Employment Permits Act 2003

2B.

F17 [ Civil proceedings

2B. (1) This section applies to a foreign national who, in contravention of section 2(1)

(a) had entered the service of an employer in the State, or

(b) was in employment in the State,

without an employment permit granted by the Minister under section 8 of the Act of 2006 that was in force and who is no longer in such service or employment.

(2) Where an employer referred to in section 2(1)(a) or, in the case of employment referred to in section 2(1)(b), a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b)

(a) has not paid a foreign national to whom this section applies an amount of money in respect of work done or services rendered during the period for which the foreign national was in the employment or service without an employment permit, or

(b) has paid an amount of money that was, having regard to the work done or services rendered during such period, an insufficient amount of money,

the foreign national or, in accordance with subsection (5), the Minister, may institute civil proceedings for an amount of money to recompense the foreign national for such work done or services rendered.

(3) Where, in proceedings under subsection (2), a court before which the proceedings are brought is satisfied that the foreign national took all steps as were reasonably open to him or her to comply with section 2(1), it may make an order that in recompense for such work done or services rendered an amount of money shall be paid to the foreign national by the employer who employed the foreign national, or, as the case may be, the person referred to in section 2(1A)(a) or the contractor referred to in section 2(1A)(b).

(4) The amount of money to be paid, pursuant to an order under subsection (3), to a foreign national in recompense for work done or services rendered shall be

(a) in a case where no amount of money was paid in respect of work done or services rendered during the period for which the foreign national was in the employment without an employment permit, an amount equal to the greater of

(i) an amount calculated by reference to the national minimum hourly rate of pay, or

(ii) an amount equal to an amount of pay for the work done or services rendered which is fixed under or pursuant to any enactment,

or

(b) in a case where an amount of money was paid in respect of work done or services rendered during the period for which the foreign national was in the employment without an employment permit, an amount equal to the difference between

(i) the amount paid, and

(ii) an amount equal to the greater of

(I) an amount calculated by reference to the national minimum hourly rate of pay, or

(II) an amount equal to an amount of pay for the work done or services rendered which is fixed under or pursuant to any enactment.

(5) The Minister may, at his or her discretion, institute civil proceedings under subsection (2) in the name, and on behalf, of the foreign national with the consent of that foreign national.

(6) Subject to subsection (10), proceedings under this section shall not be brought after the expiration of 2 years from the day on which the foreign national ceased his or her employment or service with the employer, a person referred to in section 2(1A)(a) or contractor referred to in section 2(1A)(b).

(7) Proceedings under this section shall not be brought in respect of any work, or services, done or rendered more than 6 years prior to the day on which the foreign national ceased his or her employment or service with the employer, a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b).

(8) Subsection (7) shall apply to proceedings under this section whether the work was done or the services were rendered before or on or after the coming into operation of section 4 of the Employment Permits (Amendment) Act 2014.

(9) Without prejudice to subsection (6), proceedings under this section shall not be brought where

(a) the foreign national, in respect of any right of action he or she may have and whether such right of action arises pursuant to any enactment or otherwise, has

(i) instituted proceedings in relation to the same, or substantially the same, work done or services rendered as referred to in this section, or

(ii) otherwise commenced an action or other claim in relation to the same, or substantially the same, work done or services rendered as referred to in this section,

and

(b) those proceedings have, or that action or claim has, not been finally determined or have, or has, not been discontinued before being finally determined.

(10) Where

(a) before the day on which this section comes into operation a foreign national had instituted proceedings or otherwise commenced an action or other claim for work done or services rendered that are, or is, wholly or substantially in respect of work done or services rendered

(i) during the period in which the foreign national was in the service of an employer in the State, or in employment in the State, without an employment permit referred to in subsection (1), and

(ii) for which he or she has not been paid or has been paid an insufficient amount of money,

and

(b) the foreign national

(i) has, on or after the day on which this section comes into operation, discontinued the proceedings, action or claim before those proceedings are, or that action or claim is, finally determined, or

(ii) has not, when those proceedings are, or such action or claim is, finally determined, been awarded any amount of money in recompense for such work done or such services rendered,

the foreign national may institute proceedings under this section not later than 2 years from the day on which the proceedings were, or the action or claim was, discontinued or on which such determination was made in respect of such work done or such services rendered during a period of 6 years prior to the day on which he or she ceased his or her employment or service with the employer, a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b).

(11) In proceedings instituted by the Minister under this section the court shall not award costs in favour of the foreign national but may award costs in favour of the Minister.

(12) The amount of money paid to a foreign national pursuant to an order under subsection (3) shall not be treated as reckonable emoluments within the meaning of the Social Welfare Consolidation Act 2005 for the purposes of that Act.

(13) In proceedings instituted by the Minister pursuant to subsection (5), the foreign national shall not be liable for costs but the court before which the proceedings are brought may order that any costs that might otherwise have been awarded against the foreign national shall be paid by the Minister.

(14) Subsection (5) shall not be in derogation of any right of a foreign national to institute proceedings under this section on his or her own behalf.

(15) In this section

Act of 2006 means the Employment Permits Act 2006 ;

enactment has the meaning assigned to it by the Act of 2006;

national minimum hourly rate of pay has the meaning assigned to it by the Act of 2006. ]

Annotations:

Amendments:

F17

Inserted (30.09.2014) by Employment Permits (Amendment) Act 2014 (26/2014), s. 4, S.I. No. 430 of 2014.