Protection of Employees (Employers’ Insolvency) Act 1984

Protection of Employees (Employers’ Insolvency) Act 1984


Number 21 of 1984


PROTECTION OF EMPLOYEES (EMPLOYERS’ INSOLVENCY) ACT 1984

REVISED

Updated to 1 February 2019


This Revised Act is an administrative consolidation of the Protection of Employees (Employers’ Insolvency) Act 1984. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including Local Government Act 2019 (1/2019), enacted 25 January 2019, and all statutory instruments up to and including Brown Crab (Conservation Of Stocks) Regulations 2019 (S.I. No. 26 of 2019), made 1 February 2019, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 21 of 1984


PROTECTION OF EMPLOYEES (EMPLOYERS’ INSOLVENCY) ACT 1984

REVISED

Updated to 1 February 2019


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was passed.

Related Legislation

Protection of Employees (Employers’ Insolvency) Acts 1984 to 2012: this Act is one of a group of Acts included in this collective citation, to be construed together as one ( Industrial Relations (Amendment) Act 2012 (32/2012), s. 1(4)). The Acts in this group are:

Protection of Employees (Employers’ Insolvency) Act 1984 (21/1984)

Social Welfare Act 1990 (5/1990), s. 28

Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991), in so far as it relates to the collectively cited Protection of Employees (Employers’ Insolvency) Acts 1984 and 1990 (repealed)

Protection of Employees (Part-Time Work) Act 2001 (45/2001), in so far as it relates to the collectively cited Protection of Employees (Employers’Insolvency) Acts 1984 and 1990

Industrial Relations (Miscellaneous Provisions) Act 2004 (4/2004), s. 17 and 17(3)

Industrial Relations (Amendment) Act 2012 (32/2012), s. 17

Redundancy Payments Acts 1967 to 2014: this Act is one of a group of Acts included in this collective citation, to be construed together as one ( Local Government Reform Act 2014 (1/2014), s. 1(19)). The Acts in this group are:

Redundancy Payments Act 1967 (21/1967)

Redundancy Payments Act 1971 (20/1971)

Redundancy Payments Act 1973 (11/1973)

Redundancy Payments Act 1979 (7/1979)

Protection of Employees (Employer’s Insolvency) Act 1984 (21/1984), s. 12

Social Welfare Act 1990 (5/1990), ss. 26, 27 and 29

Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991), in so far as it relates to the Redundancy Payments Acts 1967 to 1990

Social Welfare Act 1991 (7/1991), s. 39 other than subs. (2)

Protection of Employees (Part-Time Work) Act 2001 (45/2001), in so far as it relates to the Redundancy Payments Acts 1967 to 1990

Redundancy Payments Act 2003 (14/2003)

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), in so far as it relates to the Redundancy Payments Acts 1967 to 2003

Social Welfare Act 2011 (37/2011), Part 3

Social Welfare Act 2012 (43/2012), Part 3

Local Government Reform Act 2014 (1/2014), s. 1(19), the amendment to the Redundancy Payments Act 1967 provided for in s. 5(6) and sch. 2 part 6 (Note: the reference to s. 5(6) appears to refer to s. 5(8))

Minimum Notice and Terms of Employment Acts 1973 to 2005 : this Act is one of a group of Acts included in this collective citation to be construed together as one ( Civil Service Regulation (Amendment) Act 2005, s. 1(4)). The Acts in the group are:

Minimum Notice and Terms of Employment Act 1973 (4/1973)

Protection of Employees (Employers’ Insolvency) Act 1984 (21/1984), s. 13 (collective citation only)

Worker Protection (Regular Part-time Employees) Act 1991 (5/1991), in so far as it relates to the Minimum Notice and Terms of Employment Acts 1973 and 1984 (repealed)

Protection of Employees (Part-Time Work) Act 2001 (45/2001), in so far as it relates to the Minimum Notice and Terms of Employment Acts 1973 and 1984

Civil Service Regulation (Amendment) Act 2005 (18/2005), Part 7

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations.

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1977, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

National Minimum Wage (Low Pay Commission) Act 2015 (22/2015)

Workplace Relations Act 2015 (16/2015)

Protected Disclosures Act 2014 (14/2014)

Central Bank (Supervision and Enforcement) Act 2013 (26/2013)

Social Welfare Act 2012 (43/2012), Part 3

Industrial Relations (Amendment) Act 2012 (32/2012)

Protection of Employees (Temporary Agency Work) Act 2012 (13/2012)

Property Services (Regulation) Act 2011 (40/2011)

Social Welfare Act 2011 (37/2011), Part 3

Criminal Justice Act 2011 (22/2011)

Employment Permits Act 2006 (16/2006)

Social Welfare Consolidation Act 2005 (26/2005)

Industrial Relations (Miscellaneous Provisions) Act 2004 (4/2004)

Redundancy Payments Act 2003 (14/2003)

Pensions (Amendment) Act 2002 (18/2002)

Protection of Employees (Part-Time Work) Act 2001 (45/2001)

Carer’s Leave Act 2001 (19/2001)

National Minimum Wage Act 2000 (5/2000)

Parental Leave Act 1998 (30/1998)

Employment Equality Act 1998 (21/1998)

Organisation of Working Time Act 1997 (20/1997)

Adoptive Leave Act 1995 (2/1995)

Maternity Protection Act 1994 (34/1994)

Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991)

Pensions Act 1990 (25/1990)

Social Welfare Act 1990 (5/1990)

Social Welfare Act 1986 (8/1986)

All Acts up to and including Local Government Act 2019 (1/2019), enacted 25 January 2019, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (S.I. No. 361 of 2017)

Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011)

Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005)

European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005)

Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 2004 (S.I. No. 696 of 2004)

Protection of Employees (Employers' Insolvency) (Forms and Procedure) (Amendment) Regulations 2003 (S.I. No. 197 of 2003)

Protection of Employees (Employers’ Insolvency) (Forms and Procedure) (Amendment) Regulations 2001 (S.I. No. 581 of 2001)

Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 2001 (S.I. No. 42 of 2001)

Protection of Employees (Employers’ Insolvency) Act 1984 (Amendment Order) Order 1988 (S.I. No. 48 of 1998)

Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 1994 (S.I. No. 62 of 1994)

Protection of Employees (Employers’ Insolvency) (Forms and Procedure) (Amendment) Regulations 1991 (S.I. No. 349 of 1991)

Protection of Employees (Employers’ Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1990 (S.I. No. 121 of 1990)

Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 1990 (S.I. No. 17 of 1990)

Redundancy Payments (Variation of Employers’ Redundancy Contribution) Regulations 1989 (S.I. No. 68 of 1989)

Protection of Employees (Employers’ Insolvency) Act 1984 (Amendment Order) Order 1988 (S.I. No. 48 of 1988)

Protection of Employees (Employers’ Insolvency) (Specification of Date) Regulations 1986 (S.I. No. 50 of 1986)

Protection of Employees (Employers’ Insolvency) (Specification of Date) Regulations 1985 (S.I. No. 232 of 1985)

Protection of Employees (Employers’ Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1985 (S.I. No. 123 of 1985)

Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 1984 (S.I. No. 356 of 1984)

All statutory instruments up to and including Brown Crab (Conservation Of Stocks) Regulations 2019 (S.I. No. 26 of 2019), made 1 February 2019, were considered in the preparation of this revision.


Number 21 of 1984


PROTECTION OF EMPLOYEES (EMPLOYERS’ INSOLVENCY) ACT 1984

REVISED

Updated to 1 February 2019


ARRANGEMENT OF SECTIONS


Acts Referred to

Deeds of Arrangement Act, 1887

1887, c. 57

Preferential Payments in Bankruptcy (Ireland) Act, 1889

1889, c. 60

Industrial Relations Act, 1946

1946, No. 26

Companies Act, 1963

1963, No. 33

Redundancy Payments Act, 1967

1967, No. 21

Minimum Notice and Terms of Employment Act, 1973

1973, No. 4

Holidays (Employees) Act, 1973

1973, No. 25

Anti-Discrimination (Pay) Act, 1974

1974, No. 15

Unfair Dismissals Act, 1977

1977, No. 10

Employment Equality Act, 1977

1977, No. 16

Redundancy Payments Act, 1979

1979, No. 7

Social Welfare (Consolidation) Act, 1981

1981, No. 1

Social Welfare Acts, 1981 to 1984


Number 21 of 1984


PROTECTION OF EMPLOYEES (EMPLOYERS’ INSOLVENCY) ACT 1984

REVISED

Updated to 1 February 2019


AN ACT TO CONFER, ON THE INSOLVENCY OF EMPLOYERS, CERTAIN RIGHTS ON EMPLOYEES, TO AMEND CERTAIN ENACTMENTS RELATING TO THE RIGHTS OF EMPLOYEES AND TO PROVIDE FOR OTHER MATTERS (INCLUDING OFFENCES) CONNECTED WITH THE MATTERS AFORESAID. [30 th November, 1984]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations:

Modifications (not altering text):

C1

Functions under collectively cited Minimum Notice and Terms of Employment Acts transferred and references construed (1.09.2017) by Labour Affairs and Labour Law (Transfer of Departmental Administration and Ministerial Functions) Order 2017 (S.I. No. 361 of 2017), arts. 2, 3 and sch. part 1, in effect as per art. 1(2), subject to transitional provisions in arts. 4-8.

