Malcolm Byrne (Fianna Fail) | Oireachtas source

Like colleagues, I welcome the Bill Senator Ruane has introduced. I support the principle behind it and am glad the Government is not opposing it. As has been outlined, there is a place for non-disclosure agreements. They were originally intended to cover areas involving commercial sensitivities, trade secrets and intellectual property. These must be protected. That makes sense. These agreements, however, should never be used in a way that is designed to protect the perpetrators of harassment or discrimination. I would extend these provisions beyond sexual discrimination to discrimination on the basis of race, sexual orientation and disability. Where there is an attempt to cover up something which, in normal circumstances, would not be permitted, non-disclosure agreements, NDAs, should not be entered into.

We know that simply enacting this legislation will not get rid of discrimination and harassment in the workplace and in wider society but it will at least allow us to be much more aware of the problem. We still need to have broader discussions in society and to look at training and implementing policies. It is often great for the big companies that have HR departments which can focus on these matters, but it can be a real challenge for smaller companies that do not have a HR department. An employer may only have a small number of workers and has to try to juggle everything. We still need to look at a lot more investment in training so that people can understand the challenges that exist.

This is an issue which is not only being addressed in Ireland. In the state of Victoria in Australia, a ministerial task force was established this year with the specific objective of looking at ways in which workplaces could be made safer for women. One of the areas being looked at is the area of non-disclosure agreements. In Australia, much of the learning came from the experiences of institutional abuse. There was royal commission in Australia, not dissimilar to the inquiries here, and in many cases it was found that Australian institutions got away with a great deal because they used, or misused, non-disclosure agreements. In many jurisdictions, and particularly in many of the American states, efforts are being made to introduce similar bans on non-disclosure agreements in cases of harassment and discrimination.

As colleagues said, this amending legislation is right. Our approach in all of our employment legislation must be victim-centred. We have to believe what we are being told and we have to listen to the concerns of victims. I tried to play devil's advocate with the legislation. I asked myself why an employer would try to agree an NDA and what would be the rationale behind that decision in these circumstances. The overwhelming majority of employers would be aghast at the idea of sexual discrimination or harassment. Much of it is about trying to protect the reputation of the company. That is the fear they have. They see a case arising and, although their concern and sympathy is for the victim, they realise that if they end up having to fight it, particularly in the public domain, a great risk to the reputation of the company arises.

The speed and cost of litigation are an issue. For the most part, the whole aim of litigation is to try to reach some sort of settlement. In many cases, employers take the view that, if it is easier to get something done quickly without trial by social media by coming to a settlement agreement, they will settle for that. We have got to shift that culture. We have to let employers know that, apart from the legislative perspective, it is right for them to deal with such issues in the public arena and, if cases go to court, that it will not be prohibitive for them to address the issues.

I commend the legislation, the principle of which is correct. There are some details which we can look at on Committee Stage. Non-disclosure agreements were intended for specific business purposes. They were never intended to cover up cases of harassment and discrimination. For that reason, I am glad that the Government is not opposing the Bill. I hope that we will take action and move on the principles behind the Bill as soon as possible.