New Employment Permits legislation enacted to overhaul the work permit system

New Employment Permits legislation enacted to overhaul the work permit system

The Employment Permits (Amendment) Act 2014 was enacted on 31 July, and is expected to commence next month. The Act has two main purposes:

A. Addressing deficiencies identified by the High Court in Hussein v The Labour Court and Younis [2012] IEHC 364

In the Younis case, Hogan J found that the effect of section 2 of the Employment Permits Act 2003 was to make any contract between an employer and a worker without permission to work in the State 'substantively illegal'.  This meant that Mr Younis could not recover any of the €92,000 that the Labour Court determined he was owed by his employer.  The judgment also meant that foreign nationals working without appropriate permission were effectively excluded from making claims for breaches of employment law. 

The Act addresses this deficiency by providing that where a foreign national can satisfy a Court that they took reasonable steps to comply with the requirement to have an employment permit that foreign national (or the Minister on the foreign national's behalf) may take a civil action for compensation against the employer for work done or services rendered.  This is in addition to the significant criminal sanctions (fines of up to €250,000 and imprisonment for up to 10 years) that an employer could face for employing a foreign national without appropriate permission to work.

B. Introducing significant changes to the current employment permit system, including:

1. A 'Critical Skills Employment Permit' will replace the current Green Card scheme, to attract foreign nationals with skills that are in short supply.
2. A 'Dependent, Partner and Spouse Employment Permit' will continue to be available to partners and family members of holders of certain work permits.
3. A 'General Employment Permit' will replace the current work permit, which will be available for skills of a more general nature where it is proven, among other things, that the employer was unable to fill the position from the current labour market (Labour Market Needs Test).
4. The existing 'Intra-Company Transfer Employment Permit' will be retained. These permits have proved useful for multi-national companies and start-ups in Foreign Direct Investment situations and are often looked on more favourably than other more 'long-term' applications.
5. The Act allows specific provision for a 'Contract Service Provider Permit'.  The purpose of the permit is to facilitate the temporary employment in Ireland of foreign nationals working in a company based outside of Ireland, typically where the foreign company has won a contract for services with an Irish company.  These applications will now (generally) be subject to a Labour Market Needs Test.
6. An 'Exchange Agreement Employment Permit' will be introduced to deal with reciprocal international arrangements whereby opportunities are afforded to Irish nationals in exchange for opportunities being afforded to foreign nationals.
7. A 'Sports and Cultural Employment Permit' will deal with applications related to predominantly sports professionals.
8. 'Internship Employment Permits' will deal with applications related to student internship programmes, involving work experience in employments on the Highly Skilled Occupations List.

The Department of Jobs, Enterprise and Innovation will be tasked with implementing the changes to the current regime.  It  is not clear as of yet what additional requirements will be placed on employers when applying for such permits.  These additional requirements should become evident shortly, once the Act commences.

For further information please contact Lorraine Smyth, Emmet Whelan or Donal Hamilton.