Wednesday, 25 February 2015
Workplace Relations Bill 2014: Committee Stage (Resumed)
I welcome the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton. We are resuming Committee Stage on amendment No. 48 in the name of Senator David Cullinane to section 29. The amendment proposes the insertion of a new section.
I move amendment No. 48:
The amendment has been designed to pierce the corporate veil to enable the pursuit of directors of a company to ensure employees can seek recovery of payments and access to entitlements. The amendment would tackle the Connolly Shoes scenario, in which company A employed staff but all of the assets were held by company B.
In page 28, after line 37, to insert the following:"Liability of a company officer or officers for a breach of employment law
29.Where a breach of employment law is committed by a body corporate or by a company officer or officers acting on behalf of a body corporate and is determined to have been so committed, with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person or persons who, when the breach was committed was a company officer or officers of the body corporate, then that person or persons shall be personally liable for the breach committed.".
The amendment is not appropriate as section 7(2) of the Bill already provides for the criminal liability of certain persons connected to a body corporate in certain circumstances in the case of offences under the Act. Extending liability for the debts of a solvent company to its officers would, I am advised by the Attorney General, be constitutionally suspect and represent a major departure in company law. The overriding principle of company law is that a director's duties are owed to the company, not to the individual shareholders or the employees. If there is a breach of duty on a director's part which causes damage to the company, he or she can be sued and held liable for damages. Claims can be brought by shareholders, financial institutions or on a director versus director basis. Liability may arise from a lack of care or skill in the performance of the director's duties, including negligent advice or misstatement. Any act which goes beyond the limits of a company's constitution such as excessive borrowing, the making of unauthorised payments, a failure to disclose the full extent of the director's interests or a failure to comply with requirements may involve a director or an officer in a personal liability.
Company law penalties vary from restriction or disqualification orders to fines and periods of imprisonment. The new Companies Act provides for a four-tier categorisation for most offences, with the exception of fraudulent trading and market abuse. The Act also contains a new provision in section 872, whereby a court may, following a conviction for an offence under the Act, order that the convicted person remedy any breach of the Act in respect of which he or she was convicted. In effect, the provision is a more constitutionally robust rewording of section 383 of the 1963 Act, as amended by section 100 of the Company Law Enforcement Act 2001.
From a company law perspective, the proposed amendment challenges the entire principle of company law. If it were to be implemented, the doctrine of separate legal personality would become an exception rather than the rule. Having regard to the foregoing, I am not in a position to accept the amendment.
Government amendment No. 49: In page 30, to delete line 21 and substitute the following:"(8) In this section—"Act of 2007" means the Social Welfare and Pensions Act 2007; "employer registration number” means, in relation to an employer, the number assigned to that employer in the register maintained by the Revenue Commissioners under Regulation 7 of the Income Tax (Employments) (Consolidated) Regulations 2001 (S.I. No. 559 of 2001); and "personal public service number" has the same meaning as it has in section 262 of the Act of 2005.".
The amendment is of a drafting nature and does not result in any substantive change to the Bill. It is necessary to include definitions of the terms "employer registration number" and "personal public service number" for the purposes of the section.
I move amendment No. 50:
The purpose of the amendment is to deal with particulars of one particular dispute by taking into account the subcontracting chains now prevalent in public procurement capital projects. In effect, we are seeking to extend liability beyond the principal contractor with whom the public contracting authority has entered into a contract to subcontractors. In addition, the contracting authority should be empowered to exclude from the tendering process employers who seriously or repeatedly breach employment rights. This is in line with provisions in the three new public procurement directives which provide for joint and several liability in respect of breaches of employment law in subcontracting chains.
In page 30, line 35, after "offence" to insert "and for the purpose of the performance of the Commissions functions".
Section 32, as drafted, is strictly limited in its application to information on the alleged commission of an offence under a relevant enactment or the contravention of a relevant enactment. As such, the amendment is inappropriate as it is inconsistent with the section taken as a whole.
Government amendment No. 51: In page 30, after line 35, to insert the following:"Disclosure of certain information to or by contracting authority 33.(1) The Commission may, for the purpose of securing compliance with this Act or an employment enactment, disclose to a public contracting authority information that a primary contractor or a party to a secondary contract has contravened an employment enactment. (2) Information disclosed to a public contracting authority under this section shall not be used for any purpose other than the exercise by the public contracting authority of his or her entitlements under the primary contract concerned. (3) The Commission may, for the purpose of securing compliance with this Act or an employment enactment, require a public contracting authority to disclose to the Commission information relating to the contravention of a relevant enactment by a person with whom the public contracting authority has entered into a primary contract, and a public contracting authority shall comply with such a requirement. (4) In this section—"contract of employment" has the same meaning as it has in the Act of 2012; "primary contractor" means, in relation to a public contracting authority, a person with whom the public contracting authority has entered into a contract, and "primary contract" shall be construed accordingly; "public contracting authority" means— (a) a contracting entity within the meaning of the European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 (S.I. No. 50 of 2007), (b) a contracting entity to which Directive 2004/17/EC1of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors applies, or (c) a contracting authority within the meaning of Directive 2004/18/EC2of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts; "secondary contract" means a contract (other than a primary contract or a contract of employment) under which a party to the contract agrees to carry out works or provide services to which a primary contract applies on behalf of the primary contractor concerned or any other person.".
The amendment is in response to an amendment proposed by Deputy Peader Tóibín on Report Stage in the Dáil when I indicated that I would afford further consideration to it. I introduce amendment No. 51 to address the issues raised.
The proposed amendment broadens the scope of the information the Workplace Relations Commission may disclose to a public contracting authority. As previously drafted, the section restricted disclosure to information on non-compliance with employment legislation in relation only to the main contractor engaged by the public contracting authority. The amendment will extend the legislative basis for disclosure to include subcontractors. The extended provision will give greater scope to public contracting authorities to make effective use of the standard provision in public works contracts to withhold payment or part payment of moneys where there is evidence of non-compliance with employment legislation by either a primary or a secondary contractor engaged on the contract in question. The amendment meets the issue raised by Deputy Peader Tóibín.
I move amendment No. 54:
The maximum penalty should be €4,000. Revenue applies a figure of €4,000 for similar type of penalty. This would help to deal with vexatious employers seeking to delay compliance. In Britain new legislation has been introduced which provides for fines of up to £20,000 for non-payment of the national minimum wage. While we acknowledge the constitutional argument, the bottom line is that breaches of the Act undermine good businesses.Low pay adds a cost to the State in transfer payments and increased poverty. Maximum fines of €2,000 are not an adequate deterrent. We need to put in place penalties that will enforce a no tolerance policy.
In page 33, line 11, to delete "€2,000" and substitute the following:"€4,000, save and except in the case of failing to pay the national minimum wage under section 23 of the National Minimum Wage Act 2000 a sum not exceeding €20,000 per employee".
Amendment No. 55 is similar to the one moved by Senator Reilly, which I support. A fine of €2,000 is hardly likely to deter an employer from paying less than the national minimum wage. If the fine was set at €20,000 per employee, it could amount to a fairly substantial sum if an employer was underpaying several staff. That would be a deterrent. Social welfare transfers are required where an individual is being paid less than the minimum wage.
I think the Senators misunderstand the purpose of this provision. This is not a penalty for non-payment of the minimum wage. The non-payment of the minimum wage is a criminal offence subject to penalties elsewhere in legislation. The provision dealt with by these amendments is for a fixed payment notice which can only be used in certain limited circumstances. Only three offences are listed in subsection (5) for the purposes of that section: section 11 of the Protection of Employment Act 1977, which deals with the requirement for an employer to consult employees' representatives and the Minister on collective redundancies; section 4(4) of the Payment of Wages Act 1991, which deals with an employer's obligation to provide an employee with a pay slip; and section 23 of the National Minimum Wage Act 2000, which deals with an employer's obligation to provide an employee with a written statement of his or her average hourly rate of pay.
These amendments would have the effect of doubling the maximum amounts specifiable in the fixed charge notice from €2,000 to €4,000 and, in the case of failure to pay the national minimum wage, the fine would be up to €20,000. I consider it excessive to double the maximum fine to €4,000. The proposed amendment to provide for fixed payment notices of up to €20,000 for failure to pay the national minimum wage would invest the inspectorate with such significant jurisdiction that it would be deemed to be engaged in the administration of justice contrary to the Constitution, which reserves this function to the courts. I am taking advice on whether it would be appropriate for a Minister to issue regulations setting out guidelines on the appropriate monetary amount of notices in specific circumstances. The overriding concern in practice would be to ensure consistency in the application of this section and its provisions. For these reasons I do not accept the Senators' amendments.
Amendment No. 55 increases the fine to €20,000. We are clearly following the British in this matter. The British have provided for a fine of £20,000, which is considerably more than €20,000. I do not see any reason we should not follow that model when introducing fines. Failure to pay the national minimum wage entails significant costs for the State. It means the full taxes and social security on the proper wage are not paid and individuals who are paid less than the minimum wage may have claims for certain social welfare payments. The national minimum wage is not something that employers are not aware of. It is accepted that legitimate mistakes will be made at times. An employer may rectify a complaint quickly where there is a small under payment but it is an entirely different matter to defend cases on the basis that the national minimum wage was paid only for it to subsequently transpire that it was not paid. It appears to me that a substantial fine is in order in such a situation. I see no reason we should not follow the United Kingdom in this. My amendment would actually institute a fine that is considerably lower than in the UK because of the sterling differential. I see no reason the Minister cannot accept this amendment.
Amendment No. 58 does not go in quite the same direction as Senator Norris's amendment. The amendment contains a mistake, which I will mention before Senator Norris points it out. My amendment contains the words "less than 10 employees" but Senator Norris will advise me that should I should use the word "fewer" rather than "less". The word "less" refers to bulk and "fewer" refers to numbers. As the Minister would be incorporating the amendment into law, I want to ensure it is correct.
There should be a difference between a small company and a large one. A small company with fewer than ten employees should not have to suffer the same fine or fixed penalty as a larger company. If we are going to succeed in developing small business, a goal for which the Minister has worked hard, we should ensure companies with fewer than ten employees are not forced to pay the same fines as a much larger company.
I support Senator Quinn's amendment. All of us want to assist the Minister, who has done a good job in creating employment. We want to see more jobs being created, particularly in small and medium enterprises. A company with less than ten employees -----
I beg Senator Quinn's pardon. The infection is contagious. A company with fewer than ten employees may not be in a position to pay this level of fine. The same argument applies to my own amendment, which sets an maximum penalty. Such a penalty is not prescribed but the court would have the option of imposing a fine of €20,000. That is another reason the Minister should accept my amendment. It would allow the imposition of a moderately swingeing fine. With regard to amendment No. 58, I strongly support Senator Quinn because it is appropriate in terms of the size of the business involved.
I hope my colleagues will forgive me if, as a good trade unionist, I oppose amendment No. 58. While I fully understand the need to support entrepreneurship, we do not want companies to be built on the back of cheap labour. I know Senator Quinn will forgive me for my opposition.
This section is concerned with the penalties that can be issued by way of a fixed payment notice. It is like a traffic cop giving out a fine. An employer who commits the offence of breaching the national minimum wage would be prosecuted in the normal way. One cannot hand out a fixed payment notice of €20,000 in this relatively informal manner because, as I noted earlier, that would invest the inspectorate with such significant jurisdiction that it would be deemed to be engaged in the administration of justice contrary to the Constitution. It would be inappropriate to impose such a scale of penalty under a fixed notice. This section does not deal with the wider issue of breaches of minimum wage. Breaches are dealt with in the minimum wage legislation and is enforced through criminal prosecutions. Deputy Norris is trying to shoehorn powers for inspectors to dish out substantial penalties into the fixed payment notice. My legal advice is that such a provision would be inappropriate. There are better lawyers than me around here who can argue that case.
In regard to Senator Quinn's amendment, each of these matters is an omission for which an employer could be prosecuted in the courts.The fixed payment notice provides an informal way to address an offence of the three types I outlined where the conclusion has been reached that such a notice would be a reasonable approach to adopt for whatever reasons. They will not proceed to a full blown prosecution. Provision is made for a fine of up to €2,000 and discretion can be used in this regard. A sum of €2,000 is the maximum fine. This is an admission for which an employer could be prosecuted. That approach has to be upheld by applying the same maximum generally. The deterrent must be in place and its application is a matter of judgment.
The fine can be variable, as the Minister has indicated. The section does not fix and establish a penalty. The Minister invoked the Constitution but failed to nail it. He withdrew from that position and said it was inappropriate, which is a much weaker phrase. A fine of €20,000 similar to that in Britain should be imposed. The British did not have a problem with it. However, I will not press the amendment. I will leave it for Report Stage.
I move amendment No. 62:
The amendment arises out of concerns that the Bill may provide too much latitude in the procedure to be adopted for mediation which may result in pursuance through teleconference. This should only take place in exceptional circumstances such as where the employee no longer lives in the country.
In page 35, line 5, after "dispute" to insert ", but only by teleconference in exceptional circumstances and when agreed to by the compliant".
It is implicit that the consent of both parties is a prerequisite to all forms of mediation and case resolution. The Senator's proposed amendment is, therefore, superfluous in this regard and inappropriate in so far as it focuses only on the claimant.
I move amendment No. 63:
The amendment provides for discovery. It has been pointed out to us by those representing employees that cases often do not get started on the first day of a hearing as the relevant documentation is unavailable. This measure would reduce the cost to the State of lost time and unnecessary delays in case progression.
