Cyprian Brady (Fianna Fail)
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Amendment No. 13 is consequential on amendment No. 1, therefore, amendments Nos. 1 and 13 may be discussed together by agreement.

Government amendment No. 1:

In page 8, before section 3, to insert the following new section:

"3. The Act of 2003 is further amended—

(a) in subsection (3) of section 2—

(i) by inserting, after 'subsection (1) or (2)', 'or fails to take the steps specified in subsection (2B)', and

(ii) by inserting in paragraph (b), after 'subsection (2)', 'or a failure to take the steps specified in subsection (2B)',

(b) by substituting the following subsections for subsections (10) and (11) of section 2:

(10) Without prejudice to the other provisions of this Act, this section does not apply to a foreign national—

(a) in respect of whom a declaration under section 17 of the Refugee Act 1996 is in force,

(b) who is entitled to enter the State pursuant to section 18 or 24 of that Act,

(c) who is entitled to enter the State and to be in employment in the State pursuant to the treaties governing the European Communities (within the meaning of the European Communities Acts 1972 to 2003), or

(d) who is permitted to remain in the State by the Minister for Justice, Equality and Law Reform and who is in employment in the State pursuant to a condition of that permission that the person may be in employment in the State without an employment permit referred to in subsection (1),

but this section, subject to section 2A and any order under section 3A(1) for the time being in force, does apply to a foreign national who is a national of the Republic of Bulgaria or Romania (including at a time subsequent to the accession of the Republic of Bulgaria or Romania to the European Union).

(11) The Minister, when determining which applications for employment permits should be granted, shall give preference to each of the following, namely—

(a) applications in respect of nationals of a state in relation to which an order under section 3 is in force, and

(b) applications in respect of nationals of the Republic of Bulgaria or Romania to whom this section for the time being applies.

(c) by inserting the following section after section 2:

2A.—(1) Notwithstanding subsection (10) of that section, section 2 does not apply to—

(a) a national of the Republic of Bulgaria or Romania who falls within the second or third subparagraph of paragraph 2 of Annex VI of the Treaty of Accession with the Republic of Bulgaria and Romania,

(b) a person, whatever his or her nationality, who falls within paragraph 8 of that Annex.

(2) Irrespective of whether the person falls within the second or third subparagraph of paragraph 2 of Annex VI of the Treaty of Accession with the Republic of Bulgaria and Romania, section 2 does not apply to a national of the Republic of Bulgaria or Romania on and from the expiration of—

(a) unless paragraph (b) applies, 5 years from the date that the Republic of Bulgaria and Romania become members of the European Union (the "accession date"), or

(b) if at, or during the 2 months before, the end of the period of 5 years referred to in paragraph (a) an order under subsection (1) of section 3A is revoked by a subsequent order under that subsection, 7 years from the accession date.

(3) In this section "Treaty of Accession with the Republic of Bulgaria and Romania" means the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union signed at Luxembourg on the 25th day of April 2005.',

and

(d) by inserting the following sections after section 3:

3A.—(1) Notwithstanding section 2(10), the Minister may, subject to subsection (2), make an order providing that section 2 shall apply neither to nationals of the Republic of Bulgaria nor to nationals of Romania and for so long as such an order remains in force that section shall not apply to such nationals accordingly.

(2) The Minister shall not make an order under subsection (1) at a particular time unless, having regard to the conditions of the labour market in the State at that time, the Minister is of the opinion—

(a) that it is desirable in the interests of the proper functioning of the economy to make such an order, and

(b) that, in the 24 months following the making of the order, employment in the State is likely to become available on a continuous basis for nationals of the states referred to in subsection (1) contemplating entry into employment in the State.

(3) An order under subsection (1) may not be revoked by a subsequent order under that subsection unless, in the opinion of the Minister, the labour market, at the time of the making of the second-mentioned order, is experiencing a disturbance or is likely thereafter to experience a disturbance.