2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Social Protection.

(2) References to the Department of Jobs, Enterprise and Innovation contained in any Act or any instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Social Protection.

3. (1) The functions vested in the Minister for Jobs, Enterprise and Innovation—

(a) by or under the Acts specified in Part 1 of the Schedule and the provisions of the Acts specified in Part 2 of the Schedule, and

(b) under the Regulations specified in Part 3 of the Schedule,

are transferred to the Minister for Social Protection.

(2) References to the Minister for Jobs, Enterprise and Innovation contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, on and after the commencement of this Order, be construed as references to the Minister for Social Protection.

...

SCHEDULE

PART 1

Acts of the Oireachtas

Minimum Notice and Terms of Employment Acts 1973 to 2005

...

C2

Application of Act extended (25.03.1988) by Protection of Employees (Employers’ Insolvency) Act 1984 (Amendment Order) Order 1988 (S.I. No. 48 of 1988), art. 2.

2. The application of the Protection of Employees (Employers’ Insolvency) Act, 1984 is hereby extended to employees who have attained the age of 66 years and who are in employment which, but for the age of the employees, would be insurable for all benefits under the Social Welfare Acts, 1981 to 1987.

Editorial Notes:

E1

Collectively cited Protection of Employees (Employers’ Insolvency) Acts 1984 to 2012, Redundancy Payments Acts 1967 to 2014 and Minimum Notice and Terms of Employment Acts 1973 to 2005 included in definitions of “employment enactment” and “relevant enactment” (1.08.2015) by Workplace Relations Act 2015 (16/2015), s. 2 and sch. 1 part 1 items 16, 18 and 12, S.I. No. 338 of 2015, with the following effects:

• Authorised officers or inspectors under employment enactments deemed to be appointed under Workplace Relations Act 2015 (16/2015), s. 26(2) and subject to termination under s. 26(4).

• Powers of inspectors for purposes of relevant enactments defined in Workplace Relations Act 2015 (16/2015), s. 27.

• Workplace Relations Commission, an inspector or an adjudication officer authorised to disclose employer’s registered number or employee’s PPSN to enable Labour Court to perform functions under relevant enactments by Workplace Relations Act 2015 (16/2015) s. 31(5).

• Power of Workplace Relations Commission and official body to disclose information to each other concerning the commission of offence under relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 32.

• Power of Workplace Relations Commission and contracting authority to disclose information to each other concerning the commission of offence under employment enactment/ relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 33.

• Powers of Minister to prosecute under relevant enactments transferred to Workplace Relations Commission and references construed by Workplace Relations Act 2015 (16/2015), s. 37.

• Functions of EAT to hear claims under employment enactments transferred to Workplace Relations Commission and references to EAT construed by Workplace Relations Act 2015 (16/2015) s. 66(1), (2), not commenced as of date of revision.

E2

Funding for expenses in giving effect to collectively cited Protection of Employees (Employers’ Insolvency) Act 1984 to 2004 provided for (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), ss. 5(6) and 6(1), S.I. No. 923 of 2005.

E3

Power to amend a decision (by whatever name called) of a relevant authority under collectively cited Protection of Employees (Employers’ Insolvency) Act 1984 to 1991 that does not state correctly the name of the employer concerned or any other material particular is accorded to rights commissioner, Employment Appeals Tribunal or Labour Court (30.09.1997) by Organisation of Working Time Act 1997 (20/1997), s. 39, S.I. No. 392 of 1997.

Interpretation.

1

1. (1) In this Act—

the Act of 1967” means the Redundancy Payments Act, 1967;

F1 [ Act of 2015 means the Workplace Relations Act 2015; ]

F2 [ the Act of 1969 means the Industrial Relations Act 1969 ; ]

the Act of 1973” means the Minimum Notice and Terms of Employment Act, 1973;

the Act of 1974” means the Anti-Discrimination (Pay) Act, 1974;

the Act of 1977” means the Unfair Dismissals Act, 1977;

the Act of 1981” means the Social Welfare (Consolidation) Act, 1981;

F3 [ the Act of 1990 means the Industrial Relations Act 1990 ;

the Act of 1991 means the Payment of Wages Act 1991 ;

the Act of 1994 means the Terms of Employment (Information) Act 1994 ;

the Act of 1996 means the Protection of Young Persons (Employment) Act 1996 ;

the Act of 1997 means the Organisation of Working Time Act 1997 ;

the Act of 1998 means the Protections for Persons Reporting Child Abuse Act 1998;

the Act of 2001 means the Protection of Employees (Part-Time Work) Act 2001 ;

the Act of 2002 means the Competition Act 2002 ;

the Act of 2003 means the Protection of Employees (Fixed-Time Work) Act 2003;

the Act of 2004 means the Industrial Relations (Miscellaneous Provisions) Act 2004 ; ]

F4 [ the Act of 2006 means the Employment Permits Act 2006; ]

F5 [ Act of 2011 means the Criminal Justice Act 2011; ]

company” means, except when the context otherwise requires, a company within the meaning of section 2 of the Companies Act, 1963, or any other body corporate whether incorporated within or outside the State;

F3 [ competent authority means the authority referred to in Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 2 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 1 ; ]

employee” means a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is express or implied, oral or in writing, and whether it is a contract of service or apprenticeship or otherwise, and “ employer” and any reference to employment shall be construed accordingly;

holiday pay” means—

( a) pay in respect of a holiday actually taken; or

( b) any holiday pay which had accrued at the date of the termination of the employee’s employment and which, had his employment with the employer continued until he became entitled to a holiday, would under the employee’s contract of employment in the ordinary course have become payable to him on becoming so entitled;

F3 [ Member State means a Member State of the European Union ]

the Minister” means the Minister for Labour;

occupational pension scheme” means any scheme or arrangement which, forming part of a contract of employment, provides or is capable of providing, in relation to employees in any description of employment, benefits (in the form of pensions or otherwise) payable to or in respect of any such employees on the termination of their employment or on their death or retirement;

prescribed” means prescribed by regulations under this Act;

relevant officer” means an executor, an administrator, the official assignee or a trustee in bankruptcy, a liquidator, a receiver or manager, F6 [ ]a trustee under an arrangement between an employer and his creditors or under a trust deed for his creditors executed by an employer F7 [ , or, where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State, the person appointed by the appropriate competent authority to perform the functions of a relevant officer. ]

F8 [ the Social Insurance Fund means the Social Insurance Fund established under section 39 of the Social Welfare Act, 1952 , and continued in being under section 122 of the Social Welfare (Consolidation) Act, 1981 ; ]

the Tribunal” means the Employment Appeals Tribunal.

(2) Any reference in this Act to the assets of an occupational pensions scheme is a reference to the funds or other property out of which the benefits provided by the scheme are payable from time to time, including the proceeds of any policy of insurance taken out, or contract entered into, for the purposes of the scheme.

(3) For the purposes of this Act, an employer shall be taken to be or, as may be appropriate, to have become insolvent if, but only if,

( a) he has been adjudicated bankrupt or has filed a petition for or has executed a deed of, arrangement (within the meaning of section 4 of the Deeds of Arrangement Act, 1887); or

( b) he has died and his estate, being insolvent, is being administered in accordance with the rules set out in Part I of the First Schedule to the Succession Act, 1965; or

( c) where the employer is a company, a winding up order is made or a resolution for voluntary winding up is passed with respect to it, or a receiver or manager of its undertaking is duly appointed, or possession is taken, by or on behalf of the holders of any debentures secured by any floating charge, of any property of the company F9 [ comprised in or subject to the charge; or ]

( d) he is an employer of a class or description specified in regulations under section 4 (2) of this Act which are for the time being in force and the circumstances specified in the regulations as regards employers of such class or description obtain F9 [ in relation to him; or ]

F10 [ (e)     the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State. ]

Annotations:

Amendments:

F1

Inserted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(1), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F2

Inserted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 3(a)(i).

