This is the first monthly Legislation Update for 2015 reflecting our systematic monitoring of legal developments and proposed legislation (domestic and European). In this set of reports, we:
- identify for the University relevant Acts recently enacted and, where a new Act is likely to be of interest to the
University, give a high-level briefing on its provisions and potential impacts for the University and when its provisions will come into force, where known;
- identify for the University relevant Bills announced or published in the
immediately preceding period and, where a new Bill is likely to be of significant interest to the University, give a high- level outline of what it proposes and comment on its potential impacts if and when enacted; in this context, we will draw to the University’s attention any aspects of a Bill on which representations to Government might be considered;
- advise when relevant Bills have progressed through the Oireachtas (including on material amendments) and what is known about timings of further developments;
- identify for the University key statutory instruments enacted since the last report;
- identify for the University relevant European Union law developments since the last report;
- let you know of recent policy announcements from the Department of Education and Skills;
- let you know of selected recent court judgments on issues which may be of interest.
Where one of these topics is not mentioned below, no relevant developments arise.
As always, this report provides high level comment only, and detailed advice should be taken where the University considers that aspects of the relevant legislation so require.
No Acts were enacted during January 2015.
There were no statutory instruments in the area of education in January 2015.
SI No 1 of 2015 – Social Welfare (Consolidated Contributions and Insurability) (Amendment) (No. 1) (Return of Contributions) Regulations 2015: These regulations prescribe the period during which the refunds of employer PRSI contributions in the case of certain seafarers, as provided for under EU rules, will operate (ie during the period from 1 January 2015 to 31 December 2016). These Regulations also prescribe the form,
manner and time for making an application for such a refund of PRSI contributions.
SI No 2 of 2015 – Valuation Act 2001 (Limerick City and County Council) (Rate Limitation) Order 2015: This order requires that Limerick City and County Council, in exercising its powers to make rates for the financial year 2015, does so in such a way to ensure that the total amount of rates liable to be paid to it does not exceed an amount determined in accordance with the formula set out
in section 56(2) of the Valuation Act 2001 (as amended). This formula relates to the Consumer Price Index (All Items).
SI No 4 of 2015 – Film Regulations 2015: These regulations set out the conditions to be met and procedures to be followed by film production companies wishing
to avail of tax benefits under section 481 of the Taxes Consolidation Act 1997. The regulations also specify the types of films
eligible for section 481 certificates and the forms to be submitted to the Revenue Commissioners.
SI No 6 of 2015 – European Union (Civil and Commercial Judgments) Regulations 2015: These regulations make provision for the administrative and procedural arrangements associated with the coming into operation of Regulation (EU) No. 1215/2012 of the
European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation (recast)). The key changes in the Brussels I Regulation (recast) are:
- strengthening choice of court agreements (by preferring the parties’ choice over the first court in which proceedings are initiated);
- protecting arbitration agreements (by excluding arbitration agreements from the effects of the Regulation);
- partially extending the effect of the Regulation to non-EU defendants; and
- optimising the enforcement process across EU Member States (by abolishing the need to obtain a declaration of enforceability from a court of the enforcing Member State before taking enforcement proceedings in another Member State).
(Commencement) (No. 2) Order 2015: This order provides for the commencement of section 25 of the Finance (No. 2) Act
2013 which amends sections 529B – 529M of the Taxes Consolidation Act 1997, providing for payments in respect of non- resident artistes by companies qualifying for relief for investment in films. The commencement date was 10 January 2015.
Recently Enacted Legislation (continued)
SI No 8 of 2015 – Finance Act 2013 (Commencement) Order 2015: This order provides for the commencement of section 21 of the Finance Act 2013 which amends section 481 of the Taxes Consolidation Act 1997, providing for relief for investment
in films. The commencement date was 10 January 2015.
SI No 9 of 2015 – Finance Act (No. 2) 2013 (Commencement) Order 2015: This order provides for the commencement of section 25 of the Finance (No. 2) Act 2013 which amends the definition of eligible person
in section 481 of the Taxes Consolidation Act 1997. The commencement date was 10 January 2015.
SI No 10 of 2015 – Finance Act 2014 (Commencement) Order 2015: This order provides for the commencement of section 24(2) of the Finance Act 2014 which amends parts of section 481 of the Taxes Consolidation Act 1997. The
commencement date was 10 January 2015.
