Workplace Relations Bill 2014: From the Seanad
The Dáil went into Committee to consider amendments from the Seanad.
Before commencing, I will ask for Clerk's corrections. I would be obliged if, in accordance with Standing Order 140, the Acting Chairman would direct the Clerk to make the following minor drafting corrections to the text of the Bill, which are being done in the interests of textual clarity and correction of cross-references and do not affect any substantive amendment.
Seanad amendment No. 71 relates to section 42 of the Bill as passed by Dáil Éireann and substitutes a new subsection (b) in that section on page 39. There should be a footnote associated with this amendment to confirm that the Schedule referred to is Schedule 6, which is being inserted by Seanad amendment No. 172, rather than the existing Schedule to the Bill.
Seanad amendment No. 94 relates to section 68 of the Bill as passed by Dáil Éireann and inserts an amended subsection (2) on page 51 between lines 11 and 15. The text inserted by this amendment should be inserted as subsection (2) rather than subsection (1).
Seanad amendment No. 230 relates to Schedule 6 of the Bill as passed by Dáil Éireann and inserts new text on page 143 between lines 11 and 12 that relates to the reference to SI 623 of 2006, European Communities (European Public Limited - Liability Company) (Employee Involvement) Regulations 2006. There is a typographical error in the text to be inserted in line 13 by this amendment. There is an additional "a" in the first line of the text that appears in column 4 of this amendment that is superfluous and should be deleted.
Amendments Nos. 1 and 28 to 31, inclusive, are related and may be discussed together by agreement.
Seanad amendment No. 1:
Section 1: In page 9, line 22, to delete "This Act" and substitute "Subject to subsection (5) of section 8, this Act".
This is a technical amendment that deals with the commencement arrangements that will apply post enactment. The purpose of amendment No. 1 is to clarify the fact that section 8(5) contains a specific commencement provision. In other words, there will be a general commencement date, but it will be subject to various repeal provisions only coming into force after the commencement of Part 4 on the adjudication process. This amendment ensures consistency between these two provisions in the Bill.
Amendments Nos. 28 and 31 to section 8 are of a drafting and technical nature and make no substantive change to the section. The amendments simply highlight the existing division in Schedule 2 between the provisions of the primary legislation's Part 1 that will be repealed and the provisions of the secondary legislation's Part 2 that will be revoked upon the enactment of the Bill.
Amendments Nos. 29 and 30 to section 8 relate to the transitional arrangements that will apply to certain complaints under the Minimum Notice and Terms of Employment Act 1973 and-or under the Unfair Dismissals Act 1977. Subsections (3) and (4) are amended to ensure that the relevant repeals provided for in Schedule 2 of this Bill will not apply to complaints under the aforementioned legislation referred to the Employment Appeals Tribunal before the commencement of Part 4 of this Bill.
Seanad amendment agreed to.
Amendments Nos. 2 to 14, inclusive, and 33 are related and may be discussed together by agreement.
Seanad amendment No. 2:
Section 2: In page 9, to delete line 28.
These are amendments to the definitions section and are of a drafting and technical nature. They do not change in any way the substantive impact of the Bill. They are to have the correct references in the definitions section and only include a definition where an Act is mentioned more than once in the course of the legislation.
Amendment No. 11 inserts an additional term in the interpretation section of the Bill. The term "excepted body" is a standard term in the Industrial Relations Act. For the avoidance of doubt, this amendment, if accepted, will clarify that the term "excepted body" as used in the Bill has the same meaning as it does in the Trade Union Act 1941.
Amendment No. 33 is of a drafting and technical nature and provides for the deletion of the interpretation of "excepted body" because an interpretation of this term has now been inserted in the interpretation section.
Seanad amendment No. 7:
Section 2: In page 10, to delete line 21.
Seanad amendment agreed to.
Seanad amendment No. 3:
Section 2: In page 10, to delete line 3.
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 2: In page 10, to delete line 9.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 2: In page 10, between lines 14 and 15, to insert the following:
" "Act of 2007" means the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007;".
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 2: In page 10, to delete line 18.
Seanad amendment agreed to.
