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Dáil
‹ Leaders' Questions

Clerys workers and company law

Summary

Peadar Tóibín condemns the treatment of Clerys workers and argues that company structures were used to shield investors from employee responsibilities. The Tánaiste prioritises securing workers’ redundancy and insolvency entitlements, seeks legal recovery for taxpayers and promises a review of company law.

Deputy Stagg is absolutely right when he disagrees with the Tánaiste's argument that cutting the incomes of lone parents will get them out of the poverty trap. The two-faced aspect of his actions is that he is expressing such views locally while voting the other way in the Dáil.

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Even worse, he is whipping all the other Labour Party Deputies to make this deep cut in the incomes of people who are in poverty.

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The handbag is more powerful than the whip.

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Duplicity is also at the heart of the Clerys debacle. Almost a month has passed since the staff and concession holders of Clerys were turfed out onto the street by liquidators. All they have received from the Labour Party so far is a two-faced response. The Tánaiste and her Government colleagues have described the actions of the new employers as absolutely despicable, insensitive and appalling. The Tánaiste borrowed a phrase from the failed Labour Party leader in England, Ed Miliband, when she said that these actions represented predatory capitalism. Her comments stand in contrast with what the other face of the Labour Party, the Minister of State for inertia, Deputy Nash, said when he published his report on the liquidation of Clerys earlier this week. Even though the report in question provides a textbook analysis of a tactical insolvency delivered with merciless precision, astoundingly the Minister of State has said there is nothing to see here. Shockingly, he has also said there are no deficiencies at all in the legislative framework. If the State is on the hook for millions of euro with regard to the redundancies of workers who have been treated in a despicable manner, how in God's name can anybody accept that there are no deficiencies in the legislative framework in this State? The truth is that the legislation in this State, under the stewardship of this Government, incentivises ruthless employers to go down the route of separating out companies so they can use tactical insolvency to insulate themselves from their responsibilities to this State and to their workers. The Tánaiste's approach of talking tough while doing nothing is tactical deception on her part. The strong words she used yesterday contrast sharply with the inertia of the Minister of State. There is a disagreement here. Who is right? Is everything fine and dandy with regard to legislation, or will the Government legislate to resolve this case?

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I have had the opportunity to meet a number of the Clerys workers, many of whom were there for 40 years or more. I want to say formally on the record of the Dáil that I thank SIPTU for making its premises available to facilitate the Department of Social Protection going in and giving very extensive help and assistance to workers in relation to their entitlements. The people who come first at the moment are the workers. They should get those redundancy and insolvency entitlements which are their right in law as soon as possible. If the Deputy is suggesting we should use legislation in some way to up-end their entitlements under current legislation-----

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Nobody is making that suggestion.

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-----I suggest he is advocating such a tactic not out of a lack of concern for the workers but possibly out of a lack of experience of dealing with the issues that arise in legislation from the Clerys case.

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Nobody on the planet has made that suggestion.

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The workers in this case come first. In conjunction with the staff of the Departments of Social Protection and Jobs, Enterprise and Innovation, the Minister of State, Deputy Nash, and I have put together-----

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Tea and sympathy.

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-----a service for the Clerys workers that will enable them to access their entitlements regardless of the broader legal issues. Some very broad and deep legal issues are arising from the manner in which this insolvency was structured. I refer to the group structure of companies. The Deputy needs to be very careful with what he is suggesting. The use of group structures by companies in Ireland goes back practically forever - certainly back to the 1940s - in company law. There is nothing improper in having a group structure, but there is everything wrong - just as there is with tax avoidance, particularly aggressive tax avoidance - in manufacturing a situation which results in a company in the group apparently achieving a very significant price for the property part of the group, while leaving the operational side of the group, which employs the workers and the concessionaires, bereft and insolvent of funds. It is a very clever and aggressive scheme of company law planning. We have ways of addressing those issues in tax law. A number of issues are being addressed by the Revenue Commissioners at the moment. I want to make it clear that this process will have at least two parts. The message I want to send to people who have been working and giving great service in Clerys over many decades is that their redundancy payments, which are funded through the social insurance that has been willingly paid by them and by everyone else in this country, are secure. Unfortunately, these payments will be made at a minimum rate and not at the rate they might have got if the company had reached an agreement with the workers, which would have been right and proper in this case. I do not want the Deputy to sow doubts in people's minds that their payments are not secure.

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Nobody is sowing doubts.

