Richard Bruton (Dublin North Central, Fine Gael)

I thank Deputy O'Dea for raising these issues around the enforcement area, which is an area causing considerable concern. In the context of the workplace relations Bill on which I am working and the blueprint of which I have published, I am considering in great detail how enforcement operates and how we can improve it.

The Deputy has submitted a number of amendments, some of which relate to the REA system and some to the REO system. With regard to amendment No. 9, section 8 inserts a new section 32(4) of the Act to provide a new straightforward enforcement mechanism to secure compliance with REAs instead of resorting to a criminal prosecution. A complaint about non-compliance by an employer with an order of the Labour Court for compliance with an REA may be brought before the Circuit Court by or on behalf of the worker concerned by a trade union, or by the Minister if the Minister considers it appropriate. The Circuit Court then makes an order directing the employer to comply with the terms of the Labour Court.

The effect of the amendment put forward by Deputy O'Dea would be to remove the discretion of the Minister in deciding whether it is appropriate to refer a case to the Circuit Court. This is a standard provision in a range of employment rights legislation dealing with the failure by employers to comply with Labour Court orders or an EAT decision, including the National Minimum Wage Act 2000 and most recently the Protection of Employees (Temporary Agency Work) Act 2012. It is NERA, acting in the name of the Minister, which is responsible for taking a case in the Circuit Court.

There are a number of reasons it may not be appropriate to refer a case to the Circuit Court. The reasons for non-referral would include the following: the company having been abandoned; a limited company not having been properly wound up or liquidated so there is no prospect of payment from the insolvency fund; the award is less than the potential cost to the State of legal proceedings; the employer cannot be found and has possibly emigrated, or an incorrect name of the employer is on the award; and the former employer, a sole trader, is now in receipt of social welfare with no other visible means of income, meaning pursual by the State is not a realistic option. These are circumstances that have to be assessed on a case-by-case basis, and requiring NERA to effectively proceed automatically without regard to those circumstances would not benefit either the employees or the resources of the State if the result was to be nulla bona and they would effectively get nothing.

The Deputy also raises issues in respect of the later provisions on EROs. He puts forward some sensible proposals, such as notification of employers first. As I understand it, he proposes that the Minister would be the one bringing a complaint to a rights commissioner. What we are seeking to do is to have a very simplified complaints procedure in order that, where a complaint arises, it would be immediately followed by an inspection and, in that period, the employer would be given the opportunity to correct his or her hand. We are also looking at new powers such as a compliance notice that could be served on the employer at that stage. We are examining the scope for better enforcement mechanisms and the jurisdiction of the court into which cases will be taken, as well as introducing new instruments for the State to use to try to achieve compliance, such as fixed notice charges, a new mechanism for enforcing awards and so on.

I intend going to the committee in the very near future with a document setting out the draft approach of the workplace relations commission and the enforcement approaches we will take under that. This will involve across-the-board measures to deal with all the different forms of enforcement that come before NERA. Rather than seeking to proceed on a piecemeal basis and make amendments here, the approach I propose to take is to introduce across-the-board changes following a period of consultation through the production of a policy paper. I will then bring it to the committee in the near future and have an opportunity to evaluate the reaction from Deputies and others before moving to the design of an appropriate enforcement approach that would be more effective for workers than what is now in place.

While I fully accept Deputy O'Dea's motivation in putting forward this approach, he is seeking, in respect of some of his amendments, to remove discretion which I believe it is appropriate to have. In the case of his other amendments, I would prefer to wait and consider a full, comprehensive package for enforcing the various elements of labour law infringement that come to be examined, rather than seeking to go down the road with a specific model in a specific instance before consultation and the design of a system that I would feel is robust and has been tested before the court of public opinion as well as the court of the Oireachtas.

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