F3

Inserted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 3(a)(ii)-(iv).

F4

Inserted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(4) and sch. 2 art. 6(1), S.I. No. 682 of 2006.

F5

Inserted (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 20(2) and sch. 2 art. 6(1), S.I. No. 411 of 2011.

F6

Deleted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 3(a)(v).

F7

Inserted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 3(a)(v).

F8

Inserted (1.05.1990) by Social Welfare Act 1990 (5/1990), s. 28(a), commenced as per s. 31.

F9

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 3(b)(i) and (ii).

F10

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 3(b)(iii).

Modifications (not altering text):

C3

Prospective affecting provision: functions transferred and Employment Appeals Tribunal construed by Workplace Relations Act 2015 (16/2015), s. 66, not commenced as of date of revision.

Transfer of functions from Employment Appeals Tribunal

66.(1) (a) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Commission in so far as they relate to any claim for redress, dispute or complaint determined by the Employment Appeals Tribunal under an employment enactment before that day.

(b) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Labour Court in so far as they relate to appeals determined by the Employment Appeals Tribunal under an employment enactment before that day.

(2) (a) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (a) of subsection (1) shall be construed as references to the Commission.

(b) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (b) of subsection (1) shall be construed as references to the Labour Court.

(3) This section shall come into operation on the dissolution day.

1 OJ No. L270, 8.10.2002, p. 10

2 OJ No. L283, 28.10.1980, p. 23

Redundancy and Employers’ Insolvency Fund.

2

2. F11 [ ]

Annotations:

Amendments:

F11

Repealed (6.04.1991) by Social Welfare Act 1991 (7/1991), s. 39(2), commenced as per s. 39(3).

Application of Act.

3

F12 [ 3.   Subject to section 11 of this Act, this Act applies to employees employed in employment which is insurable for all benefits under the Social Welfare (Consolidation) Act 1993 or would be so insurable but for the fact that-

(a) the employment concerned is an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to the Social Welfare (Consolidation) Act 1993 , or

(b) the employees concerned have attained the age of 66 years. ]

Annotations:

Amendments:

F12

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 4.

Editorial Notes:

E4

Previous affecting provision: section defined as excluding provision in so far as it had the effect of excluding employees from the application of Worker Protection (Regular Part-Time Employees) Act 1991 by virtue of the Social Welfare (Subsidiary Employments) Regulations 1979, the Social Welfare (Employment of Inconsiderable Extent) Regulations 1991, or any other regulations for the time being prescribed by the Minister under Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991), s. 1(3)(a) (6.04.1991 and 17.06.1991) by Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991), s. 1(1)(g), S.I. Nos. 75 of 1991 and 144 of 1991); 1991 Act repealed (20.12.2001) by Protection of Employees (Part-Time Work) Act 2001 (45/2001), s. 5, S.I. No. 636 of 2001.

Insolvency for the purposes of Act.

4

4. (1) An employer who is for the purposes of this Act insolvent shall for such purposes be regarded as having become insolvent on—

( a) where the employer has been adjudicated bankrupt, the date of such adjudication,

( b) where the employer petitioned for arrangement, the date on which the petition is filed,

( c) where the employer executed a deed referred to in section 1(3) (a) of this Act, the date of such execution,

( d) where the employer has died, the date of his death,

( e) where the employer is a company within the meaning of section 2 of the Companies Act, 1963

(i) in case either a receiver is appointed on behalf of the holder of any debenture secured by a floating charge, or possession is taken by or on behalf of such a debenture holder of any property of the company comprised in or subject to the charge, the date of the appointment of the receiver or possession being taken as aforesaid, as may be appropriate, or

(ii) in any other case the date which, in relation to the company, is the relevant date within the meaning of section 285 of the Companies Act, 1963, F13 [ ]

( f) where the employer is an employer of a class or description specified in regulations under subsection (3) of this section which are for the time being in force, the day on which under the regulations such an employer is for such purposes to be regarded as F14 [ having become insolvent, and ]

F15 [ ( g ) where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State, the date on which the insolvency was established under the laws, regulations and administrative procedures of that other Member State. ]

(2) The Minister may by regulations specify the circumstances in which employers who are of a class or description specified in the regulations are, for the purposes of this Act, to be taken to be, or to have become, insolvent.

(3) The Minister may by regulations specify the day on which any employer who is of a class or description specified in the regulations and who is also an employer who for the purposes of this Act is insolvent, is to be regarded as having become so insolvent.

Annotations:

Amendments:

F13

Deleted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 5(a).

F14

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 5(b).

F15

Inserted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 5(c).

Editorial Notes:

E5

Power pursuant to section exercised (26.02.1986) by Protection of Employees (Employers’ Insolvency) (Specification of Date) Regulations 1986 (S.I. No. 50 of 1986).

E6

Power pursuant to section exercised (11.07.1985) by Protection of Employees (Employers’ Insolvency) (Specification of Date) Regulations 1985 (S.I. No. 232 of 1985).

Appointment in certain circumstances of persons to perform functions assigned by Act to relevant officers.

5

5. (1) Where—

( a) by virtue of section 1 (3) (d) of this Act, an employer becomes insolvent for the purposes of this Act, or

( b) an employer otherwise becomes insolvent for such purposes and there is not for the time being in relation to the insolvency a relevant officer,

the Minister may appoint as regards such insolvency a person under this subsection.

(2) Where the Minister makes an appointment under this section the following provisions shall apply:

( a) the functions assigned by this Act to a relevant officer shall, as regards the employer concerned, be performed by, and only by, the person to whom the appointment relates, or, if through illness or because his appointment is revoked or for any other reason the person so appointed is unable to perform such functions, another person so appointed, and

( b) for so long as the appointment remains in force, each of the references to a relevant officer in sections 6, 7 and 8 of this Act shall be construed as including a reference to the person to whom the appointment relates.

Employees’ rights on insolvency of employer.

6

6. (1) If, on an application made to him in the prescribed form by or on behalf of an individual, the Minister is satisfied that—

( a) the person by or on whose behalf the application is made (which person is in this section subsequently referred to as “ the applicant”) is a person to whom this Act applies, and that he was employed by an employer who has become insolvent, and

( b) the date on which the employer became insolvent is a day not earlier than the 22nd day of October, 1983, and

( c) on the relevant date the applicant was entitled to be paid the whole or part of any debt to which this section applies,

the Minister shall, subject to this section, pay to or in respect of the applicant out of F16 [ the Social Insurance Fund ] the amount which, in the opinion of the Minister, is or was due to the applicant in respect of that debt.

(2) ( a) Subject to paragraph (b) of this subsection, the following are debts to which this section applies—

(i) any arrears of normal weekly remuneration in respect of a period, or of periods in the aggregate, not exceeding eight weeks, and to which the applicant became entitled during the relevant period,

(ii) any arrears due, in respect of a period or periods not exceeding eight weeks in all under a scheme or arrangement which, forming part of an employee’s contract of employment, provides or is capable of providing in relation to employees in any description of employment, payments payable to any such employees in respect of periods during which they are unable to fulfil their contract of employment due to ill health and to which the applicant became entitled during the relevant period,

F17 [ (iii) at the election of the employee, either

(I) any amount which an employer is required to pay, by virtue of an award under section 12 of the Act of 1973 made not earlier than the commencement of the relevant period, either for the period of notice required by section 4 of the Act of 1973 or by reason of a failure by that employer to give the notice required by the said section 4, or

(II) any unpaid normal weekly remuneration certified by the relevant officer as being the amount of normal weekly remuneration due to the employee in lieu of the statutory notice prescribed in section 4 of the Act of 1973, ]

(iv) any holiday pay in respect of a period or periods of holiday not exceeding eight weeks in all, and to which the applicant became entitled during the relevant period,

F18 [ (v) any amount which an employer is required to pay by virtue of

(I) a determination under section 8 (1) or 9 (1) or an order under section 10 (2) of the 1977 Act, or

F19 [ (II) a decision, determination or order under Part V of the Maternity Protection Act, 1994 , Part IV of the Parental Leave Act, 1998, or Part 4 of the Carer s Leave Act, 2001, ] ]

(vi) any amount to which a recommendation under section 8 (1) of the Act of 1977 relates, being a recommendation which was made not earlier than the commencement of the relevant period,

(vii) any amount which an employer is required to pay by virtue of an employment regulation order within the meaning of Part IV of the Industrial Relations Act, 1946, being an amount by reference to which proceedings have been instituted against the employer for an offence under section 45 (1) of that Act,

(viii) any amount—

(I) specified in a recommendation issued under section 7 (3) of the Act of 1974, or section 19 (3) of the Employment Equality Act, 1977,

