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

I move amendment No. 1:

In page 6, to delete lines 24 to 28 and substitute the following:

“ “(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own

motion or upon agreement by both parties to the proceedings, determine that, due to the existence of special

circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

(13A) Where there is an objection under this section by one party to the proceedings being held in public the

adjudication officer shall hear and consider the objection and decide if the proceedings should be conducted

otherwise than in public.

(13B) The adjudication officer shall provide and publish the rationale for decisions made under subsection (13A) of

this section.

(13C) Where either party to the proceedings is dissatisfied with the decision made by the adjudication officer under

subsection (13A) of this section they will have recourse to appeal the decision to the director of the WRC.”,”.

The genesis of this amendment comes from engagement that we had with officials and indeed with the Minister of State, and I thank them for all their engagement on this important legislation. At the committee I made clear the problem I envisaged with the legislation as it currently stands where it may result in cases of employers who are alleged to have breached workers’ rights wishing to force proceedings into private session. The amendment has left enough scope for the adjudication officer to make a balanced decision, where one party to the proceedings has made a request for the hearing to be held otherwise than in public.

As is ever the case we need to ensure that there is due process when decisions such as this are made so I have also included a subsection whereby the adjudication officer must publish the rationale for their decision. The best way to ensure fairness and to counter against accusations or allegations is to be transparent and fair and that is what this amendment is about. That is why I have included a final provision whereby if a situation arises where either party to proceedings is dissatisfied with the decision made by the adjudication officer under this subsection, they will have recourse to appeal the decision to the director of the Workplace Relations Commission, WRC.

That is just one appeal. I do not envisage that this will be an endless round of appeals or that there will be unlimited appeals available, and I understand the necessity for the making of a decision but I also feel that people should have the right to make the appeal.

I have tried with these amendments, as we are not taking separate Committee and Report Stages, to look for some words of comfort from the Minister of State. The difficulty we have in the holding of a hearing "otherwise than in public" is I have a genuine concern that there will be a chilling effect on workers, in particular, should they be forced into a situation whereby they have to have the hearing in public. If it is in public and their names are out there, that is all very well if they are going back to their workplace but they may not be in that workplace forever. Employers have recourse to simply enter someone’s name in a Google search and the Minister of State will be aware of this point as we had a conversation about this at the committee. My fear is that this will act as a deterrent to employees and workers to take a case against an employer.

If someone is going in as an individual worker, in particular, the odds are already stacked against that person. The person on the other side generally has more money and resources and possibly top-flight legal representation whereas the ordinary person may not have that and is already in something of a David and Goliath situation even where if he or she is represented, most often, by a trade union organiser, like I used to be, who has no formal legal qualifications but with some experience. My concern is that would act as a deterrent to a worker taking a case.

The reason that I am proposing the amendment is I know that it is not the purpose of the legislation to act as a deterrent but I have a fear that will be an unintended consequence of the legislation. When a worker takes a case, and I know this from my own experience, they ask if their name will come out and be in the paper, who will know and how will they know about this and what details about them are going to be in the public domain. A prospective employer, a couple of years or even a couple of months down the road, might simply carry out a Google search and see that the person took a case to the WRC. The fear would be that if that person is applying for a job and another person is also applying for a job, and they are both equally qualified, the person who has taken his or her case to the WRC might be in a situation where they would not necessarily be discriminated against - that might be overstating it - but it might harm their chances of getting that job in what might be a 50-50 call by an employer.

Workers themselves might also be daunted by the prospect of taking a case if they know that their names are going to end up in the public domain. Notwithstanding the consequences down the road, they might decide that they would rather not risk it at the first stage of taking a case.

I acknowledge that is not the intention of the legislation, and the Minister of State and I have had good engagement on it. I completely get that this is not the intention but I worry that that would be an unintended consequence of this legislation. That is why I have proposed these amendments and I hope the Minister of State will be able to assuage the concerns I have or indeed accept the amendments.

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