Friday, 2 July 2021
Workplace Relations (Miscellaneous Provisions) Bill 2021: Second Stage
I move: "That the Bill be read a second Time".
It is good to be back in the Dáil Chamber. Hopefully, it will not be too long before we get back here permanently.
I am pleased to introduce the Workplace Relations (Miscellaneous Provisions) Bill 2021 for the consideration of the House. I propose, in the first instance, to summarise the background to and context of the Bill, the basic aim of which is to ensure that the matters of immediate concern identified by the Supreme Court in its majority decision in the Zalewski case are immediately remedied in statute. I will then describe the purpose and reasoning behind each section of the Bill.
On 6 April last, the majority judgment of the Supreme Court in the Zalewski case overturned the judgment of the High Court, which had found that the adjudication service of the Workplace Relations Commission, WRC, was not administering justice within the meaning of Article 34 of the Constitution. The seven judges of the Supreme Court agreed that the WRC's adjudication service is the administration of justice, traditionally a matter exclusively for the courts. However, the majority decision saved the 2015 Act from being constitutionally repugnant because it found that the administration of justice is limited and therefore permissible under Article 37. The limited nature is due to the fact that the WRC deals with workplaces; has statutory limits on the awards it can make; enforcement of its decisions is required through the courts; its decisions are subject to an appeal; and the decisions and procedures of the adjudication services are subject to a judicial review before the High Court.
In issuing its decision, the Supreme Court rejected a challenge to the validity of certain sections of the 2015 Act and section 8 of the Unfair Dismissals Act 1977 as amended. Separately, however, the Supreme Court also determined that two aspects of the 2015 Act are in fact incompatible with the Constitution. First, the court found that the practice of holding all hearings in private as provided under section 41 (13) is not an acceptable feature of the administration of justice and therefore not compatible with the Constitution. Justice must be done in public and while there are situations where privacy is warranted, a blanket approach of hearing matters in private is not an acceptable feature of the administration of justice. This requirement to administer justice in public will also have an impact on the routine anonymisation of parties under section 41(14) of the 2015 Act.
The second procedural weakness that the court identified was that the absence of a statutory provision for the administration of an oath, and any possibility of punishment for giving false evidence, is inconsistent with the Constitution. While not subject to an express declaration of unconstitutionality by the Supreme Court, the majority decision noted and expressed concern about the statutory drafting concerning the removal of an adjudication officer. This provision is now remedied in section 2 of the Bill before the House through the provision of a constitutionally robust and fair removal procedure, should the requirement ever arise.
Similarly, while the fact that the 2015 Act provides for the enforcement of decisions to be a matter for the District Court, the Supreme Court found the provision to be lacking in fairness. The fact that the enforcement of adjudication decisions is a matter for the District Court is an integral aspect of the limited nature of the WRC's adjudication service. This, in turn, is crucial in ensuring that the WRC's adjudication service is permissible under Article 37 of the Constitution. Accordingly, the provision has been remedied in this draft Bill to ensure that employers have a right to be notified and heard.
Finally, the Supreme Court's finding, that the functions being performed by the WRC adjudication and the Labour Court are functions of a judicial nature involving the administration of justice under the Constitution, warrants the inclusion of an express statutory guarantee that the membership of the Labour Court "shall be independent in the performance of his or her functions". This will require amendments to the Industrial Relations Acts 1946 and 1969.
As declarations of the court have immediate effect, the WRC's adjudication service has been very restricted in the matters that it can dispose of until these amendments are made to the 2015 Act, the Equal Status Act 2000, the Employment Equality Act 1998, the Protection of Employees (Employers' Insolvency) Act 1984; the Unfair Dismissals Act, and the Redundancy Payments Act 1967. These separate Acts contain stand-alone provisions in relation to proceedings before the director general-adjudication officer. In order to address these immediate matters of concern, this short Bill is required to ensure that the constitutional frailties that the Supreme Court identified in the investigative procedures of the WRC's adjudication services are brought in line with the constitutional requirements in order that the adjudication services of the WRC can resume in full.
I am very grateful that this urgency was recognised on a cross-party basis by the members of the Oireachtas joint committee, who agreed to waive the requirement for pre-legislative scrutiny on this Bill, and for your good offices, a Cheann Comhairle. I would like to place on record my appreciation for the collegial and productive engagements my officials and I have had with the members of the committee in our efforts to ensure that this Bill is published without delay in order that the WRC can resume its functions in full. Some committee members have been in touch with me directly also on some aspects of the Bill. I am appreciative of that. The open-door policy will continue as we progress the legislation to its conclusion.
Pre-legislative scrutiny is an important element in the legislative process and in recognition of this, and our duty as legislators to fully consider the rationale and implications of the decisions we make, I was happy to accept the committee's suggestion to include a review clause in the draft Bill. This provides that a statutory review of certain sections of the Bill will take place not later than 12 months after it has been commenced.
It should also be noted that the decisions of the Supreme Court provide for certain matters that will require policy and possible legislative attention at a later stage. These matters relate to the independence of the decision makers and the necessity to ensure that persons carrying out these functions have the appropriate skills and capabilities. Consideration will need to be given to the potential impact that the court's judgment may have on other quasi-judicial bodies administering permissible justice. That is the reason, once this legislation has been commenced, my Department will convene an internal review group consisting of officials with policy responsibility for the various bodies and agencies which may now find themselves administering justice to consider the rulings in full and to analyse its impact on their functions. In doing so, it will engage with the office of the Attorney General and other Departments with oversight of similar bodies.
I will now outline the principal provisions of the Bill. Section 1 contains definitions. Section 2 is a technical amendment required to facilitate the introduction of amendments in section 41 of the Workplace Relations Act concerning the offence of perjury. Section 3 contains an amendment to section 40 of the Act of 2015. The purpose of this amendment is to provide for a fair procedure for the revocation of an adjudicator's warrant.
Section 4 contains an amendment to section 41 of the 2015 Act. In respect of the provision in section 41(13) of the Workplace Relations Act 2015, which currently provides that "Proceedings under this section before an adjudication officer shall be conducted otherwise than in public", the court held, at paragraph 148, that it was appropriate to declare subsection (13) repugnant to the Constitution, and that the effect of this is that "the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public." The proposed amendment provides that either party can make an application to the adjudicator, but also provides the adjudicator with discretion to inquire into the matter on his or her own motion and subsequently to direct that either the whole or part of the relevant proceedings can take place otherwise than in public, where this would be desirable in light of the nature or circumstances of the specific case. The default position in respect of such proceedings is that they would be held in public.
