Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

This Bill is the culmination of a huge amount of work that has occurred in my Department and across the number of agencies that are involved in this new structure. It is a great example of public service reform, one of the developments that many people have sought to deliver, to examine systems that perhaps are not performing to the standard that they should and reform them to bring something that would be best in class. That is what we are on the road to do. It is a tribute to many people who have worked tirelessly to bring this to the point where it is and I pay tribute to all of those involved.

The system that was in place when we started this process and when I came into office first had become far too complex, far too hard to use and too legalistic. It resulted in long delays for people. It was frustrating for people within the system to work. Essentially, many committed people were trapped in a process that was letting them down. There was a universal desire for a change to be made but that did not mean that the road of change would be easy. Clearly, integrating multiple different systems, even at the ICT level, is challenging but in every way it is challenging and I refer to the processes, the forms and the approach. It has involved considerable work to get this right. While I get the opportunity to present this Bill a huge amount of work has gone on. The Bill is the tip of the iceberg one sees over the surface of the water but much of the underpinning of it is attributable to many people who have made it work.

What we have produced here, and I hope this is what it proves to be in practice, is something where the obligations of both sides in the workplace are easily understood. It fosters a compliance culture in the workplace whereby people recognise that performing to high standards, delivering to the best of those standards and meeting legal obligations is part of running a good business and working in a good enterprise. It builds on our strong voluntarist tradition that has been a great stand-by to us in terms of managing industrial relations over a long period. It will allow complaints, and complaints arrive even in the best of systems, to be dealt with at the earliest and most effective point in the process. It will also ensure that where there are those who will not meet their obligations, there is effective enforcement and that the enforcement can deliver to the people who have been the victims of wrong practices. A good deal of work must be put in to make those different steps in the chain be effective.

That is the backdrop to this legislation. It is legislation that will remove the deficiencies we saw, which cause complexities for practitioners and users of the service. They included multiple points of entry to the system, forum shopping, long delays in scheduling hearings and issuing decisions. Key to addressing those is what we are doing in this Bill, which will see the existing five State bodies replaced by two. The Labour Relations Commission, the National Employment Rights Authority, the Equality Tribunal, the first instance functions of the Employment Appeals Tribunal, EAT, and the first instance functions of the Labour Court will be replaced by the new workplace relations commission, WRC, and the appellate functions of the EAT will be transferred to a new expanded Labour Court. We will have a much simpler structure in place.

My objective is to deliver a world-class workplace relations service providing an integrated industrial relations, adjudication and enforcement service which is simple to use, independent, effective, impartial, cost-effective and provides for workable means of redress and enforcement, within a reasonable period of time. From an industrial relations point of view, Ireland operates a voluntarist system of collective bargaining comprising non-intervention by the State in disputes but the State does provide dispute settling institutions and frameworks for local level and sectoral wage settling. I am satisfied that the State's industrial relations machinery has worked very successfully and effectively over the years and it is for this reason that it has not been necessary to make any significant changes in this Bill in terms of the manner in which this system operates. The functions of the WRC will comprise all those currently undertaken by the Labour Relations Commission, including industrial relations conciliation, advisory services, information and research. These services, as currently operated by the Labour Relations Commission, have made a magnificent contribution to the industrial relations environment and will be incorporated into the WRC without change. We are privileged to have such an amount of experience and knowledge in managing extremely difficult industrial relations situations and we have seen many of them even during my term in office. Even the most intractable have been capable of being managed by the sort of experience and commitment we have in those services.

During the preparatory stage of this legislation we have had quite extensive consultation. We had extensive public consultation exercises and published two policy papers, which have helped to improve, redesign and deliver the best we can make in terms of this legislation. There was a strong consensus right across the system that reform was timely and necessary. That was very encouraging and it helped to deliver this Bill. We have had many meetings with interested parties, representatives of both sides, the employees, employers, equality interests, including IBEC and ICTU, to get their input into the process. Like any consultation exercise, not everyone will be happy with every aspect, but we have tried to understand the spirit of people's comment and make sure that we have incorporated those as best we can into the legislation that has been developed.

