. In general terms, company law concerns itself with the fiduciary duties that a director owes to the company alone while recognising that a director ought to "have regard to the interests" of his or her employees. It would be wholly inappropriate to include the proposed provisions in the Bill. Legislation governing employee rights should be considered in the context of employment law. By addressing such a matter in a company Bill, the provision is not providing protection for all employees such as sole traders and those working in partnerships.

Second, employment law already provides for redress in less cumbersome and costly fora than the High Court. Equally important, it must also be borne in mind that company law must balance the rights of all creditors, many of whom are employers in their own right, in winding up situations. I appreciate that the Senator is attempting to achieve laudable goals here but the simple fact is that company law is not the correct vehicle for these ambitions and it is on that basis that we are not in favour of the amendments.

In addition to the general objections previously noted, amendment No. 104 would fail in substance as prosecutions thereunder would be doomed to fail due to the ambiguity of the phrase "breach of employment law". There is no indication as to what is meant by this. No such provisions are workable but only in the context of a specific and appropriate enactment where the transgressions are clearly identified or identifiable. Finally, the amendment proposes that the separate legal personality of the company would be breached for a transgression of civil law rather than criminal law. In all the other circumstances where this phrase is used, for example, in health and safety legislation, it requires a criminal offence.

Amendment No. 105 suggests that a company may be wound up in court where it owes an employee or a group of employees more than €1,500. The Bill sets a limit at €10,000 as it was considered that greater balance and proportionality must be achieved in circumstances where the sanction of wind up is potentially so severe. The section does not distinguish between an employee and any other creditor. In the circumstances, any creditor is entitled to issue a letter demanding payment and if after 21 days, such payment has not been received, the creditor is entitled to petition the High Court. I am sure the Senators present appreciate that petitioning the High Court is not a simple or low-cost exercise. It would have to be questioned whether winding up was really the most effective way to settle a debt for €1,500. It must also be borne in mind that there are provisions in both employment and health and safety law alongside common law remedies that already provide for the type of situation described. For example, the Payment of Wages Act 1991 provides more efficient remedies for employees who have not been paid their wages than an attempt to have the company wound up in the High Court with all of the associated costs.