Dáil Éireann debate -
Tuesday, 26 Jun 2018

Vol. 970 No. 7

Employment (Miscellaneous Provisions) Bill 2017: Report Stage

Deputy Willie O'Dea

I move amendment No. 1:

In page 5, line 23, after "provisions" to insert "but not later than six months after the passage of this legislation by both Houses of the Oireachtas".

The background to this amendment is that this legislation has been a long time in gestation, as the Minister will be aware. It has been badly needed for a long time. It has been very slow to reach its present stage. We want to make sure it is enacted and brought into force as quickly as possible. I proposed an amendment on Committee Stage to provide that the legislation had to be in force within 12 months, at a maximum. Many of my colleagues on the committee felt this period was too long. Some wanted a period of three months while others wanted six months. As a result, I decided to recast the amendment to provide that the legislation would come into force within six months. I note that the Minister, in responding to my amendment on Committee Stage, said it was impossible to include what I proposed because we could not rule out the constitutional process that includes the President, the Council of State and the referral of the Bill to the Supreme Court. In other words, the Minister was saying there is always a possibility that the Bill may be referred to the Supreme Court under Article 26 of the Constitution and that this might defeat the timescale. I point out to her, however, that under Article 26.2.1° of the Constitution, it is provided that the President must make a decision on referral to the Supreme Court within seven days of receipt of the Bill, and then the Supreme Court has a limited time within which to make a decision, that being not more than 60 days. I do not believe that is an impediment to accepting the amendment I propose.

Deputy John Brady

I support this amendment. It is important. Deputy O'Dea is correct that this legislation has been a long time coming. It has to be said that without Sinn Féin and the Bill introduced by Deputy David Cullinane in 2016, dealing with if-and-when and zero-hour contracts, there would not now be a focus on getting this legislation across the line. The Bill introduced by Deputy David Cullinane passed through Committee Stage. There were full hearings and cross-party support on numerous amendments that were made. Some of those were reflected in some of the amendments Sinn Féin submitted on Committee Stage of this Bill. It is imperative that this legislation be strengthened. It is critical that there be no delays in implementing it when it is passed.

Some concerns have been expressed by organisations such as IBEC with a view to trying to force our hand in terms of rowing back on some of the amendments agreed on Committee Stage. I refer to the bands adopted on foot of amendments Sinn Féin put forward and which were supported by others. Six months is time enough - too long, really. I would love to see this legislation enacted straight away or certainly within six months of its passing. Sinn Féin will certainly be supporting this amendment.

Deputy Joan Collins

I support this amendment, which is important. Dunnes Stores workers went on strike in 2015 looking for the Secure Hours - Better Future charter. This included the look-back and the banded hours. It is important that this legislation go through as quickly as possible.

I saw the letter IBEC sent expressing its concerns and the implications of proposed banded-hours legislation. This legislation is putting it up to employers to deliver for workers. It would actually give security to workers in the retail sector, including Dunnes Stores workers, and the capacity to increase their hours over time. I support this amendment because it is important that the period be no longer than six months.

Deputy Willie Penrose

This is a very reasonable amendment. The period started off being 12 months. I recall Deputy Brady proposed three months on Committee Stage. I referred to a period of six months at the time. This legislation has been a long time in gestation. We all know how critical it is to get it on the Statute Book in order to end exploitative practices that have occurred and that continue in various strands of employment across the State. I compliment the Minister on bringing it forward. I have no doubt that her bona fides are very strong. All of these amendments strengthen the legislation so it will have a more significant impact and consequences for workers. Six months is a reasonable period for the enactment of the legislation. It allows bedding-in time and it allows people to get used to it. Employers will no doubt have to adjust and get used to various issues that will be addressed in this legislation. That is important.

I recall the Minister referring to the constitutional constraint or the circumscribing of the legislation, perhaps by negativing the constitutional imperatives that exist. The President signs the legislation and if somebody finds it is not to his liking, he can take a case to the High Court to test its constitutionality. If one does not agree with some of the sentiments or objectives of the legislation, one is free to challenge it in other ways, provided one has plenty of wealth or resources. One can challenge somebody who is trying to seek to enforce or rely on the objectives in the legislation. I would not be as worried about that as the Minister, although she did indicate it is a concern. She also indicated that she would, on Report Stage, see how this would work.