In page 36, between lines 2 and 3, to insert the following:"(9) Where the provision of subsection (5)applies the case resolution officer may direct either or both parties to produce such documents, statements or particulars to the other party as the case resolution officer shall determine to include but not limited to an outline of any evidence, witness or documents either party intends to rely upon.".
Amendment No. 64 again deals with the process of discovery, in other words, the revealing of documents by one side to the other. Where a resolution is not successful, it makes sense as regards ensuring any subsequent case that has to go for a hearing is dealt with in a speedy and efficient manner with the parties producing all relevant documentation to ensure the case may be resolved at the earliest date. Many cases do not get dealt with on the first day of a hearing because relevant documentation is not available. That creates a delay and a logjam.
This is another of the amendments put forward to me by Hayes & Co. and Senator Craughwell, which aims to speed up the process and the resolution of cases. It also means that in the case of an unsuccessful resolution meeting, parties will be aware of exactly what they need to bring to the hearing. In other words, it gives them advance notice of the way in which they need to be prepared prior to the hearing and this will inevitably reduce costs to the State. By being aware of what needs to be produced subsequently, this may well help to bring parties to a resolution when they see what works needs to be done to bring the case for hearing. This measure seeks to ensure efficiency in the conduct of the business.
I have been involved in several Labour Court hearings and cases before Rights Commissioners and where the information is available beforehand, the cases are frequently settled and never get to a hearing. I support Senator Norris.
Senator Norris is confusing what we are dealing with here. This is a mediation process, into which people enter voluntarily. The Senator is seeking in such a voluntary mediation process to give case resolution officers directive powers to compel the production of documentation and evidence to the other party that the party intends to rely on. That would be in conflict with a voluntary mediation process, which is an attempt to find a solution, from which both sides can withdraw and enter a full hearing if they are not happy with it, but bringing such compulsion into the process would be contrary to what is sought in the section. The provisions the Senator envisages are not appropriate to a mediated environment.
I acknowledged that this is a mediation process in what I said. The reason I tabled the amendment is that where resolution is not successful, this provision looks forward to the hearing. It also provides that the case resolution officer "may direct either or both parties to produce such documents". The person, therefore, who is in charge of the resolution process will make this determination in the interests of advancing a resolution. I do not see a huge conflict there.
I agree with my colleague. I fully understand where the Minister is coming from. Mediation requires commitment and honesty on both sides but there is no difficulty in having the officer running the case use his or her discretion to request both sides to begin exchanging documentation. That would not demean or work against the mediation process. It is no different from a High Court judge telling somebody to go away and think about his or her position overnight.
I support the Minister. I appreciate where the Senators are coming from. Anyone involved in litigation will be aware of delays and the need to try to address this issue. Senator Craughwell referred to a High Court judge making orders. The difficulty in this context is that the amendments seek to give case resolution officers powers that are inappropriate.I know the Senator said this would only apply after the mediation has not resolved the complaint or dispute but it is still not appropriate that the person in charge of the mediation is the one to whom one is giving those powers. The Senator is right to look to attribute powers but it is being done in a way that is not appropriate.
If one is entering into a voluntary process, one does not introduce powers to compel. They are in conflict in that one is attempting to bring the two sides together voluntarily to agree. The Senator is seeking to give compulsion powers. It would drive people away from mediation because they would fear that if they went into it, they would suddenly be compelled to do this, that and the other and it would defeat the purpose of trying to use mediation as a better and more agreeable alternative to ultimate adjudication. I cannot accept the amendment.
We are not trying to provide for compulsion but to leave the discretion to the mediation officer to request the parties to cut the messing, exchange documents and see where they are. I understand from where the Minister is coming. On the one hand, it in a way argues against mediation but on the other hand, it gives that discretionary power to the mediator. That is why I support the amendment. I understand from where the Minister is coming but I hope he understands my position on it.
The words "may direct" is giving a power of compulsion to a person, or an officer, to whom it is inappropriate to give that power. That is quite different to an adjudication officer, or a person in the role already described, somebody who is in a quasi-judicial position.
I would look favourably on the amendment Senator Craughwell suggested to our amendment. However, I again point out to the Minister that this comes into effect when resolution has failed. It is not part of the mediation process but it is at the end of that process when resolution has failed. It means that it will obviate the situation where the process is further delayed by the non-availability of documents, so it is not interfering with the mediation process. The mediation process continues and if it is unsuccessful, then the case resolution officer can direct or request. It is a bit of a bagatelle between the two but we would certainly look at the question of tabling an amendment with the word "request". Perhaps the Minister will indicate whether he would look favourably on it if the word was changed to "request".
I would have to take advice. In any mediation, people will exchange freely and will talk to one another. However, it is a voluntary process and one does not seek to codify that in the way the Senator is seeking. I do not see why an informal process of that nature seeking to explore a voluntary solution should be tied up in requirements of the sort the Senator is seeking. I will certainly look at this again if the Senator tables an amendment on Report Stage. I will get advice from people who are more experienced than I but, intuitively, it does not sound sensible.
One cannot use the fact people entered mediation to grab powers that one would not have had if had they had not done so. The Senator is providing that people come in voluntarily and have a chat but then, before they leave, they must adhere to a number of requirements.
We need to be clear about the appropriate forum. If one is talking about people moving on, subsequent to mediation having failed, to an adjudicative process, then clearly any directive powers would have to be attributed or connected to the adjudicative process and not the person engaged in the actual running of the mediation.
In terms of language, the words "request" or "direct" have the same sort of pre-emptory or compulsive meaning. The words "recommend" or "suggest" are probably closer to what the Senator is seeking to do but I still think there may be a problem as to where he is trying to park this power.
I move amendment No. 65:
The reason behind this amendment is that it was very unclear if the right to be represented would be applicable to mediation. This amendment seeks to ensure it is.
In page 36, between lines 17 and 18, to insert the following:
“(3) A complainant may, in proceedings before a mediation officer in respect of a complaint presented, or dispute reverted by an adjudication officer, by the complainant under this Part, be accompanied and represented by -
(a) a trade union official within the meaning of section 11 of the Act of 1990,
(b) an official of a body in respect of which the mediation officer, is satisfied represents the interests of employers,
(c) a practising barrister or practising solicitor,
(d) in the case of a complainant who is less than 18 years of age, the complainant’s parent or guardian in addition to a person specified in paragraph (a), (b) or (c),
(e) any other person with the permission of the mediation officer, as may be appropriate.”.
Mediation is an informal and voluntary process. It is better that the Bill remains silent on the question of representation at mediation and leaves it to the skill and experience of the mediator to manage the process. Either party may withdraw from the mediation process at any time. Therefore, I will not accept the amendment.
I move amendment No. 66:
There is concern that when an employer reneges on a mediated settlement, an employee would have to take a costly breach of contract action to the civil courts. This amendment seeks to ensure that mediated settlements are enforced in the same manner as adjudicator Labour Court decisions are currently enforced.
In page 36, to delete lines 36 to 38, and substitute the following:“(6) The terms of a resolution consequent upon a mediation conference under this section shall be binding on the parties and if either party contravenes any such term, in whole or in part, to the terms of the resolution then on an application for enforcement the District Court may make an order directing that person to carry out those terms, or as the case may be the terms to which the application relates; but the District Court shall not by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than mediation) could not have been provided for.”.
We are sympathetic to the idea of having enforcement of mediated settlements being effected in the District Court, where possible. I am pursuing the matter with the Attorney General to see if a Report Stage amendment can be introduced to that effect.
As initially published, the Bill made separate provision for the referral of complaints and disputes to early resolution or mediation. This distinction has not been maintained. Section 39 has been amended to cover the referral of complaints and disputes for resolution by mediation officer. Section 40 effectively replicates section 39 and is, therefore, rendered superfluous and unnecessary. This is a more streamlined and efficient arrangement from an internal operational perspective. No reduction in the scope of the complainants' and respondents' access to early intervention will result accordingly and for the foregoing reasons, it will be necessary to delete section 40.
I move amendment No. 68:
The Equality Rights Alliance has raised a number of concerns with this legislation in that not all of the employment cases will fall into once specific area.ICTU has raised similar concerns. For example, a case dealing with a breach of employment law may also have a discrimination dimension. The Equality Tribunal does not operate like an ordinary court in that it investigates cases and equality officers have wide-reaching powers, such as compelling witnesses. It is not reliant on legal arguments presented by the complainant or the respondent. Cases of discrimination are unique in that the burden of proof passes to the respondent once a complaint is made of a prima faciecase of discrimination. In short, there is a concern that future adjudication officers would not be adequately trained to deal with equal status cases.
In page 37, between lines 32 and 33, to insert the following:
“(c) Any person appointed as an adjudication officer immediately after the commencement of this Part will be required to be adequately trained in the area of equality legislation, in addition to all relevant industrial relations and employment law.”.
I appreciate the spirit of this amendment because it is reflects an issue I raised on Second Stage with the Minister of State, Deputy Gerald Nash, namely, my concern to ensure the equality function of the new entity is not downgraded. Indeed, I suggested at one point that we should consider putting the word "equality" into the name of the new body, because equality law and the equality jurisprudence that has been built up are very important. I was assured on Second Stage by the Minister of State that the new structures, which were generally welcomed as being much more streamlined and sensible, would not in any way lead to a deprioritising of the equality measures or the equality expertise that has been built up among the equality officer staff. While I appreciate the spirit of the amendment, as I said, I hope it will not be necessary to make this provision. Nevertheless, I look forward to the Minister's response. It is important that we ensure our equality jurisprudence is not deprioritised under the new entity.
I give the Senator that assurance. The Public Appointments Service has carries out a competition and we now have a range of persons including experienced industrial relations officers, HR practitioners, employment lawyers and civil servants with appropriate skill and experience. This will ensure a diversity among the ranks of adjudicating officers. In addition, a course is being run by the National College of Ireland covering employment equality, industrial relations law, administrative law, human rights law, and instruction on how to conduct inquisitorial hearings and write comprehensive and reasoned decisions. Only those candidates who pass that course will be appointed as adjudication officers. To enshrine what should and should not be taught would be inflexible and create unnecessary rigidities in the system. A great deal of preparatory work went into designing the course and its execution is explicitly concerned with meeting the concerns of Senators and ensuring people who take a case will have it dealt with by officers with a proven competence in this area.
I move amendment No. 71:
Although this amendment proposes to deleted the reference to trade union representation, it may be appropriate to retain it. The amendment was suggested to me by Senator Gerard Craughwell, and we may well put down an amendment on Report Stage which tweaks the proposal in order to include the original reference as well as the new reference to "specified persons". The intention here is to permit a solicitor, as well as a trade union or other representative, to submit claims on behalf of a client. This could be important where, for example, a person has difficulty with reading, writing or comprehending a very complicated form. Some complaints can be quite technical and an adviser might well need to assist the complainant in completing the documentation and submitting it online. To avoid problems, it is reasonable to amend the section to extend the cohort of persons who can submit a complaint. The intention is clearly to extend the possibilities of representation, not to prevent trade union representatives from performing that role. Our concern is to ensure complainants have access to the assistance they need.
In page 38, lines 36 and 37, to delete "any trade union of which the agency worker is a member" and substitute "specified persons".
As Senator Norris has stated, the reference to trade union representation should be retained. Our concern in bringing forward the proposal was the awareness that migrant workers, in particular, might not necessarily have such representation. With Senator Norris's permission, I will withdraw amendment No. 71 and resubmit it on Report Stage in a new format which refers both to a trade union representative and-or specified persons.
I take this opportunity to note that the Irish Congress of Trade Unions is very grateful to the Minister for an amendment made in the Dáil to include the right of workers to be represented by their union in proceedings before an adjudicating officer of the Labour Court. However, a further amendment is required in this regard to section 42 (11), which I intend to bring forward on Report Stage, to include trade union representation at mediation as well as at proceedings before an adjudicating officer of the Labour Court.
Amendments Nos. 71 and 72 seek to include a provision in section 42(3) which would make it implicit that a practising barrister or solicitor or, where a complainant is under 18 years of age, his or her parent and guardian, in addition to an agency worker or any trade union of which the agency worker is a member, would be entitled to present a complaint to the director general under the Protection of Employees (Temporary Agency Work) Act 2012. The proposed amendments are superfluous as it is well established in law that a complainant is entitled to instruct his or her legal representative or any other agent to act on his or her behalf. This would include, for example, submitting a complaint form on the claimant's instructions. Therefore, I do not propose to accept the amendments.
Section 42 creates a common procedure for the presentation of complaints and referral of disputes under employment legislation to the director general of the workplace relations commission. The individual employment enactments under which a person may present a complaint or refer a dispute are listed in Schedule 5. This section provides for a standardised time limit of six month, extendable to 12 months for reasonable cause. All first-instance complaints requiring adjudication will be heard by WRC adjudication officers. Where a case is referred for hearing, it will be assigned by the director general to a WRC adjudication officer. The role of the latter will be to hold a hearing where both parties are given the opportunity to be heard and decide the matter. Parties will be free to represent themselves or choose their own representation. All appeals will lie to the Labour Court, except in the case of complaints under the Equal Status Act, where the appeals will lie to the Circuit Court.
I am not sure why we have chosen specifically to single out in the case of an agency worker the possibility that he or she could avail of trade union representation.I will have to find out why we have made provision to explicitly deal with the trade union representation when it is implicit that they can choose anyone they like. I will come back to the Senator on Report Stage.
