David Norris (Independent) | Oireachtas source

I move amendment No. 14:

In page 14, line 13, to delete “address;” where it secondly occurs and substitute the following:“address. For the avoidance of doubt, the address given on any letter or other document to the complainant/employee by a respondent/employer shall also be deemed to be an address at which the person ordinarily resides as shall any address specified under the Registration of Business Names Act 1963;”.

I want to express my gratitude to the firm Hayes Solicitors for sending me on copies of these amendments with reasoned arguments. When I spoke on Second Stage, I averted to this fact and discussed it with my good colleague and friend Senator Craughwell. A week later, he put them down and, for some reason, his name appeared first. We agreed we would do a two-handed job on this in that I would propose the amendments and he would second them. I felt a little bit strongly about it but Senator Craughwell was extremely amenable about it. I have not been all that well and had to drag myself out of bed to come down here. It was a bit irritating to find that I was not really required.

The second amendment proposes to insert a new subsection so that an unincorporated entity as a respondent which does not register the name of the unincorporated entity under the Registration of Business Names Act 1963, or an incorporated entity which in its dealings with a complainant or employee uses a business name which has not been registered under the Registration of Business Names Act 1963, shall be deemed to have committed an offenceThere is a further amendment to section 6 by the insertion of a new subsection (3):

The service of any complaint or the making of a complaint against an unincorporated or incorporated body where the respondent has not notified the complainant in writing pursuant to section 3 of the Terms of Employment (Information) Act 1994 shall be deemed for all purposes to have been validly served on that entity using the trading name as advised to the complainant/employee or in the absence of notification the trade name or other name under which the respondent trades.

This is to address a very serious problem of confusion which arises very often to the great disadvantage of the individual making the complaint or taking the action. Businesses do not always register properly or under their correct trade name. Often they do not engage at all with the Registration of Business Names Act. A number of employers, therefore, do not provide proper statements giving their full legal name. Many companies use trade names. Only the trade name appears on the documentation provided to the employee. The employee therefore believes that he or she is employed by that entity. Sometimes no documentation is given notifying the employee that a trade name is owned by a company or individual. In many cases, the trade name is not registered under the Registration of Business Names Act 1963. In certain circumstances, employees have to go to the Revenue to get their Revenue file to work out who is their employer. Even then, immense difficulties are created for a complainant because P60 and P45 documentation do not require the full legal name of the employer to be disclosed because there is a problem in identifying the target, the legal entity, that is responsible.

A number of cases have been dismissed because a person with a valid complaint did not have an accurate grasp of the identity of the legal entity against which the complaint was brought. They complain, for example, against a trade name or a company. In fact, the legal responsibility was in some other associated area. A number of claims before the Labour Relations Commission and the Employment Appeals Tribunal are dismissed because the wrong entity is named. In addition, many cases have to be adjourned for correcting applications or orders to be made. This creates a financial burden for the State. This is a cost to the State. I am sure that is something the Minister will want to clear up as it is something that causes cost to the Exchequer. There is no reason employees should not know who is their employer. By this, I mean who is legally their employer. Significant difficulties in claims can be avoided by providing that it would be an offence not to advise an employee who is their employer. There would be an additional saving to the State. Many good compliant employers provide the relevant information. It is a minority which fails to do so. It saves considerable time and expense if employees know by whom they are employed. There is a legal right to know but invariably non-compliant employers use the lack of enforcement to circumvent rights. There is a legal requirement but it is not enforced. This series of three amendments together would give security to the complainant as it would make it much easier to find out the legal entity employing the person. I urge the Minister to accept the amendment.