Seanad debates
Thursday, 5 March 2015
Workplace Relations Bill 2014: Committee Stage (Resumed)
10:30 am
Michael Mullins (Fine Gael)
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I welcome the Minister of State at the Department of Jobs, Enterprise and Innovation, Deputy Damien English, to the House.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 123 to 128, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed. Amendment No. 125 is consequential on amendment No. 126.
Damien English (Meath West, Fine Gael)
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Amendments Nos. 123 to 128, inclusive, further refine the changes that have to be made to the Employment Equality Act 1998 in light of the establishment of the workplace relations commission and the transfer of the functions of the director of the Equality Tribunal to the director general of the commission. In addition to a number of technical or drafting changes, these amendments propose two substantive additional changes in respect of complaints brought under the Employment Equality Act 1998 as follows. A complainant will not be permitted to recover redress for discriminatory dismissal in circumstances where a court has begun hearing his or her wrongful dismissal action or an adjudication officer has determined his or her complaint under the Unfair Dismissal acts. I am in consultation with the Office of the Parliamentary Counsel on this amendment and it may be necessary to introduce a further amendment on Report Stage to further clarify the provision in relation to parallel claims under the Unfair Dismissal Acts and the Employment Equality Act 1998.
Transitional arrangements for amendments to the Employment Equality Act 1998 effected by section 84 of the Workplace Relations Act 2015 will not apply in relation to an employment equality complaint referred before the commencement of section 84. The Minister will return on Report Stage.
Ivana Bacik (Independent)
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I support the amendment but on Second Stage I made reference to the need to ensure no downgrading or deprioritising of the functions of the Equality Tribunal. I expressed a concern over whether the new commission would retain all the expertise that had been so painstakingly built up among staff at the Equality Tribunal and I was given assurances about that on Second Stage.
Damien English (Meath West, Fine Gael)
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I will reaffirm that with the Minister.
Government amendment No. 126: In page 66, after line 42, to insert the following:"(m) by the substitution of the following subsection for subsection (4) of section 101:"(4) An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if— (a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case concerned has begun, or (b) an adjudication officer has made a decision to which subparagraph (i) of paragraph (c) of subsection (1B) (inserted by subparagraph (iv) of paragraph (c) of subsection (1) of section 81 of the Act of 2015) of section 8 of the Unfair Dismissals Act 1977 applies in respect of the dismissal.",and".
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 129 to 132, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Damien English (Meath West, Fine Gael)
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These amendments further refine the changes which have to be made to the Equal Status Act 2000 in light of the establishment of the workplace relations commission and the transfer of the functions of the director of the Equality Tribunal to the director general of the commission. In addition to a number of technical or drafting changes this amendment proposes to provide for transitional arrangements in respect of complainants referred under the Equal Status Act 2000 before the commencement of section 85 of the Workplace Relations Act 2015. The amendments to the Equal Status Act 2000 effected by section 85 of the Workplace Relations Act 2015 will not apply in relation to an equal status complaint referred before the commencement of section 85.
David Norris (Independent)
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I move amendment No. 133:
This is fairly self-evident. There is a general Government policy that all government buildings should be accessible to the disabled. It is essential that any place where these hearings are held should be accessible to people with disabilities. It will be interesting to see if the Government accepts it or finds some excuse for not accepting it.Thus far, I have tabled numerous amendments none of which has been accepted, although in one or two cases the Minister of State said he would think about it before Report Stage. These were submitted by representatives of a well-known firm of solicitors which practises in this area. I would have thought they would have a fair idea of what they were doing. This amendment, even to the layman, seems to be inarguable. I am keen to hear the Minister of State's response. I see the shadow of a smile.
In page 69, between lines 19 and 20, to insert the following:
"Accessibility of hearings for those with a disability
87. Any premises used for the purposes of a hearing by an adjudication officer of the Labour Court or for the purposes of any mediation or case resolution meeting shall be suitable for access by persons with a disability.".
Feargal Quinn (Independent)
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I wish to add a word of support for Senator Norris's point. I imagine this is already covered in some form or other. I cannot believe that we would have legislation in place that did not enable people with a disability to attend. I imagine the Minister of State will be able to say to us that there is no need for this for a given reason, but I look forward to hearing it. I support Senator Norris's amendment.
Kathryn Reilly (Sinn Fein)
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I support the amendment. My colleague, Senator Cullinane, tabled this amendment as well. It is non-contentious and self-explanatory in terms of accessibility of hearings for those with a disability. I, too, am keen to hear what the Minister of State has to say and whether it is provided for in other legislation. There is no harm in having it stated explicitly in this Bill. It would only serve to strengthen the legislation and the intent behind it.
Damien English (Meath West, Fine Gael)
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I am pleased to have the chance to say that, like everyone in the House, we are in agreement when it comes to accessibility of facilities. Senator Feargal Quinn is correct. It is already covered. That is why we do not believe in the need for this amendment. The amendment seeks to provide that any premises used for the purposes of a hearing by an adjudication officer from the Labour Court or for the purposes of any mediation or case resolution meeting would be suitable for access to persons with disabilities. The issue raised by the Senator's proposed amendment is already adequately catered for by the Disability Act 2005. Therefore, we do not need this amendment. We are fully supportive of what is behind it, but the matter is covered in law already under the Disability Act 2005, and rightly so.
David Norris (Independent)
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I suppose I will have to accept that, but it would be no harm to stick it in , because it is a signal to people with disabilities that they are properly and duly regarded. I will have to accept that, as the Minister of State says, it is covered by the Disability Act.
