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

I very much welcome the opportunity to speak on this important legislation. Sinn Féin will be supporting it on Second Stage but intends to table amendments to strengthen it on Committee Stage. The vast majority of these amendments will be aimed at implementing the recommendations of the enterprise, trade and employment committee, as laid out in the pre-legislative scrutiny report it produced on this legislation.

This Bill aims to deliver on the Government's action plan of 2021 and provides for several measures, including amendments to employment and company law and the setting up of an employment law review group. These changes are welcome and, with regard to any criticisms I have of the legislation, I intend to be constructive. As the Minister and others will know, Sinn Féin and many other parties and Deputies have been attempting to close gaps in the law that have allowed our insolvency regime, limited status, and workers and suppliers to be abused. It was the disgraceful closure of Clerys that brought the loopholes in the legislation into full focus and the full glare of the media. Late on Friday evening, with no notice, nearly 500 people lost their jobs. I remember it very well. I was working in Liberty Hall at the time and I remember the workers coming in. I cannot stress enough how shocked they were. They were absolutely gobsmacked at the news. It had come completely out of the blue for them. I am referring to people who had given 25 or 30 years' service to one employer, people who had turned up every day and done everything expected of them. When they turned to the State for help to see what legal protections existed, the then Minister for Social Protection sent officials down to Liberty Hall. I believed there had to be more that could be done than just turning Liberty Hall into a dole office. The workers felt completely at sea. It was lucky they had a union because at least they had somewhere to go to be together. They were absolutely shellshocked. There was a lot of talk at the time about strengthening the legislation and I realise reports were produced, but the law to protect workers and their families was non-existent. It was really shocking. That was 11 years ago.

In the intervening period, Sinn Féin and others have introduced legislation to implement the recommendations in the report Expert Examination and Review of Laws on the Protection of Employee Interests When Assets are Separated from the Operating Entity, otherwise known as the Duffy Cahill report. In the intervening period, this legislation from the Opposition benches moved through the Dáil and Seanad. Moves by successive governments have been slower. This resulted in the tactical liquidation affecting the Debenhams workers. Again, the law was exploited and circumvented, and the State, workers, suppliers and whole communities suffered as a direct result.

Some aspects of this Bill address long-standing issues, such as ensuring all collective redundancies would be subject to a 30-day notification period before they take effect, including where the employer is insolvent; improving the quality and circulation of information to workers, as creditors, in a liquidation; and establishing the employment law review group on a statutory footing, which I very much welcome. The group is very important and this is a very welcome change. The changes are all welcome. I am thankful for the extensive and constructive engagement of the social partners, business stakeholders and trade unions on this Bill. Indeed, it is important to highlight the work of the Company Law Review Group on this matter. However, it is disappointing the enterprise, trade and employment committee, as an important stakeholder, had many of its suggestions, which were raised in its pre-legislative scrutiny report on this legislation, ignored. I will return to this in due course.

The main aim of this legislation is the protection of employees in a collective redundancy, and it is primarily focused on improving awareness and increasing transparency for the employees of insolvent employers. The Bill would ensure all collective redundancies are subject to a 30-day notification period before they take effect, including where the employer is insolvent. Where the employer makes the workers redundant before the 30-day notification period finishes, those workers can seek redress from the Workplace Relations Commission, WRC. This is all very welcome but the WRC needs to be adequately resourced to ensure people are not left waiting. Very often, the wait between getting the news and finding somewhere to vindicate what limited rights you have is the issue. There is a long waiting period to get into the WRC, and that needs to be addressed.

The Bill also provides that, where a liquidator is managing the collective redundancy process in an insolvency situation, that liquidator has similar obligations. Where it fails to comply with those duties, the WRC may prosecute. These are very important and welcome changes but, again, the WRC has to be correctly and adequately resourced.

The facility to allow for the notification of the Minister of collective redundancies by electronic means is also an important and modernising development. It is one in respect of which we scratch our heads and are surprised it cannot happen already. It is welcome that it will be possible once the Bill passes.