In respect of the proposed substitution of subsection (14), while the judgment of the court did not address the issue of automatic anonymisation, which is currently provided for in subsection (14), it is the Department's view, supported by legal advice, that maintaining a policy of anonymisation of all published decisions is contrary to the requirement that justice be administered in public.
Paragraph (b) of subsection (14) provides an adjudication officer with the viresto direct the commission, if he or she is satisfied that the special circumstance of the particular case so requires, not to name parties in the published decision. A further constitutional issue was identified by the court in respect of the absence of any provision relating to the administration of oaths or an associated penalty for giving false evidence.
The amendment to subsection (12) introduces the statutory power for the administration of oaths and affirmations, and to provide for a criminal offence of wilfully and corruptly providing false evidence under oath or while subject to such an affirmation. This provision is aligned with section 12 of the Criminal Justice (Perjury and Related Offences) Act 2021, signed into law on 21 June 2021.
Section 5 provides an amendment to section 43 of the Act of 2015. The purpose of this amendment is to strengthen the rights of employers in matters relating to the enforcement of decisions of adjudication officer in the District Court. Section 6 provides an amendment to section 10 of the Industrial Relations Act 1946. The purpose of these amendments is to provide for the statutory independence of the chairperson and ordinary members of the Labour Court. A further amendment to section 21 of the 1946 Act has been provided to align the offence provided for in the Criminal Justice (Perjury and Related Offences) Act 2021.
Section 7 provides for an amendment to section 39 of the Redundancy Payments Act 1967 concerning proceedings in public and the administration of an oath or affirmation. Section 8 provides an amendment to section 4 of the Industrial Relations Act 1969. The purpose of this amendment is to provide for the statutory independence in the performance of the functions of the deputy chairs of the Labour Court. Section 9 provides for an amendment to section 8 of the Unfair Dismissals Act 1977 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.
Section 10 provides an amendment to section 9 of the Protection of Employees (Employers' Insolvency) Act 1984 concerning proceedings in public, anonymisation, and the administration of an oath or affirmation. The offence of perjury is also provided for. To align this Act with the Workplace Relations Act, a regulation-making power has been inserted empowering the Minister to make provision in relation to any matter relating to the presentation, referral or the hearing of a complaint under section 9 of the 1984 Act that he or she considers appropriate.
Section 11 provides for the amendment of section 79 of the Employment Equality Act 1998 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for. Section 12 provides for amendment of section 25 of the Equal Status Act 2000 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.
Section 13 provides for statutory review of certain sections in this Bill. The review is to take place not later than 12 months after this Bill has been commenced, as recommended by committee members. Section 14 introduces a Short Title of the Bill and provides for its commencement. I commend the Bill to the House.
I am grateful for the opportunity to make a contribution today on this important legislation. We understand that the issues which arose for the WRC following the Zalewski case and the subsequent Supreme Court judgment are serious and require fairly swift rectification. For that reason, in early April I drafted legislation which sought to accommodate the judgment of the Supreme Court and to rectify the issues it posed for the operation of the WRC. I thank the Minister of State, Deputy English, and his officials for the swift engagement, the useful exchange of views and the publication of the legislation.
I specifically thank the departmental officials, and obviously the Minister of State himself, for the information they provided and their willingness to discuss with us issues we had because, as the Minister of State knows, we did waive pre-legislative scrutiny, PLS, of the Bill at the committee. It is not something I want to get into the habit of doing notwithstanding that this was done due to urgency. With the exception of a difference of opinion on some fairly small matters both I and Sinn Féin will be supporting this Bill. I will return to those points later.
Remedying the issues outlined by the Supreme Court is necessary to ensure the proper administration and working of the WRC. The core issues the legislation seeks to address are ensuring the administration of justice is capable of being conducted in public and the provision of statutory authority to administer oaths and affirmations in circumstances where there is a material dispute of fact. Ancillary to this is addressing an expressed concern by the Supreme Court regarding the removal of an adjudication officer.
As someone who has represented people in the WRC and the Labour Court, the use of oaths and affirmations does not sit well with me. I completely understand why it is there but the court and the WRC are somewhat non-adversarial in nature and the requirement to swear an oath steps it up to the next level. That is why I welcome that there is going to be a review because of the practical implications of this legislation for workers. Very often the workers are not the ones who go in all lawyered up, as it were. They generally have the services of a trade union official who is generally not legally qualified, although more and more of them are these days. I have a concern about the impact that is going to have on the possibility of a resolution. Even at that level of adjudication and when that level of engagement is being had, it is possible, given the informal nature of how business is conducted, it can sometimes, though not always, be possible to reach an amicable solution. While the swearing of an oath is necessary and I do not dispute that, I worry it will change the character of how hearings are conducted and do so in a way that benefits the people with deep pockets, usually the employer, and which does not benefit the worker. I would have issues with that.
The provisions added in section 3 to do this now provide a constitutionally robust and fair procedure to remove an adjudication officer, should the need ever arise in the future. As we have discussed it is highly unlikely it would but we understand the necessity for it.
On WRC proceedings being held in public, the sections which stipulate that the proceedings be conducted in public unless the adjudication officer of his or her own motion or upon the application by or on behalf of a party to the proceedings determines that due to the existence of special circumstances, the proceedings should be conducted otherwise than in public, are important. However, I can see there is going to be a problem here. If just one party to a case is requesting that the proceedings be otherwise than in public that might cause an issue. Cases here are taken by the employee, and naturally many will want the hearings to be held in private because they will be concerned that a public hearing will damage their future employment opportunities and indeed their likelihood of getting promotions. Everybody is familiar with Google. I could come in and be interviewed for a job and as soon as I walk out the door my name will be searched for online. The first thing that pops up will be that I was in the WRC and that might have a chilling effect. I know from having represented workers that one of the things they will ask is can it be guaranteed this is going to be anonymous, because they are very genuinely concerned about potential kickback. That must be balanced on the other side against the power the State can exercise over an employer who might want the proceedings held in private because he or she does not want to expose him or herself to the potential reputational damage on behalf of the worker. That can be an important tool inasmuch as one might say to the employer that he or she does not want this to go public either and that might encourage people to reach a settlement. As such there is a difficulty with that and many in the trade union movement have a concern about the potential chilling effect this is going to have on workers because they may not wish to expose themselves to that kind of publicity and public scrutiny.
As the Minister of State knows, I have submitted a series of amendments to this Bill which I feel will address both the concerns I have raised while also maintaining the constitutionality of ensuring that the administration of justice is capable of being conducted in public. They provide, however, that where there is a request and sufficient reasoning, so it is not just on a whim, to protect the interest of a party or parties to proceedings, it may be held in private. That is really important. We will get a chance to tease out the amendments at a later Stage. The Minister of State will have seen them anyway but that is where we will be coming from.
