Thursday, 12 July 2012
Industrial Relations (Amendment)(No. 3) Bill 2011: Committee Stage
David Cullinane (Sinn Fein)
I move amendment No. 2:
In page 6, lines 31 to 32, to delete all words from and including "and" in line 31 down to and including "so," in line 32.
These amendments are being taken together because they all deal with removing the ability of the Minister to exercise powers of discretion in a number of areas. Amendments Nos. 2 and 3 remove the discretion to refuse to make an order to confirm the terms of a wage agreement. We are of the view that the integrity and independence of the Labour Court should be protected. We do not believe the Minister should have the power to second guess anything the Labour Court, which is a statutory body, says or does. In that context, a Minister would never be given the power to set aside a decision of the Circuit Court or the District Court. The Bill states that "As soon as practicable after receipt of a copy of the agreement, the Minister shall, where he or she is satisfied that subsections (1) to (5) have 30 been complied with, and where he or she considers it appropriate to do so, by order confirm the terms of the agreement". It is our opinion that it should not be the responsibility of the Minister to decide whether it is appropriate to confirm the terms of an agreement. It is the responsibility of the Labour Court to make such decisions.
Amendments Nos. 2 and 3 also relate to removing the power of the Minister to set aside a decision of the Labour Court where "he or she considers it appropriate". As I understand it, the legislation already includes a provision under which the Minister of the day will have the power not to implement the recommendations of the court where the relevant procedures have not been followed. In light of the fact that this power already exists, we are of the view that the formula of words used in particular parts of the Bill in the context of granting to the Minister certain powers of discretion is inappropriate. It is right and proper that the Minister of the day will have the power to refuse to implement recommendations where the relevant procedures have not been followed. Under section 5, however, he or she will have the power to set aside the views of the Labour Court even where a case has been handled correctly and where consideration has been given to the competing rights and views to which the Minister, Deputy Bruton, referred earlier.
We are also of the view that this provision undermines the entire Bill, the purpose of which is to empower the Labour Court to be able to make decisions in respect of matters of this nature. The provision also has the potential to undermine the role of the court itself. There is a concern that the Minister has responded to lobbying on this matter. I am aware that some of the organisations which represent employers have been lobbying him hard in respect of it. Perhaps that is the reason the relevant provisions have been included in the Bill. I am not directing my comments in this regard at the Minister, Deputy Bruton, but if the Bill is passed, a Minister could have the ability to subvert a statutory legal body and its findings. This could set a very dangerous precedent. What is proposed does nothing to add value to the legislation. As already stated, we would not provide another Minister with the power to set aside decisions made by other courts. Why, then, should such a power be granted in this instance?
Amendments Nos. 4 and 5 deal with removing powers of discretion relating to varying the terms of wage agreements. We do not have a difficulty with the Labour Court being able to vary the terms of such agreements. Obviously, the latter is an important function of the court. However, the Minister should not be given discretionary power to set aside a decision of the court.
Amendment No. 6 deals with removing the discretion to refuse to cancel a wage agreement. That might make sense and we have no difficulty with the Labour Court having the power to remove such an agreement. The latter might, for many different reasons, be the right thing to do. We are of the opinion that responsibility for the making of decisions in this regard should rest with the Labour Court and that the Minister should not be in a position to second guess the court or to reject a recommendation it might make.
Amendment No. 12 also deals with ministerial discretion and relates to the new section 41A which is to be inserted into the 1946 Act and which refers to reviews of JLCs carried out by the Labour Court. Where the court carries out such a review, it will be obliged, under the new section 41A, to refer its recommendations to the Minister who will then make an order in respect of them. Again, the Minister is being given the power to set aside any decision reached or recommendation made by the Labour Court. We are of the view that this would not be appropriate.
Amendment No. 13 is somewhat similar to amendment No. 12, while amendment No. 17 would remove the discretion of the Minister with regard to giving effect to recommendations of the Labour Court in respect of the adoption of the proposals of a JLC. The Labour Court is an adjudicative body and we must protect its independence. If the court makes a recommendation, it is the duty and responsibility of the Minister of the day to honour and implement it. This goes to the core and logic of what the Bill should be about, which is to put in place agreements which protect some of the most vulnerable workers in this State. There is no doubt that a Minister potentially could be open to all sorts of lobbying. If the court makes a recommendation and a group, whether it represents workers or employers, decides to lobby the Minister because of his or her powers of discretion, that would be very unhelpful to the process. It would put the Minister in a very difficult situation. We believe that removing the ministerial powers of discretion would be good for the Minister and would protect the independence and integrity of the Labour Court.
The Minister referred to compliance when discussing previous amendments. We had a discussion yesterday at the Joint Committee on Jobs, Enterprise and Innovation on reforms to the employment rights bodies. We support much of what the Minister is trying to do in the area of streamlining the system and making it easier for people to make complaints. The lack of enforcement right across the board is very real and that is the reason we want to ensure that the Labour Court has the necessary powers and functions. We ask the Minister to go a step further than the recommendations he presented to the committee yesterday. From our understanding of the recommendations that were put to us yesterday, the fixed notices will not be sufficient or robust enough to deter or act as deterrent for employers who are in breach of the employment rights bodies. Yesterday, the Minister made the point that the system was clogged up with cases which have been taken by workers. The reason the system is clogged up is that many workers are being denied basic entitlements. The National Employment Rights Authority, NERA, report comments on people not having a wage slip, not being paid their holiday pay and not being paid the minimum wage. However, if an employer is brought to court, he or she is asked only to pay back what the worker is owed. There might be a small fine. The Minister has spoken about a fixed notice, but that will not act as a deterrent. It is similar to going into a shop and walking out with a basket full of groceries, but when caught offering to give back the groceries. That is what is happening in relation to the employment rights bodies.
I may be straying from the amendment, but I wanted to raise this important issue for workers. If we are trying to reform the system of JLC or employment rights bodies, the measures must be fair and also reduce the incidence of cases where workers are forced to seek redress through the courts. The reason that many are forced to seek redress through the courts is because some employers disregard employment rights and break the law. The reason they do so is that there are no real penalties or sanctions in place for doing so.
Amendments Nos. 2 to 7, inclusive, and 12, 13 and 17 relate to powers of discretion, which in this instance will be given to the Minister, but this is not personal to the current Minister, and our fear is that this could undermine the independence of the Labour Court.