(4) Notwithstanding section 2(10), where an order under subsection (1) is revoked by a subsequent order under that subsection section 2 shall not apply to a national of the Republic of Bulgaria or Romania if he or she has been in employment in the State for a period of not less than 6 weeks immediately before the commencement of the second-mentioned order and has been in receipt of remuneration for such employment.

(5) In this section—

"disturbance" shall be construed in accordance with the Treaty of Accession with the Republic of Bulgaria and Romania;

"labour market" shall be construed in accordance with the Treaty of Accession with the Republic of Bulgaria and Romania;

"Treaty of Accession with the Republic of Bulgaria and Romania" has the same meaning as it has in section 2A.

3B.—(1) The Minister may, subject to subsection (2), by order provide that section 10 of the Employment Permits Act 2006 shall not apply to an application for an employment permit in respect of a national of the Republic of Bulgaria or Romania and for so long as such an order remains in force—

(a) that section 10 shall not apply to such an application accordingly, and

(b) the other the other provisions of the Employment Permits Act 2006 shall be construed and have effect subject to the order,

but without prejudice to any regulations for the time being in force under section 14 of that Act.

(2) The Minister shall not make an order under subsection (1) at a particular time unless, having regard to the conditions of the labour market in the State at that time, the Minister is of the opinion that it is desirable in the interests of the proper functioning of the economy to make such an order.".

Micheál Martin (Cork South Central, Fianna Fail)
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On Report Stage in the Dáil, I indicated my intention to propose that an enabling provision be included in this Bill to allow the Government's decision on granting labour market access to nationals of Bulgaria and Romania on the accession of those countries to the European Union to be implemented by ministerial order. Amendment No. 1 proposes to make such a provision.

This autumn, the EU Council of Ministers will review the preparedness of Bulgaria and Romania to accede to the EU. There are three options as regards access to the Irish labour market by nationals of Bulgaria and Romania, namely to continue to require nationals of these states to obtain employment permits from the date of accession, to grant these nationals access to the labour market without the need to acquire an employment permit or to grant permits without a labour market test on foot of a job offer.

The Government will take a decision on this issue before accession and to avoid having to bring forward additional primary legislation for this purpose, this amendment enables the decision to be implemented by ministerial order at the appropriate time. The amendment achieves this by replacing the existing section 3 of the Bill with new text which facilitates the first option I described of retaining the requirement for Bulgarian or Romanian nationals to obtain employment permits by replacing section 2(10) of the Employment Permits Act 2003 with a wording which makes it clear that Bulgarian or Romanian nationals are not exempt from the requirement to have work permits unless, as specified in the supplemental provisions of section 2(a)(i), they have already been working here for an uninterrupted period of at least 12 months. If employment permits are required by nationals of Bulgaria and Romania, the amendment to section 2(11) of the Employment Permits Act 2003 provides that preference must be given to these nationals over nationals of third countries.

The second option of granting access to the labour market by Bulgarian or Romanian nationals is facilitated by the making of a ministerial order under section 3(a)(i) exempting them from obtaining employment permits. Such an order may be made only if it is desirable in the interests of the proper functioning of the economy and if employment opportunities will be available for nationals of these states. Such an order may be revoked only if the labour market experiences a disturbance or is likely to do so thereafter.

The third option of granting nationals of Bulgaria and-or Romania employment permits without a labour market test is catered for by section 3(b), which provides for the possible introduction of such an arrangement by ministerial order. This arrangement will be primarily intended for the purpose of monitoring the flow of workers from these countries into the Irish labour market.

Amendment No. 13 is a technical amendment which I propose on the advice of the Parliamentary Counsel. This new section is to put into primary legislation the mechanism that would enable the Government to make decisions at the appropriate time as to whether to continue the existing situation on Bulgarian and Romanian citizens or to change it. If we want to change it we would have to do so by ministerial regulation.

Cyprian Brady (Fianna Fail)
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Amendments Nos. 2, 5 to 7, inclusive, and 10 are related and may be discussed together by agreement.

Paul Coghlan (Fine Gael)
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I move amendment No. 2:

In page 8, lines 27 to 31, to delete subsection (3).