I would be surprised if the Minister was not in a position to accept this amendment in order to ensure that, before we leave for the summer, this legislation will be on the Statute Book.

Minister for Employment Affairs and Social Protection (Deputy Regina Doherty)

It is good to be still able to surprise a gentleman.

This amendment is designed to ensure the Act is commenced within six months. While I share the Deputies’ concern that the legislation has to be commenced as soon as is possible, it must also be understood that I cannot interfere with the functions of the President, who has to sign a Bill into law, or the Supreme Court. The President may, after consulting with the Council of State, refer a Bill to the Supreme Court. It would be unconstitutional if this Bill excluded the role of the President or the Supreme Court from the legislative process. For that reason alone, we are going to reject the amendment.

I appreciate that is not Deputy O’Dea’s aim, however. When he submitted a similar amendment on Committee Stage, I pointed out that section 1(2) contains the standard provision dealing with commencement which is normally used in all legislation passed by the Oireachtas. I also indicated that the amendment proposed by the Deputy does not appear to exist in any other single Bill, including all of the Private Members’ Bills sponsored by the Deputy's party. On the contrary, I found several examples of where Fianna Fáil Private Members’ Bills used the standard commencement provision which we are using in section 1(2). I genuinely see no good reason to move away from this well-established approach.

I indicated on Committee Stage that my priority with this Bill is to work with all sides of the House to deliver legislation which is fair, balanced and works in practice. I assure the Deputy that remains my position. I want to see the legislation enacted at the earliest opportunity. However, for the reasons I have outlined, I cannot accept the amendment.

Deputy Willie O'Dea

One lives and learns. We are learning all the time. We will be wiser when we are drafting Private Members' Bills in future.

Deputy Regina Doherty

Touché.

Deputy Willie O'Dea

I accept the Minister’s bona fides that it is not my intention to interfere with the Constitution. The simple reason is that the amendment does not in any way interfere with the Constitution. Article 26.2.1° is quite clear. When legislation is passed by both Houses of the Oireachtas, there is a short interim period during which the Bill is handed to the President for signature. The Constitution provides that if the President decides to refer the Bill to the Supreme Court, he or she must do so within seven days. The article further provides that when it goes to the Supreme Court, the court must make a decision on that matter within 60 days. Accordingly, we are well within the six months.

I believe it is not unreasonable to look for this legislation to be commenced within six months, particularly in view of the length of time we have been waiting for it.

Deputy Regina Doherty

I have not changed my views. While I appreciate what the Deputy said, there is a long-established practice in the House that we commence legislation in a way that is cognisant of the other institutions which have a role to play. I see no reason to change that.

Amendment put:

The Dáil divided: Tá, 56; Níl, 33; Staon, 0.

Tá

• Adams, Gerry.
• Aylward, Bobby.
• Barry, Mick.
• Brady, John.
• Broughan, Thomas P.
• Buckley, Pat.
• Butler, Mary.
• Byrne, Thomas.
• Cahill, Jackie.
• Calleary, Dara.
• Casey, Pat.
• Cassells, Shane.
• Collins, Joan.
• Collins, Michael.
• Crowe, Seán.
• Cullinane, David.
• Curran, John.
• Doherty, Pearse.
• Dooley, Timmy.
• Ellis, Dessie.
• Ferris, Martin.
• Fleming, Sean.
• Funchion, Kathleen.
• Harty, Michael.
• Haughey, Seán.
• Howlin, Brendan.
• Kenny, Gino.
• Kenny, Martin.
• Lahart, John.
• MacSharry, Marc.
• McGrath, Michael.
• McGuinness, John.
• Moynihan, Aindrias.
• Moynihan, Michael.
• Munster, Imelda.
• Murphy O'Mahony, Margaret.
• O'Brien, Jonathan.
• O'Callaghan, Jim.
• O'Dea, Willie.
• O'Loughlin, Fiona.
• O'Reilly, Louise.
• O'Sullivan, Jan.
• Ó Broin, Eoin.
• Ó Caoláin, Caoimhghín.
• Ó Cuív, Éamon.
• Ó Laoghaire, Donnchadh.
• Ó Snodaigh, Aengus.
• Penrose, Willie.
• Pringle, Thomas.
• Quinlivan, Maurice.
• Ryan, Brendan.
• Scanlon, Eamon.
• Sherlock, Sean.
• Shortall, Róisín.
• Smith, Bríd.
• Stanley, Brian.

