Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

I move amendment No. 3:

In page 5, line 15, to delete “materials,”.

We are also discussing amendments Nos. 4 and 5 as they are all related. I will try to be brief because we have very little time left for the discussion. We could have done with perhaps another hour. Be that as it may, we are where we are. Essentially, this is an issue both Deputy McDonald and I tried to raise on Committee Stage and we were ruled out of order. We wanted to include the supply of specific or bespoke materials in the scope of the legislation. Our amendments are crafted to deal with the issue. Amendment No. 3 refers to matters that are to be excluded from a construction contract. I call for the deletion of the word “materials” so that it would not be specifically excluded. Amendment No. 4 calls for the deletion of two lines in the amendment and the substitution of other paragraphs in terms of materials being supplied.

Amendment No. 5 is key. It is a short amendment. Essentially, the legislation deals with items that are installed on site. Materials delivered and installed are covered but materials delivered but not installed by the company delivering them are not covered. In amendment No. 5, I call for a change after line 22. If the amendment is passed the sentence would read: "In this Act references to construction operations do include a case where the things referred to in subsection (3) are supplied under a contract which also provides for their installation by a contractor, subcontractor or sub-subcontractor." It does not have to be installed by the company that delivers it and is a way of getting around the supply of materials.

We all know of cases where people who delivered concrete, cement, blocks and tarmacadam were not paid on projects to build schools, public facilities and roads that are now open and fully operational. ISME sent us various letters on the matter during the course of the legislation, as did the National Concrete Producers Association and the Irish Concrete Federation. The CIF was in touch with us on all those issues as well.

I refer the Minister of State to the summary of the regulatory impact analysis, RIA, that he undertook. In page 22 it states:

The provisions in the Bill do not apply to the delivery of goods, supplies or equipment under a construction contract. Various suppliers' organisations would like to extend the scope of the Bill to include contracts for the supply of all construction materials/supplies/equipment or alternatively supplies that have been made for a specific construction project (bespoke supplies). However, there is a reasonable case for including some provision of supplies that have been made for a specific construction project (i.e. bespoke supplies). However, the technical process of amending the legislation to include such supplies could prove complex and may even give rise to further disputes.

In addition, on page 27 of the RIA, which deals with suppliers, essentially the same point is made. The reason I stress this is because it is in the RIA and I am not making it up. It is coming from the Department. In page 27 it states:

The provisions of the Bill do not extend to suppliers of materials except in the case of a contract that includes the installation of the supply ... Various suppliers' organisations would like the scope of the Bill extended ... Whilst it was appreciated that the problem of non-payment of suppliers ... was not unique to the construction sector ... in certain circumstances, for the supplier to retrieve goods supplied as part of a construction contract was put forward as being unique.

I am informed that when the Minister of State addressed the Irish Adjudication Society in February 2012 he said that the RIA to which I referred concluded that supplies are made specifically for a contract and that bespoke materials could be included in the legislation but recognised that it might be difficult to interpret what is bespoke.

The issue has been discussed in the House. I will conclude my contribution because we are short of time. We could give it a further ten or 15 minutes but we do not have the time as there is more to be done. The Minister of State gets the essence of the point; I want him to include materials that are ultimately installed by the supplier of a contractor, subcontractor or sub-subcontractor on a particular project.

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