Thursday, 15 July 2021
Workplace Relations (Miscellaneous Provisions) Bill 2021: Committee and Remaining Stages
I move amendment No. 1:
In page 6, between lines 33 and 34, to insert the following: “(b) The Commission shall not include in a published decision the name of a party to proceedings where it is felt that to do so would detrimentally impact on either party specifically with reference to the capacity of a party to secure employment in the future.”.
As the Minister of State knows, we will support the Bill. It is important to pass it and, to be clear, we will not delay it today in any way. He had a good debate with my colleague, Deputy O'Reilly, in the Dáil about this. I will speak to these three amendments together because they are classed as such and are, effectively, trying to do the same thing. I proposed them to ensure that a worker's name is not included in a published decision where it might impact on his or her ability to secure future employment.
I will refer back to my time as a trade union official and the difficulties that can occur for employees in difficult cases. I will give a concrete example from Limerick. A particular employee in a service sector job had a hard time from her employer in all sorts of ways. One of the issues that infuriated her were discrepancies in her pay. I represented this employee and, as the Minister of State knows, at that time the company's name was, typically, published but the employee's name was not. The difficulty and concern she had was that Limerick is a small place and if someone is trying to get work in the hospitality sector there it could jeopardise his or her chances if his her name is published in respect of a case. It could make employers think, "Well hold on, if this person has taken a case against an employer, do I really want the person coming to work for myself?"
The amendment addresses that type of circumstance where there is a particular vulnerability. We are not suggesting that employees' names are not published. We are simply suggesting that the Bill has discretion when the Workplace Relations Commission, WRC, appreciates there is a particular vulnerability. Let us be clear: the vulnerability is often on the employee's side in these matters. We are looking for flexibility in order that the employee's name would not have to be mentioned. The Minister of State knows where we are coming from on this matter. I do not intend to speak at length about it but would like to hear his opinion at this point in time.
I will take up the Senator's point. It is important that the Bill is passed. The key issue for me is "workplace". Those of us who have been involved in advocating for, and representing, people recognise that the workplace is a complex, diverse institution, whether it is the public or private sector. Senator Gavan touched on vulnerability, but people are afraid, in some cases, to come forward. People are in situations of genuine difficulty in the workplace and if they make a complaint, it is dismissed or not acted upon.
In the context of the adjudication officer conducting affairs in public, and there is a need for transparency whether it is a social welfare appeal or an issue in the workplace, I always hold the view that whatever is done should be done quietly and behind the scenes. In many cases, people can then progress their complaint and they can be heard. The key phrase is "they can be heard". Their action can be upheld or otherwise but it is important that we give people the security of confidentiality.
I welcome what the Minister of State is doing and, to be fair to him, he has engaged extensively on this matter. It is important that we pass the Bill. It is also important that we allow people in the workplace to have a voice, including the right to join a union, which is not part of this Bill. However, it is important, in general, that we give people that right.
I thank the Senators for their contributions and for tabling amendments, which are proposed in good faith. I accept we had a discussion in this House and in the Dáil earlier in the week on the issue of public versus private proceedings. I understand the concerns about that but we have a duty to respect the Supreme Court decision, and to implement legislation as best we can to reflect it, while getting the balance right. I believe we are doing that. Discretion is provided for in the Bill and it is important to do that.
The Supreme Court has been clear that the administration of justice, even when its ambition is to provide an efficient, user-friendly and cost-effective dispute resolution system outside the formal courts, must maintain certain cornerstones of the justice system. A fundamental aspect of the administration of justice is the requirement that it should be done in public. There are exceptions to that rule and I am satisfied that the draft Bill delivers on this policy. There is room for discretion, as we have discussed previously. It is important that that would be there and we can certainly reflect that. We will bring forward regulations and guidelines to inform the decision-making of the adjudication officer on that issue, in addition to the public versus private aspect of it.
