Michael Collins (Cork South West, Independent) | Oireachtas source

I appreciate the opportunity to speak in this debate. The Workplace Relations (Miscellaneous Provisions) Bill 2021 proposes to amend the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977 in response to the judgment of the Supreme Court in the case of Zalewski v. Adjudication Officer and others. The court upheld the constitutionality of the WRC's adjudication service but held that section 41(13) of the 2015 Act and section 8(6) of the 1977 Act were incompatible with the Constitution. These sections require relevant WRC proceedings to be conducted privately. Additionally, it was held that the lack of legislative provision concerning the administration of oaths or affirmations, and provision for a penalty for giving untruthful evidence, was inconsistent with the Constitution.

This Bill proposes to amend the 2015 and 1977 Acts to provide that evidence may be given under oath and that a penalty may be enforced for the provision, while under oath, of false or misleading information. It also provides that matters before the WRC adjudication service will be conducted in public except in certain circumstances. Similar amendments will also need to be made to the Employment Equality Act 1998 and the Equal Status Act 2000. In addition to these constitutionally required amendments, it is proposed that a number of other amendments be made to address further issues raised in the majority judgment of the Supreme Court. These include amending the 2015 Act to provide for a fairer system for the removal of a WRC adjudication officer, amending the Industrial Relations Acts 1946 and 1969 to provide an express statement that the chairperson, deputy chairpersons and ordinary members of the Labour Court are independent in the performance of their duties, and amending the 2015 Act to strengthen the rights of employers in matters relating to the enforcement of a decision of an adjudication officer in the District Court.

The Supreme Court ruled on 6 April 2021 that the system operated by the WRC and the Labour Court to determine employment claims and disputes is not unconstitutional. The law that was challenged was Part 3 of the Workplace Relations Act 2015. The challenge was based on the argument that the system involved the administration of justice but the Constitution provides that this can only be done by courts and judges, pursuant to Article 34. The Article states:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

The Supreme Court decided that the WRC was only assigned limited jurisdiction, which is something permitted by Article 37. Article 37 states:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

However, the Supreme Court did observe that justified questions were raised as to the procedures that the WRC employed, including evidence being given without the taking of an oath, the absence of a right to cross-examine a person giving evidence and hearings not being held in public. The WRC does permit cross-examination and the failure of the legislation to make express provisions for it did not render the legislation unconstitutional. However, the Supreme Court did declare that evidence being given without an oath or affirmation and no penalty for untruthful evidence and the removal of the possibility of certain cases being held in public under section 41(13) of the Workplace Relations Act 2015 and section 8(6) of the Unfair Dismissals Act 1977, as amended, are inconsistent with the Constitution. The High Court had previously ruled that the WRC was not administering justice as any decision must be brought to the District Court to be enforced if the losing party did not abide by the determination. That sums up the current situation.

Certainly every Deputy in the country should fully support the WRC and the works it carries out. If it needs increased powers, by all means, the Rural Independent Group would certainly be in agreement with that. Most of us employ people and we must abide by the rules and regulations out there. A lot of people enter into disputes, be it in a healthcare situation or even the community voluntary sector where many employees could be working, and, unfortunately, if these disputes are not nipped in the bud, they get out of control and end up in the WRC. It is an unfortunate situation because sometimes when someone is in that situation, it is very hard and there is no winner as such. The person taking the case will feel he or she is under severe pressure that has brought him or her to the position whereby it was necessary to take a case to the WRC for a judgment to be made. I sympathise with people but I am a strong believer that stronger negotiations should take place between the parties before it gets to that point and if there is a good negotiator in one's team or voluntary sector, he or she should be put to work to try to nip something in the bud. If that is not done, unfortunately, it leads to a very dangerous situation. Many decisions are made here in Parliament.

Very difficult decisions have been made on the ground with people. We spoke about the hospitality sector during the week. Bars and restaurants are facing closure for God only knows how long. If they do open, the employee or the person running the business must stand at the door and ask everybody entering whether they have been vaccinated. The pressure this will place on employers and employees is phenomenal. Restaurant owners and publicans are saying they will not work this so I do not know who will work it. It is a daft idea because with young people not being vaccinated, some people cannot get in because they cannot get a vaccination and an employer will have to try to get a staff member to carry out that role, which is probably against the employee's will and makes it very difficult. Decisions we make here can have a bearing on what happens on the ground and the difficulties between employers and employees.

I look at the fishing sector in recent months and the difficulties foisted on them from every angle without anyone here suggesting the handbrakes in government should be pulled up and that it should stop for a minute. There was obviously no senior Minister. The penalty points system and the weighing crisis were foisted on them and there was nobody here. Down in the convention centre, in one of the few sessions where we could talk about the fishing industry, a Member from People Before Profit stated the fishing industry was treating foreign workers appallingly. That was an awful statement to make and I am shocked that this Member has not come in here and apologised to the Dáil for making it. That is the way People Before Profit thinks about the fishing industry, which works hard and spent months with me around the table and on the phone trying to protect the foreign workers working on their feet. That is what they were telling me.

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