Mr. Niall McCutcheon:

I thank the committee for the invitation to attend this meeting to address the issues raised in Mr. O'Sullivan's petition and for the opportunity to provide an update in respect of the ongoing reform programme currently being undertaken by the Minister for Jobs, Enterprise and Innovation to reform the State's existing employment rights and industrial relations structures, to which reference has already been made.

The Department has already forwarded a submission to the committee prior to this meeting which addresses the specific issues raised by the petitioner and provides an update in respect of the workplace relations reform programme. In the circumstances, I do not propose to address the issues in such great detail in my opening statement. However, both I and the other members of the Department's delegation would be happy to address any questions or issues which the committee may wish to raise in respect of the matter. I will deal with the broader issues raised in this petition which relate to the delays and costs of bringing a complaint before the EAT, the need to employ a legal team, the difficulty of enforcing an award of the tribunal and the qualifications of liquidators.

I will firstly provide an update in respect of the ongoing reform of the State's existing employment rights and industrial relations structures and will then briefly address the specific issues raised in the petition. It is essential that we have efficient and effective mechanisms to develop harmonious and productive workplaces and to assist employers and employees to avoid and resolve disputes. It is clear that the system which has evolved over the past number of decades did not achieve this. The system was frustrating for employers, employees and professionals representing them. Notwithstanding the efforts of the EAT and others to reduce backlogs, the Minister believes the delays that users of the service are experiencing are unacceptable.

It is for these reasons that the Minister is undertaking a root-and-branch reform of all five workplace relations bodies. The reform programme that has commenced aims to deliver a world-class workplace relations structure. The Minister proposes to establish a two-tier workplace relations structure which means that upon establishment of the new structures, two statutorily independent bodies will replace the current five. We will have a new single body of first instance to be called the workplace relations commission, WRC, and a separate appeals body, which will effectively be an expanded Labour Court. All complaints will be dealt with by a single body of first instance where the aim will be to have a hearing within three months from the time the case is lodged.

The activities of the Labour Relations Commission, the National Employment Rights Authority, the Equality Tribunal and the first instance functions of the Employment Appeals Tribunal, EAT, and the Labour Court will be merged into the new Workplace Relations Commission, WRC. The appellate functions of the EAT will be incorporated into an expanded Labour Court.

The Minister has already undertaken two public consultation processes and, as the committee will be aware, in July 2012 he submitted the policy document, Legislating for a World-Class Workplace Relations Service, to the Oireachtas Committee on Jobs, Enterprise and Innovation. This document sets out in detailed narrative format the core principles that will be incorporated into the proposed new structures and processes. The Minister had a positive and very useful engagement with the committee on the proposals, which incorporate many of the positive suggestions and contributions made as part of the consultations.

The purpose of the reform programme is to provide a more efficient and effective system of resolving employment disputes. Substantial progress has already been made in this regard. Since the Minister announced his reform proposals we have undertaken two public consultation processes, published two policy documents, created a new website; introduced a single complaint form and single contact portal, and commenced delivery of an early resolution service.

A significant amount of work has also been completed on the legislative programme required to deliver the reform. The general scheme of Bill has been approved by Government for priority drafting and it was included on the "A" list for the Government's summer legislative programme 2013. Drafting of the Bill has commenced and the Minister is committed to the enactment of the legislation at an early stage with a view to having the proposed new structures in place from 2014. The Minister intends to progress the reform programme to the next stage with the same determination that has delivered results to date and he intends to continue to progress the reform and bring about further enhancements for users of the services on an administrative basis in the coming months before the enactment of the legislation.

I will briefly address the issues raised in Mr. O'Sullivan's petition which relate to the delays and costs of bringing a complaint before the EAT, the need to employ a legal team, the difficulty of enforcing an award of the tribunal and the qualifications of liquidators. The EAT was originally designed as a relatively inexpensive and informal forum for dealing with employee-employer complaints. No fees are charged to any of the parties. Legal representation is not a requirement of the EAT and efforts are made to ensure that the level of informality is such that representation is not necessary. Members of the EAT will in practice give any assistance they can to parties appearing before them who are not legally represented.

Some parties engage legal representation and despite the efforts of the members to compensate for this, it is acknowledged that there may be a perception that it may be an advantage to be legally represented and a disadvantage not to be legally represented. This is one of the reasons why the Minister proposes, in the reformed structure, to provide for a single adjudicator to hold hearings in private, similar to the Equality Tribunal and Rights Commissioner Service rather than the EAT model of a three-person tribunal held in public. It is the Minister's aim that parties, while retaining the right to be legally represented, will have the confidence to represent themselves should they so wish.

The idea of introducing fees and a bond has been raised in the petition. Having considered various suggestions on charging fees or putting in place bonds, the Minister does not propose, with one exception, to introduce fees or bonds. It is the Minister's view that a bond as proposed, binding only one side, the employer, at the initial stage of a case would have the appearance of prejudicing the view of the neutrality and parity of esteem that the opposing sides would expect from the members in carrying out their duties. The exception the Minister proposes is to charge a fee where a party appealing a decision of a WRC adjudicator failed to attend or be represented at the initial WRC adjudication hearing. This can be refunded if the person can demonstrate to the Labour Court a valid reason for not attending. This is based on experience where complaints are taken at a preliminary stage, are not contested, an award is made in favour of the complainant and at that state the respondent lodges an appeal to the Labour Court. The aim is to ensure the process is cleared, as far as possible, at the lowest tier.