(II) which an employer is required to pay by virtue of a decision or determination of an appeal by the Labour Court under subsection (1) of section 8 of the Act of 1974 or subsection (2) of section 21 of the Employment Equality Act, 1977 or, where appropriate, a decision of the High Court given by virtue of either subsection (3) of the said section 8 or subsection (4) of the said section 21, F20 [ or

(III) which an employer is required to pay by virtue of a decision, determination or order of a court falling within section 103 (3) of the Employment Equality Act, 1998 , ]

(ix) damages awarded under section 24 (3) ( a) of the Employment Equality Act, 1977,

(x) a fine imposed under section 8 (4) ( c) (i) or paragraph ( a) (inserted by section 30 of the Employment Equality Act, 1977) of section 9 (3) of the Act of 1974 or under section 25 (3) ( a) (iii) or 26 (3) ( a) (iii) of the Employment Equality Act, 1977, F21 [ ]

(xi) compensation directed to be paid under section 10 (1) ( d) (inserted by section 31 of the Employment Equality Act, 1977 ) or section 10 (3) ( a) (inserted by the said section 31) of the Act of 1974 or under section 26 (1) ( d) (iii) of the F22 [ Employment Equality Act, 1977, ]

F23 [ (xii) any amount which an employer is required to pay by virtue of the National Minimum Wage Act, 2000, being an amount by reference to which proceedings have been instituted against the employer for an offence under section 35 of the National Minimum Wage Act, 2000, and ]

F23 [ (xiii) any amount which an employer is required to pay by virtue of

(I) a decision of a rights commissioner under section 26 of the National Minimum Wage Act, 2000, or

(II) a determination of the Labour Court under section 29 of the National Minimum Wage Act, 2000,

and made, in any case, not earlier than the commencement F24 [ of the relevant period, ] ]

F25 [ (xiv) any amount which an employer is required to pay by virtue of a decision by way of order by a rights commissioner under section 6(2) of the Act of 1991 or a determination by the Employment Appeals Tribunal under section 7(1) of the Act of 1991 and made, in any case, not earlier than the commencement of the relevant period, provided that a claim in respect of the amount to which the decision or determination refers has not been made under another provision of this section,

(xv) any amount which an employer is required to pay by virtue of a recommendation by way of order by a rights commissioner under section 7(2)(d) of the Act of 1994 or a determination by the Employment Appeals Tribunal under section 8(1) or section 8(6)(a) of the Act of 1994 and made, in any case, not earlier than the commencement of the relevant period,

(xvi) any amount which an employer is required to pay by virtue of a recommendation by a rights commissioner under section 18(2) of the Act of 1996 or a determination by the Employment Appeals Tribunal under subsection (1) or (6) of section 19 of the Act of 1996 and made, in any case, not earlier than the commencement of the relevant period,

(xvii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 27(2) of the Act of 1997 or a determination by the Labour Court under subsection (1) or (8) of section 28 of the Act of 1997 and made, in any case, not earlier than the commencement of the relevant period,

(xviii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 4(4) of the Act of 1998 or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by section 4(6)(b) of the Act of 1998 and made, in any case, not earlier than the commencement of the relevant period,

(xix) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 16(1) of the Act of 2001 or a determination by the Labour Court under subsection (1) or (8) of section 17 of the Act of 2001 and made, in any case, not earlier than the commencement of the relevant period,

(xx) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 14(1)(b) of the Act of 2003 or a determination by the Labour Court under subsection (1)(b) or (8) of section 15 of the Act of 2003 and made, in any case, not earlier than the commencement of the relevant period,

(xxi) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under Regulation 6(1) of the European Communities (Protection of Employment) Regulations 2000 ( S.I. No. 488 of 2000 ) or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by the same Regulations and made, in any case, not earlier than the commencement of the relevant period,

(xxii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under Regulation 10(4)(b) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 ( S.I. No. 131 of 2003 ) or a determination by the Employment Appeals Tribunal under regulation 11(1)(b) of the same regulations and made, in any case, not earlier than the commencement of the relevant period,

(xxiii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under paragraph 4 of the Third Schedule to the Act of 2002 or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by paragraph 6(b) of the Third Schedule to the Act of 2002 and made, in any case, not earlier than the commencement of the relevant period,

(xxiv) any amount which an employer is required to pay to an employee in respect of remuneration by virtue of a registered employment agreement within the meaning of Part III of the Industrial Relations Act 1946 , being an amount by reference to which an order of the Labour Court has been made under section 32(1)(b) of that Act or section 10(1)(b) of the Act of 1969, or proceedings have been instituted under section 54(1) of the Act of 1990, F26 [ ]

(xxv) any amount which an employer is required to pay to an employee in respect of remuneration by virtue of a decision of a rights commissioner under subsection (4)(b) of section 9 of the Act of 2004 or a determination by the Labour Court under subsection (1)(b) of section 10 of the F27 [ Act of 2004, F28 [ ] ]

F29 [ F30 [ (xxvi) any amount that an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1 (2) of Schedule 2 to the Protection of Employees (Temporary Agency Work) Act 2012 or a determination by the Labour Court under paragraph 2(1) of that Schedule. ] ]

F31 [ (xxvii) any amount which an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1(2)(b) of Schedule 2 to the Act of 2011 or a determination by the Labour Court under paragraph 2(1)(b) of F32 [ that Schedule, F33 [ ] ]

F34 [ (xxviii) any amount which an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1(2)(b) of Schedule 4 to the Property Services (Regulation) Act 2011 or a determination by the Labour Court under paragraph 2(1) of F35 [ that Schedule, F36 [ ] ]

F37 [ (xxix) any amount which an employer is required to pay by virtue of a decision of a rights commissioner under section 45A(2)( b ) of the Industrial Relations Act 1946 or a determination by the Labour Court under section 45B(1)( b ) of F38 [ that Act, F39 [ ] ]

F40 [ (xxx) any amount which an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1(2)(b) of Schedule 5 to the Central Bank (Supervision and Enforcement) Act 2013 or a determination by the Labour Court under paragraph 2(1)(b) of F41 [ that Schedule, F42 [ ] ]

F43 [ (xxxi) any amount which an employer is required to pay by virtue of a decision of a rights commissioner under paragraph 1(2)(b) of Schedule 2 to the Protected Disclosures Act 2014 or a determination by the Labour Court under paragraph 2(1)(b) of F44 [ that Schedule, and ]

F45 [ (xxxii) any amount that an employer within the meaning of the Act of 2015 is required to pay by virtue of a decision of an adjudication officer or the Labour Court under Part 4 of that Act. ] ]

(b) Any amount, damages, fine or compensation referred to in subparagraph (viii), (ix), (x) F46 [ (xi), (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv) F47 [ , (xxv) or F48 [ , (xxvi) F49 [ , (xxvii) F50 [ , (xxviii) F51 [ , (xxix) F41 [ , (xxx) F44 [ , (xxxi) or (xxxii) ] ] of paragraph (a) of this subsection shall be regarded as being a debt to which this section applies if, and only if, the relevant recommendation, decision, determination, award or order was made during, or after the expiration of, the relevant period.

F52 [ (c) A payment shall not be made under this section in respect of a debt referred to in subparagraph (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiii) F53 [ , (xxv) F48 [ , (xxvi) F49 [ , (xxvii) F50 [ , (xxviii) F51 [ , (xxix) F41 [ , (xxx) F44 [ , (xxxi) or (xxxii) ] ] of paragraph (a) of this subsection until the period for making an appeal against

F44 [ (i) the decision or recommendation, as appropriate, of the rights commissioner, or the decision of the adjudication officer under Part 4 of the Act of 2015, ]

(ii) the determination of the Employment Appeals Tribunal or the Labour Court, as appropriate,

has expired, or any such appeal made has been withdrawn or determined. ]

(3) Where—

( a) legal proceedings are instituted by or on behalf of an employee and on foot of all or any of the following—

(i) a claim for arrears described in subparagraph (i) or (ii) of subsection (2) of this section,

(ii) a claim for holiday pay described in subparagraph (iv) of the said subsection (2),

(iii) a claim for damages at common law for wrongful dismissal,

an award is made by the court in favour of the employee, and

( b) had the employee made an application under subsection (1) of this section in respect of any of the matters referred to in subparagraph (i), (ii) or (iii) of paragraph (a) of this subsection he would have satisfied the requirements of paragraphs (a), (b) and (c) of the said subsection (1),

subject to subsection (4) (a) of this section, there shall be paid out of F54 [ the Social Insurance Fund ] , to or in respect of the employee, an amount equal to—

(i) the amount of the award, or

(ii) the maximum which would have been payable out of the said Fund by virtue of this Act had the employee successfully sought redress under section 8 (1) or 9 (1) of the Act of 1977.

