Richard Bruton (Dublin North Central, Fine Gael)
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Question 123: To ask the Tánaiste and Minister for Enterprise, Trade and Employment if a company which wins a contract in open competition from a State agency has obligations under transfer of undertakings legislation in respect of the employees of the previous contractor; and if the successful company is taking some employees from the previous contractor if there are restrictions on the way in which workers are selected for recruitment. [6960/09]

Billy Kelleher (Cork North Central, Fianna Fail)
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The current Irish law in the area of "transfer of undertakings" is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 — Statutory Instrument (S.I.) No. 131 of 2003. The Regulations implement the mandatory (i.e mandatory to transpose) provisions of EU Council Directive 2001/23/EC of 12 March 2001 which is aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. Section 21 of the Employees (Provision of Information and Consultation) Act 2006 transposed a provision of the European Directive relating to the information to be provided by the original employer to the new employer.

It is open to individuals to seek legal advice to determine, in any case, if the specifics of their particular situation might constitute a Transfer of Undertaking. However, in accordance with the Transfer of Undertaking Regulations, it would be a matter for a Rights Commissioner to determine in law if any particular case does in fact constitute a transfer of undertakings situation.

While my Department cannot provide legal advice in respect of any specific case, I would point out that the European Commission has issued a guidance document on European Court of Justice (ECJ) rulings in the area of transfer of undertakings and outsourcing or contracting-out. That document indicates that the ECJ has found that in a situation where a services contract for a labour-intensive service such as office cleaning or security services (as distinct from an assets-based service such as public transport where other rulings apply) has been outsourced and where the contract subsequently moves to a new contractor, it may be considered a "transfer of undertakings" for the purposes of the Transfer of Undertakings Directive if the new employer takes over a major part, in terms of their numbers and skills, of the employees specially assigned by the previous contractor to the provision of the services in point.

However, as indicated above, the circumstances of each individual case would have to be considered by a Rights Commissioner, in the first instance, in the light of all previous case law, including ECJ case law. Any such case should be taken within six months of the date on which an employee considers that there has been a contravention of the Transfer of Undertakings Regulations. An application to a Rights Commissioner can be made by the employee, or by a representative (including a trade union representative) by contacting the Rights Commissioner Service of the Labour Relations Commission, Tom Johnston House, Haddington Road, Dublin 4, or phone 01 6136700.

Michael Ring (Mayo, Fine Gael)
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Question 125: To ask the Tánaiste and Minister for Enterprise, Trade and Employment her views on correspondence sent to her regarding a person (details supplied) in County Mayo. [7098/09]

Billy Kelleher (Cork North Central, Fianna Fail)
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The current Irish law in the area of "transfer of undertakings" is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 — Statutory Instrument (S.I.) No. 131 of 2003. The Regulations implement the mandatory (i.e mandatory to transpose) provisions of EU Council Directive 2001/23/EC of 12 March 2001 which is aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. Section 21 of the Employees (Provision of Information and Consultation) Act 2006 transposed a provision of the European Directive relating to the information to be provided by the original employer to the new employer.

It is open to individuals to seek legal advice to determine, in any case, if the specifics of their particular situation might constitute a Transfer of Undertaking. However, in accordance with the Transfer of Undertaking Regulations, it would be a matter for a Rights Commissioner to determine in law if any particular case does in fact constitute a transfer of undertakings situation.

While my Department cannot provide legal advice in respect of any specific case, I would point out that the European Commission has issued a guidance document on European Court of Justice (ECJ) rulings in the area of transfer of undertakings and outsourcing or contracting-out. That document indicates that the ECJ has found that in a situation where a services contract for a labour-intensive service such as office cleaning or security services (as distinct from an assets-based service such as public transport where other rulings apply) has been outsourced and where the contract subsequently moves to a new contractor, it may be considered a "transfer of undertakings" for the purposes of the Transfer of Undertakings Directive if the new employer takes over a major part, in terms of their numbers and skills, of the employees specially assigned by the previous contractor to the provision of the services in point.

However, as indicated above, the circumstances of each individual case would have to be considered by a Rights Commissioner, in the first instance, in the light of all previous case law, including ECJ case law. Any such case should be taken within six months of the date on which an employee considers that there has been a contravention of the Transfer of Undertakings Regulations. An application to a Rights Commissioner can be made by the employee, or by a representative (including a trade union representative) by contacting the Rights Commissioner Service of the Labour Relations Commission, Tom Johnston House, Haddington Road, Dublin 4, or phone 01 6136700.