Protection of Employees (Employers' Insolvency) Act, 1984
No. 21/1984
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.
"the Act of 1967" means the Redundancy Payments Act, 1967 ;
"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 ;
"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;
"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;
"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, or a trustee under an arrangement between an employer and his creditors or under a trust deed for his creditors executed by an employer;
"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 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 in relation to him.
The fund established by section 26 of the Act of 1967 shall be known as the Redundancy and Employers' Insolvency Fund and references in that Act or in any other Act of the Oireachtas or in any instrument made under any Act of the Oireachtas to the Redundancy Fund shall be construed as a reference to the Redundancy and Employers' Insolvency Fund.
(2)
Any reference in the Social Welfare Acts, 1981 to 1984, or in section 28 (inserted by section 3 of the Redundancy Payments Act, 1979 ) of the Act of 1967 to an employer's redundancy contribution shall be construed as including a reference to any amount which that contribution comprises by reason, of the passing of this Act.
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 Acts, 1981 to 1984.
4-
Insolvency for the purposes of Act
(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 , and
(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 having become insolvent.
(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.
5-
Appointment in certain circumstances of persons to perform functions assigned by Act to relevant officers
(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.
6-
Employees' rights on insolvency of employer
(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 the Redundancy and Employers' Insolvency 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,
(iii)
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 him to give the period of notice required by the said section 4,
(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,
(v)
any amount which an employer is required to pay by virtue of a determination under section 8 (1) or 9 (1) or an order under section 10 (2) of the Act of 1977 and made, in any case, not earlier than the commencement of the relevant period,
(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,
(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 , and
(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 Employment Equality Act, 1977 .
(b)
Any amount, damages, fine or compensation referred to in subparagraph (viii), (ix), (x) or (xi) 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.