(4) ( a) The amount payable to an employee in respect of any debt mentioned in subsection (2) or award mentioned in subsection (3) of this section shall, where the amount of that debt is or may be calculated by reference to the employee’s remuneration, not exceed F55 [ 600 ] in respect of any one week or, in respect of any period of less than a week, an amount bearing the same proportion to F55 [ 600 ] as that period bears to the normal weekly working hours of the employee at the relevant date.

( b) An amount payable under this section in respect of a debt mentioned in subsection (2) (a) (ii) of this section as regards a particular period, shall not exceed the difference between the amount of any disability benefit or injury benefit payable under the Act of 1981 to the employee concerned as regards the period (together with, in either case, the amount of any pay-related benefit payable to such employee under the Act of 1981 as regards the period) and the amount of his normal weekly remuneration as regards the period.

( c) (i) A payment shall not be made under this section in respect of an amount which an employer is required to pay by virtue of a determination having been made under section 8 (1) or 9 (1) of the Act of 1977, unless—

(I) if proceedings are instituted under section 10 of the Act of 1977, the proceedings are withdrawn, or

(II) in case an appeal is brought under section 10 (4) of the Act of 1977 from the determination, the appeal has been either withdrawn or determined, or

(III) in case there is no such appeal, the time for bringing such an appeal has expired.

(ii) A payment shall not be made under this section in respect of an amount to which a recommendation under section 8 (1) of the Act of 1977 relates unless—

(I) in case an appeal from the recommendation is brought under section 9 (1) of the Act of 1977, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

(iii) A payment shall not be made under this section as regards a recommendation referred to in subsection (2) (a) (viii) (I) of this section unless—

(I) in case an appeal is brought under section 8 (1) ( a) of the Anti-Discrimination (Pay) Act, 1974, or section 21(1) of the Employment Equality Act, 1977, against the recommendation, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

F56 [ F57 [ (iv) a payment shall not be made under this section in respect of an amount to which a decision under Part V of the Maternity Protection Act, 1994 , Part IV of the Parental Leave Act, 1998 , or Part 4 of the Carer s Leave Act, 2001, relates unless ]

(I) in case an appeal from the decision to the Tribunal is brought under the Part in question, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

F58 [ F59 [ (v) a payment shall not be made under this section in respect of an amount to which a determination under Part V of the Maternity Protection Act, 1994 , Part IV of the Parental Leave Act, 1998 , or Part 4 of the Carer s Leave Act, 2001, relates unless ]

(I) in case an appeal from the decision or determination is brought under that Part, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired. ] ]

F60 [ (vi) A payment shall not be made under this section in respect of an amount to which a decision or determination under any provision of the Employment Equality Act, 1998, applies unless

(I) in case an appeal from the decision or determination is brought under that Part, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

F61 [ (vii) A payment shall not be made under this section in respect of an amount to which a decision of a rights commissioner under section 26 of the National Minimum Wage Act, 2000, relates unless

(I) in case an appeal from the decision to the Labour Court is brought under section 27 of that Act, the appeal is withdrawn, or

(II) in case there is no such appeal, the time for bringing such an appeal has expired.

(viii) A payment shall not be made under this section in respect of an amount to which a determination under section 29 of the National Minimum Wage Act, 2000, relates unless

(I) in case an appeal from the determination is brought to the High Court under section 30 of that Act, the appeal is withdrawn, or

(II) in case there is no appeal, the time for bringing an appeal has expired. ] ]

(5) The provisions of subsections (6) and (7) of this section shall apply in a case where a relevant officer is either appointed or required to be appointed.

(6) Subject to subsection (7) of this section, the Minister shall not in a case which is a case referred to in subsection (5) of this section make any payment under this section in respect of any debt until he has received a statement in the prescribed form from the relevant officer of the amount of that debt which appears to have been owed to the employee on the relevant date and to remain unpaid; and the relevant officer shall, on a request being made in that behalf, by the Minister, provide him, as soon as is reasonably practicable, with such a statement.

(7) Where—

( a) a period of six months has elapsed since the application for a payment under this section was received by the Minister, but no such payment has been made,

( b) the Minister is satisfied that a payment under this section should be made, and

( c) it appears to the Minister that there is likely to be further delay before he receives a statement referred to in subsection (6) of this section regarding the debt in question,

then, the Minister may, if the applicant so requests, or if the Minister thinks fit, without such a request, make a payment under this section notwithstanding the fact that no such statement has been received.

(8) Where an application is made to the Minister under this section and in relation to any or each of the debts to which the application relates, the Minister is satisfied that—

( a) there was an agreement between the applicant and the employer concerned that the whole or any part of the debt would be the subject of an application under this section, and

( b) when the agreement was made such employer had the means to pay such debt or the part thereof,

the Minister may either refuse the application or disallow it in so far as it relates to such debt or part.

(9) In this section—

normal weekly remuneration” has the meaning assigned to it by Schedule 3 to the Act of 1967 for the purposes of that Schedule save that any reference in that Schedule to the date on which an employee was declared redundant may, where appropriate, be construed as including a reference to the relevant date;

the relevant date” means—

( a) in relation to a debt which is an amount, damages, fine or compensation referred to in F62 [ subparagraph (iii)(I), ] (v), (vi), (viii), (ix), F63 [ (x), (xi), (xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv) F64 [ , (xxv) F48 [ , (xxvi) F49 [ , (xxvii) F50 [ , (xxviii) F51 [ , (xxix) F41 [ , (xxx) F44 [ , (xxxi) or (xxxii) ] ] of subsection (2) (a) of this section, the date on which the relevant employer became insolvent or the date on which the relevant recommendation, decision, determination, award or order is made, whichever is the later,

F65 [ ( aa ) in relation to a debt referred to in subparagraph (iii)(II), the date of termination of employment, ]

( b) in relation to any other debt to which this section applies—

(i) in case the relevant applicant’s employment is terminated as a result of the relevant employer’s insolvency, the date on which such employer became insolvent, or the date of such termination, whichever such applicant shall as regards the debt nominate, or

(ii) in any other case, the date on which such employer became insolvent;

the relevant period” means in relation to a debt to which this section applies, the period of eighteen months immediately preceding the relevant date.

(10) No reference in subsection (3) of this section to an award shall be construed as including a reference to any amount allowed as regards costs.

Annotations:

Amendments:

F16

Substituted (1.05.1990) by Social Welfare Act 1990 (5/1990), s. 28(b), commenced as per s. 31.

F17

Substituted (25.05.2003) by Redundancy Payments Act 2003 (14/2003) s. 15(a), S.I. No. 194 of 2003. Note reg. 3(2)(b) of commencement order: s. 15 applies only to those circumstances where the relevant date defined by s. 6(9) occurs on or after 25.05.2003.

F18

Substituted (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 41(1) and (2), S.I. No. 16 of 1995.

F19

Substituted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 30(a), commenced on enactment.

F20

Inserted (18.10.1999) by Employment Equality Act 1998 (21/1998), s. 103(4) and (5), S.I. No. 320 of 1999.

F21

Deleted (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 47(a)(i), S.I. No. 96 of 2000.

F22

Substituted (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 47(a)(ii), S.I. No. 96 of 2000.

F23

Inserted (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 47(a)(iii), S.I. No. 96 of 2000.

F24

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 6(a)(i).

F25

Inserted by (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 6(a)(ii).

F26

Deleted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2, art. 6(2)(a)(i), S.I. No. 682 of 2006.

F27

Substituted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2, art. 6(2)(a)(ii), S.I. No. 682 of 2006.

F28

Deleted (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 20(2) and sch. 2 art. 6, S.I. No. 411 of 2011.

F29

Inserted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2, art. 6(2)(a)(iii), S.I. No. 682 of 2006.

F30

Substituted (16.05.2012) by Protection of Employees (Temporary Agency Work) Act 2012 (13/2012), s. 25 and sch. 2 para. 6, commenced on enactment.

F31

Inserted (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 20(2) and sch. 2 art. 6(2)(a)(iii), S.I. No. 411 of 2011.

F32

Substituted (6.07.12) by Property Services (Regulation) Act 2011 (40/2011), s. 67(5) and sch. 4 para. 5(a)(ii), S.I. 198 of 2012.

F33

Deleted (1.08.2012) by Industrial Relations (Amendment) Act 2012 (32/2012), s. 17(a)(i), commenced on enactment.

F34

Inserted (6.07.2012) by Property Services (Regulation) Act 2011 (40/2011), s. 67(5) and sch. 4 para. 5(a)(iii), S.I. No. 198 of 2012.

