Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance) | Oireachtas source

This is important legislation. Insofar as it seeks to improve the whistleblower regime, its intentions seem laudable enough. The provisions seeking to include volunteers, shareholders, those in administrative management or supervisory bodies, and those who have a work-based relationship that is yet to begin or who are involved in a recruitment process, all seem good. The establishment of the office of the protected disclosures commissioner within the ombudsman seems a good thing, as does enhancing the protections for workers who suffer penalisation as a result of a disclosure by changing the burden of proof in civil proceedings.

However, Whistleblowers Ireland has made a number of criticisms of the Bill, of which officials are probably aware. The first criticism is that legal cases, Clarke v. CGI Food Services Limited and Baranya v.Rosderra Meats Group Limited, established that the guidelines produced in 2015 regarding the operation of protected disclosures under the 2014 Act did not accurately reflect the law. That is important because, at least according to the Whistleblowing International Network, it meant that many of the people who should have been afforded protection fell at the first hurdle, as the actual code of practice employers and others were using to operate the protected disclosures regime was inaccurate. That is pretty elementary stuff. The regulations flowing from the legislation should be accurate and should ensure that the intent of the law is given effect and that whistleblowers have the protections they are supposed to have.

The biggest concern I have, which is reflected by whistleblowers, is whether the protections under the 2014 Act worked at all. Are they acted on? Some people have asked about the private sector. If a business has more than 50 employees, it has to have its own channels and the public sector has to have its own channels as well. I am aware, anecdotally, of people who have attempted to make protected disclosures and they have gone absolutely nowhere. Others have mentioned examples of that as well. Nothing happens, or they make a protected disclosure, very little happens, and then they get thrashed for something completely different. That is a classic tactic. People make a protected disclosure about malpractice, maladministration or wrongdoing, and the next minute they are hauled up for something else. Then it becomes about them and what they have done wrong because the management or some power that be has decided to thrash them, victimise them, blacklist them or whatever. What are we going to do about that? I am just not sure whether this legislation will address that problem. It is a deep problem and I do not have all the answers.

There is a fundamental imbalance between workers and bosses. That is just a fact. In either the public or private sector, if somebody kicks up or calls their employer out on something, the instinct of most senior management is to go for them because they are afraid that it could reflect badly on them, that the buck might stop with them or that they could be held accountable. How do we deal with that fundamental imbalance of power? I want to hear the Government explain how that is going to happen.

I would not mind some hard facts on this matter. Maybe they are available. I am not on the relevant committee, so I apologise if there are a lot of hard facts available on this. I would like to know the details of what has happened with protected disclosures in the public and private sectors. How many disclosures were made? How many were upheld? How many went nowhere? Are these facts and statistics available so we can assess the extent to which the legislation had any effect whatsoever?

It seems to me that, broadly speaking, we need genuinely independent and well-resourced people to oversee this. That is why I welcome the office of the protected disclosures commissioner and the ombudsman. They are needed in order to make sure that whistleblowers are actually protected, that the protected disclosures or allegations of wrongdoing they make with regard to public or private bodies are treated seriously and are fully investigated, and that people are held accountable if those investigations discover that there was merit or validity to those allegations. Maybe the person was just raising legitimate concerns. They may not have been absolutely correct because these things are not always black and white. Where someone has genuine concerns about things that are going on and has made a complaint, even if everything they said did not turn out to be true, if those concerns were legitimate they should be protected and the matter investigated. They should not suffer retaliation, either directly or indirectly. There has to be some mechanism for dealing with that because when management or higher-ups retaliate, they do not do it directly. They do not say they are going to sack someone or blacklist them because they made a protected disclosure. Of course they would not do that. They go for them in other ways, usually by trying to fit them up for something or label them as a troublemaker or vexatious.

What happens to people who feel there is wrongdoing, malpractice, abuse or whatever it might be in a particular industry where the conditions of the workers are deeply precarious? Does this legislation deal with such situations? These people may not even have an employment relationship with the people who are abusing them but they may be part of an abusive industry or sector. Today we heard from representatives of performers in the arts, such as comedians and so on, who appeared before the Joint Committee on Tourism, Culture, Arts, Sport and Media. There have been similar allegations from people in the trad music scene. These people are self-employed lone traders - sole traders, essentially - but in reality they are dependent for their employment on a relatively small group of people in the arts and culture sector, many of whom are funded by the State and get public money. These people have described a culture of fear in the sector.

I have heard it repeatedly from actors, musicians and all sorts of people working in the arts that if you speak up about abuse, malpractice or whatever, that phrase you will never work in this town again is often used. That is the way it works. What are we going to do about that? Is that covered and how will we vindicate it to make sure that it is effective? Certainly, that sort of thing is widespread.

I would like to know how can we address the following issue, which I have raised in other forums. In some cases, the employer denies that they are the employer even though they are. It is bogus self-employment. What rights do you have if you are being misclassified as a contractor when, in fact, you are not a contractor? You are an employee and you should have the rights of an employee but this is a way of the employer denying their responsibility to you as an employee. Therefore, if you make a complaint, they do not have to process it because they are not your employer. We need to address that.

A particular egregious example that I have raised many times here is going on in the film industry. I do not know how many times I have raised it with the Departments of Tourism, Culture, Arts, Gaeltacht, Sport and Media, and Finance, where allegations have been made by film crew that the section 481 tax relief is being abused. When they went into a joint Oireachtas committee in January 2018 and made these allegations, guess what happened? They never worked in this town again, having worked for decades in the film industry. The names of some of these people are on the credits of films over the past 20 years but they will never working in this town again after they came into an Oireachtas committee. What is interesting about this example is that all film productions in this country are funded with public money and they are conditional on giving quality employment and training. You are only supposed to get the relief if you provide quality employment and training as a result. Under EU directives, you are also supposed to create a permanent pool of skills in that sector. Notwithstanding the fact that film-making can be somewhat episodic, you are supposed to have rights and you are supposed to have rights under the Protection of Employees (Fixed Term Work) Act 2003, which deals with people who are in these situations of episode-to-episode type employment. You accumulate rights of service under the law, but what happens in this instance is that when workers make complaints to the Workplace Relations Commission, WRC, that their rights are not being respected, the film producers, who get the public money conditional on the provision of quality employment and training, go into the WRC and say that not only are they not the employer of this person even though they were the producer on the film on which the person worked but, in fact, they could not possibly have an employment relationship with him or her. They are saying this in the WRC as we speak, and they have said it repeatedly. Representatives of Screen Producers Ireland, which also gets public funding, collects the money from Revenue for providing quality employment and training and then, when the crew who are employed on these films make complaints, say that they could not possibly have an employment relationship with them and it is the nature of their industry that they do not have employees. If you say anything, you will never work in this town again. How are we going to deal with that?

I am putting those points out there because I think they are relevant. I am not saying I have all the answers but I think they need to be addressed. You can have all sorts of laws, intentions and all the rest of it but it is no good unless they are actually to be enforced, unless there is a mechanism to enforce them and unless there is a mechanism to stop the abuses.

The nature of the sort of abuses we are talking about, when we are talking about the things that whistleblowers bring up and the retaliation they face, is such that there is an in-built power imbalance. Usually, it is people in powerful positions against whom the complaints are being made who obviously have no interest in acknowledging the truth of those allegations and who, in fact, have a vested interest in thrashing the reputation, and often the livelihoods and lives, of the people who make those protected disclosures.

I would be interested to hear the Minister of State's response. I would be particularly interested in and keen to see the statistics and the facts on the operation and effectiveness of the 2014 legislation. If they are available, the Minister of State might letting me know where.

See this speech in context