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

I thank Senator Black for moving the amendment on behalf of Senator Higgins. I will not be able to accept it because we have already allowed for what it proposes in legislation. We got into this in detail earlier in the week although I am conscious that not everybody could be here. I also discussed it with colleagues in the Dáil. I gave a strong commitment on the proposed review.The amendment being put forward relates to a provision we inserted into the draft Bill following a positive and productive cross-party engagement with the members of the Oireachtas joint committee. For the information of the House, because we were asking for pre-legislative scrutiny of the Bill to be waived due to its urgency, we met members of the committee and others who were interested in the matter. We took on board their concerns and the issues they raised. One of their suggestions was that the legislation should be reviewed after 12 months. I was happy to commit to that. To be clear, I will put on the record of this House - as I put on the record of the Dáil last week - that the post-enactment review will be a fully consultative process. Anybody who wishes to get involved is welcome to do so. It will examine the implications of the new policy positions introduced in this draft Bill which, as the House will be aware, stem directly from the Supreme Court judgment in the Zalewski case. I am happy to commit again on the record of this House that the review will encompass the views of all relevant stakeholders, including groups representing service users.

However, it is important to clarify that there should be no implication whatsoever that the Bill will result in any deterrent effect. I am very concerned by the constant use of the term "chilling effect". Too many have used it in this discussion and in the discussion in the other House. To do so is almost the same as telling people that they should feel a chilling effect. This is positive legislation. We are bringing it forward to help people vindicate their rights. If we constantly say that there will be a chilling effect, we encourage people to feel such an effect and to be afraid to use the positive laws we are introducing to vindicate their rights. I am concerned about the tone and about the message that is going out. I accept that people are raising the issue in a genuine way but it sends out a message that may defeat the purpose of the new law, which is to assist people. There should never be any suggestion that employees should be negatively impacted by pursuing their right in law to pursue a case against their employer. The Bill as drafted already provides for special circumstances, to be decided on a case-by-case basis. Details may be anonymised and cases may be heard in private, where necessary. For these reasons I cannot accept this amendment.

I am somewhat baffled as to how one would carry out a meaningful assessment of something that did not happen but could have. The review can go as far as people wanted. We will review everything but it would be hard to second-guess what might have happened in a different situation. We will tease it out. While I appreciate that employee bodies and employee representatives could provide some anecdotal assessments, I am not convinced of the value of such exercise. However, I am happy to engage with everybody regarding the review. On the last occasion, I made it clear that I will talk to anybody. I have no doubt that whoever fills my job after I depart - because I will not be here forever - will also listen to anybody and go through a full consultation if it is within the 12 months. My officials are committed to getting this right. We all want to see the Workplace Relations Commission, WRC, carrying out its functions in a positive way because it is there to vindicate the rights of employees. That is what it is about. That is our goal. If the review throws up any issues, we will try to deal with them as best we possibly can in line with the Supreme Court judgment.

Over the years, trade union officials and employees themselves have told me that people will not take cases against their employers. The reason for this inaction is because people, it has been said, are afraid of the repercussions of being seen as a person who complains. These conversations took place before the Supreme Court judgment issued, at a time when all hearings were conducted in private and employment rights complaints were anonymised. I accept that disputes are never easy, but they are sometimes necessary.

We also know that, before the 2015 Act brought in by my colleague in the Labour Party which introduced private hearings, cases before the Employment Appeals Tribunal were held in public. Equality legislation, covering both workplaces and the provision of goods and services, has never provided for anonymisation. In the equality cases, discretion has been exercised in special cases and in consultation with the parties involved. Regardless of these policies, numerous individuals have fought for their rights and significant changes have been brought about in our workplaces as a consequence. Having such discussions often assists others in fighting for their rights, which can be of benefit. It highlights employers that have a poor record and may encourage them to deal with situations a lot more quickly because they do not want to be in the public eye.

I have already given my commitment in the Lower House that this review is not going to be a mere paper exercise. We will be consulting with all relevant stakeholders, as is appropriate. To be clear, that will be done in 12 months. That is included in the draft Bill because members of the cross-party committee asked for it. I am happy to stand over that.