F35

Substituted (1.08.2012) by Industrial Relations (Amendment) Act 2012 (32/2012), s. 17(a)(ii), S.I. No. 302 of 2012.

F36

Deleted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 41 and sch. 5 para. 6(a)(i), S.I. No. 287 of 2013.

F37

Inserted (1.08.2012) by Industrial Relations (Amendment) Act 2012 (32/2012), s. 17(a)(iii), S.I. No. 302 of 2012.

F38

Substituted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 41 and sch. 5 para. 6(a)(ii), (b), (c), S.I. No. 287 of 2013.

F39

Deleted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 12 and sch. 2 para. 6(a)(i), S.I. No. 327 of 2014.

F40

Inserted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 41 and sch. 5 para. 6(a)(iii), S.I. No. 287 of 2013.

F41

Substituted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 12 and sch. 2 para. 6(a)(ii), (b), (c), (d), S.I. No. 327 of 2014.

F42

Deleted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(2)(a), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F43

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 12 and sch. 2 para. 6(a)(iii), S.I. No. 327 of 2014.

F44

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(2)(b), (d)-(f), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F45

Inserted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(2)(c), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F46

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 6(b).

F47

Substituted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2, art. 6(2)(b), S.I. No. 682 of 2006.

F48

Substituted (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 20(2) and sch. 2 art. 6(2)(a)(ii), (b), (c) and (d), S.I. No. 411 of 2011.

F49

Substituted (6.07.2012) by Property Services (Regulation) Act 2011 (40/2011), sch. 4 para. 5(b), (c) and (d), S.I. No. 198 of 2012.

F50

Substituted (1.08.2012) by Industrial Relations (Amendment) Act 2012 (32/2012), s. 17(b), (c) and (d), S.I. No. 302 of 2012.

F51

Substituted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 41 and sch. 5 para. 6(a)(ii), (b), (c), (d), S.I. No. 287 of 2013.

F52

Inserted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 6(c).

F53

Substituted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2, art. 6(2)(c), S.I. No. 682 of 2006.

F54

Substituted (1.05.1990) by Social Welfare Act 1990 (5/1990), s. 28(b), commenced as per s. 31.

F55

Substituted (1.01.2005) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 2004 (S.I. No. 696 of 2004), reg. 3, in respect of debts to which the Act applies and where the relevant date is not earlier than 1.01.2005.

F56

Inserted (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 41(3), S.I. No. 16 of 1995.

F57

Substituted (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 30(b)(i), commenced on enactment.

F58

Inserted (18.10.1999) by Employment Equality Act 1998 (21/1998), s. 103(4) and (6), S.I. No. 320 of 1999.

F59

Substituted (2.07.2001) by Carers’ Leave Act 2001 (19/2001), s. 30(b)(ii), commenced on enactment.

F60

Inserted (18.10.1999) by Employment Equality Act 1998 (21/1998), s. 103(4) and (6), S.I. No. 320 of 1999.

F61

Inserted (1.04.2000) by National Minimum Wage Act 2000 (5/2000) s. 47(b), S.I. No. 96 of 2000.

F62

Substituted (25.05.2003) by Redundancy Payments Act 2003 (14/2003) s. 15(b), S.I. No. 194 of 2003.

F63

Substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 6(d).

F64

Substituted (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2, art. 6(2)(d), S.I. No. 682 of 2006.

F65

Substituted (25.05.2003) by Redundancy Payments Act 2003 (14/2003), s. 15(c), S.I. No. 194 of 2003. Note: in accordance with the commencement order, s. 15 of the Act applies only to those circumstances where the relevant date defined by Protection of Employees (Employers’ Insolvency) Act 1984, s. 6(9) occurs on or after 25.05.2003.

Modifications (not altering text):

C4

Payments under subs. (2)(a)(i) not excluded (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 41(14), S.I. No. 96 of 2000.

41.— ...

Employer in financial difficulty.

(14) A payment from the Social Insurance Fund in accordance with section 6(2)(a)(i) of the Protection of Employees (Employers’ Insolvency) Acts, 1984 to 1991, shall not have regard to any exemption under this section and any such payment shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.

C5

Application of subs. (4)(c)(i) extended (20.03.1995) by Adoptive Leave Act 1995 (2/1995) s. 40(b), S.I. No. 64 of 1995.

Extension of Protection of Employees (Employers’ Insolvency) Act, 1984.

40.—In section 6 of the Protection of Employees (Employers’ Insolvency) Act, 1984 —

(a) the references in subparagraph (v) of subsection (2) (a) to a determination or order shall be construed as including references to a decision, determination or order under Part V, and

(b) the references in subparagraph (i) of subsection (4) (c) to a determination shall be construed as including references to a decision or determination under Part V and the reference in clause (II) of the said subparagraph, to section 10 (4) of the Act of 1977 shall be construed as including a reference to section 35 or 36, as may be appropriate.

Editorial Notes:

E7

Previous affecting provision: subs. (2)(a)(xxvi) amended (7.06.2012) by Property Services (Regulation) Act 2011 (40/2011), s. 67(5) and sch. 4 para. 5(a)(i), S.I. No. 198 of 2012; already amended as per F-note above.

E8

Power pursuant to section exercised (30.09.2011) by Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011).

E9

Previous affecting provision: subs. (2)(a)(xxvi) amended (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 20 and sch. 2, para. 6(a)(ii), S.I. No. 411 of 2011; substituted as per F-note above.

E10

Previous affecting provision: power pursuant to section exercised (2.11.2005) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005); revoked (30.09.2011) by Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011), reg. 4.

E11

Previous affecting provision: power pursuant to section exercised (25.05.2003) by Protection of Employees (Employers' Insolvency) (Forms and Procedure) (Amendment) Regulations 2003 (S.I. No. 197 of 2003). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E12

Previous affecting provision: power pursuant to section exercised (1.01.2002) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) (Amendment) Regulations 2001 (S.I. No. 581 of 2001). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E13

Previous affecting provision: words in subs. (9) substituted (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 47(c), S.I. No. 96 of 2000; substituted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 6(d); in turn substituted as per F-note above.

E14

Previous affecting provision: subs. (2)(a)(v)(II) substituted (3.12.1998) by Parental Leave Act 1998 (30/199), s. 26(1), commenced as per s. 1(2); substituted as per F-note above.

E15

Previous affecting provisions: subs. (4)(c)(iv) and (v) substituted in part (3.12.1998) by Parental Leave Act 1998 (30/1998), s. 26(1) and (3), commenced as per s. 1(2); superseded as per F-note above.

E16

Previous affecting provision: power pursuant to section exercised (30.12.1991) by Protection of Employees (Employers’ Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1990 (S.I. No. 349 of 1991). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E17

Previous affecting provisions: amount in subs. (4)(a) substituted (1.02.1990) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 1990 ( S.I. No. 17 of 1990), reg. 2(1); substituted (1.05.1994) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 1994 (S.I. No. 62 of 1994), reg. 3; substituted (1.04.2001) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations, 2001 (S.I. No. 42 of 2001), reg. 3; in turn substituted as per F-note above.

E18

Previous affecting provision: power pursuant to section exercised (20.12.1984) by Protection of Employees (Employers' Insolvency) (Forms and Procedure) Regulations 1984 (S.I. No. 356 of 1984); revoked (2.11.2005) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005), reg. 6.

Payment of unpaid contributions to occupational pension scheme.

7

7. (1) If, on an application made to him in the prescribed form by an employee or by the persons competent to act in respect of an occupational pension scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ], the Minister is satisfied that—

( a) an employer (being in case the application is made by a person otherwise than in his capacity as the person competent so to act the employer of the applicant) has become insolvent,

( b) the date on which for the purposes of this Act the employer became insolvent is a day not earlier than the 22nd day of October, 1983, and

( c) on that day there remained unpaid relevant contributions remaining to be paid by the employer to the scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ],

on the date on which the employer became insolvent, being a date not earlier than the said 22nd day of October the Minister shall, subject to this section, pay into the assets of the scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ] out of the F67 [ the Social Insurance Fund ] the sum which in his opinion is payable in respect of the unpaid relevant contributions.

(2) In this section “ relevant contributions” means contributions falling to be paid by an employer in accordance with an occupational pension scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ], either on his own account or on behalf of an employee; provided that for the purposes of this section a contribution of any amount shall not be treated as falling to be paid on behalf of an employee unless a sum equal to that amount has been deducted from the pay of the employee by way of a contribution from him.

