Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I am delighted to be here for Committee Stage of this important Bill. I will speak to this group of amendments. This is a very important area of the Bill and a very important set of issues have been raised that I am anxious to address insofar as I can. These amendments concern the retrospective application of the protections of the legislation to workers who have reported wrongdoing prior to the enactment of this Bill. This is the main item outstanding from the recommendations I have accepted from the pre-legislative scrutiny report.

The first amendment inserts a new section, section 32, into the principal Act providing that the transitional provisions set out in Schedule 7 shall apply. The second amendment inserts a new Schedule, Schedule 7, into the principal Act, which sets out how the retrospective provisions shall operate under a number of scenarios. These amendments fulfil the commitments I gave in the Dáil to provide protections retrospectively to the greatest extent possible. There is a hard limit on how far retrospective provision in legislation can be applied. Any retrospective application that goes further, particularly where proceedings in the Workplace Relations Commission, WRC, or courts have been initiated or completed, runs into constitutional difficulties. Article 15.5.1° of the Constitution states: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission."

The point at which this limit is reached varies depending on: who is reporting; whether they reported before or after enactment of this Bill; whether they suffered retaliation before or after enactment of this Bill; and when proceedings were initiated or completed under the Act. The amendments make different provisions depending on whether the worker was already protected by the 2014 Act or is to be added to the scope of the legislation by this Bill. I will refer to persons already protected by the Act as “old workers”. These include employees, contractors, agency workers and trainees. I will refer to persons who are to be added to the scope of the Act as “new workers”. These include shareholders, board members, volunteers and job applicants.

Paragraphs 2 and 3 of Schedule 7 apply to old workers who reported before enactment but suffered retaliation after enactment. Given that old workers are already protected by the 2014 Act, the additional benefits these provisions confer are reversal of the burden of proof during proceedings at the Workplace Relations Commission and the courts, and access to interim relief at the Circuit Court against penalisation. Paragraphs 4 and 5 apply to new workers who reported before enactment but suffered retaliation after enactment. Since new workers had no entitlement to protection prior to this amendment being made, this cohort will receive the greatest benefit from these provisions as follows: protection from penalisation at the WRC, including reversal of the burden of proof; the right to sue for damages in court, again including the reversal of the burden of proof during proceedings; and access to interim relief at the Circuit Court for dismissal and other forms of penalisation.

Paragraphs 6 and 7 apply to old workers who reported and also suffered retaliation before enactment, provided the worker has not initiated proceedings at the WRC or the courts at the time of enactment. Given that old workers are already protected by the 2014 Act, the additional benefit this confers on them is they will be entitled to the reversal of the burden of proof during proceedings. It is possible to provide the protections of paragraphs 6 and 7 to old workers because the 2014 Act already prohibited any act of penalisation against such workers. There is, therefore, no conflict with Article 15.5.1° of the Constitution. Unfortunately, it is not possible to extend these protections to new workers because penalisation of this cohort was not prohibited under the 2014 Act at the time the penalisation occurred. Any retrospective provisions would therefore be in conflict with Article 15.5.1° and, I am advised, would be unconstitutional.

Paragraph 8 provides that the protections against civil and criminal liability in sections 14 and 15 of the principal Act shall apply to new workers who have reported prior to enactment, provided that at the time of enactment no proceedings have been initiated against them. Old workers are already protected by sections 14 and 15, so no retrospective provision is required for them here. Paragraph 9 provides that the obligation to protect the identities of reporting persons and persons concerned under sections 16 and 16A, respectively, and the data access restrictions under section 16B, shall apply to all reports made by both old and new workers prior to enactment.

I do not propose to accept amendments Nos. 1, 2, 42 and 63. As I said, there is a hard limit, unfortunately, on how far retrospective provision in legislation can be applied in the context of Article 15.5.1°. The amendments I am bringing today fulfil the commitments I gave in the Dáil to provide protections retrospectively to the greatest extent possible. This is something to which the Attorney General has given detailed consideration over a period. The amendments being proposed by Senators Higgins and Flynn provide for a complete application of all the protections of the Bill to any protected disclosures made in the past. I am advised by the Attorney General that this would be in conflict with Article 15.5.1° of the Constitution, as I said. Unfortunately, therefore, I cannot accept these amendments.

I have examined this issue in great detail. It was raised during the Dáil debate at considerable length. I asked the Attorney General to stretch the limit, insofar as possible, to retrospective application. What we have arrived at represents very significant progress. The key test is, if somebody has initiated a case before the WRC or the courts, the new protections in the Act cannot constitutionally apply to him or her. In other cases, however, the protections can be applied retrospectively. That is the very limit of what we can do within the parameters of the Constitution.