Ms Nessa Cahill:

The first question was whether we are satisfied the recommendations could be fully implemented in the employment law sphere and not require amendments of the Companies Act. The Senator also referred to proposal No. 4. The idea behind our proposal No. 4 is to replicate what is in the Companies Act for situations where the employer is not a company. A lot of what we deal with are formulations based on section 608 of the Act, which allows a liquidator or other person to recover an asset that was fraudulently transferred. We are looking at ways to ensure that can be done even if the employer does not come within the Companies Act. In fact, quite properly, it would belong more in an employment law statute because it is already in the Companies Act. We think that this important provision should be available whatever the form the employer takes. I think that probably is an appropriate one for the employment legislation amendment.

We also talked about, under the proposal as mentioned by the Senator, about the possibility of the Minister taking applications to court for the recovery of assets, and the possibility that he could delegate this role to a liquidator and, for that purpose, fund the liquidator. That is an important aspect of our report.

We did mention areas where we did not consider the Act to be in need of amendment. One of the Deputies mentioned that he considered the Act did not need more amendment but more use. We raised, in our report, the possibility that this is to do with funding. Part of what we are looking at under proposal No. 4 is the possibility of the Minister providing funding to liquidators to pursue assets and recover assets to swell the assets available to workers and other creditors in a liquidation. Again, those are the types of measures that we think could properly be introduced under employment legislation because they concern the Minister's status as a creditor having paid workers under the Social Insurance Fund. We think that that would more properly fit into employment legislation.

I will let Mr. Duffy respond to the second question but the Senator's third question was about re-ordering priorities in a liquidation. She asked what the challenges were in trying to change the preferential status of particular creditors. As I mentioned earlier, we do not propose an amendment to section 621 of the Companies Act, which does enshrine the preferential status of employees, for certain claims, in a liquidation. We do think it is a long-standing principle and approach to liquidations in this jurisdiction, as well as others, that one has different categories of creditors and within those categories they are treated equally so that if there are inadequate resources to discharge their claims then all of their claims are abated in the same proportion. That is a principle that has been part of our companies legislation for quite a long time and it would be a significant policy change to alter that.

We mentioned in our report a different policy question about whether an asset that is recovered, such as under proposal No. 4, could then be set aside for the benefit of the creditor who pursued it. So, in that case, it would be the Minister who has funded the pursuit of the particular asset. That is something we outlined as a policy question that could require further consideration, and that would be somewhat discrete from the re-ordering of priority under section 621 as such, but it is something we mentioned that could be looked at. However, that would be a separate question about a particular asset being earmarked for the benefit of a certain category of creditors and perhaps those who have funded, either directly or indirectly, the legal proceedings for the recovery of that asset. That is all I have to say in response to the third question.