Damien English (Meath West, Fine Gael) | Oireachtas source

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

I am delighted to bring this Bill before the House today. It has been a long road to get it here and there has been a lot of work involved with the committee, colleagues and with public consultation too. As Deputies are aware, the past year has seen a surge in applications for employment permits. That has put a lot more pressure on the system and shown the need to have legislation to modernise the system. My Department has deployed massive resources to ensuring that permit applications can be processed as efficiently as possible. A range of measures have been introduced. These include the removal of multiple doctor applications from the system. That was done in conjunction with the Department of Health and has been quite useful. These measures have enabled us to improve response times and drive down the backlog. We have also introduced measures which reduce the administrative burden on permit holders and their employers. But we also need to consolidate, modernise and reform the legislation governing employment permits to further improve efficiency and the customer experience. Alongside that, we have probably quadrupled the number of people working in this sector in the Department. Kevin Daly, Sandra O'Reilly and the team are here. They have been concentrating on our response over the last couple of months to bring the waiting list down and to reduce the time it takes to process permits down to three or four weeks, and less in many cases. There has been great focus on this and we believe this legislation will help strengthen the work they have been doing to improve the system over the last year so that it is responsive to everyone's needs. I thank the members of committee for their co-operation on this Bill at pre-legislative scrutiny.

This Bill is part of our response to the Department’s review of economic migration policy undertaken in 2018. It is also vital to help deal with the recent increase in demand for employment permits by businesses seeking to secure suitably skilled people for their operations. The review of the economic migration policy concluded that while the employment permit system provides a robust framework to supplement skills and labour needs in the State, the current legislation imposes considerable inflexibility in its operation.

The review recommended that new legislation be initiated to increase the responsiveness of the system, to modernise it and to ensure that it can respond to rapid changes in the labour market. This Bill incorporates the recommendations of the review. It takes into account inputs to the public consultation on the general scheme, such as support for the seasonal employment permit, while retaining the core focus of a vacancy-led employment system centred on delivering the labour needs of the State. The Employment Permits Bill 2022 will consolidate the existing employment permits Acts, namely the Employment Permits Act 2003, the Employment Permits Act 2006 and the Employment Permits (Amendment) Act 2014. This will bring clarity and consistency to the legislative framework in this area.

I again thank the Joint Committee on Enterprise, Trade and Employment for its consideration of the general scheme and for its pre-legislative scrutiny report published in November 2021. The legislation I am presenting takes account of concerns raised by the joint committee. The proposal for a special circumstances employment permit has been removed and the option has been added for a new condition to the grant of permits which would develop talent in Ireland.

While I recognise the concerns raised by the joint committee regarding the seasonal employment permit, I recall that the 2018 review identified a clear demand for a time-limited permission for roles of a seasonal nature. Ireland is an outlier internationally in not offering such a permit. The case for the inclusion of a seasonal employment permit was further confirmed by the level of support for the proposal during the public consultation on the general scheme and in subsequent engagement with stakeholders. I do, though, recognise the concerns expressed by the joint committee and we can deal with those together on Committee Stage. The detail will be elaborated on then and the members of the joint committee can provide input into the design of the permit. The proposals I will bring forward on Committee Stage arise from a detailed consideration of the challenges associated with this permit and of international best practice, as well as a recognition of the increased vulnerability of this cohort of migrant workers. I hope we will be able to work together on that Stage, be able to get agreement and reassure the members of the joint committee regarding their concerns.

The Employment Permits Bill 2022 was originally listed for inclusion in the spring 2022 legislative programme. By that time, however, the lifting of Covid-19 restrictions had brought new challenges in the form of a significant increase in demands on the system and consequent backlogs. The Department has worked simultaneously on reducing the backlogs and finalising this Bill. In so doing, it has been able to review and improve proposals in the new legislation with the objective of avoiding future backlogs. As a result of this extra work, the new Bill provides a streamlined and flexible framework to mitigate the possibility of future backlogs arising. Government approval for publication of the legislation was granted in July and, following minor technical amendments over the summer, it was published on 4 October last. Having provided the background and purpose of the Bill, I will now outline its main provisions.

The Bill contains 71 sections. These are divided into seven parts and two schedules. Part 1 contains preliminary matters common to legislation: citation and commencement; interpretation; regulations; and repeals and revocations. The Bill includes a definition of "employer" based on the existence of a contract and in so doing allows wages to be paid by an entity other than the employer. Where an agency is the employer but the foreign national is carrying out work for the client of that agency, it is now possible for the client of the agency to pay the wages while the agency itself remains the employer. This will make the system easier to navigate for agencies and simplify processing such applications, as well as the monitoring of permits thereafter. This section also includes a definition of "subcontractors" which allows these to avail of the contract for service employment permit in the same manner as a standard contractor.

