Written answers

Tuesday, 19 January 2010

Department of Enterprise, Trade and Employment

Employment Rights

9:00 pm

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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Question 198: To ask the Tánaiste and Minister for Enterprise, Trade and Employment the reason former employees and pension holders of a company (details supplied) are not covered under the Protection of Employee Rights on Transfer of Undertakings Regulation 2003; and if she will make a statement on the matter. [1642/10]

Photo of Dara CallearyDara Calleary (Mayo, 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.

Complaints relating to alleged contravention of the Regulations on Transfer of Undertakings can be brought in the first instance to a Rights Commissioner and, on appeal, to the Employment Appeals Tribunal. 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. I understand that no complaint has been made to the Rights Commissioners Service in relation to this case. 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. Thus, 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 European Court of Justice case law.

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 Johnson House, Haddington Road, Dublin 4, or phone 01 6136700.

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