David Norris (Independent) | Oireachtas source

The introduction of a fee for lodging a complaint will act as a barrier to many low paid workers, of whom a proportion are migrant workers, and will serve as a disincentive to those who are already concerned about the risk of taking a case. A migrant worker who was not paid his or her wages or a person with a disability who was denied access to employment may have no other income or may be relying on social welfare payments. The imposition of a fee may make the pursuit of justice an unaffordable and impossible goal. For that reason, section 72 should be deleted. My colleague, Senator Craughwell, quoted extensively from the note circulated to us by Ms Esther Lynch. The figures are extraordinary.There has been a 79% fall in overall claims, a 70% reduction in the number of workers pursuing non-payment of the national minimum wage, and an 85% drop in claims for unpaid wages and holiday pay. These are horrifying figures and should inform our consideration of legislation whose purpose is to facilitate people to make complaints. The Minister has said he is not considering the introduction of fees. Why then is provision made, in section 72, for a mechanism to permit such charging? The provision is not needed if there is no intention to introduce fees.

I also received a briefing from the Irish Nurses and Midwives Organisation, INMO, which makes a series of valid points for the removal of section 72 altogether. If fees were introduced, it would be very difficult for employees to pursue their domestic legal rights and, by extension, to have rights derived from EU legislation enforced. We are not talking just talking domestic Irish law, in other words, but also concomitant legislation from the EU. The Government position on this section is that it will not be actioned in the first instance, but there remains an allowance for its imposition at some later stage. Again I ask what is the purpose of retaining this provision if there is no intention to activate it? It is the ICTU's position that imposing a fee to pursue legal rights should be never necessary and, therefore, this section should be removed.

There have been suggestions that a fee might be required to compel employers to attend hearings. In reality, employment rights cases may be decided on in the absence of the employer and enforced at the District Court. It is not necessary, therefore, to compel employers to attend. If they do not turn up, it is hard luck and they probably will find the case decided against them. The introduction of a fee penalty will not influence the decision to attend one way or the other. It is now being suggested that the provision could be amended to allow for the imposition of a fee only where employers seek to appeal a decision having not attended the first-instance hearing. Again, such a mechanism would allow the introduction of fees to a system where they currently do not apply and would not act as a deterrent to the practice referred to given that employers have indemnification in place to cover such costs. One can impose a fee on them, but somebody else will pay it. It will not be paid by the person exhibiting bad faith.

If any fee, for any reason, is introduced at this stage, it will be used to open the door for expansion of the relevant provision at a later stage. To put this in context, the INMO advised on 600 employment rights cases last year. Some were settled, but many were referred to the Rights Commissioner Service. These were ordinary workers, including nurses in the private and public sectors, seeking such rights as access to pay slips, payment of wages on time, correct rest periods, redundancy benefits, protection of employment while on maternity leave and so on. In other words, they were standard, run of the mill cases. The salary for a nurse is very modest, at €27,000 for a first-year staff post, and does not allow much scope for paying fees to establish one's existing rights. Why should people be penalised by having to pay for the establishment of these rights? Employers, on the other hand, will not be concerned by a fee as most have insurance schemes to cover the additional costs.

The introduction of a fee to pursue legal rights will impose a very real impediment to the securing of the basic right to a fair and equal system for workers. That would be a very negative change to what is currently a fair and equal mechanism for allowing employees to have their case heard on an equal footing. Section 72 provides the legal basis for introducing a fee for making a complaint and is unacceptable. According to the ICTU, the experience of its trade union colleagues in the United Kingdom is that "fees price justice out of the hands of workers". That is a very stark phrase and we in this House should take heed of it in the context of our duty to ensure justice for workers. I am certain that is likewise the Minister's intention. If he does not intend to introduce fees, why is the provision included? I have already noted the figures showing a 79% fall in overall claims taken to employment tribunals, with women and low-paid workers the worst affected. The ICTU describes this as a "bonanza" for the worst employers, who cheat workers out of their wages. This is the verdict of a trade union which is dealing with these issues all the time.

The situation is quite clear. One of the most striking points in the ICTU's document is the warning that employers will not be affected by this provision at all because they already have insurance to cover them. If they are charged fees, those fees will be paid by a third party. The provision is ridiculous and farcical. There is no reason whatever to retain section 72.