Employment Permits (Amendment) Bill 2014

On 23^rd April 2014, in an effort to addresses legislative deficiencies identified in the Hussein -v- The Labour Court and Younis case, the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD published the Employment Permits (Amendment) Bill 2014. It is envisaged that the law, when enacted, will reform and modernise Ireland’s employment permits system. Background to Work Permits Under the Employment Permits Acts 2003 and 2006, an employment permit must be obtained in advance from the Department in respect of a non-EEA national who is to be employed in the State (with the exception of Swiss nationals). The Employment Permits Act 2006 sets out in legislation the criteria in relation to the application, granting and refusal of an employment permit. Employment permits can be issued for the employment of non-EEA nationals where there are identified skills shortages and employers can demonstrate that the demand for labour cannot be met within Ireland or the EEA. The New Amendment Bill The new law, which is subject to Oireachtas approval, is hoped to be enacted by the summer. The provisions of the bill include:

• Updating provisions for the employment permits schemes in line with policy and economic developments since 2007;
• Providing the flexibility to deal with changing labour market, work patterns and economic development needs which often require rapid response;
• Providing for a robust employment permits regime which will provide clarity and certainty to potential investors and employers, both indigenous and multi-national, to better enable their business planning and HR decision-making; and
• Addressing recent deficiencies in the legislation identified by the High Court in the Younis case in 2012, which have the potential to allow employers to benefit from illegal employment contracts in situations where an employee does not hold an employment permit but is required to do so.

Hussein v The Labour Court and Younis Case You may recall the Younis case from 2012 where an employee had their claim for €96,000 in compensation from the Rights Commissioner overturned by the High Court on the basis that the employee did not have a valid work permit, and so were not entitled to protection under Irish legislation. The fear was that this ruling would see employers exploit this deficiency in the legislation, and hire workers without work permits and pay them below minimum wage.  Publishing the legislation, Minister Bruton said: “The law also addresses deficiencies in the law identified by the High Court in the Muhammad Younis case, and makes sure that employers cannot benefit, at the cost of the employee and his/her employment rights, from situations where employment contracts cannot be enforced because an overseas employee does not hold an employment permit. When this case first emerged I was appalled at its facts and pledged to move to remedy the law in this area – this legislation will deliver on this pledge”. New categories of Employment Permit Of interest to employers will be the fact that the new Bill will provide nine different purposes for which an employment permit may be granted. These are

1. A Critical Skills Employment Permit to replace the ‘Green card’ which currently exists. This type of permit has been designed to address critical shortages of skills, which will be identified in Regulations. In order to attract individuals who possess such skills, this permit type allows immediate family reunification and a fast track to residency. In addition, a number of the criteria normally applying to issue of an employment permit will be waived for this category;
2. A Spouses, Civil Partners and Dependents Employment Permit, to enable the family members of holders of Critical Skills Employment Permits and Researchers, to work in the State;
3. A General Employment Permit, which will issue in cases where a contract for a designated highly skilled occupation has been offered for a duration of less than two years, or for other occupations, apart from those included on a list of ineligible jobs, where a number of other criteria have been met;
4. An Intra-Company Transfer Employment Permit, to allow for the temporary transfer of employees between affiliated foreign and Irish companies;
5. A Reactivation Employment Permit, to allow for the return of individuals to employment who had fallen out of the employment permits system through no fault of their own;
6. A Contract for Services Employment Permit, to allow the employee of a foreign company that has entered a contract with an Irish company to work in the State;
7. An Exchange Agreement Employment Permit, to allow individuals to whom a designated exchange agreement applies to work in the State;
8. A Sports and Cultural Employment Permit, to allow individuals with sporting or cultural expertise to work in the State;
9. An Internship Employment Permit, to allow students of foreign institutions to work in the State, where that is a key component of the course which they are following.

Changes to the criteria for issue of an employment permit The Bill adjusts in a number of ways the criteria for issue of an employment permit, with a view to balancing the skills needs of enterprise with the stability of the labour market. Chief among these are:

• Retaining and extending the requirement for a labour market needs test, with certain grounds for waiver including an exemption for applications for Critical Skills Employment Permits;
• Retaining and extending the requirement where at least 50% of an enterprise’s employees must be Irish or EEA nationals where an employment permit is to be issued, while making provisions for this requirement to be waived for enterprise start-ups for a designated period.

As mentioned the bill is expected to be enacted this summer, however there are still a number of bills on the Governments agenda which were due to be enacted in 2013 but have yet to be addressed (the reform of the Workplace Relations system, and Whistleblowing), so timescales for enactment can run long. Nonetheless it is important for employers to be aware of the changes to the work permit system, as they too have a responsibility to ensure their employees have a valid work permit. If you are unsure about your obligations with regards to work permits or need any further information please don’t hesitate to contact our experienced advisors on 24 hour Advice Service on 01 855 5050