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Staying Ahead of the Curve: Legal Changes on the Horizon @mhclawyers
Problems with the current system
1 Too many different routes
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1. Rights Commissioner
2. Employment Appeals Tribunal
3. Labour Court
4. Equality Tribunal
5. Circuit Court / High Court
For example – options for pregnant employee dismissed from her job
2 Lack of consistency / uniformity / quality
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Minister Bruton saw the need for a change
Changes to date - administrative
1. Rights Commissioner Claims – backlog cleared
2. New website - www.workplacerelations.ie
3. New e-complaint form
4. Database of decisions
5. Early resolution service – pilot evaluation
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Two-tier structure
1. Workplace Relations Commission (“WRC”); and
2. Revised Labour Court.
Appeal on point of law to High Court
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Workplace Relations Commission (“WRC”)
1. All complaints at first instance – whether under the Payment of
Wages Act, the Unfair Dismissals Acts, the Equality Acts etc
2. Various roles - currently performed by EAT, LRC, Equality Tribunal
and NERA
3. One adjudicator to hear claim – unqualified
4. Hearings in private – scant detail on process
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Appeals from the WRC to Labour Court
1. Single route of appeal to the Labour Court
2. Time limits - harmonised
3. Written submissions
4. Hearings in public – power to take evidence on oath/ power to
compel attendance of witnesses
5. Adding a fourth division – capacity?
6. An industrial relations forum
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Other changes
• Decisions of the new bodies
i. Standard templates
ii. Decisions to be published on new database
iii. Anonymous publication of decisions of the WRC
• Time limits
• Workplace Inspectors 1. Compliance notice
2. Fixed Payment Notice
• Enforcement in District Court
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TAKE AWAY & TO DO ITEMS
1. Streamlined into 2 main bodies
2. Real concerns re: (i) adjudicators; and (ii) capacity
3. Procedural changes only
– no need to change practices
4. Current employment claims – proposed
enactment by year end (unlikely)
5. Learn how to navigate the website
- www.workplacerelations.ie
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Practical Steps to achieve Best Practice in Corporate Governance
Claire Lord
Partner
Good governance – why?
Good governance can assist in:
enhancing a company’s value(?);
preserving the reputation of your company and your own
reputation;
successfully supervising and controlling all levels of
management and monitoring, managing and controlling risks;
setting the appropriate “Tone at the Top”;
complying with the law.
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The “soft” and “hard” rules
UK Corporate Governance Code => companies listed on the
Irish Stock Exchange (and all companies with a Premium
Listing of equity shares in the UK)
Code of Practice for the Governance of State Bodies =>
commercial and non-commercial State bodies
Companies Acts 1963 to 2013 => all Irish companies
Companies Bill 2012 => all Irish companies
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Governance in the event of a default
Directors have a duty to ensure compliance with the Companies Acts.
Under the Companies Acts:
non-compliance with provisions directly applicable to directors;
being an “officer in default”.
An “officer in default” is any officer who:
authorises the default; or
in breach of duty as such officer, permits the default.
It is presumed, unless the contrary is shown, that an officer in default
permitted the default if it appears that no steps were taken by that
officer to prevent the default.
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Classification of offences under the Companies Bill
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Summary prosecution Indictment
Fine Imprisonment Fine Imprisonment
Market abuse €5,000 1 year €10,000,000 10 years
Prospectus,
Transparency €5,000 1 year €1,000,000 5 years
Category 1 €5,000 1 year €500,000 10 years
Category 2 €5,000 1 year €50,000 5 years
Category 3 €5,000 6 months - -
Category 4 €5,000 -
Classification of offences under the Companies Bill
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Securities law offences:
Market abuse, prospectus, transparency
Category 1
False accounting, fraudulent trading
Category 2 - General
Financial assistance, loans etc to directors
Unlawful acquisition of own shares, unlawful offering of securities
Personation of shareholder, unlawfully acting as director
Dishonest dealings before a company becomes insolvent or goes into liquidation
Category 2 – false information
Generally
In dealings with DCE, Courts, mergers, divisions
Category 2 – Accounting and dealings with auditors
Failure to keep adequate accounting records
Denying access to and failure to retain accounting records
Non-compliance requirements as to contents of annual financial statements
Failure to communicate with and make full disclosure to auditors
Category 3
Shares not being paid up
Non-filing of annual returns, documents relating to issued share capital and insolvency
Not having AGM, selective sending of proxies
Trading under misleading name, without trading certificate
Category 4
Failure to make routine filings
The Compliance Statement
− Directors of all private companies, PLCs and guarantee companies which
have a balance sheet total of more than €12.5m and a turnover exceeding
€25m must include a compliance statement in the directors’ report that
accompanies the annual audited accounts.
− In the statement the directors must:
• acknowledge that they are responsible for securing compliance with the
company’s relevant obligations;
• confirm that a statement has been prepared setting out the company’s
policies in respect of compliance with those obligations;
• confirm that the company has in place arrangements designed to
achieve compliance with its relevant obligations; and
• confirm that the directors have reviewed the effectiveness of those
procedures during the financial year to which the report relates.
− “Relevant Obligations” => a company’s obligations under the Companies Bill
the breach of which gives rise to an indictable offence and the company’s
obligations under tax law
− Comply or explain
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The solution - policies and procedures
Identify compliance obligations.
Realistic expectation.
Proportionate.
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Competition Law – Changes on the Horizon
“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” (Adam Smith, 1723 - 1790)
Competition and Consumer Protection Act
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Competition and Consumer
Protection Commission (“CCPC”)
A Reminder of why we care …
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Fines Criminal Penalties
Private enforcement
(Irish & EU competition laws)
(Irish competition law) (Irish & EU competition laws)
Fines of up to 10% of the Group’s annual worldwide turnover
(In Ireland, fines are criminal)
10 years imprisonment
Disqualification of company directors
Contract is void
Customers who were victims of cartel can sue for damages
Reputational damage …
Management time …
Additional powers of investigation in CCPC competition cases
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CCPC’s
Additional investigative
powers
Cartel offence is
Scheduled Offence
Seizure of privileged
documents
Repeat & suspended
detentions
Disclosure of data held
by telcos /internet
companies
Enhanced dawn raid
powers
Changes to the Merger Control Regime
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Changes to the Merger Control Regime
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Revised Merger
Control Regime
Business
as usual until 31
Oct
New
MEDIA MERGER
regime
Longer
review periods
Pre-signing
notification now
possible
Domestic
centric thresholds
Top 3 things to remember
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1. New acronym – the “CCPC”
2. Enhanced powers of cartel investigation for
the CCPC and Gardaí
3. New merger control thresholds & timelines and
new media merger regime
Q&A Ronnie Neville Claire Lord Maureen O’Neill [email protected] [email protected] [email protected]