In advance of the legislation, officials in my Department have been working on the process, technology, staffing and administrative matters required to underpin the reform programme and make it easier for users to do business. This goes back to January 2012, although it is not that everything has been waiting for this Bill but this is a very important final piece in the building structure. There has been a single reception and registration of complaints on behalf of the five workplace relations bodies by a single portal, known as the workplace relations customer services. It was complemented by a single complaints form; there had been 30 separate forms but now there is only one and it became an e-complaint form from September 2013. Complaints are now acknowledged and the respondent is notified within three working days. People who have a complaint made against them will know that within three working days. In the worst of cases it had been taking up to 80 days in the past. This gives the employers, who usually are those complained of, the opportunity to engage at an early stage with a view to resolving the issue. The earlier people understand the challenge that is made, the quicker a solution can be got if there is goodwill.

The post-registration functions associated with complaints management, including the scheduling of adjudication hearings, are from this month being managed by another shared services unit. We have also established an early resolution service, which has enabled complaints and disputes to be dealt with as close to the workplace as possible. There is no point in having every complaint simply swept along to a hearing if it can be managed at an earlier point. As soon as possible after receipt, registration and validation, this early resolution service is available and mediation is also available which builds on the experience of the Equality Tribunal, which had a track record in operating mediation, and we have incorporated that learning into the Bill.

In terms of savings, people will always look at not only the improved service we are delivering but whether savings are possible. I am glad to say that there will be fewer staff numbers required to deliver the new service.

11 o’clock

It is estimated that annual savings due to staff reductions and efficiencies will amount to approximately €2 million. The main drivers of the reduction in staff costs will be the centralisation of administration and case management services and the automation of business processes.

Before I outline in detail the main provisions in the Bill, I will outline the key measures that will be provided for in the legislation. The services of the Equality Tribunal, National Employment Rights Authority, NERA, Labour Relations Commission, LRC, and the first instance functions of the Employment Appeals Tribunal, EAT, will come together under the remit of the WRC. It will be the first port of call. The appellate functions of the EAT will be amalgamated into a single reconfigured Labour Court, which will be the appellate body for all matters. The Bill will establish the Office of Director General of the WRC, the appointment of the director general by the Minister on specified terms of appointment, and the statutory powers and functions of the director general. It will establish the WRC board with responsibility for strategy and annual work programme. It will transfer the existing functions provided by the LRC, including conciliation, workplace mediation and advisory services, to the WRC. It will provide for workplace relations information and advisory services. To encourage the compliance culture we need, it is crucial that we understand not only the information, but also the body of decisions that the courts have made over the period, which is a very important source of information and understanding.

The Bill will provide a statutory basis for the use of innovative measures such as compliance notices and fixed charge notices to enhance the compliance functions of the WRC. These are tried and tested approaches that speed up and encourage a compliance culture rather than the "gotcha" culture of finally catching and prosecuting people. It has been shown in other areas that this builds a compliance culture and it is correct to bring it into such legislation. The Bill will introduce the sharing of employment related and other specified information between the WRC, Labour Court and other official agencies in the context of promoting compliance with employment legislation. It is important that a body of decision precedent is built up as it is an important element of delivering a quality service. The Bill provides for the appointment of additional members to the Labour Court to facilitate the increased workload of the court in the new system. It provides for a more transparent system of appointment of adjudicators of the WRC and chairmen, vice chairmen and ordinary members to the Labour Court. It will standardise certain procedural matters such as limitation periods, the length of the period within which a first instance adjudicator's decision may be appealed, etc., across the full range of employment rights legislation. Thus all pieces will work to the same standard. It will ensure better enforcement of employment rights awards and better compliance and enforcement measures for employment rights.

The Bill consists of seven Parts comprising 82 sections and 6 Schedules. For the convenience of Deputies, a detailed explanatory memorandum has been published and it provides a synopsis of the provisions. Part 1 comprises sections 1 to 7 of the Bill. Sections 1 to 5 contain the Short Title, collective citation, commencement provisions, interpretation and measures relating to the service of documents. Section 6 outlines the penalties which will apply when a person is found guilty of an offence under this Bill. Section 7 refers to Schedule 2 which details the provisions repealed by this Bill and makes transitional arrangements for complaints or disputes referred to a rights commissioner before the commencement of Part 4.

