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

For the purposes of today's discussions, because I am conscious that not everybody was in the room when we discussed during the week, I will set out exactly what is in section 4, as well as the amendments being put forward.

Section 4 contains an amendment of section 41 of the Workplace Relations Act 2015, in respect of the provision in section 41(13) of that Act. It currently provides that "Proceedings under this section before an adjudication officer shall be conducted otherwise than in public". The court held, in paragraph 148 of its judgment:

It is appropriate to declare [section 41(13)] repugnant to the Constitution. The effect is that the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public.

This is Supreme Court decision is telling us this has to be done in public, as routine. However, we are then allowing for a decision to made by the adjudication officer to do some of this work in private when it is justified. The proposed amendment refers to the adjudication officer to whom a complaint of dispute has been referred. In response to Senator Buttimer, the chair of the WRC will assign a case to the adjudication officer. There is an issue in relation to their qualifications and independence that we will deal with again. I did touch on it but for now, we must get the law right. We will come back to the qualifications and independence. However, there is a procedure they have to go through to be appointed in the first place. It is accepted that the majority of adjudication officers are fit to do their job. We will strengthen the work around that as well. Therefore, they are assigned the case. In previous discussions in the other House, there was a Sinn Féin amendment on an appeal mechanism. We had a fair discussion on this. I understand what was behind it but when one assigns the case to an adjudication officer, he or she is the judge. One would not necessarily appeal it back to the chair, who would not have heard the case in the first place.

There is the option to appeal outside the WRC to the Labour Court and to the District Court. There are other appeal mechanisms already in place if someone is unhappy with a decision. In that regard, the adjudication officer to whom a complaint or dispute has been referred will have discretion 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 case or in the interests of justice. Therefore, the discretion is there to make such a direction. The default position in respect of such proceedings is that they would be held in public. Pursuant to this provision, the adjudication officer can make the determination of his or own motion but this does not exclude parties to complaint or dispute applying to the adjudication officer to have the whole or part of the proceedings held in private.

In respect of the proposed substitution of section 14(14), while the judgment of the court does not address the issue of automatic anonymisation, which is currently provided for in section 14, it is the Department's view, supported by strong legal advice, that maintaining policy of anonymisation of all published decisions is contrary to the requirement that justice be administered in public. It does not mean that we cannot do that in certain cases, however, which is what Senator Gavan is asking for. We are at one here. We both agree there has to be discretion to allow for anonymisation at the appropriate time. That is allowed for. That is why we do not need to take Senator Gavan's amendment.

The proposed section 14(14)(b) provides that an adjudication officer with the powers to effectively direct a commission, if he or she is satisfied that special circumstances exist, not to name parties in the published decision. It is already there in the draft legislation that I am putting forward. I know that Senator Gavan is bringing forward the amendment in good faith. I say to him, in good faith, it is already allowed for. I want to be clear on that. Again, the regulations and guidance will inform the work of the adjudication officer in this space.

I am happy to share draft regulations and guidance with everybody in this House to get their views and to make sure that it is strengthened. Senator Gavan's concern in his second contribution was that, against the wishes of the person, he or she would be forced to be in public. It is the Supreme Court who has made the decision that it has to be in public as the default position. That is in our Constitution. But we will allow, when it is right to do so, to have it anonymised and in private. To be clear, justice is based on respect of the rights of every individual. I know that both Houses in which we operate recognise that access to justice is indispensable for every democratic state that is rooted in the principles of the rule of law, human rights and democracy.Our system is based on the right of individuals to take a case against an employer whom they believe has violated a right. I said last week that everybody should be encouraged to discuss this in public or private and have his or her rights honoured. We believe that for a violation of a right to be decided upon, fair procedures have to be adhered to. That is what the Supreme Court is judged on. We have to put in place procedures to ensure justice is administered fairly.

It should not be stated that because an employee is taking a claim against an employer, he or she should be criticised for exercising that right. I am concerned about the assumptions made in both Houses that an employer will judge a potential employee badly if he or she pursued his or her rights. In this country, people are entitled to pursue their rights, so we should not assume employers will regard this as negative. It is an unfair assertion. I would be concerned about the tone of it because it does not reflect how the justice system is meant to work. We should not be assuming employers will have a negative view. There should not be any statutory statement relying on a feeling that employers, as a rule, view all employees who exercise their fundamental rights as troublemakers. Doing so is not fair or right and it does not truly represent what happens in this scenario. I understand some individuals have concerns. They will be able to make their case to the adjudication officer. We should not be assuming that what I have described presents a difficulty in all scenarios.

The provisions of this Bill already provide for discretion regarding how anonymisation is to be addressed when the circumstances so require it and are justified. I am aware Senators are genuinely anxious about this area so I want to ensure the WRC can proceed with its important work. It is important we pass the legislation. Since the Senators have concerns, we have agreed, in conjunction with the committee members on a cross-party basis, that we will review the legislation within 12 months.

I do not see the benefit in accepting this amendment because it would open the door to a new challenge in the superior courts. That is not what we want. We want to be able to copper-fasten the work of the WRC, which is well recognised. The legislation of 2015 will be recognised by the Supreme Court, as will changes to ensure justice is administered in public. That is what we are trying to achieve here. The officials in the Department have done a lot of work in the past couple of weeks to try to ensure as best we can in legislation that the WRC will be able to continue with its great work and deal with the cases in the system while recognising the need to do this in public in most cases.