Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

I too welcome that we are back in our home Chamber. While the Convention Centre is a wonderful venue for all sorts of conferences and music events and so on, when empty it feels a little like an airport terminal. It feels pretty good to be here.

The purpose of this Bill is to address the urgent matters identified in the Supreme Court's majority decision on the Zalewski case. The case was taken against a WRC adjudication officer, the WRC, Ireland and the Attorney General. It challenged the constitutionality of the procedures introduced when the dispute resolution bodies were streamlined under the Workplace Relations Act 2015.

In 2015, reforms were introduced to streamline workplace relation services. The five employment rights bodies which existed at the time were merged into the WRC and the Labour Court. The WRC was set up to deal with every case in the first instance, which case is made in front of an adjudication officer in private session and there is anonymity in respect of those presenting the cases. This has not worked out as planned. We are now in need of emergency legislation as the work of the WRC has stalled in the wake of the Supreme Court ruling. It is essential that the legislation is enacted as soon as possible. The work of the WRC is too important to be left on stand-by. We all appreciate that and that is, in part, the reason pre-legislative scrutiny was waived. Pre-legislative scrutiny is, probably, one of the better reforms because it provides for better and more robust legislation that, probably, is less likely to be challenged in the future. We appreciate that there is an urgency in respect of this legislation.

The Supreme Court was critical of the WRC's handling in the Zalewski case which was brought forward in 2016. The core issues discussed were to do with the fundamental nature of the WRC. The issue at hand was whether or not the WRC counted as administration of justice as provided for under Article 24 of the Constitution and whether the framework of the WRC vindicated claimants' rights. A narrow 4-3 majority held that the WRC process counted as the exercise of limited powers of the administration of justice and was not unconstitutional.

We came dangerously close to the WRC being ruled unconstitutional. It is hard to comprehend the disaster that would have been in terms of its affect not only on current cases, but previous cases as well. However, a number of aspects of the Workplace Relations Act 2015 were identified as unconstitutional, including the requirement that all hearings before an adjudication officer be held in private and the lack of provision for administration of an oath or affirmation or any consequences for giving false evidence. While not declared unconstitutional, the Supreme Court raised concerns on a number of matters, including the perceived lack of independence of the adjudication officers, a provision in the 2015 Act concerning the Minister's ability to remove an adjudication officer, in respect of which I welcome the clarification provided for under this Bill, and a lack of fairness in the Workplace Relations Act 2015 provision which states that enforcement of decisions is a matter for the District Court. I welcome that the provision has been remedied to ensure that employers have the right to be notified and heard. The court also criticised the lack of expressed provision for the right to cross-examine witnesses, which I understand is to be provided for under the new procedural guidelines. I understand that this was already provided for under the existing guidelines but that the Supreme Court's concern was in regard to the lack of provision in legislation rather than in practice.

With respect to the public versus private sittings of the WRC, the Supreme Court did not decide that hearings could not be held in private, but that they could not be exclusively in private. This decision needs to be given serious consideration and there is need for serious consultation on it with stakeholders. Under this Bill, adjudication officers are given the power to decide whether a hearing should be in public or private based on the conditions of the case. Some workers would be hesitant to come forward in a public setting, in fear of reputational damage or an impact on future job prospects. Consideration must also be given to whistleblowers. Unions favour private sessions to prevent the blacklisting of workers. For those who might think that does not happen, it does. It has happened many times. I know of people who have had to leave this country because they were essentially blacklisted and could not get work in their chosen field. Very often, these were people who had taken a degree of responsibility, for example, a shop steward at the time of a strike. This issue should not be minimised. There is a history of real concern and we need to take it seriously. On the surface, it would appear that employers have more to fear in a public setting in terms of reputational damage. This might encourage some businesses to take internal resolutions and to take the mediation stage more seriously. That would be valuable. There is a balance to be reached. This area needs to monitored closely and considered in the review.

While I understand that this Bill refers exclusively to the urgent constitutional matters at hand, with the Supreme Court referring to the independence of adjudication officers, we need to take a closer look at these areas in due course. When the WRC commenced operations, the adjudication officers tended to be lawyers in human resources, people from a trade union background etc. but now a large number of them are public servants on secondment, which may counteract the independence provision. The lived experience of a public servant is different because of the greater security of employment and guarantees in working conditions. It is not that people cannot take good decisions, but that they are coming from a different perspective. That can be an issue.

