Willie O'Dea (Limerick City, Fianna Fail)

I note that amendment No.9 is being taken in conjunction with amendments Nos. 24 to 26, inclusive, and I wish principally to address my remarks to those amendments. Under the Industrial Relations Act 1946, if employees felt they were not getting a fair wage in accordance with the terms of an employment regulation agreement or if they were working excessive hours or too few hours and so on, and if they wished to make a complaint, there was a simple procedure involving the National Employment Rights Authority and the Department. Somebody on behalf the Department was empowered under that Act to take a criminal prosecution against the employer. The threat of that was very effective and it largely worked. It obviously did not deal with every situation because we would need an army of inspectors to police every situation, but people had automatic access to the Department which could then prosecute criminally, and it did so successfully on occasion. That was a very powerful deterrent and, by and large, it kept employers on the straight and narrow.

When the High Court looked at the powers of the joint labour committees, it recognised that breaches of their powers could result in criminal convictions, which shows how extensive their powers are. The Duffy Walsh report suggested that aggrieved employees should have access to NERA and that NERA should have the option of bringing either a civil case or a criminal case. As a result of a High Court decision, the section of the Industrial Relations Act 1946 that empowered NERA to bring a criminal conviction has been struck down, in my opinion. Therefore, the position is that NERA could still be given the power to bring a civil action on behalf of aggrieved employees. However, that is not what this legislation provides. It provides that if employees are aggrieved, they are more or less on their own. They must go to the rights commissioner, wait in the queue, represent themselves or maybe get a trade union or some other third party to do so. We are talking about people who are generally not very well educated and in low wage employment. Examples might include an immigrant or a housewife who is working to supplement the family income because her husband has been put on the dole. If they succeed before the rights commissioner, the employer can appeal to the Labour Court, so these low wage employees more or less have to represent themselves in the Labour Court, unless they can get a trade union or some third party to represent them. If they win their case at the Labour Court and the order is not enforced, they must go to the Circuit Court. These employees could be contending that their wages are €5 short every week. There could be a pitiable sum of money involved in the great scheme of things, but a lot of money to the individuals in question.

It seems to me that the only access for such employees to the Department is under the new section 45E of the Bill, as amended. It states that where it appears to the Minister that a complaint under section 45 has not been presented to a rights commissioner and the circumstances touching the matter are, in the opinion of the Minister, such as to make it unreasonable to expect the worker or even a trade union to present the complaint, then the Minister will step in. In other words, the automatic access of these workers to the Department for assistance is being taken away. If the worker does not present a complaint, the Minister can step in if he or she considers it unreasonable to expect the employee in the case to represent himself or herself.

That is a very high barrier. I cannot understand in what circumstances it would be unreasonable to expect the employee to represent himself or herself. If the employee does not present a complaint to the rights commissioner, how will the Minister get to know about it? Is it a matter of somebody going directly to the Minister instead of going to the rights commissioner? From what I can see, the chances are such employees would be turned down if they went to the Minister. In the normal course of events, I do not see how it can be unreasonable to expect somebody to lodge a complaint.

The procedure is relatively simple. A local TD, a citizen's advice centre or even a trade union official such as a shop steward can fill out a form for a person, although most people can fill out the form themselves. I am concerned as to why the legislation does not state that if people have complaints, they can bring them themselves or get their trade union or any other third party to represent them, when they have access to NERA, which can bring the case on their behalf. Why take away what was automatic access to assistance from the Department for these low paid workers who are poorly able to represent themselves and who cannot afford heavy duty lawyers? What has changed?

Why did the Government depart from this recommendation of the Duffy Walsh committee, which suggested the situation would continue as it has since 1946, albeit that the action that would be pursued on the employee's behalf would be of a civil nature rather than a criminal nature? The net effect of this, so far as redress is concerned, is that an employee who may be owed a trifling couple of hundred euro has to go to the rights commissioner, perhaps then go to the Labour Court to argue his or her case and, ultimately, go to the Circuit Court if an order issued by the Labour Court is not being enforced. Why is the Department now being effectively stopped from acting on his or her behalf or, rather, why is there no automatic recourse to the Department?

It seems, on the one hand, the Minister has announced his intention to bring up to date new provisions for redress in such cases, and in more general unfair dismissal cases, to more or less consolidate them and make them more modern and effective and,on the other hand, he is removing something which this cohort of workers has enjoyed since 1946. I would appreciate it if the Minister could explain the reasons for this. In what circumstances does he contemplate that section 45E will kick into effect?

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