(3) The sum payable under this section in respect of unpaid contributions of an employer on his own account to an occupational pension scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ] shall be the lesser of the following amounts—

( a) the balance of relevant contributions remaining unpaid on the date on which he became insolvent and payable by the employer on his own account to the scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ] in respect of the period of twelve months ending on the day immediately preceding that date,

( b) the amount certified by an actuary F68 [ (or, where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State, an actuary or person performing a similar task) ] to be necessary for the purpose of meeting the liability of the scheme on dissolution to pay the benefits provided by the scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ] to or in respect of the employees of the employer.

(4) Any sum payable under this section in respect of unpaid contributions on behalf of an employee shall not exceed the amount deducted from the pay of the employee in respect of the employee’s contributions to the occupational pension scheme F66 [ or Personal Retirement Savings Account (within the meaning of the Pensions Act, 1990 ) ] during the period of twelve months ending on the day immediately preceding the date on which the employer became insolvent.

(5) The provisions of subsections (6), (7) and (8) of this section shall apply in a case where a relevant officer is either appointed or required to be appointed.

(6) Subject to subsection (8) of this section, the Minister shall not in a case which is a case referred to in subsection (5) of this section make any payment under this section in respect of unpaid relevant contributions until he has received a statement in the prescribed form from the relevant officer of the amount of relevant contributions which appear to have been unpaid on the date on which the employer became insolvent and to remain unpaid; and the relevant officer shall, on request made by the Minister provide him, as soon as reasonably practicable, with such a statement.

(7) Subject to subsection (8) of this section, an amount shall be taken to be payable under subsection (3) or to have been deducted in the manner referred to in subsection (4) of this section, only if it is certified by the relevant officer as being so payable, or to have been so deducted.

(8) Where—

( a) a period of six months has elapsed since the application for a payment under this section was received by the Minister, but no such payment has been made,

( b) the Minister is satisfied that a payment under this section should be made, and

( c) it appears to the Minister that there is likely to be further delay before he receives a statement or certificate about the contributions in question,

then, the Minister may, if the applicant so requests or, if the Minister thinks fit, without such a request, make a payment under this section, notwithstanding the fact that no statement or certificate referred to in subsection (6) or (7) of this section has been received.

Annotations:

Amendments:

F66

Inserted by Pensions Act 1990 (25/1990), s. 121(9) as inserted (15.09.2003) by Pensions (Amendment) Act 2002 (18/2002), s. 3, S.I. No. 389 of 2003.

F67

Substituted (1.05.1990) by Social Welfare Act 1990 (5/1990), s. 28(b), commenced as per s. 31.

F68

Inserted (8.10.2005) by European Communities (Protection of Employees (Employers’ Insolvency) Regulations 2005 (S.I. No. 630 of 2005), reg. 7.

Editorial Notes:

E19

Power pursuant to section exercised (30.09.2011) by Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011).

E20

Previous affecting provision: power pursuant to section exercised (2.11.2005) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005); revoked (30.09.2011) by Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011), reg. 4.

E21

Previous affecting provision: power pursuant to section exercised (23.05.1990) by Protection of Employees (Employers’ Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1990 (S.I. No. 121 of 1990); revoked (2.11.2005) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005), reg. 6.

E22

Previous affecting provision: power pursuant to section exercised (1.05.1985) by Protection of Employees (Employers' Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1985 (S.I. No. 123 of 1985). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

Minister may require certain information and documents.

8

8. (1) Where an application is made to the Minister under section 6 or 7 of this Act in respect of a debt owed or unpaid contributions to an occupational pensions scheme, the Minister may require—

( a) the employer concerned, or, in case a relevant officer is or is required to be appointed, that officer, to provide him with such information as the Minister may reasonably require for the purpose of determining whether the application is well-founded, and

( b) any person having the custody or control of any relevant record kept and retained pursuant to section 10 of the Holidays (Employees) Act, 1973, or any register, card, wages sheet, record of wages or other document which an officer of the Minister may reasonably consider to be relevant to the application to produce to such officer such document for examination by him.

(2) A requirement under this section shall be made by notice in writing given to the person on whom the requirement is imposed and may be varied or revoked by a subsequent notice so given.

Complaints to Tribunal.

9

9. F69 [ (1) A person who has applied for a payment

(a) under section 6 of a debt described in subparagraph (i), (ii) or (iv) of subsection (2)(a) of that section, or

(b) to be made under section 7 of this Act into the resources of a pension scheme,

may present a complaint to the Director General that

(i) the Minister has failed to make such payment, or

(ii) any such payment made by the Minister is less than the amount that the Minister is required to pay under section 6 or 7, as may be appropriate. ]

F70 [ (1A) The Director General shall refer a complaint presented to him or her under subsection (1) for adjudication by an adjudication officer.

(1B) An adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the decision by the Minister in relation to the application to which the complaint relates.

(1C) An adjudication officer may entertain a complaint to which this section applies presented to the Director General after the expiration of the period referred to in subsection (1B) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause. ]

(2) F71 [ ]

F69 [ (3) Where a claim for payment is made under section 6 or 7 and it appears to the Minister that a doubt exists as to whether or not such claim is allowable (in whole or in part), he may refer any matter arising in connection with the claim to the Director General, and the Director General shall refer the matter for adjudication by an adjudication officer. ]

(4) Where on the hearing of a complaint presented under this section the F69 [ adjudication officer ] finds that the Minister is liable to make a payment under section 6 or 7 of this Act, F69 [ he ] shall make a declaration to that effect and shall specify in the declaration the amount of such payment.

(5) F71 [ ]

F70 [ (6) In this section

adjudication officer has the same meaning as it has in the Act of 2015; and

Director General means the Director General of the Workplace Relations Commission. ]

Annotations:

Amendments:

F69

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(3)(a), (c), (d), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F70

Inserted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(3)(b), (e), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F71

Deleted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 81(3)(f), S.I. No. 410 of 2015, subject to transitional provision in subs. (4).

F72 [ Appeal to Labour Court from declaration of adjudication officer under section 9

9A

9A. Section 44 of the Act of 2015 shall apply to a declaration of an adjudication officer given in relation to a complaint under section 9 as it applies to a decision of an adjudication officer given in proceedings under section 41 of that Act, subject to the following modifications:

(a) the substitution of the following subsection for subsection (1):

(1) A party to proceedings in relation to a complaint under section 9 of the Act of 1984 may appeal a declaration of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall

(a) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(b) make a decision in relation to the appeal affirming, varying or setting aside the declaration of the adjudication officer to which the appeal relates, and

(c) give the parties to the appeal a copy of that decision in writing. ;

and

(b) any other necessary modifications. ]

Annotations:

Amendments:

F72

Inserted (1.10.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 15, commenced by S.I. No. 410 of 2015 as per subs. (2).

Editorial Notes:

E23

Previous affecting provision: section inserted by Workplace Relations Act 2015 (16/2015), s. 81(4), not commenced; deleted and substituted (1.10.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 20(1)(m), S.I. No. 411 of 2015.

Transfer to Minister of certain rights and remedies.

10

10. (1) Where, in pursuance of section 6 of this Act, the Minister makes any payment to an employee in respect of any debt to which that section applies, any rights and remedies of the employee in respect of that debt (or, if the Minister has paid only part of it, in respect of that part) shall, on the making of the payment, become rights and remedies of the Minister.

(2) Without prejudice to the generality of subsection (1) of this section, where rights and remedies become, by virtue of subsection (1) of this section, rights and remedies of the Minister, there shall be included amongst them any right to be paid in priority to all other debts under—

( a) section 4 of the Preferential Payments in Bankruptcy (Ireland) Act, 1889; or

( b) section 285, as amended by section 10 of the Companies (Amendment) Act, 1982, of the Companies Act, 1963,

and the Minister shall be entitled to be so paid in priority to any other unsatisfied claim of the employee concerned being a claim which, but for this subsection, would be payable to the employee in such priority; and in computing for the purposes of any of the provisions of the said section 4 or the said section 285, as so amended, any limit on the amount of sums to be paid, any sums paid to the Minister shall be treated as if they had been paid to the employee.

F73 [ (2A) Where the Minister makes a payment to an employee under section 6(2)( a )(iii)(II) (inserted by section 15 of the Redundancy Payments Act 2003 ) of this Act, that payment shall be recoverable by the Minister as a debt to be paid in priority to all other debts under

( a ) section 81 of the Bankruptcy Act 1988 , or

( b ) section 285 (as amended by section 10 of the Companies (Amendment) Act 1982 and section 134 of the Companies Act 1990 ) of the Companies Act 1963 ,

and any amount of that payment which would, but for the limit set by section 6(4)( a ) (as may be varied by regulations under section 11(5)), be payable to an employee, shall be treated for all purposes as if it were a payment required to be paid by virtue of an award under section 12(1) of the Act of 1973. ]

(3) Where in pursuance of section 7 of this Act the Minister makes any payment into the resources of an occupational pension scheme in respect of any contributions to the scheme, any rights and remedies in respect of those contributions belonging to the persons competent to act in respect of the scheme shall, on the making of the payment, become rights and remedies of the Minister.

