Mick Wallace (Wexford, Independent) | Oireachtas source

On the face of it there are some welcome changes in the legislation. As the Minister is aware, the current multi-forum system is unnecessarily complex and will be considerably simplified under the new regime. Having one entry point for complainants will undoubtedly make the process more user-friendly. However, on reading through the Bill it is clear that a number of very serious issues need to be addressed. It appears that the new measures, which are designed to be cost saving for the State, may at times be costly to both the employer and the employee.

My first concern relates to the workplace relations commission, which will carry out the first instance adjudication of complaints. Section 41(9) indicates that proceedings shall be conducted otherwise than in public. According to this section, cases in the first instance will be held in private. That seems to be in contravention of Ireland's obligations under the European Convention on Human Rights, Article 6 of which states that everyone is entitled to a fair and public hearing. It is important to maintain confidentiality in certain sensitive cases but the default position of having private hearings creates issues for the transparency of the system as a whole. What is the logic behind the provision?

Section 41(11) implies that it is not the automatic right of an employer or an employee to have legal or trade union representation at their hearing. It seems that the default position is that there is no representation unless one applies for it. It is important to bear in mind that these individuals will be in a position where they are navigating the exceedingly complex system of employment law, which would become considerably more difficult without any legal advice. I wonder about the rationale behind that also.

Irish trade unions have no legislative right to be recognised in the workplace for collective bargaining purposes or to make representations to their employer through their union. I have no doubt that can be a problem, but trade unions in Ireland would appear to have sold their souls in recent years by taking the big wages and not necessarily prioritising the worker's position. I have also seen them take ludicrous positions against the employer just to be seen to be doing something. Three years ago I had three cranes standing but because of the downturn I had to close one of the sites; I was forced to do that by a bank. I was only able to employ two cranes standing so I had to let go the last man in. He took a case against me in the Labour Court. SIPTU spent money legally backing him and he was awarded €25,000 against me, which was nonsense. He was a very good crane driver and I would have given him work if I could but I could not. I appealed to the Circuit Court and after two days I won but by then I had incurred many legal costs. It concerns me that one will not be able to go to the Circuit Court in such cases. One will have to go to the High Court, which may be a problem both for employer and employee given that the High Court is not an option for most small businesses or for the employee in most cases. All of that does not change the fact that good, healthy trade unions are essential to a properly functioning democracy, especially when our democratic system repeatedly fails to represent those most desperately in need of a voice.

The Bill will largely remove any use of the court in employment disputes, for example, the current right of appeal from the Employment Appeals Tribunal to the Circuit Court appeal under the Unfair Dismissals Act. The only access to the court will be through a limited right to appeal to the High Court, which will only be allowed under a point of law. Given the narrow basis for such an appeal and the significant extra expenses involved, in practice employers and employees alike may no longer have any meaningful avenue of appeal. That raises questions for an individual's constitutional right to access to the courts. The Minister might rethink that. The costs in the Circuit Court are not anything like those in the High Court, and it is not as daunting for an employer or an employee. I wonder about the rationale behind that. I understand the Minister is trying to reduce costs for both employers and employees by cutting out some serious legal costs but when there are legal issues involved sometimes one is stuck with having to go through the legal process, and that should be available to employer and employee alike.

From the point of view of employers, section 35(1) allows for the imposition of fines, fixed payment notices, of up to €2,000 on employers. It appears that inspectors will be allowed to impose them without any requirement for fair procedure. Will it be possible for employers to appeal these fines? If employers do not have an avenue for the appeal of a fine, there would be a considerable risk of abuse of the system. I am not suggesting that every employer should be treated in a draconian way by the State because most employers behave in a responsible manner. Sometimes an employer can have a fine imposed which he or she genuinely believes is unfair. I may be reading the Bill wrongly but if there is not a form of appeal for such a fine, it is something that would worry me and it would be unfair.

On the issue of money, the Minister stated that parties would not be charged for access to the workplace relations commission. With this in mind, section 69 is confusing as it leaves it open for the Minister of the day to incur fees for using the commission. We therefore cannot guarantee that this service remains free of charge and therefore accessible to all. We may need to revisit the wording of section 69. The Minister may believe it should be free but after the next election some other person might get his job and he might want to introduce a charge in that situation.

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