Níl

• Bailey, Maria.
• Barrett, Seán.
• Breen, Pat.
• Brophy, Colm.
• Bruton, Richard.
• Burke, Peter.
• Byrne, Catherine.
• Carey, Joe.
• Corcoran Kennedy, Marcella.
• Creed, Michael.
• Deering, Pat.
• Doherty, Regina.
• Durkan, Bernard J.
• English, Damien.
• Farrell, Alan.
• Flanagan, Charles.
• Harris, Simon.
• Healy-Rae, Michael.
• Heydon, Martin.
• Humphreys, Heather.
• Kehoe, Paul.
• McGrath, Finian.
• McGrath, Mattie.
• McHugh, Joe.
• McLoughlin, Tony.
• Mitchell O'Connor, Mary.
• Murphy, Eoghan.
• Naughten, Denis.
• Naughton, Hildegarde.
• O'Connell, Kate.
• Phelan, John Paul.
• Ring, Michael.
• Stanton, David.

Staon

Tellers: Tá, Deputies Michael Moynihan and John Lahart; Níl, Deputies Joe McHugh and Tony McLoughlin.

Amendment declared carried.

An Leas-Cheann Comhairle

Amendment No. 2 in the names of Deputies O'Dea and Shortall is out of order as it involves a potential charge on the Revenue.

Amendment No. 2 not moved.

An Leas-Cheann Comhairle

Amendments Nos. 3 and 4 are related and will be discussed together.

Deputy Regina Doherty

I move amendment No. 3:

In page 10, line 6, to delete “intimidation.” and substitute “intimidation.”.”.

On the advice of the Office of the Attorney General, with which the WRC and the Labour Court agree, this provision should be deleted as it creates two different standards of proof within the same legislation, resulting in legal uncertainty and a penalisation provision which would be unworkable in practice.

I appreciate that this was not the intention of the Deputy in introducing the amendment on Committee Stage or, indeed, the intention of the select committee in agreeing to it. However, this will be an unintended consequence if the provision remains in the Bill. I hope all that Deputies can see the difficulties created and that we might have a bit of common sense.

The Opposition amendment carried on Committee Stage inserts a different standard of proof from that in section 7(2)(a) of the Terms of Employment (Information) Act 1994. The latter is one of the Acts this Bill amends. This will cause confusion for the parties in making their cases and in particular for the adjudication officer in deciding whether an employer has been penalised. It would also present a difficulty to the Labour Court on appeal. That is its opinion and not mine. It would also leave the WRC or the Labour Court open to judicial review as to which section the adjudication officer relies on in deciding a complaint. Would it be section 6C(6) or 7(2)(a)? Whichever section an adjudication officer relied on, the decision would be open to be challenged on the basis that he or she did not rely on the other section regardless of the substance of the decision or the complaint. Employers intent on circumventing the penalisation provision could challenge any decision of an adjudication officer or the Labour Court on this basis, thus rendering a strong employee protection provision practically ineffective.

The Opposition amendment agreed to by the select committee was also probably not needed. The Employment (Miscellaneous Provisions) Bill as initiated introduced a penalisation provision to the Terms of Employment (Information) Act 1994. The penalisation provision mirrored the one in the Protection of Employment (Temporary Agency Work) Act 2012. There is also a strong protection against penalisation. It is tried and tested and there is no evidence that the relevant provisions are lacking in any respect.

Deputy Willie O'Dea

I take it we are dealing with amendments Nos.-----

An Leas-Cheann Comhairle

Amendments Nos. 3 and 4 are being discussed together.

Deputy Willie O'Dea

When I drafted the amendment that was passed on Committee Stage, I took the view that it would stand in the legislation and that is still my view. The Minister says that strictly speaking there is no need for it because the presumption is there already. I am not absolutely clear about that. I think this really ties it in.

The Minister referred to judicial review, the WRC, etc. We did not get that elaborate explanation on Committee Stage. This is something new which we are talking about for the first time. I would like the Minister to elaborate on it before we make a decision.