Seanad amendment agreed to.
I understood that when we agreed amendments Nos. 2 to 14, inclusive, that included the individual amendments within the group.
It did, but only for discussion. I must move each amendment individually.
This is not my brief, but is it usual to have so many technical and drafting amendments on this Stage? The Bill has been through the Dáil and the Seanad.
It seems an extraordinarily large number of amendments.
From my experience, this happens sometimes. At any stage in the process in the Seanad and the Dáil, provisions that require technical amendments can be addressed. This is why we have all of the processes. This is not usual, but it happens.
To be of help to Deputy Colreavy, what we are doing is introducing a single Bill to provide for the Workplace Relations Commission. Rights across 24 primary Acts and 34 related specified Parts would be impacted by the new provisions. The complexity of this has required the picking up of a number of amendments. Some are purely stylistic amendments to make the final Act easier to use on the part of practitioners by having references provided in a more standardised fashion. I can understand the Deputy's feeling but, obviously when these amendments are brought to our attention by the draftsman's office, we feel it is important to leave the Bill as easy to use as possible for the practitioners and absolutely thorough. There are some substantive amendments in the Bill but most of the amendments are of the nature I have described.
Seanad amendment No. 8:
Section 2: In page 10, to delete lines 24 to 27.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 2: In page 10, to delete lines 31 and 32 and substitute the following:
"(a) an Act of the Oireachtas specified in Part 1 of Schedule 1 or an instrument under such an Act of the Oireachtas,".
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 2: In page 11, to delete lines 1 to 5.
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 2: In page 11, between lines 6 and 7, to insert the following:
" "excepted body" has the same meaning as it has in section 6 of the Trade Union Act 1941;".
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 2: In page 11, to delete line 24 and substitute the following:
"(j) the Competition and Consumer Protection Commission,".
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 2: In page 11, to delete lines 31 and 32.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 2: In page 12, to delete lines 9 to 11 and substitute the following:
" "relevant enactment" means—
(a) an employment enactment,
(b) Part VII (inserted by section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004) of the Pensions Act 1990, or
(c) the Act of 2000.".
Seanad amendment agreed to.
Amendments Nos. 15 and 16 are cognate and may be discussed together.
Seanad amendment No. 15:
Section 3: In page 12, line 14, to delete "relevant enactment" and substitute "relevant enactment or provision thereof".
These amendments, to section 3, are technical in nature and do not result in any substantive change to the Bill.
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 3: In page 12, line 16, to delete "relevant enactment" and substitute "relevant enactment or provision".
Seanad amendment agreed to.
Amendments Nos. 17 and 18 are related and may be discussed together.
Seanad amendment No. 17:
Section 3: In page 12, line 24, to delete "the Act of 1994" and substitute "Part V of the Act of 1994".
These are technical amendments and do not result in any substantive change.
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 3: In page 12, line 28, to delete "the Act of 1995" and substitute "Part V of the Act of 1995".
Seanad amendment agreed to.
Amendments Nos. 19 and 21 form a composite proposal and may be discussed together.
Seanad amendment No. 19:
Section 3: In page 12, to delete lines 35 to 38, and in page 13, to delete lines 1 and 2.
These amendments are of a drafting and technical nature and do not result in any substantive change.
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 3: In page 13, line 5, to delete "2004 (S.I. No. 494 of 2004)" and substitute "2006 (S.I. No. 507 of 2006)".
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 3: In page 13, between lines 7 and 8, to insert the following:
"(8) For the purpose of the operation of this Act, and to the extent only that this Act applies, in relation to the European Communities (European Public Limited - Liability Company) (Employee Involvement) Regulations 2006 (S.I. No. 623 of 2006)—
(a) references in this Act to employer shall be construed as references to SE within the meaning of those Regulations or relevant undertaking within the meaning of Part 3 of those Regulations, as may be appropriate, and
(b) references in this Act to employee shall be construed as references to a person referred to in subparagraph (a), (b), (c) or (d) of Regulation 19(1) of those Regulations.".
