The Employment Permits (Amendment) Act 2014 (the “Act”) is to commence today (1 October 2014). We highlight below some of the main changes.
Nine Different Types of Permit
The Act creates nine categories of employment permit. They are similar to the permits currently available. The categories are:
- Critical Skills (previously called the Green Card)
- Intra-Company Transfer
- General (previously called the Work Permit)
- Contract for Services
- Sports and Cultural
- Exchange Agreements
New Application Forms
From 1 October 2014 there will be a new application form for each category of permit. The new forms are available for download from the Department of Jobs, Enterprise and Innovation (the “DJEI”) website (www.djei.ie).
In addition, the DJEI is introducing an electronic payment system. It will no longer accept cheques, bank drafts or postal orders from business users. On receipt of a correctly completed application, the applicant will be issued with bank details into which the DJEI fees for the application should be paid.
The 50:50 rule requires employers seeking to hire non-EEA nationals on an employment permit to maintain a workforce of at least 50% EEA nationals. This rule is to apply to all categories of employment permit (save for some limited exceptions referred to below) regardless of who submits the application. Before the Act, the 50:50 rule did not apply if the proposed candidate, as opposed to the employer, submitted the application.
This 50:50 rule will be waived in certain limited circumstances, including:
- For start-ups with enterprise agency support which are applying for Critical Skills, General or Intra-Company Transfer employment permits. In such circumstances the requirement may be waived for up to two years from the date the start-up registered with Revenue as an employer.
The Labour Market Needs Test
The Labour Market Needs Test must be satisfied before submitting an application for a General or a Contract for Services employment permit, regardless of who applies for the employment permit. Before the Act, the Labour Market Needs Test did not apply if the proposed candidate, as opposed to the employer, submitted the application.
The Labour Market Needs Test currently requires the employer to advertise the vacancy (i) with the DSP Employment Services/EURES employment network for at least two weeks; (ii) in a national newspaper for at least three days, and (iii) in either a local newspaper or jobs website (separate to DSP/EURES websites) for three days, before submitting an employment permit application for the vacancy. It is proposed that new regulations will be implemented regarding requirements for the Labour Market Needs Test.
The Labour Market Needs Test will be waived in certain limited circumstances including:
- Where there is a skills shortage (i.e. the Labour Market Needs Test does not apply to Critical Skills employment permit applications)
- Where an application has been recommended by an enterprise development agency and the Minister is satisfied that the granting of the employment permit will contribute to the further development of employment in Ireland
- Where a Dependant/Partner/Spousal employment permit is being applied for
The host company or the foreign employer (in the case of an Intra-Company Transfer employment permit), the contractor (in the case of a Contract for Services employment permit) and the employer (in all other cases) is to notify the Minister of the change in name of the employer as a result of a transfer of undertaking. The employment permit will then be re-issued in the new name.
The holder of a Critical Skills or a General employment permit is to notify the Minister where s/he has been dismissed by reason of redundancy, within four weeks of the dismissal. The individual may stay in Ireland for six months from the date of the dismissal to seek another job and apply for a new employment permit.
Changes to Highly Skilled and Ineligible Lists
These lists are to be based on the Standard Occupational Classification List (commonly used in other countries to classify workers into occupational categories). It is proposed that there will be bi-annual reviews of these lists to ensure that they are responsive to emerging skill needs and changes in skill demands in the economy.
Refusal to Renew the Employment Permit
The Act states that the Minister may refuse to renew an employment permit if the permit holder:
- Is not employed in the employment as specified on the permit
- Is not employed by the relevant party specified on the permit
- Has spent a continuous period of three months or more outside of Ireland and that period was not connected to his/her employment, during the period for which the employment permit has been in force.
Hussein v The Labour Court
The Act seeks to address the deficiency identified by the recent case of Hussein v The Labour Court where a foreign national could not enforce his employment rights because the High Court found that his contract of employment was unlawful, due to his failure to have any employment permit.
The Act provides that it is a defence for the foreign national to the charge of having being without an employment permit where the foreign national can show that all reasonable steps to comply with the requirement to have an employment permit were taken by him/her.
The Act also states that the Minister may take a civil action on the foreign national’s behalf for compensation for work done or services rendered as well as responsibility for the cost of such action.
The Act will be supported by a comprehensive set of regulations which will include requirements regarding:
- Minimum levels of remuneration for each employment permit
- Documentary requirements for each employment permit
- Fees for each employment permit