Damien English (Meath West, Fine Gael) | Oireachtas source

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

It is good to be back in the Dáil Chamber. Hopefully, it will not be too long before we get back here permanently.

I am pleased to introduce the Workplace Relations (Miscellaneous Provisions) Bill 2021 for the consideration of the House. I propose, in the first instance, to summarise the background to and context of the Bill, the basic aim of which is to ensure that the matters of immediate concern identified by the Supreme Court in its majority decision in the Zalewski case are immediately remedied in statute. I will then describe the purpose and reasoning behind each section of the Bill.

On 6 April last, the majority judgment of the Supreme Court in the Zalewski case overturned the judgment of the High Court, which had found that the adjudication service of the Workplace Relations Commission, WRC, was not administering justice within the meaning of Article 34 of the Constitution. The seven judges of the Supreme Court agreed that the WRC's adjudication service is the administration of justice, traditionally a matter exclusively for the courts. However, the majority decision saved the 2015 Act from being constitutionally repugnant because it found that the administration of justice is limited and therefore permissible under Article 37. The limited nature is due to the fact that the WRC deals with workplaces; has statutory limits on the awards it can make; enforcement of its decisions is required through the courts; its decisions are subject to an appeal; and the decisions and procedures of the adjudication services are subject to a judicial review before the High Court.

In issuing its decision, the Supreme Court rejected a challenge to the validity of certain sections of the 2015 Act and section 8 of the Unfair Dismissals Act 1977 as amended. Separately, however, the Supreme Court also determined that two aspects of the 2015 Act are in fact incompatible with the Constitution. First, the court found that the practice of holding all hearings in private as provided under section 41 (13) is not an acceptable feature of the administration of justice and therefore not compatible with the Constitution. Justice must be done in public and while there are situations where privacy is warranted, a blanket approach of hearing matters in private is not an acceptable feature of the administration of justice. This requirement to administer justice in public will also have an impact on the routine anonymisation of parties under section 41(14) of the 2015 Act.

The second procedural weakness that the court identified was that the absence of a statutory provision for the administration of an oath, and any possibility of punishment for giving false evidence, is inconsistent with the Constitution. While not subject to an express declaration of unconstitutionality by the Supreme Court, the majority decision noted and expressed concern about the statutory drafting concerning the removal of an adjudication officer. This provision is now remedied in section 2 of the Bill before the House through the provision of a constitutionally robust and fair removal procedure, should the requirement ever arise.

Similarly, while the fact that the 2015 Act provides for the enforcement of decisions to be a matter for the District Court, the Supreme Court found the provision to be lacking in fairness. The fact that the enforcement of adjudication decisions is a matter for the District Court is an integral aspect of the limited nature of the WRC's adjudication service. This, in turn, is crucial in ensuring that the WRC's adjudication service is permissible under Article 37 of the Constitution. Accordingly, the provision has been remedied in this draft Bill to ensure that employers have a right to be notified and heard.

Finally, the Supreme Court's finding, that the functions being performed by the WRC adjudication and the Labour Court are functions of a judicial nature involving the administration of justice under the Constitution, warrants the inclusion of an express statutory guarantee that the membership of the Labour Court "shall be independent in the performance of his or her functions". This will require amendments to the Industrial Relations Acts 1946 and 1969.

As declarations of the court have immediate effect, the WRC's adjudication service has been very restricted in the matters that it can dispose of until these amendments are made to the 2015 Act, the Equal Status Act 2000, the Employment Equality Act 1998, the Protection of Employees (Employers' Insolvency) Act 1984; the Unfair Dismissals Act, and the Redundancy Payments Act 1967. These separate Acts contain stand-alone provisions in relation to proceedings before the director general-adjudication officer. In order to address these immediate matters of concern, this short Bill is required to ensure that the constitutional frailties that the Supreme Court identified in the investigative procedures of the WRC's adjudication services are brought in line with the constitutional requirements in order that the adjudication services of the WRC can resume in full.

I am very grateful that this urgency was recognised on a cross-party basis by the members of the Oireachtas joint committee, who agreed to waive the requirement for pre-legislative scrutiny on this Bill, and for your good offices, a Cheann Comhairle. I would like to place on record my appreciation for the collegial and productive engagements my officials and I have had with the members of the committee in our efforts to ensure that this Bill is published without delay in order that the WRC can resume its functions in full. Some committee members have been in touch with me directly also on some aspects of the Bill. I am appreciative of that. The open-door policy will continue as we progress the legislation to its conclusion.