I have also included a provision for the adjudication officer to publish the rationale for any decision made on whether to hold a hearing in private or where he or she has overruled a request to hold proceedings in private. To ensure the process is fair and robust, I have also included an appeals mechanism to the director of the WRC for final adjudication on the decision. Again that relates to an issue where there is a serious and genuine concern on the part of a worker taking a case to the WRC that this will have a detrimental impact on him or her and that where he or she may not be satisfied with the judgment, at the very least he or she should be entitled to know and understand the rationale for that. Also, in relation to the sections which compel the commission to publish on the Internet every decision of an adjudication officer under this section, I have included a provision where names would be redacted where it is felt that to publish names would detrimentally impact on either party specifically with reference to the capacity of a party to secure employment in the future.
It would be remiss of me to not mention the importance of the work the WRC does. Despite being underfunded and under-resourced, the Workplace Relations Commission does fantastic work on behalf of workers across this State. In spite of the challenges posed by the pandemic the WRC carried out 7,687 inspections in 2020 and managed to recover almost €1.7 million in unpaid wages for workers. Indeed, data recently revealed to me in response to parliamentary questioning outlined how, since 2011, the WRC has recovered almost €18 million in withheld wages for workers. This proves the worth of the WRC and actually makes a very compelling case in the funding for this particular institution. Further data also revealed the scale and number of breaches of employment law detected by WRC investigations since 2015. In those six years, the WRC has detected breaches in employment law in more than one third of all investigations. Of the number of cases investigated, 35.9% found breaches by employers for non-payment of the minimum wage, employment permits, protection of young persons, annual leave and public holiday breaches and unpaid wages, among others.
Sectors such as food and drink, retail and wholesale, hair and beauty, and construction, to name but a few, have seen consistent breaches of employment law in recent years. The breadth, scale and nature of these breaches reveal a dark underbelly of the Irish economy, which absolutely must be stamped out. Again this reinforces the need to properly resource the WRC. Furthermore, as Irish Small and Medium Enterprises, ISME, has said, businesses not paying workers the minimum wage are undercutting decent employers, are engaged in anti-competitive practices, and should be put out of business. I think that is something we can all agree on. The idea that there are only a select few bad apples breaching employment law and workers’ rights has been blown apart by these data. We can see it is not just a tiny minority and that in fact there are breaches right across the board. It is not every employer, nor even the majority, but it is a significant amount and they must be dealt with.
In six short years, more than a third of employers investigated by the WRC have been found to be in breach of employment law. Added to this is the fact that the WRC is underfunded and understaffed. In all probability - and the Minister of State knows this - if it had more staff it could do more work and if it was doing more work it would be detecting more breaches. The commission has only 53 inspectors carrying out this work, despite being authorised to recruit 90 inspectors back in 2006. We can debate this again but 90 should be the floor. It should not be what we aspire to but the absolute minimum given there are more people in work now than there were in 2006 when that agreement was reached.
I have asked the Tánaiste on many occasions that the commission receive additional funding and resources to recruit more inspectors. I am aware there is a recruitment campaign under way at the moment. I would like to see it accelerated and increased. The work of the WRC and the rate of breaches it detects reinforces the need for workers to be given the legal right to collective bargaining through their recognised trade union in order that they can do the job they do so well. We know there are sectors of the economy where low pay and precarious work is the norm and where workers' rights are pretty much an afterthought.
That does not happen in unionised employment so the best defence against being exploited is to join a trade union, be active in it and be sure that your rights are upheld. That is not just legal rights. The law provides for a minimum. The trade union provides for what is decent and fair. The Government cannot continue to turn a blind eye to the employment law breaches, which we need to get serious about.
I recognise the importance of this legislation. I get that. I will get back to my point about pre-legislative scrutiny. I do not like waiving it. It is a bad habit to get into. I recognise the need in this case but I put it on the record that I hope the committee will not do this routinely. Having said that, we are happy to facilitate the passage of this legislation, considering the circumstances.
I reinforce the potential chilling effect that publicity will have on workers. When people feel that they are in a vulnerable situation, quite apart from anything else, they probably have to wait for six months or longer to get into the Workplace Relations Commission. All the while, they are probably continuing to work in the place where the issue has arisen. Added to that is the fear that they will be exposed. I cannot count the number of workers who I have represented at the WRC. I know from talking with them that anonymity gives the confidence to take the case, since there will be no backlash. We need to give serious consideration to the amendments which I have submitted, which I feel will deal with those issues. Nobody wants to have a situation where there is a chilling effect on a worker.
The existence of the third-party machinery is grand but it is also functionally useless unless people are empowered to exercise their rights under that third-party machinery. We cannot do anything in this House that will interfere with people's ability to exercise their right under the law to take a case to the WRC. We would be doing everyone a significant disservice. We would cause a bigger problem than we are trying to fix if we had a situation where we put that chilling effect into law. We need to give careful consideration to how we can ensure that workers still have the confidence to take a case to the WRC and still have the capacity to maintain their anonymity and not suffer from any potential backlash.
It is good to be back in this House. I think it is the first time since December. Hopefully we can resume regular business here soon. The Labour Party is happy to support the Workplace Relations (Miscellaneous Provisions) Bill 2021. This Bill has been brought before us without pre-legislative scrutiny as a matter of urgency. Unlike some other Bills which have been rushed through, this Bill is indeed urgent and is suitably concise and limited to be progressed rapidly. It is extremely important that we get this Bill right. There is a constant battle in the State between those who seek to protect and enhance the rights of workers and those who seek to challenge them. We see consistent attempts to undermine any legislative protections afforded to workers, especially when they involve the strengthening of collective bargaining, the roles of trade unions or giving a seat at the table to represent workers.
The Labour Party has always stood on the side of workers and their rights to collective bargaining and trade union representation. In considering this Bill, we believe that those rights are essential to a functioning democracy. I was delighted to see the recent judgment of the Supreme Court stating that the provisions of the Industrial Relations (Amendment) Act 2015 were constitutional. This Act was introduced by my party colleague, Deputy Ged Nash, and paved the way for thousands of workers in low-paid and poorly organised sectors to take advantage of sectoral orders to improve their pay and terms and conditions. In his ruling on that legislation, Mr. Justice Peter Charleton stated:
The 2015 Act seeks to promote or to preserve high standards of training and qualification and by a subordinate body searching for, and the Oireachtas ultimately approving, fair and sustainable rates of remuneration. All these are objectives well recognised in a modern democratic society that strives for both economic dynamism and for social protection; an aim that becomes unachievable in chaos or stagnation. These must be recognised as being legitimate matters which the Oireachtas can pursue or seek to achieve.