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 3: In page 13, to delete lines 11 to 13 and substitute the following:
"(a) references in this Act to employer shall be construed as references to SCE within the meaning of those Regulations or relevant undertaking within the meaning of Part 3 of those Regulations, as may be appropriate, and".
This is also of a drafting and technical nature.
Seanad amendment agreed to.
Amendments Nos. 23 and 25 are cognate and may be discussed together.
Seanad amendment No. 23:
Section 3: In page 13, line 15, to delete "clause" and substitute "subparagraph".
Amendments Nos. 23 and 25, as with amendment No. 24, are technical amendments.
Seanad amendment agreed to.
Seanad amendment No. 24:
Section 3: In page 13, line 20, to delete "of those Regulations" and substitute "of Chapter 4 of Part 3 of those Regulations".
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 3: In page 13, line 22, to delete "clause" and substitute "subparagraph".
Seanad amendment agreed to.
Amendments Nos. 26, 34 and 85 are related and may be discussed together.
Seanad amendment No. 26:
Section 6: In page 14, line 22, to delete "Companies Acts" and substitute "Companies Acts or the Companies Act 2014".
This amendment is of a technical nature and changes "Companies Acts" to "Companies Acts or the Companies Act 2014. It is just clarification regarding the new consolidated Bill.
Seanad amendment agreed to.
Amendments Nos. 27 and 88 are related and may be discussed together.
Seanad amendment No. 27:
Section 7: In page 14, line 27, to delete "offence" and substitute "offence (other than an offence under section 53)".
Section 53 was inserted on Committee Stage in the Seanad. It makes it an offence to fail to pay an award of compensation in circumstances where the court has made an order so directing the person concerned. A person guilty of an offence under section 53 shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding six months, or both. This arose in order to ensure that some offences that were summary offences could still be prosecutable with a fine being imposed. Section 53 makes it an offence to fail to comply with the order of the District Court and, as a result of such a failure, the penalty provisions in the rest of the Bill would apply. It was a provision we brought in to improve enforcement.
Seanad amendment agreed to.
Seanad amendment No. 28:
Section 8: In page 15, lines 7 to 11, to delete all words from and including "(1) The" in line 7 down to and including line 11 and substitute the following:
"(1) The enactments specified in column (3) of Part 1 of Schedule 2 are repealed to the extent specified in column (4) of that Part.
(2) The repeals effected by subsection (1) shall not apply in respect of complaints or disputes made, presented or referred to a rights commissioner under an enactment specified in column (3) of Part 1 of Schedule 2 before the commencement of Part 4.
(3) The enactments specified in column (3) of Part 2 of Schedule 2 are revoked to the extent specified in column (4) of that Part.
(4) The revocations effected by subsection (3) shall not apply in respect of complaints or disputes made, presented or referred to a rights commissioner under an enactment specified in column (3) of Part 2 of Schedule 2 before the commencement of Part 4.".
Seanad amendment agreed to.
Seanad amendment No. 29:
Section 8: In page 15, line 12, to delete "section 11 of the Act of 1973" and substitute "sections 11 and 13 of the Minimum Notice and Terms of Employment Act 1973".
Seanad amendment agreed to.
Seanad amendment No. 30:
Section 8: In page 15, to delete lines 15 to 17 and substitute the following:
"(4) The repeal of sections 11 and 12 of the Unfair Dismissals (Amendment) Act 1993 effected by subsection (1) shall not apply in relation to a claim for redress under the Act of 1977 brought before the commencement of Part 4.".
Seanad amendment agreed to.
Seanad amendment No. 31:
Section 8: In page 15, line 18, to delete "This section" and substitute "This section and Schedule 2".
Seanad amendment agreed to.
Amendments Nos. 32, 39, 41, 52, 55, 65, 72, 86, 114 to 116, inclusive, 126, 129, 130, 134, 135, 142, 143 and 145 are technical drafting amendments and may be discussed together.
Seanad amendment No. 32:
Section 11: In page 16, line 9, to delete "such".
These are technical amendments. There is nothing of substance in them. They simply replace wording with more effective parliamentary language.
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 11: In page 16, lines 14 and 15, to delete "(within the meaning of section 6 of the Act of 1941)".