SI No 13 of 2015 – Water Services (No. 2) Act 2013 (Property Vesting Day) Order 2015: This order designated 20 January 2015 as the day on which all water mains, sewers, pipes, waterworks and waste water works located under land were vested in Irish Water.
any income received by way of ex gratia payments from the Lourdes Hospital Redress Scheme 2007, the Lourdes Hospital Payment Scheme and the Surgical Symphysiotomy ex gratia Scheme, will be disregarded in the assessment of means for the purposes of the Supplementary Welfare Allowance scheme.
SI No 15 of 2015 – Social Welfare (Rent Allowance) (Amendment) (No. 1) (Assessment of Means) Regulations 2015: These regulations provide that any income received by way of ex gratia payments from the Lourdes Hospital Redress Scheme 2007, the Lourdes
Hospital Payment Scheme and the Surgical Symphysiotomy ex gratia Scheme, will be disregarded in the assessment of means for the purposes of the means test applying to the Rent Allowance Scheme for tenants of formerly controlled rented dwellings.
SI No 18 of 2015 – Income Tax and Corporation Tax (Film Withholding Tax) Regulations 2015: The purpose of these regulations is to facilitate commencement of the Film Withholding Tax from 1 January 2015. The Regulations set out specific requirements governing the operation
of aspects of the Film Withholding Tax, the legislative framework for which is contained in Chapter 1A of Part 18 of the Taxes Consolidation Act 1997.
SI No 22 of 2015 – National Treasury Management Agency (Amendment) Act 2014 (Commencement) Order 2015: This order appointed 27 January 2015 as the commencement date for a significant number of provisions in the National Treasury Management Agency (Amendment) Act 2014, which was designed to streamline and simplify the governance structures at the National Treasury Management Agency.
Council conclusions on entrepreneurship in education and training (2015/C 17/02): Following Commission communications on entrepreneurship and education, the Council invites the Member States to develop coordinated approaches to entrepreneurship education. The Council conclusions include initiatives involving schools, VET, adult education and higher education.
[Note: (“PMB”) signifies a Private Member’s Bill; as such Bills are generally not supported by Government, they are of their nature unlikely to be enacted.]
make provision as respects the resolution, mediation and adjudication of disputes and complaints relating to contraventions of, or entitlements under, certain enactments governing the employment relationship between employers and employees. For
that purpose, the Bill provides: for the establishment of a body to be known as the Workplace Relations Commission (“WRC”); for the dissolution of the Labour Relations Commission and the transfer
of its functions to the WRC; for the dissolution of the Employment Appeals Tribunal and the transfer of its functions first instance to the WRC and its appellate functions to the Labour Court; for the transfer of the functions of the Director of the Equality Tribunal to the WRC; for the repeal of certain enactments; for the
amendment of certain enactments; and for matters connected therewith. The Bill will most likely go before the Seanad for final approval and then before the President for enactment.
Consumer Protection (Regulation of Credit Servicing Firms) Bill 2015 (Bill Number 1 of 2015): The Bill provides for the protection of certain borrowers who are parties to credit agreements in respect of which credit servicing firms undertake certain services, including the extension of Central Bank oversight and codes of conduct to credit servicing firms. The Bill amends the Central Bank Acts 1942 to 2014 and the Consumer Credit Act 1995 and provides for related matters.
provide for the approval of plans by the Government in relation to climate change for the purpose of pursuing the transition to a low carbon, climate resilient and environmentally sustainable economy
by the year 2050. The Bill provides for an unequivocal commitment to existing or future obligations of the State under the law of the European Union (EU) and under any relevant international agreement (including Directive 2003/87/EC relating to the EU’s Emissions Trading Scheme and Decision No. 406/2009/EC which sets greenhouse gas mitigation targets for
the period from 2013 to 2020, inclusive). The Bill also provides for a national low carbon transition and mitigation plan and a national climate change adaptation framework, as well as the establishment of a national expert advisory council on climate change.
