Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to introduce this Bill to this House. The employment permits system is intended to act as a conduit for key skills required to develop enterprise in the State for all of our benefit, while simultaneously protecting the balance of the labour market and the employment rights of migrants who come to work here. In particular, the momentum of the development of the ICT sector, with its expansion into every aspect of our professional and personal lives, creates a skills demand that must be met in part by attracting migrants with expertise across the whole range of ICT occupations. In the context of ICT careers, Ireland is part of a global race for talent - we are increasingly competing for inward investment and export opportunities on the basis of the quality of our workforce. Ireland is likely to face an average increase in demand for high-level ICT skills of around 5% a year out to 2018, with the employment of ICT professionals anticipated to rise to just over 91,000. The recently inaugurated ICT skills action plan 2014-18 looks to meet the challenge of increasing the availability of ICT expertise across the economy though education, upskilling and conversion, but also through inward migration of appropriately skilled personnel. One of the ambitions is to increase the proportion of those skills that can be provided from our education institutions from 40% in 2011 to 74%. It is an ambitious programme to increase the output of qualified ICT experts from our colleges.

The specificity and the flexibility that will be built into this Bill and subsequent regulations will contribute to the positioning of Ireland as a locus where a highly skilled and highly remunerated workforce employed by cutting edge enterprises can be recruited. Retaining relevance in the fast-moving, globalised and technically innovative enterprise environment of the 21st century requires not only the fostering of indigenous talent but the ability to attract the innovators and the experienced from elsewhere to deepen the skills pool here, with the knock-on effect that will have on the extent and the reach of enterprises located in Ireland. From my experience working with companies that invest, it takes a dynamic pool of a mixture of talents from abroad, with deep domain expertise in certain areas, combined with domestic talent. This makes a hub that can transform the performance of particular enterprises. We seek to be such a hub and a centre of excellence.

The categories of employment permits envisaged by this Bill will provide for a range of types of migrant workers to enter employment legally in the State. Key among these for the purpose of developing the skills capacity of the labour force will be a replacement for the green card currently issued for specified highly skilled occupations. This category of permit, to be known as the critical skills employment permit, seeks to attract highly skilled non-EEA workers in occupations where there are acknowledged skills shortages, often on a global scale, by waiving a number of the requirements otherwise applying to the issue of employment permits, and providing a route to immediate family unification, fast-track residency and the availability of employment permits to spouses, dependants or partners where this might be required. The advantages such an employment permit confer on its holder are commensurate with the contribution such personnel can make to the development of the enterprises for which they choose to work, a benefit that ultimately feeds more broadly into our society through the dissemination of expertise among colleagues and through enterprise growth.

The arrival of highly skilled individuals to fill capacity gaps here in the short to medium term is to be welcomed. In the longer term, while we expect to increase the numbers of appropriately skilled graduates in sectors such as ICT where there are skills shortages, there will always be a cohort of knowledge leaders, or those with a novel combination of skill sets that it would be advantageous to attract to work in Irish based enterprises. Data analytics is a good example. Ireland is now beginning to build up a reputation in data analytics, with a number of investors. Today, SAP, an innovative company with a significant hub for data analytics, is expanding on the basis of the skills base it has created, which shows its relevance and importance. The capacity to analyse data will become a key shaper of what businesses succeed and what businesses can exploit the information at their disposal. To see Ireland emerge as a centre of excellence for the development of such a skill base in a company of the scale of SAP shows the importance of what we are doing in the education sphere and of having this legislation in place.

The Bill also accommodates the contemporary workplace by acknowledging the different types of employment situations which arise for enterprise. It furnishes a general employment permit for shorter term employment contracts for highly skilled occupations and, subject to a labour market needs test to establish that there are no viable local or EEA applicants for the employment, for other occupations outside of a list of occupations designated ineligible for employment permits. It also establishes employment permits for intra-company transfers and contracts for service, acknowledging the global and interconnected ways that enterprises now interact. We will have the high skills permit and areas for which we cannot issue permits, such as areas in which there are no skills shortages. There will be another category where an application can be made but the case must be established that the skill is necessary and the position cannot be filled by applicants within the EEA.