Part 2 comprises sections 8 to 24 and makes provision for the establishment of the WRC. The LRC, NERA, Equality Tribunal and the first instance functions of the EAT would be replaced by the new WRC and the appeals functions of the EAT would be incorporated into the Labour Court. Sections 8 and 9 make provision for the establishment day of the new WRC. Section 10 sets out general functions of the WRC that are additional to other functions conferred on it by specific sections by the Act. The WRC will be tasked with taking positive steps to ensure high standards of compliance with employment legislation and equally high standards in the conduct of industrial relations generally and with the provision of the necessary services to facilitate the speedy resolution of industrial relations disputes at as early a stage as possible. Simultaneously, the WRC will have responsibility for providing the means whereby complaints under employment rights legislation can be investigated, resolved by early intervention or adjudicated, as appropriate, by competent personnel. Where the WRC suspects continued non-compliance with employment legislation on the part of workers or employers, it may resort to prosecution of the parties in question. The functions of the WRC will comprise all those currently undertaken by the LRC, including industrial relations conciliation, advisory services, information and research. The WRC adjudication service will continue the dispute resolution role of the rights commissioners as provided for in the Industrial Relations Act 1969 as well as employment rights adjudication functions.

Sections 11 to 15 make provision for the appointment, resignation or removal from office and functions of the director general of the WRC. The director general of the WRC will be appointed by the Minister following the holding of an open competition by the Public Appointments Service other than in the case of the first appointee to the office of director general. The Accounting Officer for the commission will be the Secretary General of the Department of Jobs, Enterprise and Innovation. Section 16 makes provision, on standard lines, that the director general is accountable to committees of the Houses of the Oireachtas, other than the Committee of Public Accounts. Section 19 provides that the commission shall have a statutory basis, in consultation with the Minister, for the preparation and publication of codes of practice for the improvement generally of workplace relations. Section 20 provides for the regular production of a strategy statement by the board of the WRC to be approved by the Minister and laid before the Houses of the Oireachtas. Section 21 provides that the board shall prepare an annual work programme in consultation with the director general for submission to the Minister. Section 22 requires, on standard lines, the director general of the commission to make an annual report to the Minister for Jobs, Enterprise and Innovation. Section 24 provides for the appointment of a qualified and experienced lawyer to act as registrar to the commission.

Part 3 comprises sections 25 to 35 and makes provision for the compliance procedures that will be introduced under the new workplace relations structures. The functions undertaken by NERA to date in promoting a culture of compliance with employment legislation will be continued by the compliance service of the new WRC. However, new mechanisms such as compliance notices and fixed charge penalties will supplement the existing statutory powers of labour or NERA inspectors. Sections 25 and 26 restate and consolidate in one location the powers of inspectors which are at present provided for under a range of individual enactments.

Section 27 makes provision for the use of compliance notices to promote higher levels of compliance with employment legislation. Such notices may issue when an inspector forms an opinion that a scheduled contravention of employment law, which the employer concerned fails or refuses to rectify, has occurred. The compliance notice will set out the steps the employer concerned must take to effect compliance. An employer may appeal against all or any aspect of the notice to the Labour Court. The Labour Court, following a hearing upon appeal, shall affirm the compliance notice, withdraw the compliance notice or withdraw the compliance notice and require the employer to whom the notice applies to comply with such directions as may be given by the Labour Court. This section also makes provision for an appeal of the Labour Court decision to the Circuit Court. Failure to comply with a compliance notice may result in the Circuit Court, following a hearing, issuing a binding order. Failure to comply with such an order of the Circuit Court would be a prosecutable offence. This will give a more effective route to prosecution and enforcement.

Section 28 is intended to remove any doubt about the admissibility of the written report of an inspector in any proceedings under employment legislation to which the employer whose records are the subject of the report is a party. Section 30 will allow the WRC and its inspectors and adjudication officers to share certain employment-related information with other statutory enforcement authorities and with the Labour Court. Section 31 enables the WRC and other statutory enforcement authorities to advise each other of suspected offences under their respective remits which come to the notice of any of them. Section 32 is designed to safeguard the wages and other statutory entitlements of employees who are working under public construction or other public contracts, while also ensuring competitive tendering and value for money in public expenditure. Section 33 provides for the development of co-operation agreements between the WRC, the Labour Court and other specified official bodies.

Section 34 is intended to provide a statutory basis for administrative co-operation and the exchange of information between employment law compliance authorities of other states and the compliance section of the WRC. Section 35 provides for the use of fixed payment notices in respect of a specified range of acts of non-compliance on the part of employers. The use of this mechanism is intended to encourage compliance and reduce the need to rely on expensive and time-consuming prosecution procedures for the scheduled acts of non-compliance.