I would be very grateful if the Minister would look at that and come back to us. It seems absurd. He said initially that it is not necessary to specify any of these things because they were rehearsed in previous law, but it does clearly specify "a trade union official within the meaning of section 11 of the Act [...] an official of a body in respect of which" and so on, "a practising barrister or practising solicitor", and "the parent or guardian". I do see that he has "e) any other person with the permission of the adjudication officer or Labour Court"-----
I move amendment No. 72:
In page 38, line 37, after “member,” to insert the following: “or a practising barrister or practising barrister or solicitor, or in the case of a complainant who is less than 18 years of age, the complainant’s parent or guardian”.
There is a typographical error in the number list in the footnote provided for the information in relation to amendment No. 74. The footnote should refer to amendment No. 94, rather than amendment No. 95. Amendments Nos. 74 and 94 form a composite proposal and may be discussed together by agreement.
Section 43 provides that if a case has been dismissed by an adjudication officer on the grounds that it is frivolous or vexatious, the complainant will have the right to appeal this decision to the Labour Court. The Labour Court, upon hearing an appeal, may affirm the decision of the adjudication officer or annul that decision and refer the complaint back to the adjudication officer concerned for a decision in relation to the complaint or dispute. Amendment No. 74 inserts a new subsection to specifically cover complaints or disputes that are referred back to the director general by the Labour Court following a successful appeal to it by a complainant whose complaint or dispute was dismissed by an adjudication officer under section 43(1).
I move amendment No. 75:
In terms of amendment No. 75, the Equality Rights Alliance has warned that not all employment cases before the commission will fall neatly into an area, as I mentioned earlier. How will adjudication officers determine an equality claim where they have parallel investigative powers under section 79 of the Employment Equality Act and proceed to hear other aspects of the case where they have no similar powers? Similarly, section 95 of the Employment Equality Act 1998-2012 provides equality officers and the director of the Equality Tribunal with the power to compel witnesses. Again this legislation does not do so for employment law breaches.
In page 39, between lines 15 and 16, to insert the following:“(iv) make a decision that a separate hearing for an employment equality case is required, in addition to a general employment rights decision,”.
On amendment No. 76, the Equality Rights Alliance has warned that this Bill is devoid of reference to claims under the Equal Status Acts and how such cases will be dealt with.
This amendment would go against what the Bill is trying to achieve, by providing a single fast, effective, independent and streamlined adjudication process. It proposes that a separate hearing would be convened to deal with the equality aspects of a case, separate from the employment aspects. If there was an employment and an equality aspect to the case, this could result in four separate hearings, two at first instance and two at appeal. There is no justification for this. It would add to the cost to the employer, the employee and the State. As I indicated earlier, we are providing that the adjudication officers would have suitable skills and training to deal with all cases that would come before them.
I move amendment No. 77:
This amendment provides flexibility in the system, where both parties agree to have the case reverted to mediation.
In page 39, between lines 23 and 24, to insert the following:“(5) Where the claimant and respondent agree the adjudication officer may revert the dispute for mediation by a mediation officer.”.
Amendment No. 77 proposes that an adjudication would be halted and referred back to the mediation, with the consent of both parties. To refer the dispute formally back to mediation would add time and cost to the entire process. It would possibly be twice as expensive to the State, given that there would be the cost of the first mediation, the first adjudication, the cost of mediation where the case is referred back and the cost of a second adjudication if mediation is not successful. We have provided that both parties have the option of engaging in mediation before adjudication. They have the opportunity to reach an agreement and withdraw the case before it goes to adjudication. Both parties have the option of reaching an agreement and withdrawing the case during the adjudication hearing. In practice, an adjudicator would adjourn for a short period to facilitate this. Creating this new loop the Senator is suggesting, of going right back to mediation, would add cost. The flexibility is already in the adjudication process to allow some informal discussions to seek an outcome where they have decided that is possible.
I move amendment No. 78:
The four amendments are essentially just to extend the length of time for which complaints may be submitted from the date of contravention from six months, as set out in the legislation, to two years.
In page 39, line 26, to delete “6 months” and substitute “2 years”.
Subsections 6 and 8 of section 42, read together, provide that the standard limitation period for bringing a complaint under employment and equality legislation will be six months from the relevant date, extendable for a further six months by an adjudication officer where the complainant has demonstrated reasonable cause for his or her delay in initiating the complaint. The Senator's proposed limitation period of two years with an additional six months extension would be unworkable from a practical point of view. It would be inconsistent with the key principle running through the reforms, which the Bill seeks to achieve, namely, the resolution of employment-related complaints and disputes as close to the workplace as possible and at the earliest possible date. I consider that a period of two years within which to refer a complaint to the workplace relations commission would be unnecessarily long and unreasonable. Such a proposal would also be inconsistent with the employment legislation in other EU member states. Therefore I am not going to accept these amendments.
Government amendment No. 82: In page 41, between lines 2 and 3, to insert the following: “(9) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate. (10) A person to whom a notice under subsection (9) is given shall be entitled to the same immunities and privileges as those to which he or she would be entitled if he or she were a witness in proceedings before the High Court. (11) A person to whom a notice under subsection (9)has been given who— (a) fails or refuses to comply with the notice, or (b) refuses to give evidence in proceedings to which the notice relates or fails or refuses to produce any document to which the notice relates, shall be guilty of an offence and shall be liable, on summary conviction, to a class E fine.”.
This amendment is being introduced to give an adjudication officer the power to summons witnesses, along with documents if required, to attend and give evidence at the hearing into a complaint or dispute. It shall be an offence for a person so summonsed not to appear before the adjudication officer at the hearing of the case.
I move amendment No. 83:
I see that amendment No. 98 is a Government amendment. The Government is going a certain way towards meeting the intentions of our amendment. I welcome that. The Bill as it stands states, "Proceedings under this section before an adjudication officer shall be conducted otherwise than in public". In other words, it will be conducted in private. There is an argument that proceedings should be in public for the information of the public and for the ventilation of the serious issues involved. There is also an argument that the parties involved should be in a position to consent to having them heard in public. There is a balance between public and private here. Significant issues of justice may be dealt with by an adjudication officer, so it is important that there is potential for these to be heard in public. The public is entitled to see the administration of justice and to understand the issues involved.It is suggested it is best that the parties have an input into whether a hearing is held in public. That means that there is a certain amount of agreement, in that the contending parties agree that this is an important matter that must be ventilated in public and, therefore, give their consent, whereas, in general, the legislation suggests it be held in private. In this instance, the amendment holds that it should be held in public. It states it should be held in public save "where the Adjudication Officer considers it appropriate to hear the matter otherwise than in public". In other words, it is the responsibility of the adjudication officer. The second qualification is when both parties agree or, in other words, where there is consent. It is welcome that in amendment No. 98 the Minister goes some way towards meeting the intention of the amendments and I would be interested to hear him elaborate further on this issue.
In page 41, line 4, to delete “otherwise than in public” and substitute the following:“in public save:
(a) where the Adjudication Officer considers it appropriate to hear the matter otherwise than in public; or
(b) where both of the parties agree that it shall be heard in private”.
A lot of thought went into this and the approach was that the first instance proceedings should be held in private and the appeal to the Labour Court in public, unless there were exceptional circumstances. This is what is provided for in amendment No. 98. I can give the detailed response to Senators. The question of whether first instance proceedings should be heard in private or public was the subject of considerable consideration by my Department during the various consultations it conducted with interested parties prior to the drafting of the Bill. The overwhelming consensus was that first instance matters ought to be continued to be heard otherwise than in public, as is the case with matters that come before rights commissioners or an equality officer. To introduce a provision whereby the adjudication officer hearing a complaint at first instance or the parties themselves could determine otherwise would be to introduce unnecessary contributions into the process, which would give rise to a judicial review. In order to ensure compliance with a party's entitlements under Article 6 of the European Convention on Human Rights, ECHR, when an issue of legal entitlement is disputed, I am advised that appeal hearings by the Labour Court must be conducted in public. Labour Court hearings dealing with appeals of a workplace relations commission, WRC, adjudicator in employment rights and equality cases will be held in public, thus ensuring compliance with the requirements of Article 6 of the ECHR, other than cases in which there are exceptional circumstances justifying a departure from this practice such as a complaint of discrimination on disability grounds or cases involving allegations of sexual harassment. I accept hat the current wording of section 45 does not make it clear that the Labour Court will have the power to hear cases in private in exceptional circumstances. I am, therefore, bringing forward amendment No. 98 to make it absolutely clear that the Labour Court will have the power to hear a case in private in exceptional circumstances. Hearings dealing with disputes of interest - this pertains to industrial relations - will continue to be heard in private by the Labour Court.
I thank the Minister who stated it was unnecessary, fussy or unnecessarily complicated. However, the amendment does not appear to be unnecessarily complicated. It would simply provide that hearings be held in public except where the adjudication officer considered it appropriate to hear it in private or when both parties consented. If both parties consent, where is the disagreement? It is perfectly simple; consequently, I do not discern any difficulty in this regard.
I am only repeating the current process, which is in private. That is the way it has worked and it has worked very successfully. I do not feel the need to change it, but I am making sure that if this is not satisfactory and the matter is appealed, there is a right to have the case heard in public. Moreover, at the appellate stage, it will be held in public, which is in accordance with best practice under the European Convention on Human Rights. The use of a rights commissioner is an informal process. It is not a highly legalistic process and has worked well in private. However, it leaves both parties with the right of appeal and if the case is appealed, the issues at stake will be discussed in public. It is working well and should be left to work in the way it has done.
The Minister is stating he is doing what he has been instructed to do under European Community legislation. That is fair enough and I have no problem with it. However, where both parties consent to the proceedings being heard in public, that appears to be perfectly reasonable.
The system is working well and offers the right to people who are not satisfied with what comes out of a private informal hearing to have the case heard in public in an appellate body. If it is not broken, one should not fix it.
I move amendment No. 84:
This is about keeping a register. While it is useful to provide for publication on the Internet, every single decision may not be published for whatever reason. Consequently, it is contended that there should be a register of decisions that would be available for inspection. While there would, of course, be a fee, it would be determined by the Minister.
In page 41, line 8, after “section” to insert the following:“and shall keep a register of all decisions available for inspection for such fee as shall be determined by the Minister”.
The Bill states every decision will be published on the Internet. The Senator's proposal is inappropriate, having regard to the requirement on the commission to publish every decision of an adjudication officer on the Internet. It would place an unnecessary additional administrative and financial burden on the commission to maintain a physical register of decisions, in addition to requiring it to publish decisions on the Internet.
As amendments Nos. 86 and 87 are physical alternatives to amendment No. 85 and amendments Nos. 85 and 101 are related, amendments Nos. 85 to 87, inclusive, and 101 may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 85: In page 41, to delete lines 9 to 20 and substitute the following:“(11) (a) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute (including a complainant or such a respondent to whom paragraph (b) applies) may be accompanied and represented by—(i) a trade union official within the meaning of section 11 of the Act of 1990, (ii) an official of a body that, in the opinion of the adjudication officer, represents the interests of employers, (iii) a practising barrister or practising solicitor, or (iv) any other person, if the adjudication officer so permits.(b) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.”.
The provisions of this subsection, as published, created some ambiguity about the range of persons who would be permitted to accompany or represent a complainant or respondent at proceedings before an adjudication officer and the Labour Court. The wording, as published, also could be read as vesting in the adjudication officer or the Labour Court the power to determine whether a particular person could accompany or represent a party appearing before him, her or it. This was not intended. However, I am satisfied that the amendment which I have already have to this subsection in the Dáil removes the ambiguity in both respects by specifying in detail the full range of persons by whom a party may choose to be accompanied or represented and by identifying carefully the specified matters in which an adjudication officer or the Labour Court may exercise discretion, that is, in accepting whether a body that purports to so do, in fact, represents the interests of employers and whether, in respect of a particular complaint, it is appropriate to permit some other person who does not come within the categories listed at paragraphs (a) to (d) to represent a party in respect of that complaint.
I am also bringing forward the further amendment to section 42(11) on Committee Stage in the Seanad to clarify that the provisions of this subsection on the right to representation at hearings before the adjudication officer and the Labour Court apply equally to both complainants and respondents. I am bringing forward this amendment to remove any possible misinterpretation of the current wording.
Amendment No. 101 is a similar amendment to amendment No. 85 and makes provision for a new subsection (13) in section 45 that expressly sets out rights of parties in an appeal before the Labour Court to be represented by a representative of their choice.
I refer to the reason Senator Gerard P. Craughwell and I seek to delete this proposal and point out again that the proposed section 42(11)(a)(iv) states "any other person, if the adjudication officer so permits". That is where we would have included a specified person. It is not up to the adjudication officer to have this discretion. I do not agree that he or she should have the discretion to disallow. It should be the complainant who has the right to appoint the person to represent him or her. Why should an adjudication officer have the right to determine who shall represent a complainant? The complainant should make that decision.
Again, I am concerned that the same provision is not being made available for mediation as for cases before adjudication officers and the Labour Court. Some mediation solutions are extremely complex and to expect a person to be present without representation is wrong in every way.Unless I misheard the Minister, I do not detect any provision for representation in mediation and if that is the case, I will raise the matter again on Report Stage.
We have already dealt with this issue. Mediation is a voluntary process and people are free to be represented in any way they choose.
I thought I had answered Senator David Norris's point in my original remarks. Essentially, we are removing the ambiguity as to what the power is and confining it in order that the Labour Court or an adjudication officer has discretion in accepting whether a body which purports to do so, in fact, represents the interests of employers and whether, in respect of a particular complaint, it is appropriate to admit some other person who does not come within the categories listed in subparagraphs (i) to (iv) in the amendment such as a trade union official to represent a party in respect of that complaint.
