Seán Sherlock (Cork East, Labour)

The High Court indicated that it intends to grant an order declaring sections 42, 43, and 45 of the Industrial Relations Act 1946 and section 45 of the 1990 Act to be unconstitutional. In this new Bill, the response by Deputy O'Dea has been to import the exact provisions of four original sections that had featured in the now lapsed Industrial Relations (Amendment) Bill 2009. The 2009 Bill had been introduced by the last Government in the summer of 2009 but it did not proceed beyond its Second Stage reading in this House, which was completed on 11 February 2010. Regrettably that Bill failed to make any progress on the last Government's legislative programme until it eventually lapsed with the end of the last Dáil.

The only really novel provision in this Bill is at section 7, which repeals section 45 of the 1946 Act which makes it an offence for an employer to pay to a worker remuneration less than the statutory minimum remuneration, or to fail to comply with statutory conditions of employment. This section, which the High Court ruled was unconstitutional, was the subject of recommendation 19 in the independent review report, the Duffy Walsh report. That report recommended that the mechanism for enforcing EROs be brought into line with that for regulated employment agreements and that, as an alternative to a criminal prosecution, a complaint could be brought before the Labour Court. The report recommended that NERA be authorised to bring such a complaint in respect of either an REA or an ERO.

I welcome the proposal to decriminalise the initial steps in the enforcement process of EROs. It makes sense, as Kevin Duffy and Dr. Walsh had recommended, to allow room for NERA to bring a complaint to the Labour Court on behalf of an individual or group of workers rather than retain the current arrangements where enforcement is only by way of a prosecution before the District Court. Unfortunately the incorporation of the proposed amendment on the enforcement of EROs at section 7 is the only provision in the Bill that responds directly to the specific recommendations in the independent review report.

The new Bill does not contain any provisions to respond to other specific changes that were called for in the recommendations of the Duffy Walsh report. Recommendation 16 of that report called for all of the changes that were proposed in the Industrial Relations (Amendment) Bill 2009 to be enacted along with amendments to cover the additional recommendations made in the report regarding the legislative framework within which both the ERO and REA systems operate. It makes no sense to tackle this task in a piecemeal way or to leave REAs to the mercy of some continuing legal challenges. Unfortunately this Bill does not address the significant range of changes called for by Kevin Duffy and Dr. Frank Walsh to safeguard the statutory wage-setting machinery from the threat of constant litigation and judicial review.

Recommendation 1 of the independent review report also called for an amendment to the Industrial Relations Act of 1990 to provide a means whereby the scope of the particular establishment orders of JLCs could be reviewed by the Labour Court. The report also recommended that the Labour Court be empowered to undertake periodic reviews of EROs in the interests of greater clarity as regards their purpose and the classification of the workers and the types of enterprises covered. Action with regard to these recommendations will be crucial to providing protection for EROs against further legal challenges.

Recommendation 9 of the independent review report also called for amendments to be made to the Industrial Relations Act of 1990 regarding the constitution and proceedings of JLCs. This is another critical area in which action is now required in light of the High Court ruling.

Unfortunately at a time when it is vital to provide more certainty for vulnerable workers in low-paid sectors the proposed Industrial Relations (Amendment) Bill 2011 presented by Deputy O'Dea offers only limited protection. I am convinced that the urgent preparation of substantive legislation represents the only reliable means of guaranteeing protection for vulnerable workers in low-paid sectors.

See this speech in context