I welcome the Minister to the House. These amendments seek to deal with the restrictions the Minister is putting on work permits. While sections 3 to 6, inclusive, cover the application for an employment permit by a prospective employer or a non-national, if an employer applies he or she must show the offer of employment with all the terms and conditions of employment under section 5(1)(a). If a non-national applies, he or she must merely show the offer of employment under section 6(f) but what should be contained in the offer of employment is not specifically stated. I am advised that this could be overcome by adopting the provisions of section 3 of the Terms of Employment (Information) Act 1994. Is section 8 included in this discussion?

Cyprian Brady (Fianna Fail)
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No.

Paul Coghlan (Fine Gael)
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I have an amendment to section 8, which I will come to later.

Mr. Martin:

During my Second Stage speech in the Seanad I reiterated the key point that the offer of a job is central to this legislation. The work permit follows the existence of a job vacancy or the offer of a job. That arrangement is superior to a points or quota system because it is directly related to labour market needs and is more efficient and less bureaucratic.

Mr. Martin:

We have opted for this approach based on the work undertaken by the expert skills group and Forfás on economic migration and it is the correct policy response to the current situation. The Bill is flexible enough to facilitate future Governments to implement a points or quota system. Given all the discussion that has taken place, the offer of a job, the fact that the employer applies for a work permit, and that the employee can also apply for a work permit, gives the best of both worlds. It allows traceability, puts us in a reasonable position to police any abuses of the system and empowers the employee to a greater extent in that he or she will be in possession of the work permit, will be able to apply for a work permit and will be able to move on quickly. There is flexibility over time. The offer of a job should remain a centrepiece of the new economic migration arrangements and for that reason I am not in a position to accept the amendments.

Paul Coghlan (Fine Gael)
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I take the Minister's point, but another section provides that where an employer applies for a permit the period shall be for 12 months or less, while where the prospective non-national employee applies it shall be for a two-year period or longer as provided under section 13. This might put an unnecessary administrative burden on employers who have to apply on a number of occasions. The amendments seek to tidy up the provisions whereby an unnecessary administrative burden will be placed on those applying for such permits.

Mr. Martin:

The section that deals with the 12-month period provides that if the employee wishes to leave the employment within the first 12 months, perhaps due to abuse or other difficulties, he or she has the freedom to do so. If everything is fine, as it will be in the majority of cases because employers want to retain staff if they behave properly, it is also two years. Many have argued that we need to give more freedom to employees so they are not tied to an unacceptable situation for too long.

Cyprian Brady (Fianna Fail)
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Amendments Nos. 3 and 8 are related and may be discussed together by agreement.

Paul Coghlan (Fine Gael)
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I move amendment No. 3:

In page 9, between lines 2 and 3, to insert the following subsection:

"(2) In respect of answers, by a foreign national in an application for an employment permit, given in paragraph (f)(i) of this section, nothing shall automatically disqualify an applicant from gaining an employment in and of itself, but may be taken into account when his or her application is being considered.".

As was pointed out on Committee Stage in the other House, the one interesting feature of the provisions outlined here is that the provisions of the Protection of Employees (Fixed-Term Work) Act 2003 may become applicable as a permit holder may be employed on a fixed-term contract. After four years the employee permit holder may become entitled to a contract of indefinite duration. Employers will probably not apply for renewal of the work permit of a mere permit holder and it could be open to abuse. It would be difficult for people holding work permits to be classified as employees and come under the definition of permanent employment although they may have contributed to the employment concern for four or more years. Such foreign nationals are at a disadvantage even if they complete a number of years service. Implicitly, foreign nationals do not have the same right to security of employment under employment protection legislation as EU and EEA nationals. For that reason I have put down this amendment to include the changes necessary to provide security of employment or permanent employment status for people who have worked for a significant number of years under existing Irish legislation.

The Bill sets up a special system of adjudication of work permits although tried and tested State machinery for industrial relations already exists. Why not use one of those systems instead of creating a new model? If the Minister wants to use a system internal to the Department why not use one of those provided under the Redundancy Payments Acts 1967-2003, with deciding officers, a right of appeal to the Employment Appeals Tribunal and a further appeal on a point of law to the High Court, as exists under the current system? This would prevent unnecessary duplication and expense to the State. Perhaps the Minister might have a word or two on that issue.