Part 4 comprises sections 36 to 51, inclusive, and makes provision for the new dispute resolution and adjudication structures. Sections 36 and 37 provide for the appointment of case resolution officers to the WRC. The WRC will offer an early resolution service in certain cases where complaints are lodged, generally in less complex disputes. Sections 38 and 39 provide for the appointment of mediation officers to the Workplace Relations Commission and the provision of a mediation service to facilitate the resolution of employment rights disputes where possible at an early stage and without recourse to adjudication. It is envisaged that mediation - unlike the early resolution service - will be offered to the parties in the more complex disputes, such as cases under the Employment Equality Acts and the Unfair Dismissal Acts requiring face-to-face mediation.

Participating in early resolution or mediation is entirely voluntary. Parties availing of the early resolution or mediation service will neither lose the right to have their issues in dispute dealt with by means of inspection or a hearing, as appropriate to their case, nor be disadvantaged in relation to their waiting time for inspection or a hearing. Should early resolution or mediation yield a compromise or settlement between the parties or a withdrawal of the complaint, the outcome will be confidential to the parties. Likewise, if the early resolution or mediation process is unsuccessful, anything divulged by the parties in the process cannot be used subsequently in the adjudication or inspection process.

Section 40 makes provision for the appointment of adjudicators to the Workplace Relations Commission. All first instance cases will be heard by the WRC in a fair and transparent manner in accordance with the law and the principles of natural justice. To hit this high standard, adjudicators must be suitably skilled and trained for the role.

On the establishment of the WRC, the current cohort of equality officers and rights commissioners will be appointed as WRC adjudicators. They will be supplemented by a panel of external adjudicators, comprising experienced industrial relations and HR practitioners and employment lawyers with appropriate skills and experience appointed by the Minister. The Public Appointments Service has agreed to undertake the selection process for WRC adjudicators and advertisements for the competition were published on 26 September 2014. Those selected for appointment on the panel of external adjudicators will then have to complete an accredited training programme and pass the associated examination.

Section 41 provides for standardised time limits of six months, extendable to 12 months for reasonable cause. All first instance complaints requiring adjudication will be heard by WRC adjudication officers. The adjudication officer will convene a hearing where both parties are given the opportunity to be heard and to decide the matter. Parties will be free to represent themselves or choose their own representation. All appeals will lie to the Labour Court, except in the case of complaints under the Equal Status Acts where the appeal will lie to the Circuit Court. Adjudication officers will be required to conduct cases in accordance with the principles of constitutional and natural justice. This obligation will include affording parties the right to cross-examine.

Section 41(11) has been subject to adverse comment in that it is alleged that it gives an adjudication officer the power to refuse a lawyer or other representative of a party access to proceedings. This is not my intention and I propose to introduce a Committee Stage amendment to clarify this matter.

Section 42 empowers an adjudication officer to dismiss a complaint in circumstances where he or she forms the opinion that it is frivolous or vexatious. Such a decision can be appealed to the Labour Court.

Sections 43 and 45 provide for a streamlined and more effective enforcement procedure for complainants whose complaints have been upheld at first instance by an adjudication officer of the WRC or upon appeal by the Labour Court. The current system of enforcement of employment rights awards is cumbersome, expensive and not fit for purpose. In my view, the difficulty experienced by successful complainants in enforcing awards made by those bodies in their favour is unsatisfactory. Enforcement proceedings generally involve recourse to the civil courts and possibly the relevant sheriff's office, often without a successful outcome.

One of the central planks of my reform is to establish a new and robust enforcement regime which will provide successful complainants with an accessible and inexpensive means to enforce the award of the WRC adjudication service or of the Labour Court, as the case may be. For this reason, I make provision in the Bill for a new mechanism for enforcing awards of the WRC adjudicators and Labour Court determinations. The general scheme of the Bill, as approved by the Government in July 2012, provided for an improved and more robust system of enforcement of compensation awards under employment legislation via the District Court. The scheme provided that non-compliance with an order of the WRC or the Labour Court, as the case may be, would be an offence prosecutable summarily in the District Court. The enforcement provisions in the Bill, within sections 43 and 45, as published, do not currently make provision for an offence in such circumstances; however, this issue is the subject of further discussion between my Department, the Office of the Parliamentary Counsel and the Office of the Attorney General and I hope to table an amendment for consideration on Committee Stage which will satisfactorily address this issue. I am confident that the introduction of these new measures will provide for more appropriate, efficient and effective enforcement of employment law.