Seanad amendment agreed to.
Seanad amendment No. 34:
Section 13: In page 17, to delete line 32 and substitute the following:
"(f) is the subject of an order under section 160 of the Companies Act 1990 or a disqualification order within the meaning of Chapter 4 of Part 14 of the Companies Act 2014.".
Seanad amendment agreed to.
Amendments Nos. 35 and 36 are cognate and may be discussed together.
Seanad amendment No. 35:
Section 17: In page 19, line 5, to delete "decision" and substitute "determination".
Amendment No. 35 is a drafting amendment. It is just changing the word "decision" to "determination" because that is the proper description of a High Court conclusion in such a case.
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 17: In page 19, line 10, to delete "decision" and substitute "determination".
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 20: In page 21, between lines 5 and 6, to insert the following:
"(10) In this section "employment enactment" does not include the Act of 1998.".
This amendment is necessary to clarify that with respect to codes of practice in the case of equality that the Irish Human Rights and Equality Commission will develop the codes of conduct. There was some ambiguity in the original legislation. This will make it clear that is from where the codes will be derived in the case of equality.
Seanad amendment agreed to.
Seanad amendment No. 38:
Section 21: In page 21, between lines 38 and 39, to insert the following:
"(5) The Board shall comply with a direction under this section by such date as may be specified in the direction.".
Section 21 makes a provision for the board of the Workplace Commission to prepare a strategy statement on behalf of the commission and to submit this to the Minister for approval. Section 4 provides that the Minister can approve the drafting of a strategy statement, as prepared by the board, with or without modifications, or refuse to approve the strategy statement. In the latter instance the Minister may require the board to prepare and submit a revised strategy statement. This amendment introduces a subsection (5) which clarifies that the board will be obliged to comply with such a direction from the Minister and within the timeframe specified by the Minister.
Seanad amendment agreed to.
Seanad amendment No. 39:
Section 21: In page 22, line 7, to delete "another" and substitute "other".
Seanad amendment agreed to.
Seanad amendments Nos. 40 and 46 are cognate and may be discussed together.
Seanad amendment No. 40:
Section 27: In page 25, line 17, to delete "enter" and substitute "enter (if necessary by the use of reasonable force)".
Amendments Nos. 40 and 46 are being introduced in aid of the Labour Court inspectors and will provide them with a statutory basis to use reasonable force where necessary in order to gain entry to premises connected with the employment of persons. In the vast majority of inspections the employer consents to the inspection and an inspector is not required to use force to gain entry. However, the inspection of certain time-sensitive matters would, in the absence of this power to use reasonable force, be frustrated where the employer, for example, locks and-or abandons the premises.
Is there a definition of "reasonable force" contained in the legislation or elsewhere that could be used?
I do not think we have a definition of "reasonable force". I imagine it is an established term within the-----
Various people's definition of what constitutes reasonable force might differ.
I know that. In respect of inspectors pursuing their purpose, it will be fairly applied. I do not think it is contained in the definitions section. It is not defined in the Act. It is as the courts would interpret it in the circumstances. It would be a general term that is acceptable for the courts.
Seanad amendment agreed to.
Seanad amendment No. 41:
Section 27:
In page 25, line 19, to delete "which" and substitute "that".
Seanad amendment agreed to.
Seanad amendment No. 42:
Section 27:
In page 25, line 28, to delete "detain" and substitute "retain".
This amendment is of a technical nature and does not affect the Bill in any substantive way.
Seanad amendment agreed to.
Seanad amendments Nos. 43, 47 and 48 are consequential on amendment No. 44 and, therefore, amendments Nos. 43, 44, 47 and 48 may be discussed together.
Seanad amendment No. 43:
Section 27:
In page 25, line 39, to delete "and".