Mr. Martin:

Senator Coghlan's comments relate to amendment No. 9. Maybe I can deal with that later.

Paul Coghlan (Fine Gael)
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I apologise.

Mr. Martin:

I will comment on amendments Nos. 3 and 8 first and then deal with the substantive point the Senator has raised on amendment No. 9. I presume Senator Coghlan's amendment No. 3 is to section 6(f) and section 7(b) dealing with permission to remain in the State. The powers granted to me under section 12(1), to refuse to grant an employment permit where the foreign national concerned has been in the State without permission, are discretionary, not mandatory. Any minor irregularity would not automatically disqualify the applicant from being granted an employment permit. Accordingly, this amendment is unnecessary.

Mr. Martin:

With regard to the substantive issue addressed by amendment No. 9, employment permit holders are, by definition, given permission to work for a fixed period. It would be inappropriate to grant them permanency of employment because this would undermine the work permit edifice.

Mr. Martin:

The same protection of employment rights is available to non-national workers as Irish workers. Section 6 of the Protection of Employees (Fixed-Term Work) Act 2003 provides that a fixed-term employee shall not be treated any less favourably than a permanent employee, irrespective of nationality. By their nature, those with employment permits cannot be granted permanency of employment because the basis for the permit is that the holder can work for a defined period. Is the Senator satisfied that no anomaly exists?

Paul Coghlan (Fine Gael)
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Point taken.

Paul Coghlan (Fine Gael)
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I move amendment No. 4:

In page 9, line 14, to delete "concerned" and substitute "in respect of which an application for an employment permit is made".

Mr. Martin:

I understand what the Senator is endeavouring to achieve but I believe it is covered by section 6(a), which describes the employment concerned as "employment in respect of which the application is made".

Paul Coghlan (Fine Gael)
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I move amendment No. 11:

In page 11, subsection (2), lines 21 to 25, to delete paragraph (c) and substitute the following:

"(c) a statement—

(i) of the requirement under the National Minimum Wage Act 2000 that the foreign national concerned be paid at least the national minimum hourly rate of pay by his or her employer and the effect of subsections (1), (3) and (4) of section 22, or

(ii) where better terms and conditions of employment in an employment regulation order or registered employment agreement are in effect, of what the applicable terms and conditions of employment for the foreign national are;

and".

The wording of section 9(2)(a) through (c) provides a statement of the requirement under the National Minimum Wage Act 2000 that the foreign nationals concerned should be paid the national minimum hourly rate. I table this amendment because the terminology in the Bill could be too restrictive. Various registered employment agreements and employment regulation orders under the Industrial Relations Act provide greater protection for employees. This amendment would provide clarity and remove certain restrictions under the current arrangements.

Mr. Martin:

That issue is covered by the legislation. It would not be feasible to include terms and conditions for each type of employment under registered employment agreements and employment regulation orders. Some 18 employment regulation orders and 45 registered employment agreements cover various types of employment.

Mr. Martin:

Section 12(1)(j) specifically provides that an employment permit application may be refused if the proposed pay is less than the standard working week remuneration, defined in section 12(6) as the national minimum wage or the pay set out in applicable employment regulation orders or registered employment agreements.

Mr. Martin:

An employment permit will be refused if the proposed pay is less than the national minimum wage of the applicable employment regulation orders or registered employment agreements. In addition, section 9 states that the permit must include a statement of the remuneration payable. Thus, the employee knows what he or she should be paid. The arrangements in place achieve the result Senator Coghlan is seeking.

Mr. Martin:

Subsections (2) and (3) relate to the information accompanying or included on an employment permit. I table this amendment on the advice of the Chief Parliamentary Counsel because it is necessary to take account of an amendment agreed on Report Stage in the Dáil to the effect that an employment permit shall include or be accompanied by a summary of the principal employment rights of the employee. Deputies were anxious that this measure be included so a permit will be accompanied by a notice or circular detailing employee rights under employment law.