Part 2 relates to the employment in the State of foreign nationals and contains sections 7 to 39, inclusive, subdivided into eight chapters. Section 7 sets out the requirement that a foreign national working in the State do so subject to a valid employment permit. Section 8 sets out the cohorts who do not require a permit.

Section 9 sets out the types of permit available under the scheme and broadly replicates those established in the existing Acts. The list now includes the new seasonal employment permit. The special circumstances permit I mentioned earlier, which appeared in the general scheme, will not be pursued following concerns expressed by the joint committee. The challenge this proposal was intended to address, namely permits for niche skills, can be addressed in conjunction with our development agencies, such as Enterprise Ireland. Another recommendation of the joint committee, the dependant-partner-spouse employment permit will now be called the dependant employment permit and will only apply to dependants of critical skills employment permit holders. Spouses and partners are now subject to a separate permission process under the auspices of the Department of Justice.

Section 10 establishes the rules for making an application, including which parties may make the application and any restrictions on who may apply, as well as inclusion of a fee, if any. The information to be provided in an application is detailed at section 11. Section 12 provides clarity on who may apply for a dependant permit. Section 13 provides powers to the Minister to amend certain errors in an application to avoid rejecting or refusing an application which might otherwise be granted, subject to regulations.

Sections 14 and 15 re-establish, from the existing Acts, the possibility of recommendation letters being sent by enterprise agencies to support applications and also the possibility for the Minister to consult experts in considering an application for a sports and cultural employment permit.

Section 16 establishes the issues to which the Minister shall give regard in considering an application. The Minister may take steps to establish the accuracy or authenticity of the information provided. Importantly, the Minister may return incomplete applications without further consideration with a written notification to the applicant along with a portion of the fee to be prescribed and any documentation received. The Minister may return the fee to the person that paid the fee originally or to a nominated person. The Minister may give priority to the consideration of applications for certain employment permit types as he or she considers appropriate in light of the economic context.

Section 17 establishes that the permit is granted to the foreign national directly and for the role specified on the application and that the permit shall be subject to maximum validity periods under regulations. The foreign national must commence the employment within a certain period after the permit is granted. That period will be prescribed in regulations. This is to protect the domestic and European Economic Area, EEA, labour market and ensure that there is no suitable candidate available within those jurisdictions at the time the foreign national starts work.

Under section 18, if the Minister grants an employment permit, he or she is obliged to cancel any existing permit for that foreign national as only one permit may be held at a time. The foreign national and employer shall be notified in writing of the cancellation.

Section 19 sets out the information to be provided on the permit to support the holder in understanding his or her rights. These include the applicability of the National Minimum Wage Act 2000 and the right to apply for a new permit.

Section 20 carries forward the 50-50 rule requiring an employer to hire a workforce consisting of at least 50% of workers from within the EEA or Swiss Confederation. This section is a key tool for protecting the EEA labour market. Under the Bill, this cohort is extended to include citizens of the UK who have a right to live and work in the State under the common travel area. This section also sets out waivers to the rule. Employers benefitting from a waiver for a sole employee will no longer be restricted from further recruitment.

Section 21 also protects the EEA labour market and fulfils our obligations under the EU's community preference principle by establishing that a role must be advertised in Ireland and the EEA initially under the labour market needs test. The various waivers are also set out. Crucially, the form an advertisement must take is now moved to regulations. It is no longer required to be published in hard copy newspapers. The minimum period for which the role must be advertised has also been moved to regulations to allow for increased flexibility.

Sections 22 to 24, inclusive, set out the conditions for grant of an intra-company transfer permit and contract for service permit, including remuneration factors, and provide for the Minister to amend the permit in line with a transfer of undertakings.

Sections 25 and 26, dealing with refusal grounds, are largely unchanged but a discretionary ground for refusal is added in the case where conditions which may have been attached to the grant of a permit under this Bill have not been respected. I think this is something the committee also flagged.

Section 27 allows the fee to be returned to the person who paid it or to a nominated person.

Under section 28, the stipulations around a review of a refusal decision are largely carried over from the current Acts. However, it will now be possible for an entirely new decision to be made at review stage if new information comes to light. This means the applicant still benefits from a review if that decision is in the negative.

Sections 29 to 32, inclusive, largely re-enact the rules around renewal of an employment permit. The reasons for a refusal to grant and renew are separated out to more clearly identify that the refusals for a renewal are less general than the refusal reasons for the initial grant of the permit.

Sections 33 to 36, inclusive, largely re-enact previous provisions around revocation of a permit and termination of employment. It is now possible for a new decision to be made on a revocation where new information comes to light. The employee and employer must both inform the Department if the employment is terminated. This is in recognition that the use of e-permits now renders the surrender of a permit impractical.