These amendments are being introduced to clarify confusion surrounding the effect of subsection (7) of this section and the capacity to use incriminating statements given voluntarily after caution. Currently, the statutory functions and powers of Labour Court inspectors are scattered over a large number of Acts dating back to 1946. Section 78 restates and consolidates all those functions and powers in one location having regard to current best practice and developments in case law. These amendments place on a statutory basis the practice of the Labour Court inspectors issuing a formal caution to a person in appropriate circumstances before questioning that person in relation to compliance issues. The use of a formal caution before questioning is consistent with the person's constitutional right not to incriminate themselves and serves as a reminder that the information that they give on being questioned may be used in any subsequent legal proceedings arising from the inspection in question.
Seanad amendment agreed to.
Seanad amendment No. 44:
Section 27: 44.
In page 26, to delete lines 1 to 5 and substitute the following:
"(f) require any person, whom the inspector has reasonable grounds for believing to be, or to have been, an employer or employee, to answer such questions as the inspector may ask relative to any matter under this Act or a relevant enactment and to make a declaration of the truth of the answers to those questions, and
(g) examine with regard to any matter under this Act or a relevant enactment, any person whom the inspector has reasonable grounds for believing to be, or to have been, an employer or employee, following the inspector’s having cautioned the person that the person is not obliged to say anything unless he or she wishes to do so but that whatever he or she says will be taken down in writing and may be given in evidence.".
Seanad amendment agreed to.
Seanad amendment No. 45:
Section 27:
In page 26, line 16, to delete "any place or premises" and substitute "any dwelling".
This amendment is of a textual nature and to ensure consistency of terminology in the section. Section 27(4) provides a statutory basis to allow a judge of the District Court in specified circumstances to issue a warrant to an inspector appointed under this legislation. The warrant will permit a named inspector, accompanied by such other inspectors or members of the Garda Síochána as may be necessary, at any time or times within one month from the date of issue of the warrant, to enter a specified private dwelling for the purpose of ensuring compliance with employment legislation. This amendment clarifies that a warrant under this section can be issued only in respect of a private dwelling. Such a warrant is not required by an inspector to enter any other type of premises or place.
Seanad amendment agreed to.
Seanad amendment No. 46:
Section 27:
In page 26, line 19, to delete "enter" and substitute "enter (if necessary by the use of reasonable force)".
Seanad amendment agreed to.
Seanad amendment No. 47:
Section 27:
In page 26, line 20, to delete "and (f)" and substitute ", (f) and (g)".
Seanad amendment agreed to.
Seanad amendment No. 48:
Section 27: In page 26, to delete lines 26 to 30 and substitute the following:
"(b) fails or refuses to comply with a requirement of an inspector or member of the Garda Síochána pursuant to paragraph (d) or (f) of subsection (1), or in purported compliance with such requirement gives information or makes a declaration to the inspector or member that he or she knows to be false or misleading in any material respect.".
Seanad amendment agreed to.
Amendments Nos. 49 to 51, inclusive, and amendment No. 87 are related and will be discussed together.
Seanad amendment No. 49:
Section 28: In page 27, line 4, to delete "in this Act" and substitute "in this section".
Section 28 currently provides that the manner in which an appeal against a compliance notice to the Labour Court would be effected, and likewise an appeal from the decision of the Labour Court to the Circuit Court under this section, would be subject to regulations made by the Minister. This amendment obviates the need for the Minister to make such regulations and provides that the aforementioned appeals will be regulated by rules made under section 20 of the Industrial Relations Act 1946. In other words, the Labour Court will regulate its own procedures in this respect and not procedures set by the Minister.
Seanad amendment agreed to.
Seanad amendment No. 50:
Section 28: In page 27, line 30, to delete "prescribed manner" and substitute "manner prescribed by rules under subsection (5) of section 20 of the Act of 1946".
Seanad amendment agreed to.
Seanad amendment No. 51:
Section 28:
In page 28, to delete lines 5 to 7.
Seanad amendment agreed to.
Seanad amendment No. 52:
Section 28: In page 28, line 15, to delete "notice;" and substitute "notice; or".
Seanad amendment agreed to.
Seanad amendment No. 53:
Section 29: In page 29, line 2, to delete "section 28" and substitute "section 27".
This amendment corrects the wrong numbering of a section.
Seanad amendment agreed to.