In recognition of the fact that in certain circumstances the administration of justice is more appropriate behind closed doors, we have introduced in this Bill clear entitlement to address the issue with an adjudication officer.This means that either party may request a private party or that they are not named in a publicised decision. The other party must be on notice of said request and have an opportunity have their say on the matter. I am sure that the Senator accepts this. Such exemptions are subject to special circumstances, such as where a case involves a minor, sensitive health or other social matters, sexual harassment, protected disclosures and so on. It is at the discretion of the adjudication officer, who is the person in charge of the case, like the judge in that situation. Such officers have the ability, on their own opinion, to make that call. That is probably as far as we can go with the legislation to build in that discretion, while reflecting the advice of the Supreme Court that it is in public. In recognition of the fact that the WRC is the court of first instance and that some parties may not have considered privacy issues, we have included a power for the adjudication officer in circumstances in which the facts of the case may warrant such inquiry to raise the matter with the parties. Therefore, they can bring it up themselves and they can give advice. I am conscious that it might be the first engagement of some members, certainly of some employees. They might not have brought any support with them. The adjudication officer will be able to recognise that and give advice or suggestions and help to inform the people coming through that. In my view, the legislation, as drafted before us, is the only acceptable way of balancing the rights of the complainant, the respondent and wider civil society by ensuring fairness in an impartial way. The necessity for transparency and impartiality are essential parts of our justice system. Persons who are tasked with administration of justice must adhere to fair procedures at all times. Adjudicators do not make decisions based on feelings. Their role is to decide on facts applicable to the law . In doing so, they have a duty to enquire into matters before reaching a decision. Reasons supporting a decision must also be given. A statutory provision which in any way anticipates victimisation or penalisation of a person is undesirable from a fairness and public interest point of view. For this reason and for the reasons previously stated, I cannot accept this amendment. However, I understand what is behind it. I think we have achieved what the Senator wants in the legislation. Again, regulations and guidance will come after we have completed our work on it in this House.
I will be brief. First, I hear what the Minister of State is saying. I acknowledge that he is doing his best to meet these concerns. I put on record that this is a good move overall. It is important that in most cases we will find out who the companies are. That was a flaw in the original Act of 2015. Sinn Féin is supportive of the legislation but we have one concern, which is why I will press a little further. The concern is the idea that a worker's name could be published by the WRC against his or her wishes. That is my concern but I acknowledge the points the Minister of State has made in that regard.
I like and understand the intention of this amendment. From my own experience, I have often volunteered to be part of the referee process for individuals I have represented where, when they go for their next employment, it has been important for them to have their representative be prepared to explain the circumstances. Therefore, I understand the sentiment. However, it needs to be particular and there is no reason we would be too prescriptive to the adjudication officer as to his or her discretion. The discretion, as it is provided for in the Bill, is sufficient. We can support it with regular training and updating the continuing professional development, CPD, done by the adjudication officers. This can be built into their term-beginning training. We can do that. As this is a new scenario, we have new sensitivities to be borne in mind. In the same way that we responded in respect of housing under equal status legislation, we can look at the Employment Equality Act, where litigation has occurred in that context. In future, maybe that will be open for review and we can consider reviewing an inclusion. If there is evidence of prejudice arising from having taken cases or an inhibition to access employment in the future or some sort of an inhibitor, there is no reason we could not consider it in the same way that we do for landlords refusing housing assistance payment, HAP. We can start by being creative, in adding into the employment equality. There are solutions, without being overly prescriptive in the Act.
I have a question for the Minister of State about the adjudication officers. Who appoints them and what are their qualifications? When we create legislation, I worry that sometimes, the practicalities in respect of the courts' decisions are different. I want us to make it easy for people. Senator Seery Kearney mentioned the referee process and I fully support that. However, I seek more clarity on the role of the adjudication officer for myself. I apologise that I might not necessarily know this.
For the purposes of today's discussions, because I am conscious that not everybody was in the room when we discussed during the week, I will set out exactly what is in section 4, as well as the amendments being put forward.
Section 4 contains an amendment of section 41 of the Workplace Relations Act 2015, in respect of the provision in section 41(13) of that Act. It currently provides that "Proceedings under this section before an adjudication officer shall be conducted otherwise than in public". The court held, in paragraph 148 of its judgment:
It is appropriate to declare [section 41(13)] repugnant to the Constitution. The effect is that the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public.