The Minister has not really answered my point that it is the right of a complainant to appoint the person he or she regards as being most suitable to represent him or her in such a process. It states very clearly "any other person if the adjudication officer so permits". That is where we proposed inserting the words "specified person". It is not appropriate for the adjudication officer to choose the representative for the complainant. That is the simple point at issue.
There are two types of mediation. One type is one-to-one honest brokerage which takes place between two people, but the Irish Congress of Trade Unions talks about mediated solutions which apply right across an industry or a particular employer. Congress is very anxious that we cover mediation in the provisions for representation. I have read the Minister's amendments and reserve the right to raise my concerns on Report Stage, after I have liaised with congress to see if it is happy with them. Mediation has to be ring-fenced, too.
As Senator David Norris said, a person may be accompanied and represented by a trade union official, an official of an employers' body, a practising barrister, a solicitor or any other person if the adjudication officer so permits. There are only limited circumstances where the adjudication officer would not so permit and the adjudicating officer cannot whimsically exclude a person who has been chosen. However, as I do not think that is adequately explained in paragraph (b), I will revert to the Senator on the matter.
I would be grateful if the Minister would do so. The principle is that it is up to the complainant to decide who should represent him or her. A person is hardly going to employ some sort of a dingbat, but I am talking about somebody who might have a difficulty in reading or writing, or a language difficulty or lack familiarity with the culture, etc. I would be grateful if the Minister would look at this issue again because it does not seem to be appropriate that the adjudication officer should be in a position to actually determine who should act as a representative and disallow somebody's choice. If a complainant wants to be represented by somebody, the power to disallow that person is not appropriate for an adjudication officer to have.
An adjudication officer and the Labour Court make a finding of right or wrong in the case of a particular complaint. In the case of mediation we are talking about two parties sitting down and negotiating. We have to have a section on the rights to representation in mediation.
If the complainant is comfortable with a person representing him or her, who is the adjudication officer to quibble with this and second guess the complainant? The representative may be there to act as an assistant, a support, a crutch or an adviser and if the complainant believes he or she is the most appropriate person for the job, that is the case. I look forward to the Minister coming back to us on that matter.
Perhaps there might be a deletion of the reference to the adjudication officer permitting the appointment. Alternatively, I would appreciate an explanation of the circumstances where an adjudication officer could make such a determination. I am sure there will be very few such circumstances and I cannot think of any in which it would be appropriate for an adjudication officer to say a person could not be represented by the person he or she had chosen. That is wrong.
I move amendment No. 88:
In page 41, line 27, after "appropriate" to insert the following:
"without prejudice to the forgoing the Minister may in consultation with the Chairman of the Labour Court make such regulations relating to representatives of a complainant or a respondent to include the terms of engagement but not limited to contingency fees or percentage fees, evidence of indemnity insurance of a minimum figure as specified by the Minister per complainant or respondent represented and as to the standard of conduct of such representative or representatives in cases before an adjudication officer or the Labour Court and such other matters as he or she in consultation with the Chairman of the Labour Court considers appropriate".While it is already the case that accountants and solicitors are regulated by a regulatory body and will in the future be regulated under the legal services Bill, representatives for gain are unregulated. They are entitled to charge percentage and contingency fees and engage in champerty, which is illegal for a solicitor. There is, therefore, a clear difference between those who are regulated and those who are not. The former have specified charges, whereas the latter can charge whatever they like. They do not have to have indemnity insurance, but many will advertise that they provide legal services. It is important that these entities are regulated. There are many non-legal entities, by which is meant non-solicitors, counsel, trade unions or employee representative bodies with a negotiating licence that provide an excellent service. Many do not claim to be legally qualified or to provide legal services and will have insurance. In order to have a world-class service, there is a requirement that those providing services for gain be in some way regulated in order that minimum standards can be expected. This is a protection for employers and employees. If people pay for representation services, the representative should have to meet certain minimum standards.
Again, I am talking about the creation of a level playing field. If one group of professional, competent people is regulated, why is there free determination for people who are not regulated, not qualified and not professionally engaged? I have no problem with them engaging for hire, but it is inappropriate for them not to be regulated. It is fair to both employers and employees for there to be a degree of control in order that people who avail of the services of such persons know what they are getting, thus ensuring their rights are protected under law and that they are not left open to cowboys. This does not mean that all of the people in the unregulated category are cowboys, but some may be and I have tabled this amendment to address the point.
To some degree, the Senator's amendment reverses the position on the adjudication officer, where the Senator advocated allowing any person to be selected as a representative for a person.The Senator is seeking a detailed regulatory environment to be established for any such person and it is not entirely consistent. Our view is that it is not for the Labour Court to set out the professional bodies, specify how lawyers are regulated or refer to regulatory bodies. The Labour Court adjudicates on disputes that come before it. What the Senator proposes would go way beyond the scope of the Bill to regulate many bodies that might purport to represent people in different circumstances. It would involve the Labour Court in detailed work that is not appropriate to its core purpose.
I move amendment No. 93:
This follows legal procedure in a situation in which discovery is not made and the court does not have information referred to it. In such a case, a late discovery is usually precluded. There are no discovery procedures and none are proposed. Many employees will issue a notice under the Data Protection Acts 1988 and 2003. They then come for a hearing and find documentation which had not been produced is subsequently produced. Such a surprise disclosure of information at a late date in proceedings wrong foots people and is very unfair to them. It means a case must be adjourned to enable the individual to review the documentation and, if necessary, submit a further complaint to the Data Protection Commissioner to check whether there is any other relevant documentation which he or she has not received. Again, it comes back to the question of disclosure. For the purpose of saving costs, it seems reasonable that a party who does not comply with a statutory provision to produce documentation should not subsequently be able to rely upon the same in any case.
In page 41, between lines 36 and 37, to insert the following:“(15) In the event of a party issuing a complaint under section 4 of the Data Protection Act 1988 (as amended) and the other party failing to provide any documentation in whole or in part which the party who failed to supply such documentation subsequently wishes to rely on in any case before an adjudicating office or on appeal to the Labour Court that party shall be precluded from producing or relying on such documentation.”.
This has happened in cases in which information has been deliberately suppressed until a late stage in a case in order to wrong foot the other side. This tactic is wrong. An alternative to this would be to provide that where a request made under the Data Protection Acts 1988 and 2003 is not complied with, and documentation is subsequently produced to an adjudication officer, it would be an offence which the adjudication officer would report. This may ensure appropriate documentation is produced in advance and avoid unnecessary adjournments of cases. It is all about the production of documents and the idea that one side can withhold documents and produce them suddenly, like a Jack-in-the-box, to wrong foot the other side.
In proceedings in which it is alleged that a respondent is seeking to rely on personal data of the complainant which it failed to supply to the complainant on foot of a data access request by him or her, it is for an adjudication officer or the Labour Court to determine how best to conduct the proceedings, having regard to the overriding need to do justice and be seen to do justice to all parties. In particular, there is nothing in law preventing an adjudicator or the Labour Court from having specific regard to a respondent's failure to meet a claimant's data access request. We are not precluding it ab initio, as in the Senator's amendment, but leaving it to the discretion of the adjudication officer in seeking to get a fair outcome. It is a reasonable approach.
The Bill would leave a black hole. There is nothing that would prevent it, or say it is an incorrect or bad practice or that the adjudication officer should take a certain line. It is manifestly unfair and wrong for one side to conceal information and then spring it on a person at a later date. Even if it leads to an adjournment to allow the other side to become conversant with the facts, it results in delay. It should not be allowed. Perhaps there might be exceptional circumstances, although I cannot imagine what they would be, in which information emerges at a later date, and this could be provided for. While the Minister said there is nothing in the legislation to prevent an adjudication officer, there is nothing to encourage or suggest it is open to him or her, and there should be. This is bad practice. I ask the Minister to re-examine this. It is all very well to say it is not in the Bill but there is nothing to prevent it happening. With such reasoning, we would have no legislation at all but would say there is nothing to stop everything happening and people can do what they want.
I support Senator Norris. We have all seen cases in which last minute documents suddenly appear and change the entire course of a case. It is not reasonable in any industrial relations case. It is a perfectly reasonable amendment and I cannot see why the Minister does not accept it.
Our case is also perfectly reasonable. The Labour Court would judge this as part of the overall picture in which a case is being presented and take cognisance of how it is being produced at the last moment. In deference to the Senators, I will speak to people who are professionally engaged in such work to see why we have it formulated as we have. The Bill gives more discretion than the Senators' amendment, which precludes such evidence, which may be key to getting a fair outcome, from coming into play. I will seek the views of people who are experienced in the area.
I wish to inform the House that I intend to introduce amendments to sections 42(6)(a) and 42(6)(c) on Report Stage. These amendments are necessary to incorporate amended definitions of certain terms in the Maternity Protection Acts and Adoptive Leave Acts which are being incorporated into those Acts by the Children and Family Relationships Bill 2014. I will also introduce a number of technical and drafting amendments to section 42 on Report Stage.
I wish to speak on the section. The dismissal of a claim by an adjudication officer is part of the section. Section 43 provides that "An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 42 if he or she is of the opinion that it is frivolous or vexatious." The exclusion has never applied to complaints referred under the Industrial Relations Acts and is contrary to the purpose of resolving individual disputes arising in the workplace. Dismissing individual referrals made under the Industrial Relations Acts is counterproductive. I would be very concerned, as is ICTU, that applying these criteria would undermine the ability of unions to have individual cases referred under the Industrial Relations Acts heard. The unintended consequence is likely to be an increase in collective action, given that a vital dispute resolution avenue will be removed. Other complications may arise in the context of the requirement to exhaust all procedures. ICTU therefore seeks an amendment to clarify that referrals to individual disputes under the Industrial Relations Acts cannot be refused on the basis that they may be vexatious or frivolous.What Congress advises the Minister through me here is that it is unlikely that a trade union or practising solicitor or barrister will bring vexatious claims. There has never been a case where a claim was adjudicated by a single person as vexatious or frivolous. For that reason, I will call on Report Stage for the removal of section 43 in its entirety.
The term "frivolous or vexatious" is a legal one and not pejorative in any sense. It is merely a question of saying that as far as the complainant is concerned, if he or she has no reasonable chance of succeeding, the law says it is frivolous to bring the case. Similarly, it is a hardship on defendants to have to take steps to defend something which cannot succeed and the law calls that "vexatious". The current regime operated by the Director of the Equality Tribunal provides a very good example of the effective filtering of complaints on receipt. Under the Employment Equality Acts and the Equal Status Acts, the director of the tribunal has the power to dismiss a complaint at any stage if he is of the opinion that it is made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. It is entirely logical that a similar power be vested in the Director General of the Workplace Relations Commission.
The exercise by the Director of the Equality Tribunal of the power under section 22 of the Equal Status Act was unsuccessfully challenged by the claimant appellant in Fitzgerald v.the Minister for Community, Equality and Gaeltacht Affairs, which came before the High Court by way of an appeal on a point of law from a judgment of the Circuit Court. The terms "frivolous" and "vexatious" are very tightly defined to refer to circumstances where there is no chance of success. It is not the sort of case the Senator envisages that will be struck out here.
I move amendment No. 95:
This amendment seeks to remove the proposed cap on re-engagement and reinstatement which was introduced by the Government. This is at the suggestion of ICTU who warn that the inclusion of the provision is a significant step backwards in equality rights and may be in breach of article 18 of the EU equality directive in respect of compensation and reparation. That is the logic of the amendment and I hope the Minister is in a position to accept it.
In page 42, lines 31 to 33, to delete all words from and including "but" in line 31 down to and including "1977" in line 33.
The Senator's proposed amendment is inappropriate as it would have the effect of giving the District Court jurisdiction to award uncapped financial compensation in certain cases of unfair dismissal. This would be inconsistent with the status of the District Court as a court of local and limited jurisdiction under the Constitution. It would also be inconsistent with the scheme of the Unfair Dismissals Act 1977. Therefore, I will not accept the amendment.
Amendments Nos. 96 and 97 are of a drafting or technical nature and are consequential on amendments made elsewhere in the Bill. Amendments Nos. 96 and 97 delete subsections (7) to (10), inclusive, of section 45 to avoid duplication with section 21 of the 1946 Act, as amended by section 75 of the Bill.
I move amendment No. 100:
The amendment addresses a situation where there is a misapplication of the law but not a misapplication, misunderstanding or misrepresentation of the facts in cases appearing before the Labour Court. In other words, it relates to cases in which the facts are established but the law is inappropriately administered. In such circumstances, time can be saved in the Labour Court by remitting a matter back to an adjudicating officer with an instruction simply to apply the law as determined by the Labour Court. This may mean that any subsequent appeal would only be on the issue of quantum, that is the amount of compensation involved. This could save costs to the State.
In page 44, between lines 6 and 7, to insert the following:"(12) The Labour Court may remit a case to a different adjudication officer on such terms as the Labour Court shall determine to include directing an adjudicating officer to rehear the case applying the law to the facts as determined by the Labour Court.".
The Senator proposes that the Labour Court be empowered in the case of a matter which has come before it on appeal from a decision of an adjudication officer to refer that matter back to another adjudication officer to be determined again at first instance. This does not take into consideration the fact that, on appeal, the Labour Court hears the case de novo. The whole case is reheard. In the arrangement outlined in the Workplace Relations Bill 2014, both parties to a complaint have the right to have the matter heard fully on two occasions; at first instance and on appeal. This arrangement meets fully the requirements of fairness and justice. To provide an additional remedy to the Labour Court other than to uphold or deny an appeal would amount to providing the Labour Court with a concurrent jurisdiction akin to judicial review, a jurisdiction which is exclusive to the High Court and the Court of Appeal on appeal therefrom. Additionally, far from expediting proceedings, the amendment as proposed would serve, if adopted, to delay them as it would be necessary to have a minimum of three hearings in most cases.