Paul Coghlan (Fine Gael)
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I move amendment No. 14:

In page 14, before section 13, to insert the following new section:

13.—(1) Where the grant of an employment permit is refused under section 11 of this Act, applicants for employment permits may appeal such a decision by way of either—

(a) the mechanism set out in the Redundancy Payments Acts 1967-2003 for such appeals, or

(b) the process set out in the Protection of Employees (Fixed-Term Work) Act 2003 for such matters.

(2) Where an appeal is refused under subsection (1)(a) of this section, the applicant shall have a right of appeal to the Employment Appeals Tribunal, and subsequently, on a point of law only, to the High Court.

(3) Where an appeal is refused under subsection (1)(b) of this section, the applicant shall have a right of appeal to the Labour Court, and subsequently, on a point of law only, to the High Court.".

Mr. Martin:

This issue was discussed at considerable length in the Dáil. The mechanisms and processes of the legislation referred to are inappropriate for employment permit appeals, for which we have defined arrangements in sections 13 and 17 of the Bill. If a work permit is refused, an appeal mechanism exists for redress. Redress for whistleblowers and complainants is also covered in the Bill. The Redundancy Payment Acts have no relevance to the work permit situation.

Cyprian Brady (Fianna Fail)
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Amendments Nos. 15, 16 and 22 are related and may be discussed together by agreement.

Paul Coghlan (Fine Gael)
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I move amendment No. 15:

In page 16, before section 16, to insert the following new section:

"16.—The Minister may make regulations to allow any one of the following to join a foreign national employment permit holder:

(a) his or her spouse or partner;

(b) his or her children;

(c) any other members of his or her family.".

Mr. Martin:

The problem with amendments Nos. 15 and 16 is that the Minister for Justice, Equality and Law Reform, and not me, is responsible for naturalisation and immigration law. However, I can inform the Senator and the House that this legislation will dovetail with legislation that the Minister for Justice, Equality and Law Reform will introduce on immigration generally. We are working in concert in that regard.

Mr. Martin:

The legislation will also facilitate holders of green cards in particular to enjoy immediate family reunification. The Minister for Justice, Equality and Law Reform has stated that a fair number of work permit applicants will also have that provision. There are several qualifications, one relating to whether one earns above or below the family income threshold. If one earns less than that, a longer period of three years applies before there can be family reunification.

Mr. Martin:

We have made significant progress on the issue. The Minister for Justice, Equality and Law Reform has already announced that, but I am not able to accept the amendments in the context of this Bill, since they are outside my legislative domain.

Mr. Martin:

This is a technical amendment proposed on the advice of the Parliamentary Counsel.

Mr. Martin:

This amendment was tabled by Deputy Howlin on Report Stage in the Dáil but was not moved. I was disposed to accept it and now put it forward accordingly. Its effect is that there will be uniformity in the entitlements to permits of unlimited duration after five years, irrespective of whether the employee or employer is the applicant. If subsection (5) remained, it would have the unintended effect that if original and renewal permit applications were made by the employee, he or she would not be entitled to a permit of unlimited duration after five years, whereas if those applications were made by the employer, such a permit could be granted after that time. Essentially, it corrects an anomaly that was never intended. It was pointed out in the other House, and we were disposed to accept it.

Paul Coghlan (Fine Gael)
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Perhaps the Minister might comment briefly on this section.

Mr. Martin:

Section 24 provides for the surrender of the employment permit to the Minister within four weeks of the date of the cessation or termination of the employment concerned. A person who fails to comply may be guilty of an offence. The section is necessary since were the permit not surrendered within that time period, there would be a significant risk of its falling into other hands, thereby facilitating abuse or fraudulent use.

Mr. Martin:

It should also be noted that subsection (3) includes defences enshrined in the Bill, including that the person took reasonable steps to surrender the permit that may be adduced by the defendant should he or she fail to meet the four-week deadline. Essentially, it provides a check and ensures we have a system in place that helps avoid potential abuse. The employees should return the permits within a reasonable timeframe. If there are genuine reasons why that did not happen, the Bill covers them too.

