Damien English (Meath West, Fine Gael) | Oireachtas source

I am pleased to introduce the Bill for the consideration of the House. I propose, first, to summarise the background and context of the Bill, the basic aim of which is to ensure 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 this year, the majority judgment of the Supreme Court in the Zalewski case overturned the judgment of the High Court, which had found that the Workplace Relations Commission’s, WRC, adjudication service was not administering justice within the meaning of Article 34 of the Constitution. The seven judges of the Supreme Court agreed 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 the administration of justice was limited and, therefore, permissible under Article 37. The limited nature is due to the fact 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 this 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. However, separately, the Supreme Court also determined two aspects of the 2015 Act are, in fact, incompatible with the Constitution. First, the court found 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 the court held was the absence of a statutory provision for the administration of an oath, and any possibility of punishment for perjury, 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 3 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 the commission’s adjudication service is permissible under Article 37 of the Constitution. Accordingly, the provision has been remedied in this draft Bill to ensure 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 their functions.This will require amendments to the Industrial Relations Acts, 1946 and 1969.

As the declarations of the court have immediate effect, the WRC's adjudication service has been 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 Employment (Employers' Insolvency) Act 1984, the Unfair Dismissals Act 1977 and the Redundancy Payments Act 1967. These separate Acts contain stand-alone provisions relating to proceedings before the director general or adjudication officer. We have to make changes to them.

My officials have successfully concluded a consultation with the Data Protection Commissioner, in accordance with section 84(12) of the Data Protection Act. This consultation was required as aspects of the Bill involve the processing of personal information.

I am also grateful that the genuine urgency to address this Bill was recognised on a cross-party basis by the members of the joint Oireachtas committee who agreed to waive the requirement for pre-legislative scrutiny on the Bill. I would like place on the record my appreciation for the collegial and productive engagements both I and my officials have had with the members of the joint committee. It is something that we can also benefit from in the future.

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 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 why, once the legislation has been commenced, my Department will convene an internal review group consisting of officials with policy responsibility of the various bodes and agencies that 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. If any issues are raised, we can discuss them with the members of the committee. The most urgent part of the legislation is what we had to get done, if at all possible, this week.

I will now outline the principal provisions. 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 2015 Act. The purpose of the amendment to is to provide for a fair procedure for the revocation of an adjudicator's warrant.

Section 4 contains an amendment of section 41 of the 2015 Act. In respect of the provision in section 41(13), 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 the either party can make an application to the adjudicator, but also provides the adjudicator with discretion to enquire 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 will be held in public. That is an issue of particular concern, so I want to be very clear that either party can make the case to have proceedings held in private if they believe that it is justifiable, but the adjudication officer can also make his or her own decision in that respect. Therefore, it is open to either party.

In respect of the proposed substitution of section 41(14), while the judgment of the court did not address the issue of automatic anonymisation, which is currently provided for in the subsection, 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. Section 41(14)(b) provides an adjudication officer with theviresto 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 perjury. The amendment to section 41(12) introduces the statutory power for the administration of oaths or 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) Bill 2018, enacted on 21 June this year.

Section 5 provides for an amendment of section 43 of the Act of 2015. The purpose of the amendment is to strengthen the rights of employers in matters relating to the enforcement of decisions of adjudication officers in the District Court.

Section 6 provides for 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 that is provided for in the Criminal Justice (Perjury and Related Offences) Act 2021.

Section 7 provides for an amendment of section 39 of the Redundancy Payments Act 1967 concerning proceedings in public and the administration of an oath or affirmation.

Section 8 provides for an amendment of section 4 of the Industrial Relations Act 1969. The purpose of the 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 of 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 for an amendment of 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 WRC Act, a regulation-making power has been inserted, empowering the Minister to make provision in respect of any matter relating to the presentation, referral or hearing of a complaint under section 9 of the 1984 Act, as 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 the 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 of the legislation. The review is to take place no later than 12 months after the Bill has been commenced. That provision has been made in conjunction with the recommendation of the committee members. We are conscious that this legislation has been rushed through and we had to skip pre-legislative scrutiny. Therefore, it is important that we commit, in the Bill, to undertaking a review within 12 months of its commencement. We are happy to do that and to engage with all the relevant stakeholders and Members as we do so.

Section 14 introduces a Short Title and provides for commencement.

I commend the Bill to the House.