Teaching Council (Amendment) Bill 2015 (Number 3 of 2015): The purpose of the Bill is to provide a clear statutory basis for the role of the Teaching Council in the forthcoming statutory arrangements for the vetting of registered teachers. This
is in the context of the Teaching Council acting as a conduit for recognised schools and Education and Training Boards and would empower the Teaching Council to seek and obtain vetting disclosures in its own right as a registration body (ie for initial registration, renewal of registration and, where relevant, in a Fitness to Teach inquiry). A further purpose of the Bill is
to clarify and strengthen the statutory provisions relating to the Teaching Council’s fitness to teach function prior to the commencement of these provisions.
- Defining the role and actions of a university, including the on-going support of the humanities;
- Protecting academic freedom;
- Protecting academic tenure;
- Addressing the potential for the casualisation of academic employment and creating career structures for researchers;
- Creating plausible boundaries between the twin demands of exchequer oversight and direction and institutional autonomy;
- Generating a separate pension system, independent of exchequer support; and
- Fostering innovation and assisting universities in their role as part of the national industrial and jobs policy system.
This Bill has been drafted as a series of amendments to the Universities Act 1997. It is also designed to address certain concerns in particular to the 1997 Act as it would be potentially amended by the 2012 Heads of the Universities (Amendment) Bill. The order of the sections in the Bill follows the order of the sections in the 1997 Act.
This Bill is sponsored primarily by Senator Sean D. Barrett, senior lecturer in economics at Trinity College Dublin. Feargal Quinn and David Norris are also sponsors. The Bill was welcomed by senators from all major parties. The Bill was read at second stage in the Seanad on
28 January 2015 and Minister Jan O’Sullivan spoke before the Seanad on the topic of
the Bill. She noted many of the provisions with approval, such as the inclusion of specific provisions relating to the role of universities in driving innovation.
However, while Minister O’Sullivan welcomed the legislative initiative of Senator Barrett and others, she did not endorse the Bill. Minister O’Sullivan said, “I have gone into some detail on the different elements of the Bill and I would be happy to work with Senator Barrett and others on some of them, in terms of incorporating them into the legislation we will be bringing forward on higher education. I have a difficulty with and unfortunately cannot accept other elements, particularly around the role of the Commission for Public Service Appointments, whose job is basically not in this area.”
Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 (Number 5 of 2015): The purpose of the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 is to amend the Constitution so
as to provide that persons may marry without distinction as to their sex. If the amendment is approved at a Referendum of the people, same-sex couples will have the right to marry. Marriage will continue to be regulated by legislation and the common law.
Thirty-fifth Amendment of the Constitution (Age of Eligibility for Election to the Office of President) Bill 2015 (Number 6 of 2015): The Thirty- fifth Amendment of the Constitution (Age of Eligibility for Election to the Office of President) Bill 2015 provides for the amendment of Article 12.4.1° of the Constitution to reduce the age at which
a citizen becomes eligible for election to the office of President from 35 years (the present position) to 21 years.
- January 2015 Updated Action Plan in response to Louise O’Keeffe case lodged with the Council of Europe
- January 2015 Guidelines on promoting positive mental health in primary schools published
29 January 2015 Minister O’Sullivan welcomes Action Plan for Jobs 2015
Unfair dismissals – no previous disciplinary record – performance reviews – disciplinary procedures – fairness of procedures – short duration of performance reviews – use of bell curve performance analysis
The claimant was an employee of a company from 2000. The company was bought by
the respondent in 2008. At the end of July 2010 the respondent began a “performance expectation plan”, from which improvement targets for the claimant were determined. When the improvement targets were not met, a “performance improvement plan” was initiated in December 2010. In January 2011, a final written warning was sent to the claimant. In May 2011, having deemed the claimant to have failed to improve adequately, the respondent terminated the claimant’s employment.
The claimant brought an appeal to the Employment Appeals Tribunal (“EAT”). First, she argued that she had worked for the same employer from 2000 to 2010 without any performance issues and that she could not have deteriorated sufficiently in her performance in the space of approximately one year to have her employment terminated. Secondly, she argued that the use of a
bell-curve system to compare the 40-50 equally ranked management staff members necessarily required that some employees would be given low performance scores irrespective of performance levels in absolute terms and was therefore unfair. The claimant also made a series of other arguments in relation to the speed and manner in which the various performance reviews were conducted.