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To be honest, the Deputy has been throwing a lot of stuff around like snuff at a wake. The important and significant report that has been put together by the Minister of State, Deputy Nash, sets out in clinical detail the sequence of the history of the events that happened. It also sets out how and where company law operates in Ireland at the moment. We will have a very detailed examination of company law and of what actions may be taken to ensure we address this situation. First of all, we have to look after the workers. That should be the Deputy's concern.

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This has been happening over and over again.

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When?

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The State is getting-----

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The Deputy needs to give us the "over and over again".

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Multiple companies in this country have separated out their firms-----

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When?

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-----in an effort to insulate their investments from the responsibilities they have to their staff. The fact is that both the State and the workers are getting stuffed over and over again. We have complete inertia from the Labour Party with regard to its response. If I have to paint it out clearly and simply for the Tánaiste again, I will do so. A number of purchases in 2012 and 2015 have been about maximising property profits and minimising responsibility to employees. Gordon Brothers walked away from the sale of Clerys with approximately €15 million. Natrium has bought a prime development opportunity worth multiples of what it has invested. The Minister of State, Deputy Nash, has said he is satisfied that Gordon Brothers and Natrium are not required under company law to cough up with regard to employees' entitlements. Is the Tánaiste satisfied that they are not forced to do so? If we do not resolve this through legislation, we will be back here in six months talking about another firm. It is clear that there is a flaw in the existing framework. The question is whether the Labour Party will challenge that flaw.

Will the Labour Party fix that flaw? For our part, Sinn Féin has already tabled legislation on this issue, but it has not received the support of the Labour Party.

We are told that this matter has been referred to the Company Law Review Group. This group last met in February and the items it has been asked to consider do not include a review of section 224 of the Companies Act 2014 or tactical insolvencies. The fact that it has not been asked to do this yet is alarming. Such situations are happening repeatedly, and in large numbers, but this practice is not being challenged. The Minister of State says in his report that section 224 imposes a duty on directors in respect of company employees. What is the specific provision in that section and where is the precedent? When will the Company Law Review Group meet to discuss the legal issues arising from the Clerys situation? When will it be charged with reviewing the existing company law framework, or are we to have another example of duplicity with strong robust rhetoric from the Government but nothing being done?

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I would be grateful if the Deputy would give us the data on the multiple cases to which he refers. To my knowledge, what happened in Clerys and the way the company behaved in such a predatory fashion to workers is, thankfully, rather unusual among Irish companies and employers.

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Many companies split into different companies.

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The Deputy should send me the details. He said there were multiple examples. I know of a couple of examples but the Deputy has spoken about multiples. I do not know what that means to the Deputy, but it sounds like many cases to me.

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Is not one too many?

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I would like to have the details of the many cases.

The liquidators in this case have been appointed and I understand they met on 8 July. As the Deputy knows, there will be a committee to deal with the liquidation. When the liquidation gets under way, at that point the liquidators will have identified the due entitlements of the workers under redundancy and insolvency legislation, which all of us as taxpayers in the State will pick up through our contributions to PRSI. When that arises-----

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Can the Tánaiste not prevent that?

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At that point the Department of Social Protection will do a couple of things. First, it will become a preferred creditor because it will be shelling out, on behalf of taxpayers-----

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I am asking the Tánaiste to prevent this situation happening. She is cleaning up the problem, not preventing it.

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-----the payments for redundancy. As for cleaning up the problem, these are human beings who have lost out after 40 years-----

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The Tánaiste's job is to prevent it happening in future.

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No, my job as Tánaiste and Minister for Social Protection is to ensure those workers get their money, which is fully provided for under current insolvency and redundancy legislation.

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And let them get away with it.

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That is the first job. The second job, once we have reached that point in the liquidation process, is to seek any legal mechanism we can utilise-----

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Introduce legislation. It is very simple.

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-----to see what can be done to secure the maximum return to taxpayers. I do not have a complete answer on that at this stage, because we still do not have any reports from the liquidators who have just commenced their work.

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The Tánaiste said it is despicable.

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Third, of course we will review company law.

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She said it is predatory capitalism.

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The Minister of State, Deputy Nash, produced a preliminary report on Clerys. He is the first Minister to have done such a thing, and I commend him for it. It is a preliminary report and, as with tax avoidance law, mechanisms will have to be developed to ensure that, notwithstanding that we accept groups of companies, although perhaps Sinn Féin does not accept-----

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-----the possibility of that structure-----

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It is when they are used to insulate them from responsibilities to workers.

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We will then review company law to ensure an occurrence such as this, in so far as possible, is prevented from happening in the future.

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The Tánaiste has had five years.

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