This legislation has been devised to assist Ireland's participation in what is essentially a global skills market. Equally, its drafting has been informed by the fact that the labour force has been through some turbulent years and that preference must be given, wherever possible, to Irish and EEA nationals in the awarding of contracts of employment. This priority is protected by the inclusion of a number of conditions for the issue of an employment permit, chief among which are the labour market needs test and the 50:50 rule. The labour market needs test makes it a condition of grant that an employer must prove to my satisfaction that he or she has in the first instance made the employment in question available to Irish and EEA nationals and that no viable candidate was found from this process. The 50:50 rule requires that any enterprise wishing to employ a non-EEA national must have a staff comprising more than 50% Irish or EEA nationals. This 50:50 rule is only waived for start-up companies and, even then, only for a limited period where one of the enterprise development agencies has supported such a waiver. Often the first few employees will be the team from headquarters establishing the operation in Ireland. There are further protections for the labour market provided for in the Bill such as minimum remuneration thresholds and limits to the duration of various permit types.

This amendment Bill rebalances and updates earlier legislation in order to support the complex and evolving market for skills. At the same time, it ensures both employers and employees are held to a series of standards in regard to the particulars of the employment and rights guaranteed to the employee in the context of the employment. While acknowledging the value of the Bill in growing the economy, we must also affirm the importance of protecting vulnerable migrants who often do not have the personal support networks or the familiarity with employment practices here to protect their own interests. The Bill amends the 2003 Act to provide a defence for a migrant who is in breach of employment permit legislation, despite his or her efforts to work in line with statutory requirements.

The amendments address the Younis case judgment delivered on 31 August 2012, in which Mr. Justice Hogan overturned a decision of the Labour Court to award Mr. Younis, an immigrant, back pay and other moneys. The High Court found that the contract of employment was unlawful by reason of his failure to have an employment permit. As a result of the proposed amendments, provision is made to prevent an employer from benefiting from a contract of employment that is unenforceable for the lack of an employment permit at the expense of a migrant worker. It will be open, under this statute, for the employee or, in certain circumstances, the Minister on the employee's behalf, to seek recompense in such a situation via the courts.

More generally, the Bill establishes a category of employment permit to assist those migrants who have fallen out of the employment permits system through no fault of their own to return to employment. From a policy perspective, such foreign nationals may be at risk of entering the hidden economy and-or becoming a burden on the State's welfare system if not permitted to work. These permits will be known as reactivation employment permits and they will be issued, subject to the approval of my colleague, the Minister for Justice and Equality, in cases where there is a genuine situation meriting consideration of an employment permit, whether it be humanitarian considerations, linkages with the local community or family or other circumstances affecting the individual involved and where it is not counter to the public interest to grant such an employment permit.

A number of criteria will apply to the granting of such permits, including that the foreign national originally entered the labour market legally with an employment permit, is not working illegally and has a real offer of employment. However, in order to maintain an employment environment which is consistent with the employment rights regime pertaining in the State and to retain coherence with the general employment permits system which is in place to benefit the State, it is envisaged that some of the strictures generally applying to employment permits will remain in place, including the 50:50 rule. In addition, to prevent abuse, the Bill gives the Minister the power to restrict the number of such permits and refuse such a permit if the applicant has used the scheme before and that it is in the public interest to refuse.

Other employment permit types will be established by the legislation to accommodate social and cultural development in the State. To this end, the Bill provides for a sports and cultural employment permit to allow persons from the spheres of sports and culture to take up employment in the State; an exchange agreement employment permit to enable non-EEA citizens to participate in various reciprocal exchanges; and an internship employment permit which will allow students of foreign institutions to gain short-term employment experience in occupations on the highly skilled occupations list where the internship is integral to their degree course. The number of permits annually in these categories is small.

