Seán Sherlock (Cork East, Labour) | Oireachtas source

I move amendment No. 4:

In page 6, between lines 2 and 3, to insert the following:“Amendment of section 2 of Act of 2003
3.Section 2 of the Act of 2003 is amended—

(a) in subsection (1A), by inserting the following paragraph after paragraph (a):

“(aa) the foreign national being employed outside the State by a foreign employer and being required by the foreign employer to carry out duties for, or participate in a training programme provided by, a person in the State who is connected to the foreign employer,”,

(b) by inserting the following subsection after subsection (2B):

“(2C) A person shall not permit a foreign national who is employed outside the State by a foreign employer to carry out duties for, or participate in a training programme provided by, that person where that person is connected to the foreign employer, except in accordance with an employment permit granted by the Minister under section 8 of the Employment Permits Act 2006 that is in force.”,

(c) in subsection (3)—

(i) by substituting “, (2) or (2C)” for “or (2)”, and
(ii) in paragraph (b), by substituting “(2) or (2C)” for “(2)”,

(d) by inserting the following subsection after subsection (3):

“(3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).”,

(e) in subsection (4), by substituting “subsection (2) or (2C)” for “subsection (2)”,
(f) by inserting the following subsections after subsection (10A):

“(10B) Without prejudice to any other provision of this Act, this section does not apply to—

(a) a foreign national who is in the State pursuant to the Diplomatic Relations and Immunities Act 1967, and
(b) the Minister for Foreign Affairs and Trade has certified in writing that the foreign national referred to in paragraph (a) falls within a reciprocal arrangement that permits a foreign national who is a member of the family of an assigned person, forming part of his or her household, to be in employment in the State.

(10C) A foreign national referred to in subsection (10B) shall be entitled to be in employment in the State without an employment permit for the duration of the assignment to official duties in the State of the assigned person concerned.
(10D) In subsections (10B) and (10C)—
‘assigned person’ means a person who is assigned, by a government of another state, to carry out official duty in the State on behalf of the government of that other state;
‘reciprocal arrangement’ means an arrangement (whether in the form of a memorandum of understanding or otherwise) that is entered into by the Government with another state.”,

and
(g) by substituting the following subsection for subsection (15):

“(15) In this section—

‘connected’ has the meaning assigned to it by the Act of 2006;
‘foreign employer’ has the meaning assigned to it by the Act of 2006;
‘place’ includes any dwelling or any building or part of a building.”.”.

The amendment amends section 2(1A) of the 2003 Act by inserting a new paragraph (aa) and ensures the transfer of a foreign national in an intra-company transfer is clearly included in the general requirement to have an employment permit. The Bill explicitly provides for a permit type in intra-company transfers. While the intra-company transfer employment permit holder’s employer is outside the State, that is, a foreign employer, the employment permit holder is carrying out duties for, or participating in a training programme with, the connected person, that is, the Irish entity. It is the Minister's intention that the provisions of the Bill relating to intra-company transfer employment permits respect the employer-employee contractual relationship between the foreign employer and intra-company transfer employment permit holder. For this reason, any reference to the connected person that could suggest it was the employer has been removed and sections have been redrafted accordingly. Many of the Committee Stage amendments are drafted to achieve this aim.

The new subsection (b) provides that a foreign national employed outside the State by a foreign employer to carry out duties for, or participate in, a training programme provided by the connected person shall not be permitted to do so except in accordance with an intra-company transfer employment permit and that to do otherwise is an offence. The new subsection (c) applies the offence provisions where a foreign national employed outside the State by a foreign employer to carry out duties for, or participate in, a training programme provided by the connected person does not have the required intra-company transfer employment permit.

The new subsection (d) will provide a defence to a foreign national working without an employment permit who can prove he or she took all reasonable steps to ensure compliance with section 2. This defence is already provided in the 2003 Act to an employer who employs someone without an employment permit. This provision addresses an issue raised by Mr. Justice Hogan in his 2012 ruling in the Younis case, which he referred to the Oireachtas and the Minister.

Acceptance of amendment No. 4 will involve the deletion of section 3 of the published Bill.

The new subparagraph (e) in section 3 of the Bill applies the defence provisions of section 2(4) of the 2003 Act to the new subsection 2C. Subsection 2C makes it an explicit requirement that a foreign national employed by foreign employer who undertakes duties for, or training with, a connected person in the State has a valid employment permit. The effect of this is to provide a defence for those charged with an offence consisting of a contravention of the new subsection 2C.

The new subparagraph (f) in subsection 3 of the Bill is required to address the variance which exists between existing employment permits legislation and the State's obligations under international agreements concerning the employment of dependants of State employees assigned on official duty overseas, often referred to as working spouse or working dependant agreements, particularly the treaty agreement in place between Ireland and the US. The amendment provides an exemption from the terms of the proposed Act for foreign nationals in the State under the terms of the Diplomatic Relations and Immunities Act 1967 who are assigned to a mission in a country with which the Government has entered into a working dependant agreement. Under the terms of the working dependant agreement with the US and Canada, both of which predate the employment permits legislation, relevant dependants of officials assigned abroad are entitled to an authorisation to work in the other country. This system has been applied in full to Irish dependants overseas, but following the introduction of the Employment Permits Acts, applications by relevant embassies based here must be accompanied by a formal job offer, in contradiction of the terms of these international agreements. While our partners in the US and Canada implement the terms of working dependant agreements in full, our legislation as it stands means Ireland cannot fulfil its obligations to our partners. The US has noted on several occasions that Ireland's insistence on receipt of a formal job offer before issuing the employment permit is in breach of the agreement being implemented in full by the US. It is not expected that the amendment will lead to a substantial increase in non-nationals seeking work under the terms of working dependant agreements. In addition, the exemption ends upon completion of the posting of the assigned person, usually a four-year duration.

The new subsection (g) in section 3 of the Bill assigns the definitions of new terms used in the legislation, which fall out of the treatment of the intra-company transfer situation in the Bill. I am considering further minor amendments to section 3 of the Bill and will revert on Report Stage.