On the other hand, the Disability Act does not always work. There are places where people do not have ready access for a variety of reasons, including historic buildings with exemptions. There are situations where, regardless of the relevant Acts, people are denied access, including a premises that I take an interest in, 35 North Great George's Street, the James Joyce Centre. It is an 18th century building and it is rather difficult to provide access to it.. At the moment we are looking at the possibility of putting in a lift, but it is very expensive and it would interfere with fire escapes and so on. The building is partly publicly funded but at the moment it is not fully accessible.
The Disability Act does not always work. I urge the Minister of State to cater for these situations and, as a signal to our brothers and sisters who are in wheelchairs or otherwise incapacitated, it should be there as a headline. We should acknowledge it. I call on the Minister of State to think again and to include it for those two reasons. I completely accept that the matter is, generally speaking, covered by the Disability Act. I thank the Minister of State for his response.
Damien English (Meath West, Fine Gael)
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I will raise Senator Norris's point with the Minister for Jobs, Enterprise and Innovation, Deputy Bruton, in advance of Report Stage. Senator Norris referred to sending out a signal. In general, in legislation like this, which deals with restructuring, we do not restate existing law. I know what Senator Norris is saying. He is trying to push the agenda a little more to make it clear. I will certainly mention Senator Norris's concerns to the Minister. Senator Norris suggested the Disability Act is not always implemented. However, I do not believe restating it in this Bill would strengthen the Disability Act 2005. I understand what Senator Norris is saying and that he is keen to make it clear.
David Norris (Independent)
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Many buildings are exempted for historical reasons.
Damien English (Meath West, Fine Gael)
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Yes, but taking Senator Norris's amendment would not solve that problem. The issue is covered.
David Norris (Independent)
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It might force those involved to move out of the historic buildings into other buildings.
Damien English (Meath West, Fine Gael)
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I will mention it again to the Minister.
David Norris (Independent)
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If the Minister of State would do so, I would be very grateful.
Damien English (Meath West, Fine Gael)
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I would be delighted to. That is no problem.
Denis O'Donovan (Fianna Fail)
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After all that has been said, Senator Norris, do I take it that amendment No. 133 is withdrawn, by leave?
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 134 and 135 are consequential on amendment No. 136. Amendments Nos. 134 to 136, inclusive, may be discussed together by agreement.
Damien English (Meath West, Fine Gael)
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Section 87 provides for an amendment to the Organisation of Working Time Act 1997 to bring it into line with the rulings of the Court of Justice of the European Union in the Schultz-Hoff line of cases regarding how time spent on sick leave should be treated for the purposes of the accrual of annual leave. It will allow workers who are on long-term sick leave to accrue and retain annual leave for up to 15 months from the end of the year in which it is accrued, thus bringing the Organisation of Working Time Act into line with the rulings of the Court of Justice of the EU. It is considered that the 15-month period strikes the right balance between respecting the entitlements of employees and minimising the cost to the Exchequer and employers while bringing the legislation into line with EU law. Amendments Nos. 134 to 136, inclusive, amend section 87 and are required to implement fully the rulings of the Court of Justice of the EU in the Schultz-Hoff line of cases. These amendments will provide that an employee who leaves employment and who has accrued annual leave entitlement will be entitled to payment in lieu of the leave not taken calculated on the same basis as if the employee had returned to work on the date of leaving the employment.
These amendments are being introduced on Committee Stage in the Seanad since it was not possible to have the text ready in time for Report Stage in the Dáil. We had always intended to include them. It was simply a question of getting the drafting ready.
Amendment No. 137 is in the name of Senator Norris. We recognise that the language proposed by the Senator is already in use in legislation. For example it appears in the Safety, Health and Welfare at Work Act 2005, the Employment Permits Act 2006 and, more recently, the Protected Disclosures Act 2014. The provisions on penalisation in those Acts, including threatening penalisation, were considered in detail in the specific context of those legislative instruments when they were being prepared and enacted. The language proposed is correct and in use. However, the purpose of the Workplace Relations Bill is only to provide for the streamlining of structures and procedures that will make the navigation of employment rights and associated compliance and enforcement systems far more user-friendly. If substantial changes to employment law had been intended to be effected by this Bill, those changes would have been highlighted at the time of the public consultation and people would have been afforded an opportunity to consider them. Substantial changes to employment rights legislation, such as those proposed by the Senator in this amendment, fall outside the scope of the Bill. That is not to say they cannot be addressed at a later stage. It is simply that this Bill is mainly about procedures and structures. We understand the wording is already used in other legislation. The wording is correct. It would have meant far more work at this stage on this Bill and we are not prepared to go back into it, because we want to get this moving along if we can. We are not going to accept the amendment at this stage.
David Norris (Independent)
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Which amendment are we talking about?
Denis O'Donovan (Fianna Fail)
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We are on amendments Nos 134 to 136, inclusive.
Damien English (Meath West, Fine Gael)
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Sorry, I may have gone too far.
David Norris (Independent)
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Which amendment is it?
Damien English (Meath West, Fine Gael)
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I added in amendment No. 137.
David Norris (Independent)
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The Minister of State anticipated me.
Denis O'Donovan (Fianna Fail)
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We will cover that when we get there.
Damien English (Meath West, Fine Gael)
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My apologies.
David Norris (Independent)
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That is no problem.
Government amendment No. 136: In page 70, between lines 6 and 7, to insert the following: “(c) in section 23, by the substitution of the following subsection for subsection (1):“(1) (a) Where—(i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection—‘relevant period’ means—(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—(I) the current leave year, and (II) the leave year immediately preceding the current leave year,(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)—(I) the current leave year, and (II) the leave year immediately preceding the current leave year,or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)—(I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year.”.”.