The sectoral order legislation was a major undertaking to remedy the implications of a judicial decision. I hope that those who are critical of the Bill will give credit where credit is due and recognise that the Industrial Relations (Amendment) Act 2015 is an important achievement by the Labour Party in government in strengthening the rights and terms and conditions of workers as well as the practical effectiveness of collective bargaining. While the substance of that Act was vindicated, we are here because of another court case which has resulted in the need for amended legislation. I hope that this Bill will further strengthen the working of the industrial relations apparatus of the State, which is the WRC in this case.
It has been clear since the Ryanair judgment that more formality about how the Labour Court adjudication officers arrive at their decisions will be required as a response to the judgment of the Supreme Court in the Zalewski case. This Workplace Relations (Miscellaneous Provisions) Bill is imperative to allow the WRC to resume its vital work. The two major findings of the case were that a blanket prohibition on public hearings was not justified and that there should at least be capacity to take an oath for the process to be constitutional.
The proposed amendment gives adjudication officers discretion in cases which have been referred to them to decide that either all or part of the case proceedings can take place in private if the nature, circumstances or interests of justice make it preferable. The default position would be for these to be held in public. Given the often sensitive nature of cases for both sides, I hope and expect that, by agreement, many cases will in practice be heard in private. A strength of the WRC is that damage to individuals and indeed companies from publicity surrounding cases can be avoided.
The Bill also provides for either side applying to have either part or all of the proceedings held in public. The paragraph to be substituted for subsection (14) provides for an adjudication officer effectively to direct the commission not to name parties in the published decision, which I think is merited.
The Bill provides for an adjudication officer to hear evidence on oath and the Government seems to think it necessary to make provision for an offence such as perjury. This offence is provided for in six separate amendments to other legislation, set out in sections 4, 6 and 9 to 12 of the Bill.
On a technical point, the memorandum accompanying the Bill states "aligned with section 12 of the Criminal Justice (Perjury and Related Offences) Bill 2018 (Bill 112 of 2018)." However, the Oireachtas recently passed the Criminal Justice (Perjury and Related Offences) Act 2021, which was signed into law on 21 June and came into immediate operation. In that Act, a judicial or other proceeding includes proceedings before any "person having by law power to hear, receive and examine evidence on oath". It would therefore include proceedings before adjudication officers once they are given the new power to administer oaths. Under section 2(1) of the Act, a person commits the offence of perjury if he or she in or for the purpose of such proceedings gives a statement material in the proceeding while lawfully sworn as a witness that is false, and he or she knows to be false. This seems to cover the same grounds as the new offences created in today's Bill. The Act goes on to deal with several important matters related to the offence of perjury, including subornation, incitement, collaboration etc.
Given that the Act places perjury on a statutory footing for the first time in a consolidated and simplified manner, and that it will apply across the board, including to the proceedings before the WRC, would it be unnecessary and perhaps unworkable, without any reference to that legislation, to include separate provision on exactly the same subject matter in the current Bill? I could be mistaken but given the time pressure due to the large volume of accelerated business in the House and the general increase in everyone's workload due to Covid, which I think everyone would acknowledge, I would be grateful if the Minister and Government could indulge me and refer this point to receive relevant legal examination before Committee Stage.
While the facility for an oath is required from a constitutional point of view, a strength of the process is the absence of some of the intimidating trappings and legalese that can be associated with full judicial court proceedings.
I hope that in the day-to-day operations of the court it will not be necessary to invoke the provision in every aspect of every case.
Section 3 of the Bill sets down provisions to remove adjudicators which, hopefully, will be rarely, if ever, needed. We can all agree that the importance of passing this Bill is paramount. I look forward to the discussion of any amendments and, hopefully, we can pass this Bill quickly to allow resumption of the full operation of the WRC and that it will be improved in the interests of everyone.
I thank the Minister of State for bringing forward this legislation. We all know the reason we are here is because of the recent Supreme Court decision in the Zalewski case. It was probably one of the most important decisions given by the Supreme Court this century and has resulted in this legislation coming before the House.
I am conscious that my colleagues in the House know the facts of the Zalewski case, but it is important to remind other people who may not be here about it and to recall what happened in that particular claim. Mr. Zalewski claimed he was unfairly dismissed. He was entitled to bring a claim against his employer under the Unfair Dismissals Act 1977. Under the procedure and architecture we have put in place, he did so pursuant to the Workplace Relations Act 2015 and his claim was heard by an adjudication officer at the Workplace Relations Commission. Mr. Zalewski did not get a fair hearing. In fact, he did not really get any hearing. Rather than listening to my description of it, I urge colleagues to reflect again on what Mr. Justice McMenamin said in the Supreme Court about the hearing Mr. Zalewski got, which he described as "Kafkaesque".
In any event, Mr. Zalewski's claim was rejected by the WRC and, as a result, he decided to challenge the constitutionality of the Workplace Relations Commission and the fact that it operated over such a wide, broad range of legislation, such as the redundancy Acts, the Unfair Dismissals Act and the Employment Equality Act. His contention was that the Workplace Relations Commission was administering justice; it stated it was not. That is something we should probably all reflect on because I am conscious that if a person is sacked from their job and brings a claim against an employer, it is probably one of the most significant steps they will take in their life. Nobody lightly takes a claim against their employer or anyone else.
However, there are circumstances where employees and workers are entitled to bring claims against their employers. I have listened very carefully to what Deputies O'Reilly and Ó Ríordáin said and it appears to be the case that criticism can be made of an employee who brings a claim against his or her employer. The chilling effect that can have on an employee was referred to. That may be correct. I know my friends were not in any way criticising employees who take such an action, but it is important to emphasise that in our system people are entitled to bring claims. It should not be stated or thought that because an employee is taking a claim against an employer that in some way that employee should be criticised.
In any event, Mr. Zalewski went to the High Court. The High Court looked at the case and at what was happening in the Workplace Relations Commission. It applied the tests established in McDonald v.Bord na gCon back in the 1960s, which set out five tests for the administration of justice. The High Court stated this was not the administration of justice because the Workplace Relations Commission did not have the power to enforce its own orders or judgments. Instead, if you are trying to enforce a decision of the Workplace Relations Commission, you have to go to the District Court. Mr. Zalewski lost that case because the determination in the High Court was that it was not the administration of justice. He appealed to the Supreme Court, which said it was the administration of justice. That is a very significant development because throughout the High Court and Supreme Court cases, and from 2015 onwards, the WRC stated it was not administering justice. We now know that it is. Ultimately, there was a split decision, four-three, in the Supreme Court, in favour of a finding that while this was not unconstitutional, certain aspects, as identified by speakers here, were regarded as requiring change.
