Richard Bruton (Dublin North Central, Fine Gael)

On Committee Stage, Deputies Tóibín and O'Dea both referred to the importance of ensuring that details of the full financial affairs of a company are made available to the Labour Court when an application for an exemption from the requirement to pay the statutory wage contained in an REA is made. I explained on that occasion that the Bill already provides that employers will be required to submit to the court such information, particulars and documentation as the court may reasonably require for the purpose of determining whether an exemption should be granted, in particular such information about the employer, his or her business and the potential impact of an exemption as the court may direct. Accordingly, it was deemed that an amendment was not necessary.

In view of the points made by the Deputies on Committee Stage, I undertook to reflect on the matter before Report Stage. In this context, the office of the Attorney General has advised that it would not be appropriate to include a provision such as that suggested in amendment No. 12. As already stated, the new section 33A(5)(b ) provides the court with a general power to ensure that an application is accompanied by such information, particulars and documentation as it may reasonably require. Those particulars may vary from application to application and specifying particular information is not appropriate. If one includes something in a list and does not include other things, one creates the presumption that the items not listed are not required.

The advice of the Attorney General is to provide for a general power, which does not allow challenge by someone who is aggrieved that it lists only directors' payments and not some other item the court may want. It is preferable to leave this discretion to the court, which has absolute discretion to specify what it deems reasonable. In many circumstances, the court would regard what Deputy Tóibín has included - information on payments to directors - as a very reasonable request. The first issue to be considered is whether the company is capable of payment or has been siphoning off money, rendering it temporarily incapable of making the payment. The advice I have is that the provision as currently drafted is the most robust way to give the Labour Court a broad remit in order to leave it capable of getting the information both Deputies feel is appropriate.

See this speech in context