Louise O'Reilly (Dublin Fingal, Sinn Fein) | Oireachtas source

I am grateful for the opportunity to make a contribution today on this important legislation. We understand that the issues which arose for the WRC following the Zalewski case and the subsequent Supreme Court judgment are serious and require fairly swift rectification. For that reason, in early April I drafted legislation which sought to accommodate the judgment of the Supreme Court and to rectify the issues it posed for the operation of the WRC. I thank the Minister of State, Deputy English, and his officials for the swift engagement, the useful exchange of views and the publication of the legislation.

I specifically thank the departmental officials, and obviously the Minister of State himself, for the information they provided and their willingness to discuss with us issues we had because, as the Minister of State knows, we did waive pre-legislative scrutiny, PLS, of the Bill at the committee. It is not something I want to get into the habit of doing notwithstanding that this was done due to urgency. With the exception of a difference of opinion on some fairly small matters both I and Sinn Féin will be supporting this Bill. I will return to those points later.

Remedying the issues outlined by the Supreme Court is necessary to ensure the proper administration and working of the WRC. The core issues the legislation seeks to address are ensuring the administration of justice is capable of being conducted in public and the provision of statutory authority to administer oaths and affirmations in circumstances where there is a material dispute of fact. Ancillary to this is addressing an expressed concern by the Supreme Court regarding the removal of an adjudication officer.

As someone who has represented people in the WRC and the Labour Court, the use of oaths and affirmations does not sit well with me. I completely understand why it is there but the court and the WRC are somewhat non-adversarial in nature and the requirement to swear an oath steps it up to the next level. That is why I welcome that there is going to be a review because of the practical implications of this legislation for workers. Very often the workers are not the ones who go in all lawyered up, as it were. They generally have the services of a trade union official who is generally not legally qualified, although more and more of them are these days. I have a concern about the impact that is going to have on the possibility of a resolution. Even at that level of adjudication and when that level of engagement is being had, it is possible, given the informal nature of how business is conducted, it can sometimes, though not always, be possible to reach an amicable solution. While the swearing of an oath is necessary and I do not dispute that, I worry it will change the character of how hearings are conducted and do so in a way that benefits the people with deep pockets, usually the employer, and which does not benefit the worker. I would have issues with that.

The provisions added in section 3 to do this now provide a constitutionally robust and fair procedure to remove an adjudication officer, should the need ever arise in the future. As we have discussed it is highly unlikely it would but we understand the necessity for it.

On WRC proceedings being held in public, the sections which stipulate that the proceedings be conducted in public unless the adjudication officer of his or her own motion or upon the application by or on behalf of a party to the proceedings determines that due to the existence of special circumstances, the proceedings should be conducted otherwise than in public, are important. However, I can see there is going to be a problem here. If just one party to a case is requesting that the proceedings be otherwise than in public that might cause an issue. Cases here are taken by the employee, and naturally many will want the hearings to be held in private because they will be concerned that a public hearing will damage their future employment opportunities and indeed their likelihood of getting promotions. Everybody is familiar with Google. I could come in and be interviewed for a job and as soon as I walk out the door my name will be searched for online. The first thing that pops up will be that I was in the WRC and that might have a chilling effect. I know from having represented workers that one of the things they will ask is can it be guaranteed this is going to be anonymous, because they are very genuinely concerned about potential kickback. That must be balanced on the other side against the power the State can exercise over an employer who might want the proceedings held in private because he or she does not want to expose him or herself to the potential reputational damage on behalf of the worker. That can be an important tool inasmuch as one might say to the employer that he or she does not want this to go public either and that might encourage people to reach a settlement. As such there is a difficulty with that and many in the trade union movement have a concern about the potential chilling effect this is going to have on workers because they may not wish to expose themselves to that kind of publicity and public scrutiny.

As the Minister of State knows, I have submitted a series of amendments to this Bill which I feel will address both the concerns I have raised while also maintaining the constitutionality of ensuring that the administration of justice is capable of being conducted in public. They provide, however, that where there is a request and sufficient reasoning, so it is not just on a whim, to protect the interest of a party or parties to proceedings, it may be held in private. That is really important. We will get a chance to tease out the amendments at a later Stage. The Minister of State will have seen them anyway but that is where we will be coming from.

I have also included a provision for the adjudication officer to publish the rationale for any decision made on whether to hold a hearing in private or where he or she has overruled a request to hold proceedings in private. To ensure the process is fair and robust, I have also included an appeals mechanism to the director of the WRC for final adjudication on the decision. Again that relates to an issue where there is a serious and genuine concern on the part of a worker taking a case to the WRC that this will have a detrimental impact on him or her and that where he or she may not be satisfied with the judgment, at the very least he or she should be entitled to know and understand the rationale for that. Also, in relation to the sections which compel the commission to publish on the Internet every decision of an adjudication officer under this section, I have included a provision where names would be redacted where it is felt that to publish names would detrimentally impact on either party specifically with reference to the capacity of a party to secure employment in the future.