It is not that we are looking for a rehearing of the entire case de novo. It is where the facts that were established were uncontested and agreed. While both parties consent and agree as to the facts, there is a misapplication of the law. The law is imperfectly administered and it is on a technical point of law that a matter would be referred back to have the law appropriately and correctly applied.
I am not sure I understand what an example of what the Senator seeks to achieve would look like. If a case is appealed by one side or another on the basis of a point of law, it is heard by the Labour Court afresh. The Labour Court will judge the whole case. The Labour Court is not a High Court which interprets law, rather it adjudicates on an actual case. The facts are presented to it and it makes an adjudication. It is not purporting to be the High Court making pronouncements on law. It adjudicates in the circumstances. We do not envisage that the Labour Court will interpret law in the way the Senator seems to.
Surely, it will interpret labour law as part of its function. I am instancing a case where the facts are established and not arguable and there is no necessity to rehearse them once again. They have been presented to the court and are agreed by both parties.
Senator Norris is adverting to something we have seen happen in cases before a Rights Commissioner where he or she finds in favour of the worker but the remedy offered does not comply fully with ability of the law to provide for compensation. In such a case, the worker and his or her representative must appeal the matter to the Labour Court which can take a long time. We are seeking to provide for the Labour Court to short-circuit the whole system by sending it back to the adjudicating officer with instructions that the law provides for a different remedy and to apply the law.We are trying to prevent cases going to a full sitting of the Labour Court, which is overburdened with work. A quick decision can be sent back to a rights commissioner, the case can be recommenced and a misapplication of the law can be rectified.
We have no evidence that there are many cases of this nature where a misapplication of the law is clogging up the system. If an inappropriate remedy is made and the case is appealed, they rehear the evidence and decide what is the appropriate remedy. I know of no evidence that the system is being clogged by the type of cases to which the Senator refers. I will consult people in the field but it has not been brought to my attention that rights commissioners are making decisions that do not properly apply the law. A person might dispute the judgment they reach and that is his or her entitlement. That is what is appealed to the Labour Court, not a false interpretation of the law, as I understand it. However, I will take the opportunity to get-----
It is not that we want the case heard from the beginning because it would be a rehearsal of everything that has been agreed if the facts of the case are agreed, but the issue relates to where an error made has been made and has been detected in the application of the law and having it speedily sent back to be corrected.
Our Rights Commissioner Service does an excellent job. I refer to rare cases but where a rare case occurs, we may save somebody having to wait a considerable time for a full sitting of the Labour Court. I would not like the Minister to think that the Rights Commissioner Service fails in its duties. My experience is that it does a wonderful job.
Government amendment No. 101: In page 44, to delete lines 10 and 11 and substitute the following:"(13) (a) In proceedings before the Labour Court under this section, the appellant or respondent (including an appellant or respondent to whom paragraph (b)applies) may be accompanied and represented by—(i) a trade union official within the meaning of section 11 of the Act of 1990, (ii) an official of a body that, in the opinion of the Labour Court, represents the interests of employers, (iii) a practising barrister or practising solicitor, or (iv) any other person, if the Labour Court so permits.(b) In proceedings before the Labour Court under this section, the appellant or respondent may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.".
I move amendment No. 102:
This concerns a situation where nothing has moved over a period of a year and the case, as I understand it, is going to be struck out. At the point of the hearing, having adverted the complainants to the inaction in pursuance of their complaints, they should be allowed another period of 30 days to pursue the complaint. The reason is there can be justifiable reasons for a complaint being neglected in this way and not being pursued within the period of a calendar year. The person involved may have had a serious accident and could have been unconscious in hospital and so on or he or she could suffer from a disability. It would be reasonable that once the attention of complainants or that of their legal representatives has been drawn to the fact that the case is about to expire, they should be given a period of 30 days from the point of adverting to the fact that it is about to expire to decide whether to pursue it and to get themselves ready to pursue it. The amendment simply allows people in those unusual circumstances to have the benefit of an additional 30 days having had their attention drawn to the fact that the complaint has not been pursued.
In page 46, line 2, after "out" to insert "having given the party a period of 30 days to pursue the complaint".
On rare occasions, somebody who is not qualified will represent a complainant and the case could drag on and suddenly the complainant could be confronted with the case about to fall. A 30-day notice period is a perfectly reasonable request and I ask the Minister to accept the amendment.
This would add an unnecessary complication to the system where in practice a notice will be sent in advance of the expiry date. The Senators' amendment would introduce a further unnecessary administrative burden on the workplace relations commission and-or the Labour Court in dealing with complaints in respect of which the complainant has failed over an extended period to manifest any intention of prosecuting. The introduction of such an additional administrative layer and the consequent extension of the period for which an unprosecuted complaint would remain open is not desirable in the context of a new system, which is premised on the efficient processing of cases from the perspective of both complainants and respondents. As drafted, the section empowers, but does not compel, the director general of the Labour Court to strike out a complaint or appeal that has not been prosecuted for a year or longer. In each case, he or she must be satisfied that the complainant or appellant has not pursued the complaint or appeal for the specified period. How he or she will seek to establish this to be the case in practice is an administrative burden. A letter will be set out in normal course saying the deadline is such and such and requiring a new loop in the process would be an unnecessary addition bearing in mind the complainant has left a long time lapse.
I am talking about unusual circumstances and Senator Craughwell has referred to a situation where somebody who is not qualified is pursuing the complaint or appeal. There could also be foolish solicitors or barristers. Cases have often been neglected to the disadvantage of complainants who believe they are being properly pursued and then discover to their horror one day that they are not. The Minister has instanced additional work but, for God's sake, it is not much. It would take three minutes and, therefore, I do not accept for one second the additional work argument. The court is there to work and the machinery is in place to assist people. The court is not there to impede them and to say it has too much work to do and it cannot bother with the complaints. If it is an issue of justice, it is an issue of justice.
When is the letter the Minister mentioned sent? How much notice is given? For example, is the letter sent six weeks prior to the expiry date or is it sent on 25 January stating the case will expire on 27 January? That is not much notice. The Minister has not been helpful in this regard and I ask him to think again. There is not much work involved. It is a question of justice and there is no indication in what he said that a letter will be sent warning of this to the complainant as well to his or her representative adverting to the fact that the complaint has been mishandled in this way.
I represented workers for a number of years and it was not uncommon for them to think I slept with their cases 24-7 just because they did. However, there have been cases where a solicitor passed away and left a plethora of work behind. Nobody was sure where anything was. If complainants are advised that they have 30 days to pursue their cases, at least they can go back to their representative, ask what is happening to their case and find that it was lost as a result of somebody dying or leaving a firm. It is a reasonable amendment and it will not result in a significant additional administrative work.
The present practice is a letter is sent by registered post giving 21 days notice to the complainant. It is an administrative practice, not a statutory practice. Before the rights commissioners would exercise this power, they would have to satisfy themselves that the complainant has not pursued the complaint within the period of one year and that is how they do it. It is not dissimilar to what the Senators propose but it is an administrative practice and that is the way it should be. It is not a legal requirement.
That is helpful on the part of the Minister and I am grateful to him for that additional information that we have managed to tease out.The Minister says it is an administrative practice rather than a legislative requirement. We feel it is appropriate to make a requirement. Even if the Minister made the existing practice a requirement, to provide 21 days notice before it expires, this would go a long way towards meeting our requirements. I am relieved and grateful that he has informed the House of the practice, which is an administrative practice. There is no comeback if it is not followed.
I am tempted to comment further but I will not because of the decencies of the House. Will the Minister consider making it a requirement, which would not impose any further labour on the court? It would largely meet our requirements, particularly if the Minister can say that it would be sent out one month before the expiry. We would be happy to accept that, although I am not sure if I speak for my colleague Senator Craughwell. That seems fair and would give the appellant notice and allow him or her to contact the legal representative, or fire the legal representative and get someone else, and relodge the complaint. I do not see any great difficulty with it because the Minister has said this is already administrative practice. There is no comeback if it is not followed but if it was incorporated into law it would involve establishing in law what is already the practice. I would be happy to accept that if the Minister can examine it on Report Stage.
I concur with everything Senator Norris said. If it is an administrative practice, turning it into a statutory practice is merely the stroke of a pen and will not change anything or add additional work. It makes perfect sense. Accidents happen and people get lost as a result.
I do not have a strong view but the section says it is up to the director general. The legal obligation is on the director general to satisfy himself that the complainant has not pursued the complaint. In law, we are putting a test of reasonableness on the director general before he strikes out the complaint. The way in which he chooses to exercise that test of reasonableness is the one we know about. I do not necessarily see why we should prescribe specific ways in which he could satisfy himself. This is what he can choose to do. In deference to the Senators, we will consider it but it is reasonable. The director general is trying to run an efficient office and should be given discretion. The obligation is on the director general, who must ultimately show that he behaved in a reasonable way in deciding to strike it out. The way in which he does this is perfectly reasonable to me, sending a registered letter. I do not think we need to prescribe it in law. This is a service in which we are trying to take out legalistic practices and to use administrative good sense. However, this practice is still subject to review. I will speak to the people who have familiarity with how the process is done but I feel the Oireachtas should not be excessively prescriptive when putting in place a director general to run an office in an efficient way. If something has been dormant for ages, we entrust the director general with an obligation to satisfy himself. I tend to take a more reasonable and less legalistic view than the Senators. What we have is reasonable and the way it is to be conducted is reasonable.
I accept that the Minister will speak to those concerned. I am sorry that he is not in a very positive frame of mind towards it. Why should it not be in law if it is administrative practice? It is not adding anything extra if it is already being done. It is not an additional fuss and simply copperfastens it in a case where a letter is overlooked.
I could come in with 100 good practices that the office does but it would be unreasonable of me to ask the Labour Court to enshrine it in a set of code that has the force of law. That means that, in six months' time, the office cannot budge from the existing practice if technology changes. The Senator would seek to embed it in primary legislation and then we would be stuck with what materialises. If we were dealing with 1909 legislation, we would be obliged to send a horse and cart out with a notice.
Government amendment No. 104: In page 47, between lines 16 and 17, to insert the following:“Offence to fail or refuse to pay compensation 53. (1) It shall be an offence for a person to fail to comply with an order under section 44 or 46 directing an employer to pay compensation to an employee. (2) It shall be a defence to proceedings for an offence under this section for the defendant to prove on the balance of probabilities that he or she was unable to comply with the order due to his or her financial circumstances. (3) A person guilty of an offence under this section shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.”.
This is a necessary deterrent to respondents in employment rights proceedings who fail to pay awards of compensation as directed. The amendment provides that it will be an offence for a party so directed to pay compensation to a complainant but who fails to do so, except in circumstances where that respondent can demonstrate to the court that his or her failure to pay the compensation was due to inability to pay.
This is a technical amendment to section 53(2) is being amended to ensure the amendments listed in schedule 6 shall not apply to any complaints or disputes referred under the legislation to be amended by section 53 before the commencement of Part 4 of the Act.
I move amendment No. 106:
This goes to the heart of one of the problems we have in existing labour law, the relationship between employers and employees. I refer to the obvious victimisation by some employers. The vast majority of employers are decent and treat workers fairly but there are employers who are not. We have seen examples of sit-ins and workers who have been victimised because they joined trade unions or because they took cases. We do not have strong anti-victimisation legislation that protects workers in the State. It is not robust enough and any trade union will concede that.
In page 47, after line 36, to insert the following:Safeguarding Employees
“55. In addition to existing provisions in enactments that to safeguard workers from penalisation and victimisation, an employer or any person acting on behalf of an employer shall not penalise an employee for seeking to exercise or having exercised any entitlement under employment legislation including availing or cooperating with the Workplace Relations Commission.”.
The amendment provides safeguards against victimisation for employees who stand up for their rights. It is also an important statement to include in the legislation. Workers are often afraid to raise their heads above the parapet, particularly during a prolonged period of high unemployment. We have often heard the comment that people are lucky to have a job. That can have connotations of people not feeling they can raise employment rights issues in the workplace. The purpose of the legislation is to deal with the structures and mechanisms in dealing with complaints and not to deal with the primary legislative rights and entitlements of workers. However, trade unions have warned that the lack of universal protection in legislation may result in employees facing discrimination, victimisation and blacklisting. The Government needs to remove the fear of retaliation.
Workers face a number of problems and there are weaknesses in existing employment law. We do not have strong robust compliance and enforcement. I raised some of these issues in earlier amendments. We do not have strong anti-victimisation legislation. A good example of what I am talking about are the Dunnes Stores workers, the vast majority of whom are on low hour contracts. Most of them are on 15-hour contracts and the contracts can be spread over five days. This is done purposely by the employer so the worker does not qualify for social welfare payments. A survey carried out by the Mandate trade union showed that 85% of those working in Dunnes Stores say the insecurity of their hours and the nature of their contracts was used by the employer to control them. That is one of the criticisms of precarious employment and underemployment, which is becoming a big issue. This somewhat relates to the issue of victimisation and the fact that, in some instances, workers cannot stand up for themselves. It reverts to a point that I made in one of our previous discussions on the Bill, in that the power relationship between an employee and an employer is not always balanced. Often, it is very much weighted in favour of the employer. When an employer has power over how many hours someone works, it can influence whether the latter takes a case. If a worker takes a legitimate case, this amendment would mean that an employer could not victimise him or her subsequently. Unfortunately, it happens and needs to be stamped out.