(4) Any sum recovered by the Minister in exercising any right or pursuing any remedy which is his by virtue of this section shall be paid into the F74 [ the Social Insurance Fund ] .

Annotations:

Amendments:

F73

Inserted (6.04.2004) by Industrial Relations (Miscellaneous Provisions) Act 2004 (4/2004), s. 15, S.I. No. 138 of 2004.

F74

Substituted (1.05.1990) by Social Welfare Act 1990 (5/1990), s. 28(b), commenced as per s. 31.

Power to amend Act.

11

11. (1) The Minister may from time to time by order amend section 3 of this Act so as to—

( a) extend the application of this Act to employees who are of a class or description specified in the order,

( b) exclude from such application employees who are of a class or description so specified.

(2) The Minister may from time to time by order amend section 6 of this Act so as to effect either or both of the following—

( a) substitute for the number of weeks specified in all or any of the following subsections, namely, subsection (2) (a) (i), (2) (a) (ii) or (2) (a) (iv) a different number of weeks,

( b) substitute for the number of months specified in the definition of “ the relevant period” contained in subsection (9) thereof a different number of months.

(3) The Minister may from time to time by order amend section 4 (2), as amended by section 17 of the Redundancy Payments Act, 1979, and by section 12 of this Act, of the Act of 1967, so as to vary the number of hours specified therein.

(4) The Minister may from time to time by order amend—

( a) paragraph ( a) of section 3 (1), as amended by section 13 of this Act, of the Act of 1973,

( b) paragraph 8, as amended by the said section 13 , of the First Schedule to the Act of 1973,

so as to vary the number of hours specified in that paragraph.

(5) The Minister may by regulation amend section 6 of this Act so as to vary the limit specified in subsection (4) (a).

(6) The reference in section 2 (4) of the Act of 1977 to the First Schedule to the Act of 1973 shall be construed as being a reference—

( a) in case an order under this section amending that Schedule is for the time being in force, that Schedule as amended by section 20 of the Act of 1977, by section 13 of this Act and by the order,

( b) in case no such order is so in force, that Schedule as amended both by the said section 20 and the said section 13 .

(7) Where an order under this section is proposed to be made, the Minister shall cause a draft of the order to be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

Annotations:

Editorial Notes:

E24

Power pursuant to section exercised (1.01.2005) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 2004 (S.I. No. 696 of 2004).

E25

Power pursuant to section exercised (1.04.2001) Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 2001 (S.I. No. 42 of 2001).

E26

Power pursuant to section exercised (1.05.1994) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 1994 (S.I. No. 62 of 1994).

E27

Power pursuant to section exercised (1.02.1990) by Protection of Employees (Employers’ Insolvency) (Variation of Limit) Regulations 1990 (S.I. No. 17 of 1990).

E28

Power pursuant to section exercised (25.03.1988) by Protection of Employees (Employers’ Insolvency) Act, 1984 (Amendment Order) Order 1988 (S.I. No. 48 of 1988).

Amendment of section 4 of Act of 1967.

12

12.Subsection (2) of section 4, as amended by section 17 of the Redundancy Payments Act, 1979, of the Act of 1967 is hereby amended by the substitution of “ 18 hours” for “20 hours”, and the said subsection (2), as so amended, is set out in the Table to this section.

TABLE

(2) This Act shall not apply to a person who is normally expected to work for the same employer for less than 18 hours in a week.

Amendment of section 3 of and First Schedule to Act of 1973.

13

13.The Act of 1973 is hereby amended by—

( a) the substitution in paragraph ( a) of section 3(1) of “ eighteen hours” for “twenty-one hours”, and

( b) the substitution of “ eighteen hours” for “twenty-one hours” in paragraph 8 of the First Schedule;

and the said paragraphs ( a) and 8, as so amended, are set out in paragraphs 1 and 2, respectively, of the Table to this section.

TABLE

1. ( a) employment of an employee who is normally expected to work for the same employer for less than eighteen hours in a week.

2. 8. Any week in which an employee is not normally expected to work for at least eighteen hours or more will not count in computing a period of service.

Institution of proceedings for offence.

14

14.Proceedings for an offence under section 15 of this Act shall not be instituted except by or with the consent of the Minister.

Offences.

15

15. (1) If any person, in relation to an application under section 6 or 7 of this Act, whether for himself or for some other person,

( a) knowingly makes any false statement or false representation or knowingly conceals a material fact, or

( b) produces or furnishes, or causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

he shall be guilty of an offence.

(2) If a person refuses or wilfully neglects to provide any information or produce any document which he has been required to provide or produce by a notice under section 8 of this Act he shall be guilty of an offence.

(3) If a person, in purporting to comply with a requirement of a notice under section 8 of this Act, knowingly or recklessly makes any false statement he shall be guilty of an offence.

(4) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500.

(5) Subsections (8) and (9) of section 266 of the Act of 1981 shall apply in relation to an offence under this section which is committed by a body corporate as they apply to offences under Part V of the Act of 1981 which are so committed.

(6) Subsection (10) of section 266 of the Act of 1981 shall be construed and have effect as if the reference therein to proceedings under Part V of the Act of 1981 contained a reference to proceedings under this section.

Regulations.

16

16. (1) The Minister may make regulations for giving effect to this Act.

(2) Without prejudice to the generality of subsection (1) of this section, regulations under this section may make provision requiring an applicant under section 6 or 7 of this Act to make the application within the prescribed time.

(3) The Minister may make regulations for prescribing any matter referred to in this Act as prescribed.

(4) Regulations under this section may apply to applications under this Act generally or to such applications which are of a prescribed class or description.

(5) Every regulation made under this Act by the Minister shall be laid before both Houses of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Annotations:

Editorial Notes:

E29

Power pursuant to section exercised (30.09.2011) by Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011).

E30

Previous affecting provision: power pursuant to section exercised (2.11.2005) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005); revoked (30.09.2011) by Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 (S.I. No. 504 of 2011), reg. 4.

E31

Previous affecting provision: power pursuant to section exercised (25.05.2003) by Protection of Employees (Employers' Insolvency) (Forms and Procedure) (Amendment) Regulations 2003 (S.I. No. 197 of 2003). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E32

Previous affecting provision: power pursuant to section exercised (1.01.2002) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) (Amendment) Regulations 2001 (S.I. No. 581 of 2001). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E33

Previous affecting provision: power pursuant to section exercised (30.12.1991) by Protection of Employees (Employers’ Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations, 1990 (S.I. No. 349 of 1991). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E34

Previous affecting provision: power pursuant to section exercised (23.05.1990) by Protection of Employees (Employers’ Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1990 (S.I. No. 121 of 1990); revoked (2.11.2005) by Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005), reg. 6.

E35

Previous affecting provision: power pursuant to section exercised (1.05.1985) by Protection of Employees (Employers' Insolvency) (Occupational Pension Scheme) (Forms and Procedure) Regulations 1985 (S.I. No. 123 of 1985). These regulations are not revoked but amend S.I. No. 356 of 1984 which is revoked.

E36

Previous affecting provision: power pursuant to section exercised (20.12.1984) by Protection of Employees (Employers' Insolvency) (Forms and Procedure) Regulations 1984 (S.I. No. 356 of 1984); revoked (2.11.2005) by Protection of Employees (Employers' Insolvency) (Forms and Procedure) Regulations 2005 (S.I. No. 682 of 2005), reg. 6.

Expenses, etc.

17

17. (1) The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(2) The Minister may pay out of the F75 [ the Social Insurance Fund ] to a relevant officer or a person to whom an appointment under section 5 of this Act relates, in respect of the functions performed by him under this Act, such fees as the Minister shall, with the concurrence of the Minister for Finance, determine.

Annotations:

Amendments:

F75

Substituted (1.05.1990) by Social Welfare Act 1990 (5/1990), s. 28(b), commenced as per s. 31.

Short title and collective citations.

18

18. (1) This Act may be cited as the Protection of Employees (Employers’ Insolvency) Act, 1984.

(2) Section 12 of this Act and the Redundancy Payments Acts, 1967 to 1979, may be cited together as the Redundancy Payments Acts, 1967 to 1984.

(3) Section 13 of this Act and the Act of 1973 may be cited together as the Minimum Notice and Terms of Employment Acts, 1973 and 1984.