This is Supreme Court decision is telling us this has to be done in public, as routine. However, we are then allowing for a decision to made by the adjudication officer to do some of this work in private when it is justified. The proposed amendment refers to the adjudication officer to whom a complaint of dispute has been referred. In response to Senator Buttimer, the chair of the WRC will assign a case to the adjudication officer. There is an issue in relation to their qualifications and independence that we will deal with again. I did touch on it but for now, we must get the law right. We will come back to the qualifications and independence. However, there is a procedure they have to go through to be appointed in the first place. It is accepted that the majority of adjudication officers are fit to do their job. We will strengthen the work around that as well. Therefore, they are assigned the case. In previous discussions in the other House, there was a Sinn Féin amendment on an appeal mechanism. We had a fair discussion on this. I understand what was behind it but when one assigns the case to an adjudication officer, he or she is the judge. One would not necessarily appeal it back to the chair, who would not have heard the case in the first place.
There is the option to appeal outside the WRC to the Labour Court and to the District Court. There are other appeal mechanisms already in place if someone is unhappy with a decision. In that regard, the adjudication officer to whom a complaint or dispute has been referred will have discretion to direct that either the whole or part of the relevant proceedings can take place otherwise than in public where this would be desirable in light of the nature or circumstances of the case or in the interests of justice. Therefore, the discretion is there to make such a direction. The default position in respect of such proceedings is that they would be held in public. Pursuant to this provision, the adjudication officer can make the determination of his or own motion but this does not exclude parties to complaint or dispute applying to the adjudication officer to have the whole or part of the proceedings held in private.
In respect of the proposed substitution of section 14(14), while the judgment of the court does not address the issue of automatic anonymisation, which is currently provided for in section 14, it is the Department's view, supported by strong legal advice, that maintaining policy of anonymisation of all published decisions is contrary to the requirement that justice be administered in public. It does not mean that we cannot do that in certain cases, however, which is what Senator Gavan is asking for. We are at one here. We both agree there has to be discretion to allow for anonymisation at the appropriate time. That is allowed for. That is why we do not need to take Senator Gavan's amendment.
The proposed section 14(14)(b) provides that an adjudication officer with the powers to effectively direct a commission, if he or she is satisfied that special circumstances exist, not to name parties in the published decision. It is already there in the draft legislation that I am putting forward. I know that Senator Gavan is bringing forward the amendment in good faith. I say to him, in good faith, it is already allowed for. I want to be clear on that. Again, the regulations and guidance will inform the work of the adjudication officer in this space.
I am happy to share draft regulations and guidance with everybody in this House to get their views and to make sure that it is strengthened. Senator Gavan's concern in his second contribution was that, against the wishes of the person, he or she would be forced to be in public. It is the Supreme Court who has made the decision that it has to be in public as the default position. That is in our Constitution. But we will allow, when it is right to do so, to have it anonymised and in private. To be clear, justice is based on respect of the rights of every individual. I know that both Houses in which we operate recognise that access to justice is indispensable for every democratic state that is rooted in the principles of the rule of law, human rights and democracy.Our system is based on the right of individuals to take a case against an employer whom they believe has violated a right. I said last week that everybody should be encouraged to discuss this in public or private and have his or her rights honoured. We believe that for a violation of a right to be decided upon, fair procedures have to be adhered to. That is what the Supreme Court is judged on. We have to put in place procedures to ensure justice is administered fairly.
It should not be stated that because an employee is taking a claim against an employer, he or she should be criticised for exercising that right. I am concerned about the assumptions made in both Houses that an employer will judge a potential employee badly if he or she pursued his or her rights. In this country, people are entitled to pursue their rights, so we should not assume employers will regard this as negative. It is an unfair assertion. I would be concerned about the tone of it because it does not reflect how the justice system is meant to work. We should not be assuming employers will have a negative view. There should not be any statutory statement relying on a feeling that employers, as a rule, view all employees who exercise their fundamental rights as troublemakers. Doing so is not fair or right and it does not truly represent what happens in this scenario. I understand some individuals have concerns. They will be able to make their case to the adjudication officer. We should not be assuming that what I have described presents a difficulty in all scenarios.