I will now outline the main provisionsof the Bill which consists of four Parts and 33 sections. For the convenience of Deputies, a detailed explanatory memorandum has been published and it provides a synopsis of the provisions included in the Bill.

Part 1contains the Short Title, collective citation, construction and commencement provisions and interpretation. Part 2amends the Act of 2003 and addresses issues raised by the Younis case. Section 3amends section 2 of the Act of 2003 to provide a defence for a foreign national to the charge of having been employed without an employment permit that the foreign national took all reasonable steps to ensure compliance with the section, similar to the defence provision in respect of the employer. Section 4amends the Act of 2003 by inserting an additional section 2B to further deter employers from employing foreign nationals without an employment permit by permitting the foreign national to take a civil action for compensation against the employer, notwithstanding the illegality of the contract. This is in addition to potential criminal prosecution of the employer. The Bill provides that a foreign national who can satisfy a court that he or she took all reasonable steps to comply with the requirement of having an employment permit may take a civil action for compensation against the employer for work done or services rendered. The compensation for such work or services is to be calculated by a court by reference to the national minimum hourly rate of pay or any other rate of pay which is fixed under or pursuant to any enactment. Also, the compensation paid shall not be treated as reckonable emoluments. This is to avoid any entitlement to claim for State benefits on the part of the foreign national concerned because it remains the case that this is an illegal contract of employment. The compensation paid does not fall outside the tax net. A new section 124A, to be inserted in the Taxes Consolidation Act 1997 by section 31 of the Bill, will put the taxation of the compensation beyond doubt. Additionally, the Bill provides that the Minister may take a civil action on the foreign national's behalf, as well as the responsibility for the costs of such action. The power to make an application for compensation on behalf of the foreign national is at the Minister's discretion and in addition to and separate from existing prosecutorial powers.

Part 3amends the Act of 2006 to provide for the employment permit system and give a clear legal basis for having different types of employment permit for different purposes and additional criteria and rules in determining whether to refuse or grant an application for an employment permit; to strengthen the requirement for employers to consider EEA nationals before foreign nationals by removing the existing distinction between applications by foreign nationals and applications by employers; and to focus on the particular needs of start-up companies, provide necessary flexibility within key sectors of economic growth and make provision for the role IDA Ireland and Enterprise Ireland play in enterprise development and job creation.

Section 6inserts new sections 3A, 3B, 3C, 3D, 3E and 3F into the 2006 Act. Section 3A sets out the different purposes for which employment permits can be granted. Section 3A(2)(a) provides for the purpose of what is currently the green card scheme. This type of employment permit is intended to attract those foreign nationals with skills that are in short supply in Ireland and which are critical to our economic success such as ICT skills. It is intended that such employment permits will in the future be called critical skills employment permits.

Section 3A(2)(b) provides for the purpose for what is currently called the spousal or dependant employment permit. It is intended that such employment permits will in the future be called dependant, partner or spouse employment permits. This type of employment permit is intended to attract foreign nationals to apply for the critical skills employment permits by making provision for members of their immediate family to work in the State. This employment permit type is also designed to provide for the family members of certain types of researcher under Council Directive 2005/71/EC which provides for the admission of Third Country researchers to EU member states for the purpose of carrying out research.

Section 3A(2)(c) provides for the purpose for what is currently called the work permit. While this employment permit currently covers a range of sub-categories, for example, contracts for service providers and sports professionals, the Bill clarifies that this type of employment permit will be provided for persons with skills of a more general nature where it is proved, among other things, that the employer was unable to fill the position from the labour market. It is intended that such employment permits will in the future be called general employment permits. These permits will also issue for occupations on the highly skilled occupations list where the employment contract is for less than the two years required for a critical skills employment permit.

Section 3A(2)(d) provides for the purpose for the intra-company transfer employment permit. This employment permit facilitates transfers between branches of a company for a specified duration and project. Such employment permits are particularly important in start-up FDI situations where often the first few employees will be the team from headquarters establishing the operation in Ireland.