Seanad amendment No. 54:
Section 30:
In page 29, lines 10 to 13, to delete all words from and including "(1) The" in line 10 down to and including line 13 and substitute the following:
"(1) Subject to subsection (3) of section 27, the Labour Court may, upon the hearing of an appeal under section 45, direct the Director General to arrange for an inspector to enter any place or premises belonging to an employer who is a party to the appeal and perform such functions under section 27 at, or in relation to, that place or premises as are specified in the direction concerned.".
This amendment to subsection (1) of section 30 is required to clarify that an inspector acting on foot of a direction of the Labour Court may enter any premises belonging to the employer named in the Labour Court's direction for the purposes of performing his or her statutory functions, not only in relation to those premises but also specifically at the premises. Clearly, in respect of any such premises which are a private dwelling the inspector will first have to have obtained a warrant pursuant to section 23. This amendment is to ensure that the powers deal with whatever activity is occurring within the premises and not just with respect of the premises per se. It is to make assurance doubly sure, as a poet put it.
Seanad amendment agreed to.
Seanad amendment No. 55:
Section 31:
In page 29, line 26, to delete "Schedule 5 of" and substitute "Schedule 5 to".
Seanad amendment agreed to.
Seanad amendment No. 56:
Section 31: 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.".
This is a drafting amendment and does not result in any substantive change in the Bill. This amendment is necessary to include definitions of the terms "employer registration number" and "personal public service number" for the purpose of section 31.
If the Deputies were watching carefully, they would have noted that we took them out of the definitions section. They are going into their own section now.
Seanad amendment agreed to.
Seanad amendment No. 57:
Section 33: In page 31, to delete lines 1 to 24 and substitute 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/EC1 of 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/EC2 of 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.”.
This amendment was introduced in response to an amendment put forward by Deputy Peadar Tóibín on Report Stage in the Dáil. I indicated on Report Stage that I would afford further consideration to Deputy Tóibín's amendment and introduced amendment No. 57 in the Seanad to address the issues raised by the Deputy. The proposed amendment broadens the scope of the information that the workplace relations commission may disclose to a public contracting authority. As previously drafted, the section restricted the disclosure of information about 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 provisions in public works contracts to withhold payment or part payment of moneys if there is evidence of non-compliance with employment legislation by either a primary or secondary contractor engaged on the contract in question.
Seanad amendment agreed to.
Amendments Nos. 58 to 60, inclusive, are cognate and may be discussed together.
Seanad amendment No. 58:
Section 39: In page 34, line 27, to delete “the complaint or dispute” and substitute “a complaint or dispute”.
These amendments are of a drafting and technical nature. Essentially they merge early resolution and mediation. Originally we had separate sections but they are now being governed by one section.
Seanad amendment agreed to.
Seanad amendment No. 59:
Section 39: In page 34, line 28, to delete “complaint” and substitute “complaint or dispute”.
Seanad amendment agreed to.
Seanad amendment No. 60:
Section 39: In page 35, line 5, to delete “dispute” and substitute “complaint or dispute”.
Seanad amendment agreed to.
Amendments Nos. 61 to 63, inclusive, are cognate and may be discussed together.
Seanad amendment No. 61:
Section 39: In page 35, line 30, to delete “subsection (5)” and substitute “subsection (4)”.
These amendments are of a drafting and technical nature and make no substantive change to the section.
Seanad amendment agreed to.
Seanad amendment No. 62:
Section 39: In page 35, line 33, to delete “subsection (5)” and substitute “subsection (4)”.
Seanad amendment agreed to.
Seanad amendment No. 63:
Section 39: In page 36, line 2, to delete “subsection (5)” and substitute “subsection (4)”.
Seanad amendment agreed to.
Seanad amendment No. 64:
Section 40: In page 36 to delete lines 7 to 38 and page 37 to delete lines 1 to 13.
With this amendment we are deleting the superfluous section 40. That section is rendered superfluous and unnecessary by the changes we made in section 39.
Seanad amendment agreed to.
Seanad amendment No. 65:
Section 41: In page 37, line 29, to delete “subsection (4)” and substitute “subsection (4)”.
Seanad amendment agreed to.
Amendments Nos. 66, 140 and 148 are related and will be discussed together.