Pre-legislative scrutiny is an important element in the legislative process and in recognition of this, and our duty as legislators to fully consider the rationale and implications of the decisions we make, I was happy to accept the committee's suggestion to include a review clause in the draft Bill. This provides that a statutory review of certain sections of the Bill will take place not later than 12 months after it has been commenced.

It should also be noted that the decisions of the Supreme Court provide for certain matters that will require policy and possible legislative attention at a later stage. These matters relate to the independence of the decision makers and the necessity to ensure that persons carrying out these functions have the appropriate skills and capabilities. Consideration will need to be given to the potential impact that the court's judgment may have on other quasi-judicial bodies administering permissible justice. That is the reason, once this legislation has been commenced, my Department will convene an internal review group consisting of officials with policy responsibility for the various bodies and agencies which may now find themselves administering justice to consider the rulings in full and to analyse its impact on their functions. In doing so, it will engage with the office of the Attorney General and other Departments with oversight of similar bodies.

I will now outline the principal provisions of the Bill. Section 1 contains definitions. Section 2 is a technical amendment required to facilitate the introduction of amendments in section 41 of the Workplace Relations Act concerning the offence of perjury. Section 3 contains an amendment to section 40 of the Act of 2015. The purpose of this amendment is to provide for a fair procedure for the revocation of an adjudicator's warrant.

Section 4 contains an amendment to section 41 of the 2015 Act. In respect of the provision in section 41(13) of the Workplace Relations Act 2015, which currently provides that "Proceedings under this section before an adjudication officer shall be conducted otherwise than in public", the court held, at paragraph 148, that it was appropriate to declare subsection (13) repugnant to the Constitution, and that the effect of this is that "the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public." The proposed amendment provides that either party can make an application to the adjudicator, but also provides the adjudicator with discretion to inquire into the matter on his or her own motion and subsequently to direct that either the whole or part of the relevant proceedings can take place otherwise than in public, where this would be desirable in light of the nature or circumstances of the specific case. The default position in respect of such proceedings is that they would be held in public.

In respect of the proposed substitution of subsection (14), while the judgment of the court did not address the issue of automatic anonymisation, which is currently provided for in subsection (14), it is the Department's view, supported by legal advice, that maintaining a policy of anonymisation of all published decisions is contrary to the requirement that justice be administered in public.

Paragraph (b) of subsection (14) provides an adjudication officer with the viresto direct the commission, if he or she is satisfied that the special circumstance of the particular case so requires, not to name parties in the published decision. A further constitutional issue was identified by the court in respect of the absence of any provision relating to the administration of oaths or an associated penalty for giving false evidence.

The amendment to subsection (12) introduces the statutory power for the administration of oaths and affirmations, and to provide for a criminal offence of wilfully and corruptly providing false evidence under oath or while subject to such an affirmation. This provision is aligned with section 12 of the Criminal Justice (Perjury and Related Offences) Act 2021, signed into law on 21 June 2021.

Section 5 provides an amendment to section 43 of the Act of 2015. The purpose of this amendment is to strengthen the rights of employers in matters relating to the enforcement of decisions of adjudication officer in the District Court. Section 6 provides an amendment to section 10 of the Industrial Relations Act 1946. The purpose of these amendments is to provide for the statutory independence of the chairperson and ordinary members of the Labour Court. A further amendment to section 21 of the 1946 Act has been provided to align the offence provided for in the Criminal Justice (Perjury and Related Offences) Act 2021.

Section 7 provides for an amendment to section 39 of the Redundancy Payments Act 1967 concerning proceedings in public and the administration of an oath or affirmation. Section 8 provides an amendment to section 4 of the Industrial Relations Act 1969. The purpose of this amendment is to provide for the statutory independence in the performance of the functions of the deputy chairs of the Labour Court. Section 9 provides for an amendment to section 8 of the Unfair Dismissals Act 1977 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.

Section 10 provides an amendment to section 9 of the Protection of Employees (Employers' Insolvency) Act 1984 concerning proceedings in public, anonymisation, and the administration of an oath or affirmation. The offence of perjury is also provided for. To align this Act with the Workplace Relations Act, a regulation-making power has been inserted empowering the Minister to make provision in relation to any matter relating to the presentation, referral or the hearing of a complaint under section 9 of the 1984 Act that he or she considers appropriate.

Section 11 provides for the amendment of section 79 of the Employment Equality Act 1998 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for. Section 12 provides for amendment of section 25 of the Equal Status Act 2000 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.

Section 13 provides for statutory review of certain sections in this Bill. The review is to take place not later than 12 months after this Bill has been commenced, as recommended by committee members. Section 14 introduces a Short Title of the Bill and provides for its commencement. I commend the Bill to the House.

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