The provisions of this Bill already provide for discretion regarding how anonymisation is to be addressed when the circumstances so require it and are justified. I am aware Senators are genuinely anxious about this area so I want to ensure the WRC can proceed with its important work. It is important we pass the legislation. Since the Senators have concerns, we have agreed, in conjunction with the committee members on a cross-party basis, that we will review the legislation within 12 months.
I do not see the benefit in accepting this amendment because it would open the door to a new challenge in the superior courts. That is not what we want. We want to be able to copper-fasten the work of the WRC, which is well recognised. The legislation of 2015 will be recognised by the Supreme Court, as will changes to ensure justice is administered in public. That is what we are trying to achieve here. The officials in the Department have done a lot of work in the past couple of weeks to try to ensure as best we can in legislation that the WRC will be able to continue with its great work and deal with the cases in the system while recognising the need to do this in public in most cases.
I support the key point made by the Minister of State in that I believe the public reporting of WRC cases will enhance the standard of engagement and the performance of employment contracts throughout the State. We will see the repeat offenders. As I said some days ago, there are appalling cases of repeat offending. The reporting of cases will allow us to see just how innocent employees fall prey to ignorance and arrogance in some instances, and to see that the employees are right in such instances. The reporting of cases will raise the standard and expose repeated claims of ignorance as to how the law works. Ignorance is not an excuse under the law, but there are occasions on which employers are just ignorant. Some employers almost have to be brought to the WRC and have a case adjudicated upon before realising their obligations or that they really do have to make sure employees have their breaks along with many other entitlements. Reporting will lend itself to bringing about circumstances where taking a case is normal and not shameful. The people who take cases are not troublemakers. They are very normal people who are being treated unfairly or whose employer's interpretation of the law is unfair and needs to be addressed. It is for this reason they take a case. What the Minister of State proposes would be positive. I support him on that.
I move amendment No. 2:
In page 8, between lines 3 and 4, to insert the following: "(b) The Commission shall not include in a published decision the name of a party to proceedings where it is felt that to do so would detrimentally impact on either party specifically with reference to the capacity of a party to secure employment in the future.".
I move amendment No. 3:
In page 10, between lines 3 and 4, to insert the following: "(b) The Commission shall not include in a published decision the name of a party to proceedings where it is felt that to do so would detrimentally impact on either party specifically with reference to the capacity of a party to secure employment in the future.".
I move amendment No. 4:
In page 11, between lines 36 and 37, to insert the following: "(2) The review specified in subsection (1) shall examine whether and to what extent the operation of the amendments is having a deterrent effect on employees seeking to make a complaint to the Workplace Relations Commission.".
I am speaking on behalf of Senator Higgins. This is a simple amendment to ensure a review under section 13 will examine whether the provisions of the legislation are having a chilling effect on employees. I am aware others share our concern that the provisions introduced in this Bill, especially where they relate to public hearings and the disclosure of the names of parties to proceedings, could deter employees from bringing claims against their employers. The point has been made that there is a significant power imbalance between employees and employers. Workers have fewer resources and options and so much more to lose. As a result, it takes a lot of courage for an employee to take a case against an employer. The benefit of conducting hearings in private and ensuring published decisions are anonymised is employees may be assured that making a complaint against their employer will not damage their career or affect their future job prospects. If an employee believes his or her name and the details of the claim will be available to the public, he or she may choose not to proceed out of fear it would have consequences for the rest of his or her life. We are concerned, therefore, that the proposal in the Bill might have the unintended consequence of deterring employees from making a complaint, even where they have a strong case against their employer.
We acknowledge the legislation was introduced on foot of the judgment of the Supreme Court and, further, that the Bill provides that hearings may be held in private under certain circumstances, but we believe a review of the Act under section 13 should recognise these concerns and examine whether and the extent to which the amended legislation is deterring employees from making complaints. This is important because we need to ensure that if these provisions have a chilling effect, it will be remedied as soon as possible to allow employees to avail of the law and the relevant complaint mechanisms to have their rights vindicated.