Seanad amendment No. 66:
Section 41: In page 38, between lines 21 and 22, to insert the following:
“(10) (a) The functions standing vested in a rights commissioner immediately before the commencement of this Act shall, in relation to a relevant claim, continue to be performable after such commencement by a person who immediately before such commencement was a rights commissioner.
(b) In this subsection “relevant claim” means—
(i) a complaint or dispute to which subsection (2) or (4) of section 8 or subsection (2) of section 53 applies,
(ii) a claim for redress to which subsection (2) of section 81 applies,
(iii) a case to which subsection (2) of section 84 applies, or
(iv) a case to which subsection (2) of section 85 applies.”.
This is another belt and braces amendment. It is intended to ensure that all complaints and disputes referred to a rights commissioner prior to the commencement of Part 4 of this Bill when enacted can be decided by an adjudication officer who was, immediately prior to the commencement, a rights commissioner. The additional subsection (10) specifically provides that in respect of such complaints and disputes, the adjudication officer to whom they are assigned will continue to perform the functions vested in him or her as a rights commissioner under the relevant legislation. This is necessary to ensure that the legitimate expectations and legal entitlements of the parties' in question which existed on the date the complaint was referred are respected. Amendments Nos. 140 and 148 are linked and do the same in respect of the equality and equal status sections.
Seanad amendment agreed to.
Amendments Nos. 67 to 69, inclusive, are related and may be discussed together.
Seanad amendment No. 67:
Section 42: In page 38, lines 23 to 28, to delete all words from and including “(1) A” in line 23 down to and including line 28 and substitute the following:
“(1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.”.
This amendment arises from the temporary agency workers legislation and was introduced to bring clarity to the situation regarding who complaints can be made against under the Employment of Employees (Temporary Agency Work) Act 2012. That Act is unique in employment law in that there are three actors involved: the employee, who is the agency worker; the employer, who is the agency; and the hirer, which is the entity for whom the agency worker carries out the work. The 2012 Act clearly distinguishes those sections of the Act where an employee can take a case against the employer from those sections of the Act where an employee can take a case against the hirer. As the purpose of the Workplace Relations Bill is to streamline structure and processes rather than to make any substantive changes in employment rights legislation, it is important that section 42 of the Bill which deals with the presentation of complaints, clearly reflects this distinction. The amendments being made to section 42 do not change the broad scheme of the section as it relates to the Employment of Employees (Temporary Agency Work) Act 2012. It still remains the case that those provisions of that Act which can be subject of a claim against an employer are included in Schedule 5 of the Bill. The amendment being made to subsection (1) clarifies that the provisions listed in that schedule are those where a complaint can be made that an employee's employer has contravened any of the provisions listed in Schedule 5. Previously, the text of paragraph (1) did not specify against whom a complaint could be made, simply stating that an employee or specified person could present a complaint to the director general that a provision of Schedule 5 had been contravened in relation to the complainant. The ambiguity has now been clarified.
Seanad amendment agreed to.
Seanad amendment No. 68:
Section 42: In page 38, line 33, to delete “sections 37 and 40” and substitute “section 39”.
Seanad amendment agreed to.
Seanad amendment No. 69:
Section 42: In page 39, line 1, to delete “sections 37 and 40” and substitute “section 39”.
Seanad amendment agreed to.
Amendments Nos. 70 and 75 form a composite proposal and may be discussed together.
Seanad amendment No. 70:
Section 42: In page 39, between lines 6 and 7, to insert the following:
“(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 43 by the Labour Court.”.
This amendment arose from discussions in this House. 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 on the complaint or dispute. This amendment inserts a new subsection (4) specifically to cover complaints or disputes which 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) as being vexatious. Following the referral of the complaint back to the director general, the case will then be assigned to a different adjudication officer for the hearing. If the first adjudication officer deemed a case to be frivolous or vexatious, when the case is referred back it will not be heard by the same officer. This was an issue of concern raised by Deputy Wallace, who felt the procedure in the original draft of the Bill was unfair.
Seanad amendment agreed to.
Progress reported; Committee to sit again.