With workers facing serious changes to the conditions in the WRC, particularly in terms of anonymity, it is understandable that many would seek legal advice. There is no legal aid available in employment cases. The Free Legal Aid Centres, FLAC, received a 40% increase in employment law inquiries last year. During one week in May, for the first time in the history of FLAC those queries exceeded the family law queries. Of the queries related to employment, 16% were in regard to redundancy, which amounts to almost triple the number of calls on the subject in 2019, with 326 calls received in 2020, compared to 112 the previous year. I note that that was a particular point in time in the context of Covid. Many of the people who contacted me had built up years of service and they were concerned that they were not being retained on the basis of the supports available but were being let go because it did not appear that their return to work would be imminent. The hospitality sector was a particular case in point. I received many inquiries from people who had accumulated years and were concerned as to whether or not they would be re-employed or carry those rights. There were a range of issues arising because of the circumstances. As we know, it was around May of last year the first wave hit.

Some 14% of employment law cases relate to dismissal, with the number of such calls increasing by approximately 40% on the previous year. A further 10% involve grievance procedures, with the number of calls up 8% on 2019. Another 30% of calls relating to employment law involve an issue arising from the terms of contracts, with the number of such calls increasing by 6% on 2019. Access to justice is unattainable for too many. There was nowhere to refer many of these callers for legal assistance. If we are formalising the Workplace Relations Commission, we need to consider providing legal aid in such cases. While there are many really excellent employers and while I am not branding a whole cohort of people in this way, there were certainly employers who took advantage of the pandemic. At a point when people's incomes were at their lowest and people were struggling to pay their rent, mortgage or whatever, in many cases, it was not going to be possible to spend money on legal assistance. I know it was a particular time, but it exposes a serious weakness.

Unfortunately, it is clear that many of the cases that had already begun in the WRC will have to be started all over again, which will add to the backlog of cases. There may well be a need to employ more adjudication officers to deal with this backlog. People who had already submitted complaints to the WRC for adjudication did so on the basis of anonymity but this no longer applies and the names of parties will be made public. Although it is by no means guaranteed, this may result in complainants withdrawing their complaints or wishing to enter mediation in respect of them. I understand that claims which have been heard in part cannot be referred back for mediation because they have already commenced. Perhaps the Minister of State might deal with that particular matter because it is a very practical issue. Normally, a claim before the WRC can only relate to an issue arising in the last six months. This is the statutory time limit set out in section 41 of the Workplace Relations Act 2015. Will the Minister of State outline how this will impact on people who have had to resubmit claims or who have held off in advance of this legislation? We have seen, for example, the duration for planning permissions and driving licences being extended. We understand the circumstances leading to these things happening. Will the Minister of State deal with that aspect in particular?

While the WRC was waiting for this legislation, many employees and their employers will have refocused on mediation. An examination of mediation in the public service is needed. Mediation is conducted in-house and the mediator is employed by the organisation in question. That raises serious questions as to the independence of mediators. Clarity needs to be sought as to whether the Mediation Act 2017 applies in such cases. I am a bit confused on that point. If the Minister of State is not going to respond to that point today, he might give it some thought as the legislation advances. Very few mediators in the WRC have any formal accreditation. Mediation can be done over the phone, which raises issues of confidentiality. Consideration needs to be given to the signing in advance of mediation agreements in which all parties agree on how the mediation is to be conducted.

A review of this Bill is provided for. This should be conducted within a year. I ask the Minister of State to strengthen this section with explicit mention of the need to consult trade unions, employment lawyers, adjudication officers, people who have used WRC procedures and, critically, people who have chosen not to do so. We need to understand why they have so chosen. There is a need for urgency with this legislation which means the process is more rushed than many of us would like it to be. This strengthens the need for the comprehensive review of the legislation to ensure there will not be any unintended consequences. If there is to be a revision, pre-legislative scrutiny will be an absolute must.

On the subject of the WRC, SIPTU has brought a case with regard to secretarial assistants in the Houses of the Oireachtas after talks stalled. This case has been ongoing since 2017. There is a starting salary of €24,423 and those recruited are obliged to start on the lowest band regardless of education or experience. That is below the living wage. That sits very uncomfortably with many of us in this House. I would have thought that this House could have concluded this matter. It sits uncomfortably, particularly when one considers the restoration of pay for people on higher bands under the financial emergency measures in the public interest, FEMPI, legislation, including Deputies and Senators. The speed at which decisions can be made with regard to a Secretary General grates with people. There was a very generous uplift in salary in that case. We have to look to ourselves. We should be setting a good example. I ask that this matter be looked at again rather than relying on the WRC.

We do not take free collective bargaining seriously. We are an outlier among European jurisdictions. In recent years, we have increasingly seen precarious types of employment. It is young employees in particular who are most at risk. There is a value in being a member of a trade union. There is a value to employers as well as employees in that they have people with whom to negotiate. We need to change our value system in that regard. We cannot have is a race to the bottom. That must be addressed if we are to have something akin to - perhaps somewhat different from but akin to - a collective response. That should not be a replica of what happened in the past but, with regard to a national agreement, there is value to considering free collective bargaining. I will leave it at that. I am likely to table amendments. I know we have a very short period in which to do so.

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