Section 3A(2)(e) provides for the purpose for what is currently a type of work permit dealing with contracts for service providers. These facilitate the temporary employment in Ireland of foreign nationals working in a company based outside Ireland. Such companies typically have won a contract for services with an Irish company.

Section 3A(2)(f) provides for the purpose for what is currently a type of work permit dealing with applications routed through Migrant Rights Centre Ireland on behalf of foreign nationals who entered the labour market with a valid employment permit but who have subsequently fallen out of the system for a variety of reasons, including redundancy, exploitation and ignorance.

Section 3A(2)(g) provides for the purpose for what is currently a type of work permit dealing with reciprocal international arrangements where opportunities are afforded to Irish nationals in exchange for opportunities afforded to foreign nationals, for example, trade agreements which include labour transfers, exchange agreements concerning researchers or student work experience. It is intended that such employment permits will in the future be called exchange agreement employment permits.

Section 3A(2)(h) provides for the purpose for what is currently a type of work permit dealing with applications related predominantly to sports professionals. It is intended that such permits will in the future be called sports and cultural employment permits. Section 3F permits the Minister to consult other bodies in this regard.

Section 3A(2)(i) provides for the purpose for what is currently a type of work permit dealing with applications related to student internship programmes involving work experience in employments on the highly skilled occupations list. It is intended that such employment permits will in the future be called internship employment permits.

Section 3B provides for a new provision in the Act of 2006 which recognises the role IDA Ireland and Enterprise Ireland currently play in giving advice on applications made by their client companies and provides for the Minister to consider their recommendations without being bound by them.

Section 3C sets out the conditions applying to dependant, partner and spouse employment permits. These permits are provided for the spouses, civil partners or dependants of holders of critical skills employment permits and researchers and dependent on the continued permission of the critical skills employment permit holder and researcher to be employed in the State.

Sections 3D and 3E provide for minimum periods of employment of foreign nationals with the foreign employer prior to applications for employment permits in respect of intra-company transfers and contracts for service agreements.

Section 3F permits the Minister to consult those whom the Minister considers to have knowledge or expertise in respect of a sports and cultural employment permit application.

Section 7 amends section 4 of the 2006 Act. The amendments relate to applications for employment permits made in respect of contracts for service agreements and intra-company transfers. The amendments provide that the contractor in the contract for services situation or the connected person, the linked company in the State into which an employee is transferred under an intra-company transfer arrangement, will apply for an employment permit. The section also ensures every application will specify the purpose for which the employment permit is sought and sets a minimum job offer period of two years for employment permits under section 3A(2)(a), the critical skills employment permit. In addition, the section provides for the spouse, dependant or partner of a "green card" holder in force immediately prior to the commencement of the Bill to apply for a dependant, partner or spouse employment permit after enactment.

Section 8 replaces the current sections 6 and 7 of the 2006 Act concerning information to be provided with an application. It ensures the Minister can require a broad range of documents and other supporting information. Later the Bill enables the refusal of an application where such information is not forthcoming.

Section 9 amends section 8 of the 2006 Act which sets out what permission the employment permit grants to the foreign national in terms of his or her employment in the State, as well as the duration of the employment permit. The amendments update the references to other sections and provide for different durations for the specified types of employment permit.

Section 10 amends section 9 of the 2006 Act which concerns the type of information to be included in an employment permit. The amendment permits the Minister to include any additional information considered appropriate.

Section 11 amends section 10 of the 2006 Act which provides powers to restrict the granting of an employment permit on the basis of what is commonly known as the labour market needs test and the 50:50 rule. The labour market needs test is dealt with in the new section 10A to be inserted by section 12.