Sections 37 to 39, inclusive, re-enact the existing provisions in cases of redundancy. They include the possibility for the Minister to grant a permit for a new role even if the occupations lists have been amended in the intervening period. This is to protect employees and to give them the opportunity to continue in the same field and at a similar salary as before.

Part 3 relates to the making of regulations by the Minister.

The detailed sections 40 to 43 largely re-enact the provisions in the existing legislation. These give the Minister the power to make regulations on subjects such as maximum number of permits, qualifications, remuneration and any conditions pertaining to the permit as well as fees which may be waived. Section 43 focuses more on regulations about the procedures for making an application including the form of the application and evidence to be provided.

To increase the flexibility of the employment permits system, the Bill proposes that almost every instance of a quantifiable operational requirement be prescribed in regulations. Drafting has been guided by the Office of the Attorney General in order to ensure that the provisions of the Bill are in line with current jurisprudence and that any criteria moved to regulation is securely anchored in primary legislation. The joint committee, in its report, expressed concern at moving these into regulations, but we believe it is very important that we do so. This is a major aspect of the Bill because it gives us the flexibility to adapt and to swiftly change regulations as need be. I commit on the floor of the House that we will consult the committee on the regulations. We will even try to have them ready for Committee Stage in order that we can tease them out. I give my absolute commitment that if the regulations are not ready in time for Committee Stage, that I will bring them to the committee for discussion. We are not trying to hide anything here. This is an open book. Having operated the system for some years, we genuinely believe that the measures are much better set in regulation than in primary legislation. I hope Deputies will accept the Department's good faith in that regard.

Part 4 is focused on enforcement, offences and penalties and serves to protect workers’ rights. Section 44 provides powers to appoint authorised officers under the Act and sets out rights and obligations with regard to these officers. Section 45 establishes that a warrant to search a premises may be issued following an offence under this Act in line with previous Acts.

Sections 47 to 49, inclusive, establish offences for using a permit for a purpose or an employee not named on the permit, for making deductions for the cost of the permit or holding personal documents of a foreign national and for providing false information. These stipulations are in line with previous Acts.

Under section 50, the Minister may bring proceedings for these offences within 24 months. Under section 51, offences can apply to a body corporate or a natural person. Section 52 replicates provisions of the current legislation. They apply to a foreign national who works without an employment permit but has taken all reasonable steps to ensure compliance with the Acts. Where that person is paid insufficiently, then the Minister may take civil proceedings on his or her behalf to recompense the foreign national for work done or services rendered. The right of the foreign national to institute proceedings under this section on his or her own behalf is also set out, but so doing would preclude the Minister from taking proceedings. We can discuss the matter further. Section 53 prohibits penalisation of an employee in cases such as making a complaint to An Garda Síochána, whether that is through dismissal, demotion, intimidation or other means.

Under sections 54 and 55, certain presumptions can be made under this Act. For example, if a person is witnessed carrying out work in a premises, it shall be presumed he or she is employed to do that work. Other presumptions relate to receipt of notices and the authorship of documents. Section 56 requires an employer to maintain records for inspection by authorised officers for five years.

Part 5 sets out the miscellaneous provisions of the Bill. Section 57 requires the Minister to hold the register of employment permits. Section 58 provides for the delivery of notices to employers and employees and is updated to allow delivery via any type of post rather than specifying ordinary prepaid post. Section 59 places the obligation on the parties to a permit to notify the Minister of any change of address. Section 60 provides for the delegation of functions to an officer of another Minister.

Section 61 provides for data exchange with the Department of Social Protection, the Garda Síochána, the Department of Justice, the Department of Foreign Affairs and the Revenue Commissioners.

Part 6 contains the transitional arrangements applicable to permits granted or procedures instigated under the Acts of 2003 and 2006. Part 7 sets out the consequential amendments applicable to Acts other than the current Employment Permits Acts.

I wish to add a word on schedules. A discretionary ground of refusal is included at section 26(1)(c) in circumstances where an employer has been convicted of an offence, under this legislation or a list of named Acts, in the preceding five years. Section 33(1)(b) establishes a discretionary ground of revocation if the employer has been guilty of an offence under the same list of Acts. That list is set out at Schedule 1.

Section 53(3) states that an employee cannot be penalised for giving evidence under this legislation or making a complaint to An Garda Síochána. The redress for failure to comply is set out in Schedule 2.

It is essential that we enact this Bill to provide the State with the powers necessary to deliver on the demand for skills and labour in the economy in an agile and efficient manner. That reinforces the need to make changes by regulation. The Bill achieves this important function while protecting the domestic labour market and the rights of workers who contribute so much to our economy and are so valued. I commend the Bill to the House. I look forward to engaging with the Deputies on this matter on the floor of the House today and on Committee and Report Stages as well.

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