It is a big question to determine whether or not a body is administering justice. Article 34 of our Constitution states that justice shall be administered by our courts in public save in certain circumstances. The article then sets out the courts we have for the administration of justice. However, we also recognise in this House that justice can be administered elsewhere if it is for the purpose of limited or local jurisdiction. That is why Article 37 of the Constitution is very important, because it provides for limited functions that can be carried out by statutory bodies other than the courts, which are established under the Constitution.
We have seen a trend, both in recent years and over the past 100 years, that legislation is enacted by a parliament in any country, but it will also allocate responsibility for the determination of disputes under that legislation to a new statutory body. There are many such bodies in Ireland. The Workplace Relations Commission, the Residential Tenancies Board and other boards and functions fulfil determinations of disputes. They are administering justice but doing so on a limited basis. The Supreme Court in the Zalewski case stated that the administration of justice is in fact happening at the WRC but is being done on a limited basis, since it relates to workplace disputes and has some limitation in terms of financial awards. However, there are extensive powers available to the Workplace Relations Commission when it comes to the determination of issues and making of awards.
Behind all of this, the Oireachtas has a certain amount of concern that if we do not take issues concerning the administration of justice away from the courts, it will result in lawyers and in inefficiencies. The well-intentioned objective and purpose behind establishing the Workplace Relations Commission as the place where employment disputes are resolved is to try to make the system more efficient and cheaper and to ensure it does not get bogged down with lawyers. All I would say in respect of that is that it is absolutely vital that anyone who brings a claim, and is involved in the administration of justice and is seeking justice, gets fair procedures and a fair hearing. I believe this legislation will go a considerable way towards that but we have to ensure that all claims before the Workplace Relations Commission are heard in a very fair and just way.
I also welcome our return to Leinster House. I welcome the opportunity to speak on this matter and also on the importance of ensuring workers’ rights are upheld and how the WRC plays a key role in this regard. It is for these reasons I am pleased to see this legislation being brought forward, following the Zalewski case and the matters it shone a light on. These are important observations for the proper functioning of the WRC in its highly important role. Sinn Féin will be supporting this Bill, although an Teachta O’Reilly has tabled some amendments to it she published on the matter in April.
It will of course be appreciated that when it comes to the protections afforded to workers and the effective functioning of the WRC, nothing can be left to chance. This is exemplified by the work that has been done by the WRC only recently. Despite recent restrictions, the WRC has been as committed as ever in working for the interests of this country’s workers. In total, 7,687 inspections were carried out in 2020. In my county of Tipperary, the WRC detected 190 breaches last year, of which 140 were in the food service and wholesale and retail sectors. This is concerning and indicates how certain businesses are spoiling it for others in their sector by engaging in what are also anti-competitive practices. The most common offence involved working time records for which there were 44 detections, terms of employment were at 27 detections, public holidays at 23 and no Sunday compensation at 17. In each case, the WRC is serving our employees well.
The work of the WRC also improves the business landscape by improving competitiveness while protecting our workers. The WRC has a difficult job. We have been told that the number of breaches of employment law detected nationally since 2015 has amounted to 35.9% of all cases investigated. However, there is one sector whose record is worse than most. Unsurprisingly, it is the country’s meat factories.
I am sick and tired of pointing out how these factories are handled with kid gloves by successive Governments. That employment law breaches were identified in 48% of all inspections in meat factories between 2015 and 2020 reinforces my concerns, which I will not stop highlighting until the matter is addressed. These are worrying figures, but they show the level of commitment of the staff of the WRC to their work and the welfare of the workers that keep this economy going. They also highlight the need for workers to have the legal right to engage in collective bargaining through their trade unions. While the identification of breaches of employment law can go some way towards protecting our workers, enabling workers to exercise their rights is where the power truly is. In truth, more breaches may have been detected if the WRC had the level of staffing it needs. The Minister of State, Deputy English, informed the House in March that the Workplace Relations Commission has only 53 labour inspectors and that its authorised staffing complement is 90, which authorisation was given as far back as 2006. I ask the Minister of State to outline when the additional inspectors will be provided.
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.
An awful lot of what I am going to say has already been said. We all accept the absolute necessity of the Workplace Relations Commission and the vital work it does. We all know that this is the outworking of the Zalewski case in the Supreme Court. I have obviously mispronounced that name and I apologise for that. We need to make sure we do not impact on the operational ability of the WRC to carry out the work that needs to be done. It was mentioned in the House earlier that, during this period, we need these sort of accountability measures. During the Covid pandemic, there have definitely been companies and firms that have chosen not to waste a good crisis. We need to ensure that all the fundamentals are in place.
There are weaknesses across the board in our protections for workers. We need to review all of the legislation underpinning these and I will return to that point in a minute. I will also reiterate what Deputy O'Reilly said. I understand that there has been a significant amount of interaction between the Minister's officials and Deputy O'Reilly and her office with regard to the legislation she previously introduced on this matter. That is to be welcomed if it gets us further towards a solution. There is an issue with regard to publicity. We have all heard, both anecdotally and in people's actual cases, of people being afraid of it being put out publicly that they are troublemakers as employees.
This is not a case we can deal with. I accept that there may be companies which fear the reputational damage that can be done to them. That is to be welcomed but we need to ensure that those protections are in place.
I agree that employers who disregard the rights of employees, as ISME said, do a disservice to both employees and to good employers. We need to make sure we have all that is necessary to deal with this.
Unions and collective bargaining were mentioned. We have seen in recent years in redundancy negotiations, including in my constituency, cases where a number of people are put in an invidious situation and have to enter into negotiations with a top-tier squad from an American multinational. That is unfair. We need to look at all the rules and regulations and at the rights we need to afford people in the context of collective bargaining and the powers of unions to represent people who need it.
I thank Mr. Zalewski and his legal team for pursuing this case and laying bare the fantasy that operates in relation to third-party arbitration and industrial relations in this country. That fantasy is that we have, as the Government insists on saying over and over again, a voluntarist system, that is, a system whereby that employers and employees are equal and agree freely to enter or not to enter into contracts or employment.
Behind the technical definitions, legal interpretations and judgment in the Zalewski case that we are legislating for is a simple and stark fact. A security worker was the victim of an unfair dismissal. His employer did not bother to have witnesses show up but a judgment was issued anyway. It was only because he and his legal team pursued the case that it went any further. The case shows what many workers experience at the WRC and elsewhere. It is not justice, fairness or vindication of their rights but a confusing and heavily unbalanced system which rewards the action of employers who drag out the process and hope that workers who do not have matching resources will give up or move on. In this case, the adjudicator's decision made reference to documents and written evidence from the employer which the worker had not seen or been given.