I thank Senator Black for moving the amendment on behalf of Senator Higgins. I will not be able to accept it because we have already allowed for what it proposes in legislation. We got into this in detail earlier in the week although I am conscious that not everybody could be here. I also discussed it with colleagues in the Dáil. I gave a strong commitment on the proposed review.The amendment being put forward relates to a provision we inserted into the draft Bill following a positive and productive cross-party engagement with the members of the Oireachtas joint committee. For the information of the House, because we were asking for pre-legislative scrutiny of the Bill to be waived due to its urgency, we met members of the committee and others who were interested in the matter. We took on board their concerns and the issues they raised. One of their suggestions was that the legislation should be reviewed after 12 months. I was happy to commit to that. To be clear, I will put on the record of this House - as I put on the record of the Dáil last week - that the post-enactment review will be a fully consultative process. Anybody who wishes to get involved is welcome to do so. It will examine the implications of the new policy positions introduced in this draft Bill which, as the House will be aware, stem directly from the Supreme Court judgment in the Zalewski case. I am happy to commit again on the record of this House that the review will encompass the views of all relevant stakeholders, including groups representing service users.
However, it is important to clarify that there should be no implication whatsoever that the Bill will result in any deterrent effect. I am very concerned by the constant use of the term "chilling effect". Too many have used it in this discussion and in the discussion in the other House. To do so is almost the same as telling people that they should feel a chilling effect. This is positive legislation. We are bringing it forward to help people vindicate their rights. If we constantly say that there will be a chilling effect, we encourage people to feel such an effect and to be afraid to use the positive laws we are introducing to vindicate their rights. I am concerned about the tone and about the message that is going out. I accept that people are raising the issue in a genuine way but it sends out a message that may defeat the purpose of the new law, which is to assist people. There should never be any suggestion that employees should be negatively impacted by pursuing their right in law to pursue a case against their employer. The Bill as drafted already provides for special circumstances, to be decided on a case-by-case basis. Details may be anonymised and cases may be heard in private, where necessary. For these reasons I cannot accept this amendment.
I am somewhat baffled as to how one would carry out a meaningful assessment of something that did not happen but could have. The review can go as far as people wanted. We will review everything but it would be hard to second-guess what might have happened in a different situation. We will tease it out. While I appreciate that employee bodies and employee representatives could provide some anecdotal assessments, I am not convinced of the value of such exercise. However, I am happy to engage with everybody regarding the review. On the last occasion, I made it clear that I will talk to anybody. I have no doubt that whoever fills my job after I depart - because I will not be here forever - will also listen to anybody and go through a full consultation if it is within the 12 months. My officials are committed to getting this right. We all want to see the Workplace Relations Commission, WRC, carrying out its functions in a positive way because it is there to vindicate the rights of employees. That is what it is about. That is our goal. If the review throws up any issues, we will try to deal with them as best we possibly can in line with the Supreme Court judgment.
Over the years, trade union officials and employees themselves have told me that people will not take cases against their employers. The reason for this inaction is because people, it has been said, are afraid of the repercussions of being seen as a person who complains. These conversations took place before the Supreme Court judgment issued, at a time when all hearings were conducted in private and employment rights complaints were anonymised. I accept that disputes are never easy, but they are sometimes necessary.
We also know that, before the 2015 Act brought in by my colleague in the Labour Party which introduced private hearings, cases before the Employment Appeals Tribunal were held in public. Equality legislation, covering both workplaces and the provision of goods and services, has never provided for anonymisation. In the equality cases, discretion has been exercised in special cases and in consultation with the parties involved. Regardless of these policies, numerous individuals have fought for their rights and significant changes have been brought about in our workplaces as a consequence. Having such discussions often assists others in fighting for their rights, which can be of benefit. It highlights employers that have a poor record and may encourage them to deal with situations a lot more quickly because they do not want to be in the public eye.