The 50:50 rule requires employers seeking to hire foreign nationals on an employment permit to have at least 50% of their workforce from Ireland or the EEA. This policy underpins the Government's employment creation objectives by requiring employers in the State to hire in a balanced manner from the local labour market and fulfils our EU obligations regarding Community preference under the treaties. The amendment requires the 50:50 rule to be applied in all situations, except in the case of a start-up company, that is, a company registered with the Revenue Commissioners within the two years preceding the application, where an enterprise development agency recommends the granting of the employment permit and where the Minister is satisfied that to do so would help to develop the potential for further employment. Often, start-up companies, including those arising by reason of foreign direct investment, will initially be made up solely of foreign nationals from the company's headquarters sent to Ireland to set up and establish operations. It would be counterproductive to insist that they meet the 50:50 rule from the outset. Section 21 provides for safeguards by imposing a limit on the duration of the renewed permit. If the company has not reached the 50:50 ratio at renewal stage, it must meet the 50:50 rule within one year.

Section 12 amends the Act of 2006 by inserting a new section 10A to deal with the labour market needs test. The amendments will ensure such tests will apply to relevant applications for employment permits, irrespective of who makes the application. The labour market needs test seeks to ensure an offer of employment is first made to people already in the local and EEA labour markets before an application is made for an employment permit to employ a non-EEA national. This supports Government policy that those currently in the labour market, be they employed or unemployed, are the first cohort employers should consider. The labour market needs test will, subject to the specified exceptions, apply to general employment permits and employment permits relating to contracts for service agreements. In effect, this will increase the current proportion of employment permit applications undergoing a labour market needs test after enactment. Section 10A also provides that the Minister may make regulations for the requirements of the labour market needs test.

Section 13 amends section 11 of the 2006 Act which concerns the matters to which the Minister must have regard when considering an application. The amendment adds a provision in order that consideration will include the purposes specified in section 3A(2) to be inserted by section 6.

Section 14 amends section 12 of the 2006 Act which provides the grounds for refusing to grant or renew an employment permit. There are two classes of amendment: those relating to issues identified in the operation of the current Acts and those which are consequential on the amendments to the Acts made by the Bill and, in particular, section 3A. Some of the amendments introduce new grounds, while others broaden the scope of existing grounds.

Section 15 amends section 13 of the 2006 Act to give the Minister the power to review a refusal to grant a permit. This provision is considered necessary to address a situation that gave rise to judicial review proceedings, whereby the employer, as the applicant, had refused to appeal a decision not to grant a permit.

Section 16 amends section 14 of the 2006 Act which provides the Minister with regulation-making powers to provide for each type of employment permit and regulate for different requirements to apply, depending on the type of employment permit and the different circumstances involved.

Section 17 inserts a new section 14A into the Act of 2006, which ensures that when making regulations in respect of remuneration, the Minister can: take into account the going rate in the marketplace for such employments and other benefits provided by an employer in respect of the remuneration package; and refuse to grant a permit if the remuneration offered is less than the minimum annual remuneration specified in regulations in respect of the employment concerned. The refusal ground to which I refer is regardless of whether the hours of work for the employment concerned are equal to or fewer than 39 per week. If the weekly hours of work for the employment concerned exceed 39, the minimum annual remuneration must be increased pro rata. This underpins the public policy prerogative that a foreign national should be earning sufficient remuneration to prevent his or her recourse to the social welfare system.

Section 18 amends section 15 of the Act of 2006, which identifies the criteria the Minister may consider in regulating under section 14. The section already provides for criteria such as the sectors that are important for economic and social development and labour market surpluses and shortages. The amendments strengthen the provisions of the 2006 Act by providing regulation-making power in respect of the experience of a foreign national as a criterion. The amendment to which I refer tidies up the section on foot of other amendments. Section 19 amends section 16 of the Act of 2006 by providing for additional grounds for the revocation of an employment permit.

Section 20 amends section 19 of the Act of 2006 by deleting the distinction in that Act in respect of applications by foreign nationals. Various other sections of the Bill make similar deletions, including sections 23 and 24. This will have the effect of ensuring that all applications, be they from employers or employees, will be treated on an equal basis and will be subject to the same rules when being considered for an employment permit.