Unfortunately, I do not believe that Mr. Zalewski's experience was a one-off or particularly unusual. Many workers have had similar experiences in these forums whereby a process is dragged out by employers, appeals are left to the last minute, IBEC hires and sponsors lawyers and legal experts are used. The cost, the length of time it takes and the entire process militates against workers taking cases.
There is also the arbitrary nature of awards. Workers do not know if they will be awarded €1,000, €5,000 or €10,000 if they are successful. That militates against workers taking an action. In many cases, workers find it difficult, even when they have a decision in their favour, to have it enforced. We should provide free legal aid for workers to take cases to the District Court for them to be enforced. There is also the question of unfair dismissal for complaints relating to health and safety. It is clearly against the law but if someone has not been working there for 12 months, they will not be able to take a case and get justice.
Far from the fantasy of a system based on equal power between workers and employers, this case is an example of the imbalance between the two. The system is based on that inequality of power and it reflects wider issues about workers' rights and the lack of them in this country. There is the lack of a right to union recognition or to have a union representative in the workplace to fight for workers' rights. There are anti-union laws - I refer to the Industrial Relations Acts - which must be repealed. These are laws which were copied and pasted, in large part, from Thatcher's laws. There are also laws against solidarity and secondary picketing. The entire industrial relations machinery in this State is designed to give employers the upper hand in dealing with workers. The odds are heavily stacked against workers. That is what a voluntarist system means. It is effectively a free-for-all for employers.
The results of that deliberate policy can be seen everywhere. Ireland will rank at the bottom of almost every indicator for workers' rights across Europe. It is seen in the prevalence of low pay, the growth of precarious employment, the widespread abuse of migrant labour and young workers, the spread of bogus self-employment to evade paying sick pay, pension or other entitlements, the attacks on pension rights and defined benefits schemes and the absence of a statutory sick pay scheme. Ireland is one of five countries in the EU without such a scheme. We have been presented with a very weak proposal from the Government, which is too little, too late, the purpose of which is to address this matter in the aftermath of Covid shedding a light on it. We are close to the bottom of the table in terms of annual leave and public holidays.
I do not believe this Bill adequately addresses the systemic issues and problems faced by workers seeking justice. I have concerns, given the unequal and severely unbalanced system we have, about the measure, which I agree with in general, introducing a fine for giving false evidence. In a scenario where evidence is disputed and there are two contradictory statements of fact by the employer and the worker, I fear that such a measure could be used to say to the worker that if he or she takes a case and it is not found in his or her favour, he or she could face a fine of up to €100,000 and a possible prison sentence of ten years. It could be used to intimidate workers from taking cases. We will have to watch carefully for that and react if it happens.
I will make a point on the under-resourcing of the WRC, especially on the inspections side. Since 2016, it was agreed as part of a national pay deal that the number of inspectors would increase to 90. As of 1 May 2021, there are 53 inspectors. While workers' representatives, unions and most of society knows there has been a rapid increase in the abuses of workers rights, the State has not bothered to increase or even achieve the agreed level of workplace inspectors. That was highlighted, above all, in the meat plants, where the Government turned a conscious blind eye to what was happening. It accused those of us who raised concerns of slandering the meat factory owners and the inspections came very late. The fact the WRC has detected breaches in more than one third of its investigations tell us that, if more inspections took place, we would uncover significantly more breaches. Almost 36% found breaches by employers regarding non-payment of the minimum wage, employment permits, protection of young persons, annual leave and public holiday entitlements and unpaid wages. Sectors such as food and drink, retail, wholesale, hair and beauty and construction have seen consistent breaches of employment law in recent years.
I refer to the allegations made by George McLoughlin, a former inspector with the forerunner to the WRC. The allegations are extremely serious. I have spoken to him. He is not making wild allegations that are not backed up with documentary evidence. In an observation to Village magazine, he said-----
[T]he proper work of the labour inspectorate in ensuring that employers in low-pay sectors of the economy comply with the state’s most basic employment rights legislation is being deliberately undermined by a management that sees its [primary] function as facilitating some employers in circumventing the very legislation they are supposed to be enforcing thereby leaving vulnerable workers at the mercy of unscrupulous employers.
This is something to which the Government has not responded properly. The individual in question has made two protected disclosures at this point.
We need more inspectors. That is the bottom line. We also need a thorough shake-up of the entire industrial relations system. The development that will make the greatest difference to workers' rights is the growth of fighting trade unions that will represent and fight for their members' rights. Ultimately, the right to join and be represented by a union of one's choice is the only real safeguard on which workers can rely.
One of the main functions of the Workplace Relations Act 2015 was to establish the Workplace Relations Commission. Some of the functions of the commission are to promote the improvement of workplace relations and maintenance of good workplace relations, promote and encourage compliance with the relevant laws, provide guidance on compliance with codes of practice, conduct reviews of, and monitor, developments in regard to workplace relations, conduct or commission relevant research, provide advice, information and the findings of research to joint labour committees and joint industrial councils, advise the Minister for Enterprise, Trade and Employment on the application of, and compliance with, relevant laws, and provide information to the public on employment laws other than the Employment Equality Act 1998.
Reading through those functions, it seems clear, unfortunately, that we must prepare ourselves for the potential for the commission to become very busy with Covid-related employment issues. Covid-19 has created a unique scenario of unprecedented unemployment, State supports and workplace policies and procedures. Ultimately, I believe it will lead to unprecedented levels of workplace disputes. We must prepare for that, which means we must ensure the Workplace Relations Act is updated to address as many anomalies as possible. That seems to be the main aim of the amending Bill we are considering today.
I have taken advice on the proposed amendments set out in the Bill. It is vital, of course, that our employment-related laws are up to date and allow, as far as possible, for justice to be done in respect of workplace relations matters. We must ensure we have robust and fair procedures in place for employers and employees. One of the key changes contained in the Bill is a provision to allow evidence to be taken under oath. This is necessary where there is a conflict in evidence that is central to the case at hand. Currently, we have a situation where some employment laws provide that evidence may be taken on oath and some do not. Hence the requirement for the Workplace Relations Act to be brought into line with many other employment-related laws. This change is desirable because evidence taken on oath carries more weight and, if found to be false, leaves the person uttering the falsehood open to prosecution for perjury. Obviously, we want evidence given to be truthful. It is one of the principles on which our justice system relies. It follows logically that there must be some punishment, or potential punishment, for those who give false or untruthful evidence. Therefore, providing for evidence to be given under oath is helpful and welcome. Providing substantial punishments for those who commit perjury in workplace relations hearings is also welcome.
