Derek McDowell (Labour)

I move amendment No. 51:

"In page 11, before section 13, to insert the following new section:

13.—(1) An employer shall not do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being in relation to the performing of his or her functions as an employee representative in accordance with this Act.

(2) An employee representative shall be afforded any reasonable facilities, including paid time off, that will enable him or her to perform his or her functions as employees' representative promptly and efficiently. Employee representatives will also, subject to the provisions of section 14, have the facility to avail of the assistance of experts and such experts may accompany the employee representative to meetings of the employee forum when requested. Following the passing of this Act and no later than six months following its enactment, the Minister following consultations with representatives of employers and workers will make regulations setting out the minimum facilities to be afforded to employee representatives by their employers.

(3) An employee, a trade union, an excepted body on behalf or with the consent of the employee may present a compliant to a Rights Commissioner that the employer has contravened subsection (1) in relation to an employee.

(4) A complaint under subsection (3) shall be presented by giving notice of it in writing to a Rights Commissioner.

(5) Where a complaint is presented to a Rights Commissioner under subsection (4) the Rights Commissioner shall

(a) give the parties an opportunity to be heard and to present any evidence relevant to the complaint;

(b) give a decision in writing in relation to the complaint;

(c) communicate the decision to the parties; and

(d) furnish the Court with a copy of the decision.

(6) A decision of a Rights Commissioner under subsection (5) shall do one or more of the following:

(a) declare that the complaint is or, as the case may be, is not well founded;

(b) direct that the conduct, the subject of the complaint cease;

(c) require the respondent to take such action as in the opinion of the Rights Commissioner is just and equitable in the circumstances and which may include the payment to the complainant of compensation of such amount which in the opinion of the Rights Commissioner is just and equitable but not exceeding 2 years remuneration in respect of the employee's employment.

(7) A complaint under this section may not be presented to a Rights Commissioner after the end of the period of 6 months from the occurrence or, as the case may require, the most recent occurrence of the conduct to which the complaint relates.

(8) Notwithstanding subsection (6), a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (6) but not later than 6 months after such expiration, if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

(9) Proceedings under this section before a Rights Commissioner shall be conducted otherwise than in public.

(10) A Rights Commissioner shall maintain a register of all decisions made by him or her under this section and shall make the register available for inspection by members of the public during normal office hours.

(11) A party concerned may appeal to the Court a decision of a Rights Commissioner under section 5 and if the party does so, the Court shall

(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(b) make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and

(c) communicate the determination to the parties.".

This amendment rewrites section 13 but retains the bulk of what is included therein. I will point out the major changes proposed. The amendment includes the word "paid" before "time off". This section obliges employers to give employee representatives time off to discharge their duties and to attend meetings. It is useful to clarify that any time off which employees might get would be paid and replace the phrase "time off" with "paid time off".

The amendment also seeks to expand on the reasonable facilities and help that may be provided to representatives in order to assist them discharge their responsibilities under the Act. The amendment states employee representatives should be able "to avail of the assistance of experts and such experts may accompany the employee representative to meetings of the employee forum when requested". This touches on another issue we discussed earlier. We strongly feel that employee representatives should be entitled to avail of expert assistance. Let us be blunt and straight up on this and state that in some cases that would involve the assistance of trade unions or assistance provided by trade unions, be they accountants or otherwise. It is unreasonable to insist, as the construction of the Bill does, that employees from a particular workplace would be required to attend meetings blind and without assistance. In many cases, they will not have the expertise to make sense of lists of figures regarding profitability and so on. It is important that employees representatives be given the facility of bringing experts with them, for example, to any meetings which might take place in the context of this consultation.

We also thought it was appropriate to expand a little further on the redress that might be available in cases of victimisation. The section states that individual workers who are party to this process should not be victimised but it does not go on to say what will happen in circumstances where there is a complaint. In subsections (5) and (6) we have set out a mechanism whereby a complaint can be made to a rights commissioner who, in turn, can make a recommendation. The Minister of State may respond that the existing legislation already provides for a mechanism in case of victimisation. We would be happy to see that replicated, as we felt it might be necessary to put it into this Bill. However, if the Minister of State can assure me that those provisions will apply in cases of victimisation under this Bill, well and good.