It would be remiss of me to not mention the importance of the work the WRC does. Despite being underfunded and under-resourced, the Workplace Relations Commission does fantastic work on behalf of workers across this State. In spite of the challenges posed by the pandemic the WRC carried out 7,687 inspections in 2020 and managed to recover almost €1.7 million in unpaid wages for workers. Indeed, data recently revealed to me in response to parliamentary questioning outlined how, since 2011, the WRC has recovered almost €18 million in withheld wages for workers. This proves the worth of the WRC and actually makes a very compelling case in the funding for this particular institution. Further data also revealed the scale and number of breaches of employment law detected by WRC investigations since 2015. In those six years, the WRC has detected breaches in employment law in more than one third of all investigations. Of the number of cases investigated, 35.9% found breaches by employers for non-payment of the minimum wage, employment permits, protection of young persons, annual leave and public holiday breaches and unpaid wages, among others.

Sectors such as food and drink, retail and wholesale, hair and beauty, and construction, to name but a few, have seen consistent breaches of employment law in recent years. The breadth, scale and nature of these breaches reveal a dark underbelly of the Irish economy, which absolutely must be stamped out. Again this reinforces the need to properly resource the WRC. Furthermore, as Irish Small and Medium Enterprises, ISME, has said, businesses not paying workers the minimum wage are undercutting decent employers, are engaged in anti-competitive practices, and should be put out of business. I think that is something we can all agree on. The idea that there are only a select few bad apples breaching employment law and workers’ rights has been blown apart by these data. We can see it is not just a tiny minority and that in fact there are breaches right across the board. It is not every employer, nor even the majority, but it is a significant amount and they must be dealt with.

In six short years, more than a third of employers investigated by the WRC have been found to be in breach of employment law. Added to this is the fact that the WRC is underfunded and understaffed. In all probability - and the Minister of State knows this - if it had more staff it could do more work and if it was doing more work it would be detecting more breaches. The commission has only 53 inspectors carrying out this work, despite being authorised to recruit 90 inspectors back in 2006. We can debate this again but 90 should be the floor. It should not be what we aspire to but the absolute minimum given there are more people in work now than there were in 2006 when that agreement was reached.

I have asked the Tánaiste on many occasions that the commission receive additional funding and resources to recruit more inspectors. I am aware there is a recruitment campaign under way at the moment. I would like to see it accelerated and increased. The work of the WRC and the rate of breaches it detects reinforces the need for workers to be given the legal right to collective bargaining through their recognised trade union in order that they can do the job they do so well. We know there are sectors of the economy where low pay and precarious work is the norm and where workers' rights are pretty much an afterthought.

That does not happen in unionised employment so the best defence against being exploited is to join a trade union, be active in it and be sure that your rights are upheld. That is not just legal rights. The law provides for a minimum. The trade union provides for what is decent and fair. The Government cannot continue to turn a blind eye to the employment law breaches, which we need to get serious about.

I recognise the importance of this legislation. I get that. I will get back to my point about pre-legislative scrutiny. I do not like waiving it. It is a bad habit to get into. I recognise the need in this case but I put it on the record that I hope the committee will not do this routinely. Having said that, we are happy to facilitate the passage of this legislation, considering the circumstances.

I reinforce the potential chilling effect that publicity will have on workers. When people feel that they are in a vulnerable situation, quite apart from anything else, they probably have to wait for six months or longer to get into the Workplace Relations Commission. All the while, they are probably continuing to work in the place where the issue has arisen. Added to that is the fear that they will be exposed. I cannot count the number of workers who I have represented at the WRC. I know from talking with them that anonymity gives the confidence to take the case, since there will be no backlash. We need to give serious consideration to the amendments which I have submitted, which I feel will deal with those issues. Nobody wants to have a situation where there is a chilling effect on a worker.

The existence of the third-party machinery is grand but it is also functionally useless unless people are empowered to exercise their rights under that third-party machinery. We cannot do anything in this House that will interfere with people's ability to exercise their right under the law to take a case to the WRC. We would be doing everyone a significant disservice. We would cause a bigger problem than we are trying to fix if we had a situation where we put that chilling effect into law. We need to give careful consideration to how we can ensure that workers still have the confidence to take a case to the WRC and still have the capacity to maintain their anonymity and not suffer from any potential backlash.

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