Section 44 provides that either party to a first instance hearing will have the right to appeal the decision of a WRC adjudication officer to the Labour Court. The Labour Court will act as a court of final appeal for all adjudication decisions of the WRC. Appeals to the Labour Court will be de novohearings held in public. The Labour Court will have the power to establish its own procedures in relation to specified matters. A consistent time limit of 42 days from the date of the first decision will apply to all appeal applications across all legislation.

Section 47 provides that the only route of appeal that parties will have from a decision of the Labour Court will be on a point of law to the High Court. This provision does not impact on the supervisory role of the superior courts which may be exercised by way of judicial review. Section 49 provides that the director general of the WRC and the Labour Court may strike out cases for want of prosecution where the director general or the Labour Court is satisfied that the complainant or appellant has not pursued the complaint or appeal within the period of one year. Section 51 makes provision for the necessary consequential amendments to other employment enactments as a result of the new structures introduced by this Bill. Details of the amendments to individual employment enactments are provided for in Schedule 6 of the Bill.

Part 5, comprising of sections 52 to 60, inclusive, makes provision for a range of technical and transitional issues consequential on the dissolution of the Labour Relations Commission, LRC. Section 55 provides for the transfer of all functions from the LRC to the Workplace Relations Commission. The functions which are currently vested in the Labour Relations Commission, including the industrial relations conciliation, advisory, training and research services, will transfer to the Workplace Relations Commission.

Part 6, comprising sections 61 to 66, inclusive, makes provision for a range of technical and transitional issues consequential on the dissolution of the Employment Appeals Tribunal, EAT. The tribunal will continue to function for a limited period after the establishment of the WRC to dispose of all legacy first instance complaints and appeals referred to it prior to the establishment date of the WRC, including cases which a division of the EAT had commenced hearing. The decision to extend the period of operation of the EAT beyond the establishment of the new framework is predicated on the assumption that complainants and respondents in matters referred to the EAT prior to the establishment of the WRC would have a legitimate expectation of having the case disposed of before a tripartite tribunal, sitting in public and operating with the degree of procedural formality currently applied by the EAT.

Section 64 provides for the transfer of functions from the Employment Appeals Tribunal to the Labour Court. This does not include the first instance functions which the tribunal currently carries out under the Unfair Dismissals Acts, Redundancy Payments Acts and the Minimum Notice and Terms of Employment Acts which will transfer to the WRC.

Part 7 comprises sections 69 to 82, inclusive. Section 69 enables the Minister to provide by regulation for the levying of fees and charges on the users of services to be provided by the Commission or the Labour Court.

I have decided not to introduce charges on parties for access to the WRC services for many reasons, chief among which is the belief that so-called forum shopping will not be a feature in the new system. I am proposing, however, the introduction of a fee in one particular instance, namely, where a party who failed to appear at a first instance hearing of the WRC without good cause wishes to appeal the decision to the Labour Court, in which case that party will have to pay a fee of €300 when lodging their appeal. If the Labour Court determines that the party in question had good cause for failing to attend the first instance hearing, the fee will be refunded.

Sections 73, 75 and 77 provide for appointment to the positions of chairman, deputy chairman and ordinary members of the Labour Court. The Labour Court has three divisions and nine members, a chairman, two deputy chairs and six ordinary members, and it sits in divisions of three. The Bill will provide that the expanded Labour Court will have four divisions but restructured for greater efficiency to allow the court deal with double the appeals with only one additional division. The Bill provides that the appointments of chairman and deputy chairman to the court by the Minister shall in future be through the Public Appointments Service. The new arrangements will not apply to the persons who, immediately before the enactment of the Bill, stood appointed as chairman and deputy chair, and the present incumbents will continue to serve in these positions for the unexpired period of their respective terms of appointment.

Regarding the appointment of ordinary members, the Minister was obliged to appoint a person nominated by either an organisation representative of trade unions or a trade union representative of employers. The change proposed will require those bodies to put forward three names of candidates for appointment in respect of each vacancy for an ordinary member. The Minister will then choose one person from the panel for appointment.

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