One of the most important aspects of this legislation is the establishment of the employment law review group on a statutory footing. I have no doubt the group will be a significant and valuable resource in allowing for an ongoing assessment of employment and redundancy law to ensure it is fit for purpose. I hope it begins work immediately with a view to strengthening the Unfair Dismissals Act. With the victory of and vindication for the Murphy 4, it is clear the Unfair Dismissals Act is not dissuasive enough in deterring employers from unfairly dismissing workers. We saw this recently when Wix dismissed an employee for criticising the actions of the Israeli state in Palestine.

One of the most important aspects of this legislation is that it amends the Companies Act 2014, raises the bar for the permissibility of transferring assets in the period prior to insolvency, and lowers the threshold required by the court to order a related company to contribute to the debts of the company being wound up. In all the tactical liquidations we have seen over the past decade or so, assets have been transferred prior to the winding up of the company. Assets that are transferred before liquidation with fraudulent effect can now be recovered.

Furthermore, the Bill would amend the 2014 Act to allow workers, as creditors, to have greater access to information regarding liquidation. Given the cumulative economic impacts of Covid-19, Brexit and the invasion of Ukraine on the liquidity of companies, it is reasonable to anticipate an increase in winding-up petitions. Indeed, insolvencies were up 38% across the first three quarters of the year, from 373 in 2022 to 514 in 2023.

From our perspective, however, the Bill is not without issues. The Bill indicates that the courts will be given a fair amount of discretion to bring forward a result which is fair and gives creditors the opportunity to prove why a related company should contribute to the debts of the company being wound up. However, our biggest criticism of the Bill is that there is no change to the principle of equality of creditors of equal standing. In the standing of creditors, workers' wages and statutory redundancy are secured but their collective redundancy agreements are unsecured.

In many ways what is proposed with the Bill will not address the anomaly where collective redundancy agreements are not honoured on the winding-up of the company. In reaching an agreement with any employer, there is give and take. As I said in the House during discussions on the Debenhams workers, there is always give and take. To get an enhanced redundancy written into a collective agreement, you can bet there was give on the part of the workers and they had to give some concessions to secure that because that is what every agreement between workers and employers is. It is effectively a coming together and it is always some form of compromise. In Debenhams, where there was a negotiated collective redundancy agreement, there would have been an onus on the workers to adhere to what whatever was in that agreement. While they may not like all of it, there is a quid pro quoin that. They get the enhanced redundancy and have that written into a collective agreement. After having a ballot on it, that becomes their collective agreement at work. However, when they go looking for it, it does not have any statutory footing. This legislation will not put it onto a firmer or statutory footing, which is an opportunity lost. If workers were given preferential creditor status, that would achieve the aim and it would give some standing to the collective agreements. This was a recommendation of the Joint Committee on Enterprise, Trade and Employment following the pre-legislative scrutiny of the Bill. It is also what Sinn Féin has been proposing since 2017.

Various other recommendations of the enterprise committee have not been included in the legislation. First, the directors or other persons in control of the company should be held responsible for any contravention under the Protection of Employment Act 1977 and liable for criminal responsibility. Second, apprentices, trainees and temporary workers should be protected under this legislation. Third, where a consultation period has commenced, it must not be interrupted by the appointment of a liquidator or receiver. Finally, a trade union of which employees are members should be notified when a petition for the winding-up of a company is being made to the High Court. These criticisms are made in a spirit of co-operation, in an attempt to be constructive, and to signal the types of amendments we will table on Committee Stage.

Legislation is all very well and we can legislate away here as much as we like. However, the best way for any worker to vindicate their rights at work is to join their trade union, to become active in that trade union and to ensure their voice is heard at the level of their workplace. In that regard, we need to move quickly to enact legislation on collective bargaining. It is not the job of me, the Minister or anyone else in here to organise workers; that is the job of trade unions. However, as legislators we can create the conditions for workers to get organised, to support them in getting organised and work to support the trade union movement. We can do more in that regard.

As I said at the outset, Sinn Féin will support the Bill on Second Stage, but we intend to introduce amendments to strengthen it on Committee Stage and I look forward to working with the Minister on that.

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