Regina Doherty (Meath East, Fine Gael) | Oireachtas source

I move amendment No. 3:

In page 10, line 6, to delete “intimidation.” and substitute “intimidation.”.”.

On the advice of the Office of the Attorney General, with which the WRC and the Labour Court agree, this provision should be deleted as it creates two different standards of proof within the same legislation, resulting in legal uncertainty and a penalisation provision which would be unworkable in practice.

I appreciate that this was not the intention of the Deputy in introducing the amendment on Committee Stage or, indeed, the intention of the select committee in agreeing to it. However, this will be an unintended consequence if the provision remains in the Bill. I hope all that Deputies can see the difficulties created and that we might have a bit of common sense.

The Opposition amendment carried on Committee Stage inserts a different standard of proof from that in section 7(2)(a) of the Terms of Employment (Information) Act 1994. The latter is one of the Acts this Bill amends. This will cause confusion for the parties in making their cases and in particular for the adjudication officer in deciding whether an employer has been penalised. It would also present a difficulty to the Labour Court on appeal. That is its opinion and not mine. It would also leave the WRC or the Labour Court open to judicial review as to which section the adjudication officer relies on in deciding a complaint. Would it be section 6C(6) or 7(2)(a)? Whichever section a adjudication officer relied on, the decision would be open to be challenged on the basis that he or she did not rely on the other section regardless of the substance of the decision or the complaint. Employers intent on circumventing the penalisation provision could challenge any decision of an adjudication officer or the Labour Court on this basis thus rendering a strong employee protection provision practically ineffective.

The Opposition amendment agreed to by the select committee was also probably not needed. The Employment (Miscellaneous Provisions) Bill as initiated introduced a penalisation provision to the Terms of Employment (Information) Act 1994. The penalisation provision mirrored the one in the Protection of Employment (Temporary Agency Work) Act 2012. There is also a strong protection against penalisation. It is tried and tested and there is no evidence that the relevant provisions are lacking in any respect.

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