The amendment seems reasonable. I am sure that the Minister wants people to use the system. We are setting up the workplace relations commission to make the system simpler and more effective for employees and employers. The majority of employers provide decent work and decent pay, but there are those who do not. The majority of cases that the commission will hear will involve those employers who do not pay their workers proper wages, something that leads to conflict in the workplace and cases being taken by employees. Those employers will probably be the ones who victimise workers.
This issue relates to collective bargaining. The heads of a Bill will be published at some stage. I gave an example of a survey. The same company does not recognise the trade union. The Mandate trade union cannot enter the workplace to sit down and have a conversation with the employer. Some of the workers were victimised because they wore union badges. Imagine that. They were banned from wearing the badges and told that, if they wore them, they would be sacked or would not receive hours. That is victimisation.
We have a major problem and it needs to be resolved. We are proposing an amendment. I have listened to the Minister's comments in previous debates, for example, that this Bill is not the best place to deal with the matter. When is the best time and where is the place to deal with it? This problem has been with us for decades, but no Government has dealt with it sufficiently. As long as employers are allowed to victimise workers, some will continue doing so. We have a responsibility as legislators to ensure that we have strong and robust anti-victimisation provisions in legislation to protect workers from unscrupulous employers who victimise them simply because they can.
Will the Minister take on board my points? I feel passionately about this issue. I will listen to his response. If he is not in a position to accept the amendment, I will withdraw it, resubmit it on Report Stage and push it to a vote. It is an amendment that should be tested via a vote. We will see where people stand on the issue.
This legislation provides mechanisms for employees to make justifiable complaints against employers, but that purpose is frustrated if the employer can victimise or penalise the complainant. We know from a perusal of unfair dismissal cases that people are frequently dismissed unfairly because of making complaints. It is a matter of record. The Minister could argue that there is law on unfair dismissals, but the amendment is meant to prevent the situation from reaching the point of a person being dismissed or penalised. That it prevents rather than closes the door after the horse has bolted is one of its most important aspects. This seems to be in line with present thinking on whistleblower legislation, etc. Whistleblowers should be protected by the State. It is appropriate that such provision be included in this legislation. I cannot think of where else it would be included. One has a perfect human right to make a complaint. One has the right to be protected against discrimination as a result of making it. I would not accept for one minute the suggestion that unfair dismissals legislation is the answer. If someone loses a job, is out on his or her ear and gets a few thousand euro in compensation, it is a tragic situation and is not good enough. Senator Cullinane has instanced particular firms and situations in which people have been put under this pinch.
I rise to support Senator Cullinane's amendment. Having worked as a trade union representative at local and national levels for more than 15 years, two factors never cease to amaze me. First, middle line management who are not employers but represent them can take it as a personal attack when an employee takes a case. There are serious examples of victimisation in the public and private sectors. Second, there is a fear in the workforce. It is impossible to understand why so many workers will approach a trade union representative and ask him or her to represent them in particular cases without using their names. I have never figured out how someone is supposed to represent a worker's case without using that person's name.
Post-hearing victimisation is a serious issue. While there is legislation to deal with victimisation, I support Senator Cullinane's proposal to include such a measure in this legislation. The last time the Minister was in the Chamber, I complimented him on simplifying, or at least going a long way towards simplifying, industrial relations via this Bill. It gives us a clearer road to travel in terms of problems with industrial relations, equality, etc. The amendment would provide certain guarantees and allow workers some comfort when taking cases. Neither the Minister nor I can legislate for what people think. Unfortunately, there is little that we can do in that regard. However, this amendment might give some comfort.
I agree with Senator Craughwell that there is other legislation on victimisation. Indeed, such provisions are included in all legislation that we enforce in this context. However, I do not agree with him that it should be included in this Bill as well. The parent legislation sets out the penalties.
A dismissal based on victimisation would, by definition, be an unfair dismissals case. Such action is not permitted by our legislation. Under the organisation of working time provisions, an employer shall not penalise or threaten to penalise an employee "for having in good faith", etc. There is provision for not penalising under health and safety legislation. I could also refer to employment permits, protected disclosures, etc. Each of the relevant Acts makes explicit provision in this regard and we should not repeat in this legislation measures that are already provided for in the existing body of labour law.
I would be crazy to agree to Senator Cullinane's amendment, as it does not contain a penalty clause. One must revert to the parent legislation to find the consequence of an employer victimising an employee. It differs depending on the law in question, but that is how it should be. This Bill is not an exercise in bringing all of the legislation together in a comprehensive section on victimisation. The amendment is superfluous and would not be effective in doing what the Senator hopes it would do.
Does the Minister believe that existing legislation sufficiently protects workers from exploitation or victimisation? He would not find a single trade union representative anywhere in the world who would agree with him after reading the legislation.There is a weight of evidence from those who take cases, from the volume of cases and from the nature of cases to a number of high profile situations where workers were clearly victimised. I gave the example of where workers are not allowed to wear their trade union pins on their collars. We could give a number of examples without having to name names. If the Minister wants me to, I can send him as much information as he needs, but he does not need it. I assume he knows there are many cases where employers victimised their employees because they took a case.
The Minister is missing the point entirely or is being disingenuous by saying this is not a consolidation Bill. We are not saying it is one, nor is this amendment designed to do that. The Minister is bringing forward legislation which streamlines five existing employment rights bodies into one workplace relations commission to make it more effective for people to take a complaint. I accept that and fully understand what this legislation is designed to do. However, none of it is worth anything if a person who takes a case is then victimised and potentially sacked from his or her job for doing so.
The Minister cannot sit there with any sincerity and point to parent law or other legislation which he says protects workers. It does not work. We do not have enough protections or law in terms of compliance and enforcement. That is the big problem in the first instance, that is, compliance and enforcement of existing labour law. We certainly do not have anything like strong and robust anti-victimisation protections for workers.
The Minister mentioned the fact there is no penalty attached. We purposely did not insert any penalty because we wanted the Minister to accept that this issue needs to be dealt with. If he cannot do it in this legislation and with this amendment, could he answer the following question? Does he believe existing legislation and protections are in place? If so, are they robust enough to protect workers against the victimisation? I do not believe it nor will one find any trade union leader who does. If the Minister agrees with that, then the logic is that we must deal with it somewhere else. Where is that somewhere else? What is the Minister going to do about it? It is his responsibility to ensure workers are not victimised because they take a case.
This is about setting up a new structure which allows people to take a case where there is conflict in the workplace but it can only be effective if there is proper compliance and enforcement and if a worker who takes a case is not victimised. This goes to the heart of this Bill in terms of what it is designed to do. Will the Minister reflect on that? If he is able to answer those questions and if he believes, as I and all those trade union activists, officials and people who work in the sector do, that the laws are not robust enough at this point in time, what will he do about it and when will he address this issue if he is not minded to accept this amendment?
This is an ineffective amendment, which I do not support for that reason. Our law is not perfect and I am sure our enforcement system is not perfect but we just passed an amendment without any comment from the Senator which introduces a provision that a party directed to pay compensation to a complainant but who fails to do so, except in circumstances where he or she is unable to pay, would become exposed to proceedings in the courts. We have made that party guilty of an offence for failing to do that, so we are strengthening the enforceability. We are trying to make the process work more effectively where complaints arise.
There is in all of the parent law, which it would appear the Senator derided----
As I just stated, an employer shall not penalise or threaten to penalise an employee for having in good faith opposed by lawful means. That provision in employment legislation goes on to state what can be done under that for such activity. The Senator suggested we try to produce a raft of new provisions here. That is not the purpose of this Bill. The Bill is trying to ensure the system makes it is easier to complain, is more enforceable, is quicker to adjudicate, is smoother to work and encourages a compliance culture. I am not pretending that our labour law is by any means perfect. However, this is good legislation-----
We are providing legislation that will codify our law in a way that it will be much more effective and much more enforceable. I am not saying this is the last word on employment law. We will shortly introduce legislation to deal with the Low Pay Commission and, as the Senator knows, legislation to deal with collective bargaining. We have already introduced legislation to deal with temporary agency workers. We will introduce legislation to restore the registered employment agreements. Last year, we introduced legislation to deal with joint labour committees. We are continually evolving labour legislation.
To propose an ineffective amendment and say I should change a raft of law, when that is not the purpose of this Bill, is unfair. We will continue to improve our labour law and that will be reflected in current practices, just as in the past. We have introduced several Bills which have improved employees' rights and we plan further ones.
Government amendment No. 107: In page 50, to delete lines 33 and 34 and in page 51, to delete lines 1 to 3 and substitute the following:“67. (1) (a) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Commission in so far as they relate to any claim for redress, dispute or complaint determined by the Employment Appeals Tribunal under an employment enactment before that day. (b) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Labour Court in so far as they relate to appeals determined by the Employment Appeals Tribunal under an employment enactment before that day. 2) (a) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (a) of subsection (1) shall be construed as references to the Commission. (b) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (b) of subsection (1) shall be construed as references to the Labour Court.”.
Amendments Nos. 107 and 108 clarify the range of additional functions which will transfer to the workplace relations commission and the Labour Court on the dissolution of the Employment Appeals Tribunal. The Employment Appeals Tribunal will continue to sit for a period beyond the commencement of this legislation in order to hear all complaints and appeals referred to it before the commencement of Part 4. When the tribunal has cleared those complaints and appeals, the Minister will make an order formally dissolving it.
Section 67 provides that all first instance and appellate functions which remain vested in the tribunal as of the date of its dissolution will transfer to the workplace relations commission and the Labour Court, respectively.
Government amendment No. 109: In page 51, to delete lines 19 to 21 and substitute the following: “(4) All records relating to proceedings under an employment enactment, that, immediately before that day, were records of the Employment Appeals Tribunal shall be records of the Labour Court and, accordingly, shall be transferred to the Labour Court.”.
Subsection (4) currently provides only for the transfer to the Labour Court of records of the Employment Appeals Tribunal relating to proceedings before it under the Unfair Dismissals Act 1997. This subsection is being amended to provide that the tribunal's records in relation to proceedings under all employment legislation within its remit should be transferred to the Labour Court on the dissolution of the EAT. I am currently in discussions with the Office of the Parliamentary Counsel in relation to certain provisions in Part 6 which relate to transitional issues arising as a result of the EAT and, therefore, it may be necessary to bring forward some further amendments to these provisions on Report Stage to clarify any outstanding drafting issues.
I am in receipt of communication from a gentleman who is a solicitor and whose wife is a barrister. They operate in this area. A case with which his wife is dealing concerns an employee who has been dismissed from his job on grounds of ill-health. He brought a claim for unfair dismissal to the Employment Appeals Tribunal. Arising out of issues concerning his ill-health, the employee also brought a personal injury case in the High Court. Due to the very short limitation period of two years, he had to commence these proceedings prior to his EAT claim being heard.Due to the very short limitation period of two years, he had to commence his proceedings prior to his EAT claim being heard. On the application of the employer, the EAT postponed the employee's claim until after the disposal of the High Court case. As matters stand, the employee is having considerable difficulty in advancing his High Court case due to resistance by the employer in providing documents on discovery.
Our earlier discussion of this issue had an unsatisfactory outcome although I understand the Minister will give further consideration to it. Given the delays as outlined, the Bill will likely become law before the employee's High Court case is disposed of. This prompted a review of the Bill. Part 4 of the Bill deals with complaints and disputes, and provides that an adjudication officer will hear contested cases which are currently heard by the EAT. Cases before an adjudication officer are to be heard in private and an appeal can be brought to the Labour Court. However, the only route of appeal from the Labour Court is the High Court on a point of law. Part 6 of the Bill deals with the dissolution of the EAT. Section 67 of the Bill deals with transfer of EAT functions to the Labour Court. Section 71 is the nub of the matter. This section provides that anything commenced and not completed before the dissolution of the EAT may be, in so far as it relates to functions transferred to the Labour Court under section 67, carried out or completed by the Labour Court. This is one of these "may" and "shall" provisions. The operation of the word "may" can leave persons, such as the individual referred to in this correspondence, in limbo. It is not clear what is meant by the word "may" or what position would be applicable where the EAT has heard a case but had not made a determination. That is not specified. Once again, the person could be left in limbo. The result of the provisions in sections 67 and 71 is that a claimant or any party with a case that has not been completed when the EAT is dissolved will be deprived of a right of appeal other than on a point of law. The present right of appeal is to the Circuit Court and is a rehearing. Clearly this is unfair and possibly unconstitutional because it leaves such persons in a worse position than complainants whose cases come under the new system. I raise this issue on the advice of a solicitor whose wife is the barrister involved in the aforementioned case.
Section 82(2) provides that the amendments to the Unfair Dismissals Act 1977 "effected by this section shall not apply in relation to a claim for redress under that Act brought before the commencement of this section." Perhaps I will have a note prepared for the Senators to provide certainty on the matter.
That is my understanding of the matter. Section 71 also provides that any document operative immediately before the dissolution day will be treated as if it was issued by the Labour Court. That means any undertaking given by the EAT would continue to be an undertaking in the Labour Court.
Fianna Fáil totally opposes the imposition of fees in any shape or form. The advisory board to the National Employment Rights Authority has taken the view that while the introduction of a fee may avoid vexatious complaints, it may also penalise genuine complainants and stop some people from using the system. SIPTU has sought a commitment that fees will be abolished. Professor Michael Doherty from the department of law in NUI Maynooth contends that the introduction of fees in England was detrimental to individuals' access to justice. The imposition of fees for lodging claims has had a damaging impact on the accessibility of employment tribunals in England.
