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

I move amendment No. 13:

In page 16, line 19, to delete “intimidation.” and substitute “intimidation.”.”.

These amendments are intended to delete the new section 26A, which was inserted on Committee Stage into the penalisation provision of the Organisation of Working Time Act 1997. These amendments have been brought forward for essentially the same reasons as amendments Nos. 3 and 4, which related to the penalisation provisions being introduced into the Terms of Employment (Information) Act 1994. The Attorney General has advised deleting the amendment carried by the committee because it creates two different standards of proof in the same legislation, resulting in legal uncertainty and a penalisation provision which would be unworkable in practice. Deputies will see from the material circulated that the WRC and the chairman of the Labour Court had also acknowledged the difficulties this will cause.

It is important that we have robust penalisation provisions in both the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997, and the two Acts this Bill seeks to amend are as stated. The penalisation provisions are core to each of the other elements that we are bringing in through this Bill and we are introducing new rights and strengthening existing rights. It is vital that employees believe they can exercise those rights without any repercussions. It is important, therefore, that we get the penalisation provisions right.

The penalisation provisions being introduced in this Bill mirror those that exist in the Protection of Employment (Agency Work) Act 2012. This is the strongest penalisation provision in Irish employment law and it includes threats of penalisation so an employee who is successful in a penalisation claim under the 1997 Act can obtain up to two years of salary in compensation.

The new section 26A introduces a number of additional elements into the penalisation provisions of the 1997 Act which are unnecessary, inappropriate and somewhat confusing. The net effect of the amendment would be a weakened and flawed penalisation provision. Section 26 provides for the broad definition of the term "penalisation" and subsection (5) provides that penalisation should include transfers of duty, change or locations of places of work and the reduction in the wages as a change of working hours. Section 26A purports to provide that penalisation shall be taken to have occurred where an employee, only after a complaint has been made to the WRC, has their hours of work reduced unless the reduction can be objectively justified by the employer. The new section is not necessary because a change in the working hours in section 26(5) would include any reduction in working hours and in fact the existing section 26(5) is a broader and more comprehensive protection for employees. For example, an employer could penalise an employee on only a 12-hour week contract by forcing that employee to work a shift of 12 hours on Christmas Eve completely against their will. That would not be captured by the amendment carried on Committee Stage as it only deals with a reduction in hours. Furthermore, the new section 26A introduces the defence of objective justification. This defence is generally applied in age discrimination cases under equality legislation. To import this language from a statute serving a different purpose and use it for penalisation is not appropriate.

Section 26A goes on to introduce a second standard of proof by providing that it shall be for the employer to show that such justification existed. Again, we do not think it is necessary and it only serves to cause confusion and undermine the original penalisation provisions. It could also leave the WRC or the Labour Court open to judicial reviews. Which section does the adjudication office or the Labour Court rely on when deciding a complaint? Is it section 26A or section 27(3)? Whichever it is, its decision would be open to challenge on the basis that it did not rely on the other section, regardless of the substance of the decision. Employers intent on circumventing the penalisation provisions could challenge any decision of an adjudicating officer or the Labour Court on this basis, rendering what should be strong employee protection provisions completely ineffective.

I really appreciate that this was not the intention of the Deputies who brought forward the amendments on Committee Stage or of the committee in agreeing the amendment. However, it would be genuinely be an unintended consequence if the provision remains in the Bill and I hope all Deputies can see the difficulty and agree to remove it.

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