The Bill also contains a provision to allow hearings to be heard in public. To date, the WRC adjudication hearings have taken place otherwise than in public. As justice needs to be seen to be done, this amendment is desirable. The obvious concern is that anonymity goes out the door for the parties involved. It should be noted, however, that it is currently common for parties to be identified even where hearings do not take place in public. There is no provision in place to protect anonymity should it be necessary, given the circumstances, to do so. It is not suitable or proper for a one-size-fits-all approach to be taken when it comes to public hearings. I support the provision for appropriate cases to be heard in camerawhere that is necessary to protect a lawful and vital interest of a party or parties involved in the proceedings.
The experts in the field with whom I have discussed the Bill have suggested a number of provisions that were not included. Perhaps the Minister of State will take those suggestions on board and consider amending the Bill to include them. It was raised that external adjudication officers are currently, subject to the revocation provision, in role for life if they so wish. It was suggested that there should be a provision for three-year to five-year terms of appointment and that no officer would hold office for more than two terms. It is reported to me that many of the existing adjudicators are double-jobbing in that they are in the business of HR advisory and similar fields, as part of which they advise employers and employees on how to make a claim to the WRC. No adjudicator should be allowed to perform that type of advisory role. It is imperative for the future that adjudicators sign a declaration to say they will not directly or indirectly advise either employers or employees on taking WRC claims. As they will now be performing a judicial function, it would equally be completely unacceptable for a High Court judge to advise anyone to take a High Court claim.
The WRC was set up to eliminate the costs associated with court hearings. In a post-Covid era, it will be possible to continue arrangements for remote attendance and hearings. To facilitate this further, the director general should be given the power to decide whether a hearing is required or if a case be dealt with on submissions only. As it stands, the latter can only happen if both sides consent to it and subject to fair practice and procedures being in place. The director general can hear any objections raised but should ultimately be able to make a decision to the contrary, thereby saving time and money not just for the State but also for employers and employees. This would be mostly relevant to minor disputes such as cases based on payment calculations. Equally, all claimants would retain the right to be referred to the Labour Court in any case. These are practical measures to ensure costs are kept to a minimum and claims can be dealt with faster, thus saving the State, employers and employees money on all fronts.
Overall, I welcome the Bill and will support it. It is important that there be punishments for giving false evidence. Workplace disputes and cases can have serious impacts on businesses' and employees' future prospects. It is important, therefore, that there be laws in place to discourage the giving of false witness and encourage truthfulness. Openness and transparency are also very important when it comes to justice, but with important provisions for privacy where it is absolutely necessary to protect those involved.
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.
It would not be the first time I wandered but the Ceann Comhairle might bear with me because I was angered greatly by the Member from People Before Profit making that statement and not coming back here. It does relate to workers' rights and workers being treated badly. I do not mind. We all say things here for which we might have to make an apology. I would certainly do so if I said so but it was very wrong to do that. I had been talking to individual owners of trawlers and the Irish South and West Fish Producers Organisation, whose CEO, Patrick Murphy, had contacted me to try to rectify that situation and the wrongs done to foreign workers on their fishing vessels. Then I heard the complete opposite, as if it was the fishermen and owners of the trawlers who were committing these wrongs, which is totally untrue and unfair.
I will not take up all my time because I might wander a bit more. I will support this Bill and any laws that will strengthen the rights of the worker in a fair way. However, we must always remember when we pick on anyone, it is always the employer, who cannot take much more pressure because they are under severe pressure with payments and are trying to be as fair to workers as they possibly can. We must find a very fair balance here. The Government and the Rural Independent Group will work together to try to find that in the amendments we have put forward to find a fair balance.
I am glad to have the opportunity to contribute to the debate on this Bill. Regarding the comments on balance in terms of tribunals, it has been my experience that the balance is very much in favour of employers when one looks at the amount of suits they have going into hearings, while workers very often cannot afford that. It is a very unbalanced situation and we need to do everything we can to balance that up.
It is interesting that this Bill comes from a Supreme Court judgment. Overall, I believe that it is a useful judgment that protects the rights of individuals. Although it may be bizarre for me to say this, I believe it is I believe going to protect and help employers as well. I will talk more about that later.
This Bill arises from a case that was taken in the Supreme Court by a person who felt that he was mistreated by the Workplace Relations Commission. When one reads the facts of the case and how it arrived in the court, there is no doubt but that he was mistreated. This also needs to be rectified. It is not legislation that will rectify this rather it will be fair procedures in the commission to make sure that does not happen again. I hope that will take place as well because it was a bad mistake. It has given rise, however, to a useful judgment that will correct that as well.
In its judgment, the court found, and rightly so, that the commission's business had to be conducted in public like all administration of justice in the State. It should be a basic principle that all proceedings should be in public. Justice should be seen to be done. Article 6 of the European Convention on Human Rights, which states that in the determination of his or her civil rights and obligations, everyone is entitled to a fair and public hearing, is telling and should guide all that the State does.
It may cause some people difficulty, in that they are held in public but on balance, it is right that they should be in public.
In reality, most cases will not attract attention anyway, and the novelty of a public hearing will soon wear off. I think there is another reason that hearings should be held in public, which is that it will force employers to participate in proceedings. I have heard anecdotally, I admit that it therefore may not be strictly true, that employers view the tribunal as having an employee bias. Therefore, they decide not bother to turn up and choose to take the hit of a negative outcome. I have heard that on a number of different occasions. It undermines the role of the tribunal itself, as well as affecting employers. It allows those making spurious claims to get away with it because employers just decide to take the hit and get on with it. It also prevents employers being scrutinised. If they do not participate, the tribunal cannot look into how they are behaving and force them to change their procedures and behaviour. Perhaps that is why they choose not to participate.
That kind of rationale is highly negative and undermines the whole system. I believe, from my experience, that if employers have dealt with a person fairly and they are represented at the hearing, they will get a fair hearing. In reality, it is because employers did not follow their own rules and procedures that they have a case adjudicated against them. Therefore, employers should be exposed to the public if they do not follow their own procedures or do not follow fair procedure and workers should benefit from that.
I have been at what used to be known as the Employment Appeals Tribunal a few times, mostly representing workers and getting their entitlements for them, and once as an employer. Therefore, I have seen it from both sides. I believe that the giving of evidence under oath is necessary and should be required. That requirement was removed for the Workplace Relations Commission by the 2015 Act. I am not sure why it happened; perhaps it was an oversight. If it was an oversight, I am glad to see that it has been reintroduced. Perhaps it was not an oversight and there was a rationale behind it. I do not know what that rationale could have been but it did not help employees.