I call for the complete removal of section 72 because it provides a legal basis for the introduction of fees for lodging complaints. This is unacceptable. The experience of trade union colleagues in the United Kingdom is that fees have priced justice out of the hands of workers. The introduction of fees has played a role in removing workers' rights and research has shown this measure alone has resulted in a fall of 79% in overall claims before employment tribunals, with women and low paid workers most severely affected. It has been a bonanza for the worst employers, who can cheat workers out of wages. There was a decrease of 70% in the number of workers pursuing claims for non-payment of the national minimum wage in the UK and claims for unpaid wages and holiday pay have fallen by more than 85%. A report prepared by TUC found that many people are dissuaded from making claims because the cost of going to the tribunal is often more expensive than the sum of their outstanding wages.
The introduction of fees at any level and for any reason is opposed by the trade union movement under the auspices of ICTU, which fears that fees will be extended at some stage in the future. We previously discussed the issue of victimisation. Anything that deters a member of the public from bringing a case to an adjudication officer or the Labour Court should be eliminated. The Bill goes a long way towards opening up the process but fees should be opposed because they go in the wrong direction.
The introduction of a fee for lodging a complaint will act as a barrier to many low paid workers, of whom a proportion are migrant workers, and will serve as a disincentive to those who are already concerned about the risk of taking a case. A migrant worker who was not paid his or her wages or a person with a disability who was denied access to employment may have no other income or may be relying on social welfare payments. The imposition of a fee may make the pursuit of justice an unaffordable and impossible goal. For that reason, section 72 should be deleted. My colleague, Senator Craughwell, quoted extensively from the note circulated to us by Ms Esther Lynch. The figures are extraordinary.There has been a 79% fall in overall claims, a 70% reduction in the number of workers pursuing non-payment of the national minimum wage, and an 85% drop in claims for unpaid wages and holiday pay. These are horrifying figures and should inform our consideration of legislation whose purpose is to facilitate people to make complaints. The Minister has said he is not considering the introduction of fees. Why then is provision made, in section 72, for a mechanism to permit such charging? The provision is not needed if there is no intention to introduce fees.
I also received a briefing from the Irish Nurses and Midwives Organisation, INMO, which makes a series of valid points for the removal of section 72 altogether. If fees were introduced, it would be very difficult for employees to pursue their domestic legal rights and, by extension, to have rights derived from EU legislation enforced. We are not talking just talking domestic Irish law, in other words, but also concomitant legislation from the EU. The Government position on this section is that it will not be actioned in the first instance, but there remains an allowance for its imposition at some later stage. Again I ask what is the purpose of retaining this provision if there is no intention to activate it? It is the ICTU's position that imposing a fee to pursue legal rights should be never necessary and, therefore, this section should be removed.
There have been suggestions that a fee might be required to compel employers to attend hearings. In reality, employment rights cases may be decided on in the absence of the employer and enforced at the District Court. It is not necessary, therefore, to compel employers to attend. If they do not turn up, it is hard luck and they probably will find the case decided against them. The introduction of a fee penalty will not influence the decision to attend one way or the other. It is now being suggested that the provision could be amended to allow for the imposition of a fee only where employers seek to appeal a decision having not attended the first-instance hearing. Again, such a mechanism would allow the introduction of fees to a system where they currently do not apply and would not act as a deterrent to the practice referred to given that employers have indemnification in place to cover such costs. One can impose a fee on them, but somebody else will pay it. It will not be paid by the person exhibiting bad faith.
If any fee, for any reason, is introduced at this stage, it will be used to open the door for expansion of the relevant provision at a later stage. To put this in context, the INMO advised on 600 employment rights cases last year. Some were settled, but many were referred to the Rights Commissioner Service. These were ordinary workers, including nurses in the private and public sectors, seeking such rights as access to pay slips, payment of wages on time, correct rest periods, redundancy benefits, protection of employment while on maternity leave and so on. In other words, they were standard, run of the mill cases. The salary for a nurse is very modest, at €27,000 for a first-year staff post, and does not allow much scope for paying fees to establish one's existing rights. Why should people be penalised by having to pay for the establishment of these rights? Employers, on the other hand, will not be concerned by a fee as most have insurance schemes to cover the additional costs.
The introduction of a fee to pursue legal rights will impose a very real impediment to the securing of the basic right to a fair and equal system for workers. That would be a very negative change to what is currently a fair and equal mechanism for allowing employees to have their case heard on an equal footing. Section 72 provides the legal basis for introducing a fee for making a complaint and is unacceptable. According to the ICTU, the experience of its trade union colleagues in the United Kingdom is that "fees price justice out of the hands of workers". That is a very stark phrase and we in this House should take heed of it in the context of our duty to ensure justice for workers. I am certain that is likewise the Minister's intention. If he does not intend to introduce fees, why is the provision included? I have already noted the figures showing a 79% fall in overall claims taken to employment tribunals, with women and low-paid workers the worst affected. The ICTU describes this as a "bonanza" for the worst employers, who cheat workers out of their wages. This is the verdict of a trade union which is dealing with these issues all the time.
The situation is quite clear. One of the most striking points in the ICTU's document is the warning that employers will not be affected by this provision at all because they already have insurance to cover them. If they are charged fees, those fees will be paid by a third party. The provision is ridiculous and farcical. There is no reason whatever to retain section 72.
I support Senators Norris, Craughwell and White in their opposition to this section. While it may not be the Minister's intention to introduce fees, this provision will enable his successors to do so. Research published this year by the Citizens Advice Bureau in Britain shows that seven out of ten potentially successful cases by employees against their employers are not going ahead following the introduction of a fee system. Between October 2013 and March 2014, there was a 73% drop in the number of cases relative to the same period in the previous year. The research referred to the case of a man who worked 40 hours per week for more than two months as a kitchen porter and was entitled to holiday pay of just under £300. He abandoned his claim on discovering the fee for accessing the tribunal would be £390. We will be opposing this section.
I join colleagues in proposing the deletion of this section. The previous speakers have made a very persuasive case by way of their well-researched contributions and cogent arguments. As a former Minister of State in the Minister's Department, my experience was that one could always expect tremendous contributions in this House from very experienced people. Moreover, those contributions were likely to be more detailed and comprehensive than those in the Dáil, perhaps because Deputies are tied up with a great deal of constituency work and other commitments and do not have the time to put in the amount of research Senators clearly have put into this debate. I am terribly impressed by colleagues' contributions today.
My suggestion is that the Minister might reconsider this issue before Report Stage. I would be surprised if Labour Party Members are in favour of it, particularly given that ICTU and other trade unions are opposed to it. Sometimes Bills pass through Cabinet without other Ministers having an opportunity to give any input. I suspect that not many of the Minister's Cabinet colleagues have read this very complex Bill. A great deal of work has gone into it, presumably over several years. When one sees a combined opposition from Members on all sides of the House to a particular provision, it gives reason for pause. Indeed, the Minister himself does not seem very convinced of the merits of the types of charges being allowed for in this section. The provision is being included on the basis that it may be necessary to assist with the cost of administration and so on. However, colleagues have clearly made the case that it would be detrimental to persons wishing to bring forward a complaint. The Minister does not need to go back to Cabinet on this. He can accept the arguments and delete the section. If the proposal is put to a vote, we will see how strong our commitment is to this particular issue.
I thank the Senators for their contributions to the debate on this provision. The section provides for a reserve power and my intention is to use it in only one circumstance, namely, where an employer fails to attend a hearing at first instance and subsequently appeals the decision to the Labour Court. I do not want to encourage that type of practice when we are providing a simple and clean way of having cases heard quickly. If an employer decides he or she is not going to co-operate with that simple mechanism and then proceeds to appeal the case to the court, I will impose a fee. This is a reserve power, as I said, and the circumstance I have indicated is the only instance in which I will use it. I assure Senators I do not intend to introduce any fees for workers taking cases of the types they outlined.To put Senator Leyden’s fears to rest, it is not a revenue raising measure and I have no intention of using it to raise revenue. However, introducing fees in the one instance which I propose would encourage a better use of the legislation and is a justifiable use of a fee in a situation in which somebody has put somebody through an initial hearing, fails to turn up and then decides to appeal it and force it into a Labour Court, delaying the worker's opportunity to have his or her case dealt with quickly and fairly in the first instance. This is the only instance in which I intend to use the power and it is right that I should be able to do so.
While I accept the Minister's word, he and I will come and go and the Bill will remain. I am not so sure I would trust every future Minister not to expand the powers. While I understand the reason the Minister is keeping the power in reserve, the trade union movement is totally opposed to it and I stand four-square with it against any form of fee for any reason. In the Minister’s speech he chose to highlight the deviant employer rather than the deviant employee. These issues can be solved without the threat of fees.
The Minister is being disingenuous because he has said here in the House, which has no legal effect, that he will introduce it in only one case. If this is the situation, why did he not frame the legislation in such a way that he can introduce it only in one case? He has given himself extremely wide powers. The Bill states:
It is the whole shebang; it is the whole shooting match. It is not one little case but the introduction of fees, full stop. It could not be broader or more general. If it is the Minister's intention to introduce it in only one case, he should introduce a provision that meets only that case. This would apply mostly to employers and I have already stated that it is not the slightest penalty against them, given that they are insured against such a contingency. It will have no effect on them. I call on the Minister to withdraw the section. It is not applicable and the Minister's defence of it is extraordinarily weak because although he said he would introduce it in one specific case, he has given himself carte blancheto introduce fees.
The Minister may, in respect of—(a) such services provided by the Commission as may be prescribed, and
(b) such services provided by the Labour Court as may be prescribed,charge the recipient of any such service a fee for the purpose of defraying the cost of the provision of that service by the Commission or the Labour Court, as the case may be.
If he is serious about it, why not specify the situation in which the Minister may introduce fees? Given that he has not done so, his argument does not stand. He can say what he likes in the Seanad, but it will not be persuasive in a court of law because the legislation will be persuasive, and the legislation is wide open. This is consistently opposed by all the trade unions. If the Minister is seeking good workplace relations, he should not alienate the whole trade union movement.
They are very clear on this. I appeal to the Minister to rethink this section and withdraw it or frame it in such a way that it directs his venom at the one little instance. Talk about using a hammer to crack a nut. This is using a nuclear bomb to squash a midget.
Despite some interests wanting it, I have no intention of using this to put barriers in the way of workers. I can bring to the Oireachtas committee the regulations on the provision for the fee for those who fail to turn up. I am giving myself a general power because we do not know what other practices might arise that would interfere with people's proper use of the legislation.
It is a general power. The Senators must take my word that we are not using it to raise funds or stand in the way of any worker pursing his or her justifiable rights. I do not see any reason for putting fees in place to stand in people's way. There were different views on the two sides and, after considering it, I came down on the side that conforms to the views of the trade unions. However, I am reserving the right to introduce a fee in this case and in the event that a similar instance arises in which I think it would be in the interests of the system to prevent bad practices in the way it is being used. This is the only reason I am taking the general power and it will not be for any of the purposes feared by Senators.
The Minister said that while the general provision is there, he would use it only in a specific case. He then went on to qualify this and say that for some other subjective reason which may arise, and which is not known today, he, or some future Minister, may decide to extend the provision. We should not keep the section, however if we must, I concur with Senator Norris that we should restrict the legislation to the one instance to which the Minister refers and ensure we do not find the Bill is immediately in conflict with the entire trade union movement, and thus with every worker in the country. I ask the Minister to reconsider it.
The Minister might be worn down yet. I have never heard such a strong view being expressed by Senators in a most detailed way. The Minister is very reasonable and has knowledge. He said we must take his word for it and accept how he feels about it. However, as Senator Craughwell said, we do not know who will be here in ten years' time. A future Minister might say it is a wonderful opportunity to charge for everything and make money to pay for all the services. This Minister will work Deputy Bruton's Bill. Somebody discussing this in 20 years' time might say the Minister, Deputy Bruton, said all these nice things when he introduced the Bill, and the reply will be that Deputy Bruton has no say in it.
I have a suggestion to avoid a vote on the issue, and save the Labour Party any embarrassment. I am surprised the Labour Party is not contributing anything on the Bill. As a SIPTU member I give the union and ICTU great credence. The union members are reasonable people and are just making a point. The Minister's point is also reasonable. I suggest that on Report Stage he put what he has said here in legislative form. We will accept his bona fides on what he is trying to achieve in that regard. It is reasonable and would ensure nobody will ever abuse the views the Minister has expressed here today.
It is all coming out now. Only in the latter stages of this discussion is the veil being rent from the Minister's position. First, he said powerful interests had been lobbying for a wider application of fees. These interests will continue to operate on the Department. The Minister said very firmly on a number of occasions that there is only one case in which he would apply this legislation, that he put in this reserve function so that he could use it in one instance. He returned to this again and again and insisted on it. Now, most intriguingly, he has come out and said there may be other instances which we have not foreseen. This gives away the game. The Minister is putting in the function not just for one instance, but so that he can cover all kinds of contingencies that may or may not arise in the future if he feels like introducing a fee.Moreover, I already have illustrated that this will have no impact whatever on employers because they are indemnified already. The Minister first stated there will be only one instance but then he stated there may be other ones as well. Members would like to know what other ones.
One cannot have legislation that is hypothetical in the extreme like this. As for the suggestion that something might happen, if something catastrophic occurs, the Minister could then introduce additional emergency legislation. I now am more concerned than ever about this. As I stated at the outset, the Minister is in direct collision with the trade union movement. I do not give a damn what the Minister's advisers say. While I should not attack civil servants, they seem to be a fairly conservative lot. They are backtracking on-----
However, I have made a clear and inarguable case to the Minister. The Minister either has the intention of expanding this or at least is making provision that he can expand this. It is a very bad practice that is opposed by the trade unions. Moreover, it is totally ineffective because the employers already are indemnified against it and I can discern no reason whatever for it. This is one of the areas about which I feel most strongly. The Minister has heard of the impact of the imposition of fees and of course this is why the employers will be lobbying for it. They of course wish to see falls of 79%, 70% and 85% in types of legitimate cases. They wish to see the weak ground down and I do not believe that Members should provide in law for that to happen.
