Olwyn Enright (Laois-Offaly, Fine Gael)
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Question 246: To ask the Tánaiste and Minister for Enterprise, Trade and Employment the way people who are not being paid the minimum wage can make a complaint against their employer; the recourse or action that can be taken by the person on the issue; and if she will make a statement on the matter. [21350/08]

Billy Kelleher (Cork North Central, Fianna Fail)
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The National Minimum Wage Act, 2000 and the Industrial Relations Acts, 1946 to 2004 provide for complaint and redress procedures in the case of allegations of non-payment of statutory minimum rates of pay.

The National Minimum Wage Act, 2000 provides that an employee who alleges that his or her employer has failed to pay the National Minimum Wage may request an inspector of the National Employment Rights Authority to investigate the allegation. Such a request may also, with the consent of the employee, be made by the employee's representative. NERA inspectors may also at their own discretion conduct such an investigation.

Where the investigation is at the request of or on behalf of an employee, the Inspector will advise the employee of the outcome of the investigation.

The Act also provides that an employee or employer, or the representative of either of them with their respective consent, may, subject to certain conditions, refer a dispute concerning an employee's National Minimum Wage entitlement to a Rights Commissioner. However, a dispute cannot be referred to or dealt with by a Rights Commissioner where the employer is or has already been the subject of an investigation by an inspector or prosecuted for non-payment in respect of the same alleged underpayment.

The Rights Commissioner will, as soon as practicable after hearing a dispute, advise the parties, in writing, of his or her decision. A decision by the Rights Commissioner may include an award of arrears and reasonable expenses of the employee in connection with the dispute and require an employer to remedy, within a specified time or in a specific manner, any breach of the National Minimum Wage Act. An appeal against a decision of a Rights Commissioner may be referred to the Labour Court.

An employer who refuses or fails to pay an employee the National Minimum Wage is guilty of an offence and is liable, on summary conviction, to a fine not exceeding £1,904.61 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months, or to both the fine and the imprisonment. Conviction on indictment can lead to a fine not exceeding €12,697.38 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years, or to both the fine and the imprisonment.

If the offence of which a person was convicted is continued after conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding €253.95 or on conviction on indictment to a fine not exceeding €1,269.74.

Where, in a prosecution for an offence, it appears to a court that money is due by an employer to an employee, and the employer is convicted of that offence, the court may, if it is satisfied that the employer is liable to pay to his or her employee an amount of money, order, in addition to any penalty which it may impose, that the employer pay the amount to the employee.

Proceedings in relation to summary offences under the National Minimum Wage Act, 2000 may be prosecuted by the Minister for Enterprise, Trade and Employment.

Any amount of money due to an employee from his or her employer under or in accordance with the National Minimum Wage Act, 2000 is also recoverable by the employee as a simple contract debt in a court and action for its recovery may be instituted and maintained on behalf of the employee by the employee's trade union, if the employee is a member.

The Minister may also, in certain circumstances, institute civil proceedings in the name and on behalf of an employee for the recovery of arrears arising from a breach of the National Minimum Wage Act.

The minimum level of pay in respect of certain specific sectors or industries is provided for either in Employment Regulation Orders or Registered Employment Agreements made under the auspices of the Labour Court under the Industrial Relations Acts. These include such sectors as construction, catering, electrical contracting, hotels, security, contract cleaning, hairdressing, retail grocery and agriculture.

Complaints in relation to non-payment of the minimum rates of pay provided for under Employment Regulation Orders may be made to the National Employment Rights Authority's Inspection Services. An employee, the Minister or a NERA inspector may initiate proceedings in respect of failure to comply with the minimum wage conditions of an Employment Regulation Orders. Such proceedings may include provision for the recovery of associated arrears.

The enforcement of the provisions of a Registered Employment Agreement may be effected through the Labour Court under the Industrial Relations Acts. A trade union, an association of employers or an individual employer may complain to the Labour Court that a particular employer is not complying with the Agreement. If, after investigating a complaint, the Labour Court is satisfied that the employer is in breach of the Agreement it may by order direct compliance with the Agreement.

Failure to comply with an order of the Labour Court is an offence punishable by a fine. The Minister for Enterprise, Trade and Employment may bring proceedings in relation to such offences.

The Minister for Enterprise, Trade and Employment may also bring proceedings in respect of, among other matters, non-compliance with the terms of a Registered Employment Agreement. NERA Inspectors may also bring civil proceedings on behalf of an employee to recover arrears arising from non-payment of the minimum rate of pay provided for in such agreements.