I have already given my commitment in the Lower House that this review is not going to be a mere paper exercise. We will be consulting with all relevant stakeholders, as is appropriate. To be clear, that will be done in 12 months. That is included in the draft Bill because members of the cross-party committee asked for it. I am happy to stand over that.
I support the Bill. I said I would speak after the Minister of State. He has comprehensively covered why this amendment is not necessary. In addition, as I have said before, I believe the reporting and publication of matters at the adjudication hearing stage informs members of the public as to their employment rights. You have to know your way around the WRC website. It is really good and really thorough, there is very good advice on it and it provides good access to decisions and determinations but you have to know your way around it or know what you are looking for. From that point of view, having journalists report on and speak about cases, which they will now be able to do, will make employment rights much more accessible to the public. That is a good thing. Since the year 2000, a statutory instrument has been in effect, which sets outs the procedures for dealing with disputes in the workplace, whether grievances or disciplinary matters. I refer to SI 146 of 2000. Over the years, that has been elevated almost to the level of primary law in how it has been adhered to. It ensures that there is a proper internal mechanism for resolving disputes within companies and sets out how things such as the right to a representative are to be dealt with. There has also been a trend to include penal clauses within legislation that witnesses before the WRC and complainants under the Safety, Health and Welfare at Work Act 2005 who suffer any sort of consequence as a result of raising concerns can use. There are, therefore, already appropriate safeguards. The review, as set out, will be fairly comprehensive.
If, as a consequence of the public nature of hearings, we find ourselves in a situation in which numbers drop, that may be a really positive thing. It may not mean that people were fearful but rather that employers do not want the publicity and may be deterred. The public nature of it reinforces the power of the employee. I have often used the tactic of threatening to go public, to appeal to the Labour Court or to go for an injunction against employers. Their need to maintain their reputations has given me a great weapon. I say that cautiously but it is a weapon to use in all areas of litigation. It is part of what you are taught when learning to negotiate. I hope we will find ourselves with lower numbers as a consequence of better standards. Even if the amendment were to be accepted, I am not sure how the question could be answered. However, the Minister of State has already covered its purpose in the provisions of the Bill.
I thank the Minister of State for his reply and for committing to engage with stakeholders. It is important that any problems that arise be addressed immediately. We fully support this Bill and would not like to see it delayed.
I thank both Senators, and Senator Seery Kearney in particular for making the case again. The Bill will assist people in coming forward. We have to recognise that it is okay to pursue your rights. It is not something that should be hidden away. Employers should see it as a positive. If, in the future, an employer reacts negatively to employees pursuing their rights, perhaps those employees might not want to work with that employer. You have to look at it that way as well. Again, the tone of the debate over these couple of days might give some employees the impression that they should not bring their cases forward. To be clear, any employee who has a grievance should engage with our industrial relations team. The WRC is there and does excellent work. Employees should engage with it. Again, if people do not want their cases heard publicly, they can make their case to an adjudication officer, who has the discretion to decide for it not to be heard in public. If, at that point, people still have concerns or fears, they can always pull back. However, they should not choose not to engage in the first place because of certain impressions people might get from this debate. I hope they do not because this law is here to protect employees and to encourage them to come forward and pursue their rights. We can adjudicate on that. The review should pick up on any major concerns.
I thank all Members for their co-operation in helping us to bring this legislation through the Houses quite quickly. I understand that we requested not to avail of pre-legislative scrutiny in this case. In general, we should always do pre-legislative scrutiny if we possibly can but all the Members here, from all parties, recognised the urgency and importance of getting this done as quickly as possible. I thank everyone for their assistance in doing that. I thank the Leas-Chathaoirleach and the offices of both Houses of the Oireachtas for their assistance with that process.
I also thank our Department officials who engaged as much as they possibly could with all concerns that were expressed. They have reacted to those concerns by bringing forward a Bill that reflects the Supreme Court decision but also keeps the work of, and the focus on, the Workplace Relations Commission, WRC, intact. I thank all involved. I mention specifically Ms Tara Coogan and Ms Áine Maher, two officials working in the industrial and workplace unit of the Department. They have done great work. This is the first time Ms Maher has brought legislation through the Houses in conjunction with us. I recognise her work.