On waiting times, the EAT, like other tribunals, has seen a significant increase in its case load in recent years, as it is one of the front-line services directly impacted upon by the economic downturn. The largest increase in claims has been in redundancy appeals but other types of claims have also increased. Regrettably, this has increased the time it takes for a claimant to have his or her case heard. All appeals are listed for hearing in accordance with their date of lodgment with the tribunal. The tribunal has been active in ensuring the resources allocated to it are used in an efficient manner and there is an ongoing review of how this is best done. For example, divisions of the tribunal are sitting longer, hearing more cases per hearing and seeking to manage the case load to maximise efficiency. This is reflected directly in the increase in the number of cases finalised by the tribunal over the last three years.

The tribunal is actively working to meet this challenge, notwithstanding the high level of claims in recent years and the administrative resources available. However, as I have already stated, these waiting times are not acceptable and the Minister proposes that the WRC will put in place a target period of three months from the time a complaint is lodged until a hearing date in the new system.

On the enforcement or payment of awards made by the EAT, the tribunal has no role in the enforcement of its own awards. Such awards may eventually fall to the civil courts for enforcement and in certain circumstances this process may be carried out on behalf of the Minister by the National Employment Rights Authority, NERA. It is accepted that individuals who have had awards made in their favour by employment rights bodies, including the EAT, can experience difficulties in enforcing those awards where employers fail or refuse to pay such awards. The Minister believes that any system of employment rights adjudication which is not backed up by an efficient and effective enforcement regime for successful complainants lacks credibility. If employees who have been denied their statutory entitlements, and their representatives, are to have faith in the proposed new system, an effective, inexpensive and easily-navigated process must be put in place.

For this reason, the Minister is proposing, subject to advice from the Attorney General, to make provision in the workplace relations Bill for a new mechanism for enforcing awards of the WRC adjudicators and Labour Court determinations. These measures will provide for more proportionate, efficient and effective enforcement of employment law. If the decision of a WRC adjudication officer at first instance, or a determination of the Labour Court on appeal, remains unimplemented, the complainant may apply, in the former case to the WRC or, in the latter case, to the Labour Court, for a binding and enforceable determination order directing the respondent to comply within a specified period. A determination order made by the WRC or Labour Court may be enforced by civil proceedings or criminal prosecution, or both.

Civil enforcement proceedings may be brought in the District Court by the employee concerned, his or her trade union or the director of the WRC. They may apply to the District Court for an order directing the non-compliant employer to comply with the determination order. If the applicant is granted the order sought by the District Court but the employer concerned continues to fail to comply, it will be open to the applicant - the employee or the director - to apply for an order of attachment and committal of the employer, plus an order for costs. Criminal prosecutions may be brought by the director of the WRC in the District Court. A successful conviction should carry an appropriate maximum fine and-or period of imprisonment. In addition to securing the criminal prosecution, where an amount of money is owed by the non-compliant employer, the director will have the power to seek a compensation order in respect of the moneys due. Finally, the legislation will make it mandatory, other than in specific exceptional circumstances, for the District Court to award the director’s costs in bringing the prosecution. The Minister is hopeful that the measures he proposes to introduce will provide successful complainants with an accessible and inexpensive means whereby recalcitrant respondents can be compelled to honour the award of the WRC adjudication service or of the Labour Court.

The petitioner has queried whether persons holding themselves out to be liquidators in Ireland are required to hold a particular qualification. While there are certain disqualification provisions in the existing Companies Acts that apply to persons seeking to be appointed as liquidators, there are no requirements to hold particular professional qualifications or to have previous experience in this field to be appointed. This unsatisfactory situation will be remedied in the Companies Bill 2012. The Bill introduces a new qualification regime for liquidators.

Its introduction is pursuant to the recommendations of the Company Law Review Group, CLRG, in this context, which noted that the intention of this proposed regime was to ensure that, to qualify to act as a liquidator, a person must be appropriately knowledgeable, experienced and generally fit and proper.

The qualification regime envisages five main categories of persons who will be qualified to act as liquidators. Such a person may be described briefly as a practising member of a prescribed accountancy body; a solicitor holding a practising certificate; a member of a professional body recognised by the Irish Auditing and Accounting Supervisory Authority, IAASA; a person entitled to act as liquidator in another European state; and a person who makes a successful application to the IAASA within two years of the Bill's commencement. In order to qualify under the final category, the person must demonstrate adequate relevant experience of the winding up of companies, previous employment in relevant work or previous practice in another European state as a liquidator, and be a person who, in the opinion of IAASA after consultation with the Director of the Office of Corporate Enforcement, is fit and proper to act as a liquidator. When these provisions in the Bill become law, a person who acts as a liquidator without being qualified as I have outlined will be guilty of a criminal offence. The Bill also requires liquidators to hold appropriate professional indemnity cover, in such terms as prescribed, before they can act as liquidators.

The Companies Bill 2012 passed Second Stage in the Dáil on 25 April 2013 and is due to proceed to Committee Stage in autumn of this year.

I thank the committee for allowing me the opportunity to make this presentation, which I hope has been of assistance. The other members of the Department's delegation and I will be happy to answer whatever questions that members have on these matters.