In general, the tribunal is the only time that most employees attend a court or find themselves in a court-type situation. The requirement to give evidence under oath would underline that fact. Employers would find it more difficult to give evidence under oath, particularly when they are mostly in breach of the rules of procedure and fair play and are trying to defend that.
The additional power included in the Bill to remove the power of removal of inspectors from the Department is also welcome. It is not to say that it has happened but the appearance of independence is very important. The possibility of an inspector thinking about his or her position in making a decision is real if the power is left as is.
Sadly, employees should not generally have to take a case to the commission. Nevertheless, the commission needs to be part of the system. It may be unrealistic but I hope that in the future, it might not need to be used if employers deal with their employees properly.
There is another issue that needs to be addressed. Perhaps it is being addressed now. I am aware of instances where the employee won their case at the WRC and the employer appealed it to the courts. Subsequently, the employee was unable to get representation and the employer won the case by default. That is wrong. There must be a balancing of resources. If an employer has the resources goes to court, the chances are that they will win by default. I am not sure how employees can be protected against that. Perhaps the introduction of a blanket entitlement to representation at the point at which a case gets to court would be useful. I take on board the points made by Members earlier about how employees need representation at tribunals. I think the unions do a very good job. That is the type of representation that employees need at that point. However, when an employer decides to lodge an appeal with the court, there must be a balancing of the situation. Employees need access to legal representation in that situation. I know that if the employee is represented by a union that the union might provide that legal representation. When I have represented workers at tribunals, they have been in non-unionised employment. In some cases unions will not represent these workers. The vast majority of workers in Ireland are in non-unionised employment. That is a problem that will be dealt with another day. It is important that employees have access to that representation. I have engaged with employers and employees. When an employee's case goes to court, they do not know what to do. They are left behind and they lose their case. That needs to be dealt with.
Overall, the Bill will make things better all around for employees and that is to be welcomed. If employers embraced the procedures and treated their workers fairly in the first place, they would not end up at a tribunal. In cases where they do end up at a tribunal, the suggestion that they do not turn up, having decided to take the hit, is wrong. Employers must address that. If they do attend the tribunal, they will find that it is very fair and gives a fair hearing to all parties. When a party loses a case, it is because they deserve to do so.
I thank all the Members for their contributions today. I thank the Deputies for their general support of the Bill, their recognition of the urgency to pass it and their co-operation in that regard. Some of the issues raised probably are not the most directly urgent in respect of the Supreme Court judgment but I will certainly follow up on them. I will respond to Members in writing. Deputy Pringle was the second Deputy to raise the issue of access to legal representation for employees in cases that are appealed to the courts. I will look into it to determine if there is some way to facilitate and assist with legal costs for the employee, when an employer has appealed the finding of the tribunal. I agree with the Deputy that when the unions are involved they should be able to use their resources to assist with legal representation. However, in some cases, it is not an option. I will certainly look into it, to see if we can do something in that space. It is not necessarily within the remit of my Department, but I will look at it across the system.
As I have set out, the purpose of this short Bill is to ensure the matters of immediate concern identified by the Supreme Court in its majority decision are dealt with. That is something that we are doing and we will do it as quickly as possible. As has already been discussed here today, the WRC's adjudication service is unable to proceed with cases where material facts are in dispute due to the fact that it does not have the required statutory power to administer an oath or affirmation. This is having a very real and substantial impact on those who wish to have their cases heard by an adjudicator in the WRC at present. All Members present want that issue to be addressed as quickly as possible to enable the WRC to hear cases, settle disputes and build on its track record of delivering a fair, simple, cost-effective and user-friendly service for employers and employees in the State.
A few common issues were raised by the Deputies. One concerned the backlog of cases. As I have already set out, it is critical that we deliver this legislation to give effect to the Supreme Court decision. For information, the WRC is continuing to schedule cases. I am informed that of the 1,601 hearings scheduled from 6 April to 22 June 2021, under 20% have been adjourned due to the adjudication officer concluding that it is necessary to adjourn to facilitate an oath or affirmation to be administered. Some hearings are still proceeding but there is a high number of adjournments. Therefore, we need to address it urgently.
There are a range of outcomes that may arise when hearings are scheduled. Proceedings may be postponed prior to the hearing date, the hearing may be completed, the issues may be case managed to reduce the matters to be dealt with if proceedings are adjourned or the case may be part-heard, requiring it to be rescheduled later. Settlement may also be reached prior to, or during the hearing. Deputy Catherine Murphy raised the issue of mediation. I will come back to her with the details of the cases involved. Given the public aspect of hearings, some participants might want to go back to mediation. That is something I will look at with a view to bringing some clarity on the issue.
On the public aspect of the hearings, I am aware that amendments are being tabled by Deputy O'Reilly and others. We will tease through the issues on Committee Stage. We have tried to accommodate various perspectives as best as possible. Perhaps it might be best to put the amendments into the regulations and guidelines. We must honour the clear ruling of the Supreme Court in this regard. I appreciate the amendments that are being put forward by the Members. We will look at them with a view to striking a balance. If we do not feel that we can include them in the legislation, we will be able to include them in regulations and guidelines to ensure that the adjudicators understand that in many cases, participants, by agreement, may want to have private hearings. We must try to do this as best we can.
On the defence of perjury, I appreciate that there has been some disquiet about this provision. However, the recognition that perjury is a serious offence is about ensuring there is a protection the administration of justice. Fraudulent claims affect reputations, cost both parties to a dispute money and time and undermine the laws that are designed to protect us all. I believe it is a matter of huge public importance to the victims of perjury that there at least be some penalty for those who attempt to inflict injustice on them. Clear statutory penalties will act as both a deterrent for the act of perjury and be significantly punitive to reflect the substantial effect that perjury can have. This offence has been aligned with the horizontal offence of perjury that already extends its scope to adjudicator hearings pursuant to the Criminal Justice (Perjury and Related Offences) Act 2021, which was passed in June. Deputy Ó Ríordáin referred to that but he may have missed a part of my speech. I referred to it and noted the legislation has been updated to reflect the legislation that was passed last week. I wish to highlight that when we engaged with committee members on the issue and in respect of Deputy O'Reilly's Bill, that legislation had not yet been passed and that piece was not included in it. Lest Deputies think we are trying to pull a fast one, we are not. We had to update the Bill to reflect the updated legislation that had been passed.
I have dealt with the issue of private hearings. We can address the issues on Committee Stage and discuss them with Members.
Members raised a few other issues in their contributions and I will revert to them directly to tease through them. I am happy to do so before Committee Stage next week, if we can.