The EAT found that there was insufficient evidence that the claimant had deteriorated from an employee with no disciplinary record in July 2010 to a less competent employee
in under a year. The EAT further found that fair procedures had not been followed in the review process. The EAT did not,
however, comment on the use of a bell curve system for reviewing employees of the same management level as one another. It would appear, therefore, that the use of a bell curve system of evaluation may be acceptable
so long as fair procedures are followed in performance and disciplinary review processes.
Recent Case Law
Directive 2003/88/EC (the Working Time Directive) – Organisation of Working Time Act 1997 – direct effect of Directive – private parties
- accrual of annual leave – during a period of sick leave
The appellant, Ms Jemolia, made a number of claims for entitlement to holiday pay. Several of the claims were successfully refuted by
the respondent by proving the claims to be factually incorrect. Another claim brought by the appellant was that the obligation to afford an employee four weeks annual leave per calendar year (pursuant to the Working Time Directive), was directly effective and the claimant urged the Labour Court to apply the decision of the Court of Justice of the European Union in Joined Cases C-520/06 and C-350/06 Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund  IRLR 214 and find that she was entitled to accrue annual leave while on sick leave.
The Labour Court found that the wording of the Organisation of Working Time Act
excluded the accrual of annual leave while on sick leave. The Labour Court also found that the Working Time Directive was not directly effective as between private persons. Finally, it was found that it was not possible to interpret the Organisation of Working Time Act, in conformity with the Working Time Directive, to allow for the accrual of annual leave while on sick leave without applying
a contra legem interpretation of the Act. Therefore, the Labour Court found that the appellant could not rely on either the direct effect or the indirect effect of the Working Time Directive to accrue annual leave during a period of sick leave. The appellant was unsuccessful on all grounds.
Preliminary reference – insolvency of employer
- Council Directive 80/987/EEC as amended – whether protection afforded to employee who was a national of a non-EU Member State
A preliminary reference was made to the Court of Justice asking whether a national of a non-EU Member State who was not legally resident could be protected by rights of employees under European law despite not being legally resident and in circumstances where that employee enjoyed certain rights under the domestic law of the Member State.
The main proceedings related to the right of employees to pay owed to them by an insolvent employer. The Court interpreted Council Directive 80/987/EEC relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC of the European Parliament and Council.
The Court found that the EU legislation must be interpreted as precluding national legislation on the protection of employees in the event of the insolvency of their employer under which a third-country national
who is not legally resident in the Member State concerned is not to be regarded as an employee with the right to an insolvency benefit. This was so even where that third- country national was recognised under the national law of the Member State as having the status of an ‘employee’ with an
entitlement to pay which could be the subject of an action against their employer before the national courts.
Recent Case Law
References for a preliminary ruling - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Successive fixed-term employment contracts - Education - Public sector
- Temporary replacements in respect of posts that are vacant and unfilled, pending the completion of competitive selection procedures - Measures
to prevent the misuse of fixed-term contracts
- Concept of ‘objective reasons’ justifying such contracts - Penalties - Prohibition of conversion into an employment relationship of indefinite duration - No right to compensation for damage
Each of the main proceedings was taken by employees in the education sector who had been employed under a series of fixed-term contracts pending the filling of a vacancy in a permanent position. Having taken the view that being employed under a series of fixed term contracts over a period of years was contrary to European law, each of the
employees issued proceedings. A preliminary reference was made to the Court of Justice
of the European Union querying whether
the framework on fixed-term work, which is given force of law by Council Directive 1990/70/EC, precluded national law which authorises the repeated renewal of fixed-
term employment contracts to fill vacancies in permanent positions without specifying a deadline by which the vacant positions must be filled and without providing any possibility of compensation for any damage suffered on account of such renewals.
Article 5(1) of the framework on fixed-
term work requires EU Member States to implement laws which require one or more of the following: objective justification of repeated renewal of fixed-term contracts; to prescribe the maximum aggregate duration of successive fixed-term contracts; and to prescribe the maximum number of renewals of fixed-term contracts. The Court found that, where no such measures had been put in place, national law which authorised the repeated renewal of fixed-term contracts
in the manner described above would be precluded by EU law. The national courts were asked to determine whether the domestic law had this effect.