Louise O'Reilly (Dublin Fingal, Sinn Fein)
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246. To ask the Minister for Public Expenditure and Reform the number of complaints that have been made to his Department with regard to the fact that State agencies such as county and city councils have not ensured that projects managed by them are only using construction companies that are legally compliant with the construction sector sectoral employment orders, SEO. [10005/21]

Louise O'Reilly (Dublin Fingal, Sinn Fein)
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247. To ask the Minister for Public Expenditure and Reform the oversight being carried out by his Department to ensure that State agencies such as county and city councils are only using construction companies that are legally compliant with the construction sector sectoral employment orders, SEO. [10006/21]

Michael McGrath (Cork South Central, Fianna Fail)
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I propose to take Questions Nos. 246 and 247 together.

As Minister for Public Expenditure and Reform I have responsibility for the development of policy to ensure adequate expenditure oversight on capital projects and for public procurement. National rules governing public procurement must comply with the relevant EU, WTO and national legal requirements and obligations. Public procurement rules include provisions addressing EU and national legislation on the protection of labour rights.

As a consequence, public procurement procedures require applicants to meet certain standards when applying for public contracts and applicants are required to make declarations in relation to their financial standing, their legal standing and in relation to payment of taxes and social welfare contributions. They are also obliged to declare whether they have breached aspects of employment law.

The management of the tendering process for a public contract is a matter for each contracting authority. It is the responsibility of each contracting authority to ensure that tenderers comply with all the requirements of the process.

The Capital Works Management Framework, (CWMF), managed by my Department, through the Office of Government Procurement (OGP), provides the necessary tools for Contracting Authorities to manage the procurement process and to ensure adequate supervision and oversight on construction projects. This Framework is mandated for use on all capital funded construction projects. The provisions include the conditions of the Public Works Contract which outline the functions of the contract administrator; the Employer's Representative during the construction stage of a project as well as dedicated guidance, (Guidance Note 3.1-Implementation Process), on the management and oversight of the project once works commence.

A Sectoral Employment Order (SEO) fixes the statutory minimum rates of pay and other conditions for example, sick pay and pension entitlements for persons employed in a given economic sector. An employer in that sector has a legal duty to comply, at minimum, with those terms.

Clause 5.3 of the public works contracts contains provisions about Pay and Conditions of Employment which applies to all those engaged on the works, regardless of whether they are employed by the contractor or their subcontractors.

This clause requires the contractor to be compliant with certain aspects of employment and health and safety law. It also requires a contractor to ensure that all deductions from payments to workers as required by Law, are paid accordingly.

The main contractor is obliged to display a copy of the Pay and Conditions of Employment clause from the public works contract in a prominent place on the site for the benefit of all those employed on the project.

The main contractor is required to provide a certificate of compliance (titled ‘Rates of Pay and Conditions of Employment Certificate’) with each interim statement submitted (normally on a monthly basis). Failure to provide this compliance certificate will result in payment not being made by the contracting authority. If a main contractor provides a certificate of compliance that is subsequently found to be untrue or partly untrue the contracting authority has the right to deduct the money relating to the work or part of the work covered by the certificate from any sums due to the main contractor. This money can be withheld until the pay and conditions of employment issue is made right. The ultimate sanction if a main contractor continues to be non-compliant is for the contract to be terminated.

The public works contracts also oblige a contractor to maintain records of pay, timesheets and any deductions made on behalf of all those employed on the site. These records are subject to inspections by representatives of the contracting authority as required.

In summary a contracting authority has the right to: to withhold payment if certification of compliance with the provisions of clause 5.3 is not provided; audit specified documents; deduct from payment if certification is proven to be incorrect; and terminate the agreement where the contractor fails to remedy the situation.

The foregoing are contractual remedies available to the contracting authority where there is evidence of non-compliance. There is also a statutory framework in place to enforce employment law. The Workplace Relations Commission (WRC) is an office under the aegis of the Department of Enterprise, Trade and Employment. It is a statutory office and is independent in the exercise of its functions. The role of the WRC is to achieve compliance with employment legislation, including SEOs. Employees whose rights under an SEO have not been complied with can refer the matter to the WRC for investigation.

My Department would not typically receive complaints of non-compliance with employment law for particular projects. Such complaints would go to the relevant contracting authority or directly to the WRC.