Section 21 amends section 20 of the Act of 2006, which deals with the renewal of employment permits and sets out the circumstances in respect of which a permit may or may not be renewed. Importantly, the amended section 20 applies the 50-50 rule to all renewal applications in respect of permits issued following enactment. This is consistent with, and further to, the policy as set out under section 11 of the Bill. Nonetheless, the section exempts renewal applications of existing pre-enactment permits from the 50-50 rule on the basis that, at the time the initial application was made, neither the employer nor the foreign national could have foreseen this new requirement. In addition, the amendment provides the Minister with an opportunity to verify that the waiving of the 50-50 rule for start-up companies has not resulted in a negative effect in terms of the balance of the workforce concerned. I am obliged to refuse to renew employment permits if the employer has not reached the 50-50 rule threshold within two years of the first employment permit being granted, unless an enterprise development agency has made a recommendation under section 3(B) and I, as Minister, am satisfied that the renewal of the employment permit will contribute to further development of employment in the State. If the Minister renews a permit on foot of such a recommendation, the renewal will be for a period of one year. If, within that year, the employer achieves the 50-50 balance, a further renewal of two years may be granted.

Section 22 inserts three new sections - 20A, 20B and 20C - into the Act of 2006. These give an additional six months to a foreign national who has been made redundant to find employment and apply for a new permit. They also exempt a foreign national from certain rules that would otherwise apply such as, for example, the labour market needs test and eligibility criteria in respect of the job.

Sections 23 and 24 amend sections 23 and 24, respectively, of the Act of 2006 by removing references to applications by foreign nationals. This will ensure that all applications, be they from employers or employees, will be treated on an equal basis and will subject to the same rules when being considered for an employment permit.

Section 25 tidies and updates the provisions of section 27 of the Act of 2006 in relation to the requirements on an employer to retain records for inspection. Section 26 amends section 28 of the Act of 2006 concerning the type of information that the Minister may retain in respect of the operation of the employment permit system. The current legislation includes terms such as "employers", "foreign nationals" and "contractors" whereas the new legislation provides for other parties including "relevant person", who is the person who has entered into a contract with a service provider, and "connected person", who is the linked company in the State into which an employee foreign national is transferred under an intra-company transfer arrangement. This section updates the provision to include these new terms, where relevant.

Section 27 amends section 29 of the Act of 2006, which provides for regulations setting out the process and information requirements for the making of an application for an employment permit. Section 28 amends section 30 of the Act of 2006, which sets out further provisions concerning regulations. Section 29 amends section 31 of the Act of 2006 to allow for the issue of notices or documents by ordinary prepaid post instead of registered prepaid post. Section 30 amends section 37 of the Act of 2006 to provide for the sharing of information with the Garda Síochána that the Minister holds in addition to those already specified in the section.

Part 4 of the Bill makes an amendment to the Taxes Consolidation Act 1997, repeals a number of provisions of the 2006 Act and provides for transitional arrangements in respect of employment permits already in force. Section 31 amends the Taxes Consolidation Act 1997. Section 31(a) inserts a new section 124A in the 1997 Act and seeks to impose an income tax charge on any payments made under a court order under new section 2B of the Act of 2003 and to have the PAYE system applied to the payments. Section 31(b) puts beyond doubt that the exemption provided for in section 192A of the 1997 Act does not apply to payments made under a court order under section 2B of the Act of 2003.

Section 32 repeals a number of existing provisions, primarily in order to remove the distinction between applications by foreign nationals and employers. It also repeals section 35(2) of the Act of 2006, which provides for evidence given in proceedings for an offence under the Act to be video recorded. This is necessary because video recording is no longer required. Section 33 provides for transitional arrangements and savings in respect of employment permits that are in force immediately before the coming into operation of this section.

I would be happy to expand on any of the provisions during the course of this debate, if Deputies wish to raise any particular issues. We will have an opportunity to examine the Bill in detail on Committee Stage.

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