I speak as a former member of the national women's committee of what formerly was known as the Federated Workers Union of Ireland. While I am an employer, I am a supporter of unions and I will call for a division on this section. Members have done too much talking about it and should cut to the chase. While the Minister knows I have the highest respect for him on a personal level, I will call for a vote unless he changes his mind and agrees to remove the section completely.
If I may intervene in advance of a vote, could I ask the Minister, in order to avoid a division, to give an undertaking to examine the possibility of putting into legislation the single specific case he instanced in the first place and to forget about all the hypothetical ones? They can be dealt with later. Were the Minister to narrow the provision to the specific case he has in mind, the House would be prepared to live with that but otherwise, there will be a vote. That would be a real pity because it has been a relatively agreeable debate. While the Minister and Members have locked horns, had different opinions and so on, the Minister has undertaken to reconsider certain matters. I would be grateful were he to consider doing the same in this instance. Otherwise, I am afraid it will be a vote and that is redundant because the Government will win the vote. As there is no question about that, it is rather an empty exercise.
I have. I plead with the Minister at least to give Members the hope that he may revert on Report Stage and to not allow this matter to be pushed to a vote at this point, because I really seek to have this section removed.
It will be necessary to bring any regulation under this provision before the Houses of the Oireachtas in the usual way. Consequently, there is provision for the Houses to be involved if any such regulation came forward. As I stated, only one will be brought forward and I undertake to consult with the Oireachtas committee in order that people can see what I am bringing forward. However, this is a general power and it is reasonable to include it. I have given the assurance that there is absolutely no intention of using this-----
Because I intend to use this power to bring forward a regulation in the case I have outlined. I will do this because I believe that will improve the operation of the Act. I will bring that regulation before the committee and before I lay it before the Houses and people can decide whether they approve it. However, I believe this is a reasonable approach. The instance I have outlined to the Senators is an unreasonable practice that we should stamp out and I will use this power for that. I have no intention of using it for any of the reasons given by the Senators to pretend the game is out or all the things of which Senator Norris has accused me. No game is out. The game is that I am producing a single instance. I will bring in regulation and Members will have an opportunity to look at it. I will bring us before the committee in order that people can see it and that is the purpose of this section.
I apologise but I have not finished. While the Minister can talk about bringing a regulation to the House, that still leaves in force the general power in the legislation to introduce further regulations. This is not acceptable. The Minister has reverted to his original point and is kind of shifting from point to point. He now states again that it is for the single instance. If that is the case, it should be included in the legislation and not by regulation and I appeal to the Minister in this regard. Why not bring it forward within the legislation? What is this great thing about regulation? Why not include it within the legislation as an amendment on Report Stage? The Minister should not put Members through the farce of voting. He certainly would be embarrassing his Labour Party colleagues by doing that. If the Minister must have this one exception, he should then put it into the legislation. He should not use regulation, which leads the legislation wide open for further elaboration and is quite offensive to democracy.
- Ivana Bacik
- Terry Brennan
- Colm Burke
- Eamonn Coghlan
- Paul Coghlan
- Michael Comiskey
- Martin Conway
- Maurice Cummins
- Jim D'Arcy
- Michael D'Arcy
- John Gilroy
- Aideen Hayden
- Lorraine Higgins
- Caít Keane
- John Kelly
- Denis Landy
- Marie Moloney
- Mary Moran
- Tony Mulcahy
- Michael Mullins
- Hildegarde Naughton
- Catherine Noone
- Susan O'Keeffe
- Pat O'Neill
- Jillian van Turnhout
Government amendment No. 110: In page 53, between lines 31 and 32, to insert the following: "Amendment of section 21 of Act of 1946 75. Section 21 of the Act of 1946 is amended, in subsection (1), by-(a) the substitution of "The Court may for the purposes of any proceedings before it under this Act, any investigation under the Industrial Relations (Amendment) Act 2001, the Unfair Dismissals Act 1977 or Part 4of the Workplace Relations Act 2015do all or any of the following things" for "The Court may for the purposes of any proceedings before it under this Act or any investigation under the IndustrialRelations (Amendment) Act 2001 do all or any of the following things", and (b) the substitution of the following paragraph for paragraph (b):"(b) take evidence on oath and, for that purpose, cause to be administered oaths to persons attending as witnesses before it,",".
Amendment No. 110 is of a drafting and technical nature. Section 75 amends section 21 of the Industrial Relations Act 1946 to extend the range of proceedings in respect of which the Labour Court may exercise certain functions and powers invested in it by the 1946 Act, as amended.
I move amendment No. 111:
This amendment is about the power of nomination of the chairman of the Labour Court. It allows him to appoint persons as temporary members of the Labour Court. There are cases that arise in which there is no power for the chairman of the Labour Court to nominate other persons where there could be a conflict. This amendment deals with conflict of interest. This is a frequent phenomenon in court cases where judges recuse themselves from cases because they are known to one of the parties before the court. The amendment seeks the same provision because there is a limited number of members of the Labour Court. This is to allow the chairman to appoint somebody as a temporary member in order to avoid a situation where there are conflicts of interest. There is such a provision in the equality legislation to the director of equality so there is a precedent in law already.
In page 55, after line 42, to insert the following:
"(e) the Chairman of the Labour Court for the purposes of having any particular case dealt with may-
(i)appoint a person or persons to be a temporary member of the Labour Court,
(ii) appoint a person or persons to be a temporary Deputy Chairman of the Labour Court,
(iii) the Minister shall from time to time nominate a body of persons who may be appointed as a temporary member of the Labour Court(iv) any person who may be nominated as a temporary member of the Labour Court or temporary Deputy Chairman of the Labour Courtor a temporary Deputy member of the Labour Court on such terms and conditions as he or she may determine,shall be appointed to a list of persons whom shall be reviewed every five years. Any person nominated by the Minister shall be subject to a nomination from the Public Appointment Service and the production by the 31st March in each year of a certificate from the Revenue Commissioners confirming compliance with the Taxes Consolidation Act 1997 (as amended).".
As the number in the Labour Court would be relatively small and to avoid problems which have arisen in the past where the Labour Court members would have known the parties or one of the parties, for the purpose of ensuring that there would be a fair hearing, there are issues to ensure that a completely independent division could be appointed. This amendment seeks directly to do that.
An example which could arise would be that a member of the workplace commission brings a claim under a particular Act. Unless it is equality legislation, members of the Labour Court may well know that person having met with him daily and would have to hear the case even where there could be a perceived prejudice, even though no actual prejudice might exist. The Labour Court applies matters fairly but even in the High Court, judges excuse themselves. There are inevitably sufficient judges to avoid any perceived prejudice but with four divisions only there is a potential for the entire membership of the Labour Court to know an employee or employer personally.
I would think the fact that in one instance where the equality legislation is invoked there is such a provision would mean that we would want transparency on a level playing field for everybody and that granting this power to the chairman of the Labour Court would be an appropriate move in the right direction.
The Bill makes adequate provision for an increase in the staffing of the Labour Court. It also makes provision for the making of temporary appointments to the Labour Court to cover certain absences of a full-time officer or member. There is no case to support the creation of a panel of temporary members. The Labour Court is bound to act judicially at all times and to avoid bias or the perception of bias. When the new appointments to the Labour Court envisaged in the Bill have been made, the court will consist of 13 officers or members. This allows for a significantly increased number of possible combinations of personnel to deal with any particular case and thus considerably reduces the possibility of a division of the court having to recuse itself to avoid the perception of bias.
Amendments Nos. 112 and 113 are intended to allow the Minister to make a temporary appointments to the office of deputy chairman of the Labour Court to fill a temporary vacancy that may arise in certain circumstances in that office. Such a vacancy may occur, for example, where an incumbent deputy chairman is unable to perform his or her duties for a period or dies or is removed from office.
Government amendment No. 113:In page 58, between the lines 33 and 34, to insert the following: "(1C) Where a person- (a) appointed under subsection (1) to be a deputy chairman, (b) who continues to be a deputy chairman by virtue of subsection (1A), or (c) reappointed in accordance with subsection (1B) to be a deputy chairman,is, for whatever reason, unable to perform his functions as deputy chairman and the Minister is of the opinion that his inability to so perform his functions would unduly disrupt the performance by the Court or a division of the Court of its functions, a temporary vacancy among the deputy chairman shall be deemed to exist and the Minister may, after consultation with the chairman, appoint a person to fill that temporary vacancy subject to such terms and conditions as the Minister shall determine. (1D)If a deputy chairman dies, resigns, ceases to be qualified for office and ceases to hold office or is removed from office, or a deputy chairman's term of office expires and he is not reappointed under subsection (1B), the Minister may appoint a person to be a deputy chairman to fill the vacancy so occasioned pending the appointment of a deputy chairman to fill that vacancy in accordance with subsection (1), and the person so appointed shall hold office subject to such terms and conditions as the Minister, with the consent of the Minister for Public Expenditure and Reform, determines.",".
Government amendment No. 114: In page 59, between lines 20 and 21, to insert the following: "(b) by the substitution, in paragraph (d) of subsection (2A) of section 2, of "the adjudication officer or the Labour Court" for "the rights commissioner, the Tribunal or the Circuit Court". (c) by the substitution, in subsection (5) of section 2A of "the adjudication officer or the Labour Court" for "the rights commissioner, the Tribunal or the Circuit Court",(d) by the substitution, in subsection (2A) of section 5, of "the adjudication officer or the Labour Court" for "the rights commissioner, the Tribunal or the Circuit Court".(e) by the substitution, in subsection (7) of section 6, of "the adjudication officer or the Labour Court" for "the rights commissioner, the Tribunal or the Circuit Court",".
Government amendments Nos. 114 to 120, inclusive, are largely technical and of a drafting nature. These amendments are necessary to ensure that the complaints and redress procedures which will apply to complaints brought under the Unfair Dismissals Act 1977 are as analogous as possible with the complaints in redress scheme provided for in Part 4 of the Bill. In particular, section 11 of the Unfair Dismissals Act 1977 is to be amended to ensure that there is no inconsistency between the provisions which apply to the service of documents under that Act and those that will apply under the Workplace Relations Act.
On Government amendment No. 120, in regard to a notice or other document that is required to be served on a person is it sufficient, for example, just to send it by electronic means? There are many people who do not have computers, including myself.
Government amendment No. 116: In page 59, to delete lines 29 to 33 and substitute the following: " "(1) (a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred the Director General shall, subject to section 39of the Act of 2015,refer the claim to an adjudication officer for adjudication by the adjudication officer. (b) Section 39of the Act of 2015shall apply to a claim for redress referred to the Director General under paragraph (a) as it applies to a complaint presented or dispute referred to the Director General under section 42of that Act, subject to the modification that references, in the said section 39, to a complaint or dispute shall be construed as references to a claim so referred.",".
Government amendment No. 118: In page 61, to delete lines 1 and 2 and substitute the following: "(xii) by the substitution, in subsection (12), of "the adjudication officer or the Labour Court, as may be appropriate" for "the rights commissioner, the Tribunal or the Circuit Court, as the case may be",".
Government amendment No. 120: In page 62, between lines 18 and 19, to insert the following: "(g) the substitution of the following section for section 11: "11.(1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or (d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner. (2) For the purpose of this section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.", and (h) the substitution, in subsection (2) of section 15, of- (i) "decision has been made by an adjudication officer" for "recommendation has been made by a rights commissioner", and (ii) the deletion of "or the hearing of a claim by the Tribunal has commenced".".
I move amendment No. 121:
The purpose of this amendment is to amend the interpretation section of the Protection of Employees (Employers' Insolvency) Act 1984 to enable workers access the insolvency fund when their former employer has ceased trading and is, in effect, insolvent but has not been formally placed in liquidation or receivership, declared legally bankrupt, died or deemed insolvent under legislation of another member state. Amendment No. 122 seeks to amend the definition of definition of insolvency for the purpose of application of the Act of 1984. Workers should still be in a position to apply under the insolvency fund where their former employer has ceased trading under the same circumstances as I have mentioned already.
In page 62, between lines 25 and 25, to insert the following:
"(2) Section 1(3) of the Act of 1984 is amended by the insertion of the following paragraph:
"(e) the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de factobeen stopped on a permanent basis for a period of six weeks or more;",
(3) Section 4 of the Act of 1984 is amended by the insertion of the following paragraph:(4) Section 6 of the Act of 1984 is amended by the insertion of the following subsections:"(g) where following notification in writing by the employee, employees or a representative body to the Minister the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de factobeen stopped on a permanent basis for a period of six weeks or more;",
"(11) Without prejudice to subsections (5), (6) and (7) and section (8), the Minister shall make a decision on an application without delay but in any event no later than 60 days after the application is made.
(12)(a) If the time limit provided in subsection (11) expires before the Minister makes a decision on an application the Minister shall, not later than 30 days after the expiry of the time limit, publish a statement containing the reasons for the delay in making a decision.".".
These amendments seek to address the complex issue of so-called informal insolvency. This issue is not within the scope of the scheme of the Bill. Furthermore, the issue raises complex questions at the intersection of employment and company law which would require detailed and separate consideration. The amendments are not appropriate for these reasons, therefore I do not propose to accept them.