Paul Coghlan (Fine Gael)
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I move amendment No. 22:

In page 23, before section 25, to insert the following new section:

25.—(1) Whereupon the employment permit of a foreign national who is not

(a) a citizen of a European Union,

(b) a citizen of a European Economic Area country, or

(c) in possession of any permit that allows him or her to remain legally within the State,

expires or is revoked, he or she shall cease to be permitted to remain legally within the State after a period of 8 weeks has elapsed after the expiration or revocation of his or her employment permit, unless he or she obtains a permit under paragraph (c).

(2) A person who contravenes subsection (1) shall be guilty of an offence.

It was correctly pointed out on Committee Stage in the other House that a time period should elapse to allow people reasonable time to tidy up their affairs before leaving the country. I hope that, by tabling this amendment, which provides for an eight-week period, I may encourage the Minister to table an amendment going some way towards our position, rather than allowing no such time period.

At present, the legislation effectively states that one must leave within the hour as soon as one's permit lapses. While Departments' interpretations may vary, that is the law. Members must try to ensure that safeguards are put in place to allow people a reasonable length of time in which to renew their permit or, where the permit has lapsed and all avenues have been exhausted, to return home or go elsewhere.

My colleague, Deputy Hogan, tabled an amendment with an eight-week period for discussion on Committee Stage and Report Stage in the other House. I had hoped that the Minister might have taken the opportunity to insert a period of three or four weeks to allow some leeway to those caught in such a situation, often through no fault of their own. The employer might decide to terminate the employment, and the administrative process in the Departments might be to blame for the way that people are treated. Perhaps the Minister, in the absence of his own amendment, might be disposed to accept this one.

Mr. Martin:

I regret that I am not so disposed. These amendments, which have already been discussed in the other House, are not appropriate to the legislation. They are more appropriate to the immigration and residence Bill that my colleague, the Minister for Justice, Equality and Law Reform, intends bringing forward this year. Anything to do with residence, naturalisation or permission to remain in the State is fundamentally a matter for the Department of Justice, Equality and Law Reform under the present legislative template.

Paul Coghlan (Fine Gael)
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On the basis that the Minister has assured the House that the question would be more relevant to upcoming legislation, perhaps we should await it.

Pat Moylan (Fianna Fail)
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Senator Coghlan has indicated his opposition to section 39.

Paul Coghlan (Fine Gael)
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I would like to hear the Minister speak briefly on the section.

Mr. Martin:

I am surprised at Senator Coghlan.

Paul Coghlan (Fine Gael)
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I surprise myself at times.

Mr. Martin:

The wording of section 39 reflects an amendment relating to the definition of the term "foreign national" in the Employment Permits Act 2003 which was agreed on Report Stage in the Dáil. This definition was put forward by way of an amendment by Deputy Hogan on Committee Stage in the Dáil and I accepted an amendment that the term "non-national" be changed to "foreign national".

Paul Coghlan (Fine Gael)
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I agree with that and I said so on Second Stage, that is why I was slightly confused.

John Gerard Hanafin (Fianna Fail)
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I thank the Minister for attending the House and for expediting this legislation.

Paul Coghlan (Fine Gael)
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I concur with those remarks. I thank the Minister and his officials for the expeditious manner in which they dealt with this Bill. I hope it will serve our society and the people who come to work here and help to further grow our economy. I wish the legislation well.

Micheál Martin (Cork South Central, Fianna Fail)
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I thank the Senators for their constructive engagement with this legislation. We are very satisfied with its content as for the first time policy on economic migration has been put on a sound statutory footing. It will provide a positive framework for the further development of the economy and significant protection for workers so that they may not be exploited or abused. If they are the penalties will be considerable.

The Bill provides for more flexible arrangements as it is tied in to labour market trends and allows the Government to respond appropriately to such trends in the years to come. Overall it will have a beneficial impact on the economic fabric of the State. I also thank my officials for the detailed work they put into the amendments in both Houses.

Paul Coghlan (Fine Gael)
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I also thank the Minister's officials.