Deputy Mick Barry

We are fine with amendment No. 3, which deals with the drafting error. However, we are not fine with the deletion called for in amendment No. 4. This is an interesting proposal to delete an amendment tabled by the Minister. The amendment proposes to delete the burden of proof on an employer that a worker's complaint is not justified. Where would it place that burden of proof? In reality it would be on the shoulders of the worker in question. It is implicit that complaints of a broadly spurious character would be made.

Every Deputy knows of a pretty big lobbying campaign by employer organisations on aspects of the Bill. We all received correspondence this day last week from IBEC asking for changes in the Bill, watering it down and placing less responsibility on employers. The Minister indicated in the House recently that she met IBEC representatives to discuss their concerns. Did her proposal to delete or amend her own proposal come before or after the discussion with the IBEC representatives? Is this an indication of successful lobbying by IBEC? Is it an example of Fine Gael bending the knee to IBEC? Is it an example of the Minister giving to IBEC that which IBEC seeks? Certainly the Minister's proposal to delete would not find approval among Dunnes Stores workers, other retail workers or other workers faced with this type of employment, who, I can assure the Minister, are not prone to making spurious complaints and will not welcome that the employer is somewhat out the gap if the Minister's amendment is passed.

I would like to know more about the process that led up to the Minister's decision to amend the Bill and to delete her own section of the Bill, an amendment which is not good news for workers and which will please the employers and their representative organisations.

Deputy Joan Collins

I thank the Minister for her contribution. She is very late in bringing her explanation to the Chamber. It would have been good if we could have seen why it is being changed even a couple of days ago. That, at least, would have provided an opportunity to check with the WRC and the Labour Court that it is duplication or negates another part of the other Bill. Is that what the Minister is saying? I cannot say hand on heart that she is wrong or that they are wrong because I have not had a chance to check it out. Certainly Deputy O'Dea should have been informed of it because he tabled the amendment to the Bill at the time. It is very frustrating to get that information now when we felt we were making the provisions of the Bill more robust on Committee Stage. I am not sure about my thinking on it. I ask the Minister to come back and elaborate. I am not happy. The unions raised the matter with us and they wanted to keep these provisions in the Bill to make it as robust as possible for their members.

Deputy Bríd Smith

I wish to add to the points already made. It is strange to do as proposed here and put the onus back on the complainant rather than on the respondent. If the Minister is saying "No", perhaps she could come back and explain that. Under the Unfair Dismissals Act, an employer has to prove that he fairly dismissed a worker who took a complaint against him. Removing this amendment, which the Minister put in, actually puts the reverse into law. I think it should be allowed and we will oppose its removal.

Deputy Willie Penrose

I understand that the thrust of the amendment, if accepted, would appear to undermine in some way the protection of employees from penalisation as it would remove the requirement on the employer to prove that they did not penalise or threaten an employee against their assertion or the reliance upon the rights that are being outlined in the Bill. Deputy Bríd Smith is correct about the presumption in the Unfair Dismissals Act which deals with this because a presumption is something that is rebuttable. Having a presumption means that the other side can actually come in with facts to rebut it at a tribunal. That might be a way of trying to deal with it.

I have to listen to what the Minister said. If the Labour Court and the WRC are saying that it is not workable or that there is a lacuna and they do not know what particular section can be relied upon, it creates a difficulty. We already have legislation going through the House that was described as a dog's dinner. Somebody said it is an insult to the dogs to even talk about giving them a dinner like that.

Deputy Mattie McGrath

It depends on what type of teeth they have.

Deputy Willie Penrose

I do not want to be party to legislation that would curtail in some way the rights of access to the Labour Court or the WRC. A more detailed explanation for why those particular adjudicative bodies, which are central to the industrial relations machinery of the State, are concerned might help to allay our fears. My colleague is right that there obviously has been significant agitation by IBEC on behalf of employers. I see nothing wrong with that - it is the cut and thrust of participative legislation - as long as it admits what it is doing. It has to do that now. Workers' representatives have been in contact with us and they are very keen about this. This element of the legislation is critical in their view. We have a Hobson's choice here. The Minister and an arm of the industrial relations machinery of the State are saying one thing and workers' representatives, who are at the coalface, are saying it is absolutely critical. When will we get to the final point? That is the critical thing. We are at the last staging post now in terms of legislative intervention. I hope this can be clarified. The debate may well have to be adjourned until tomorrow so we can get further clarification so we know exactly what the import of the deletion would be. It is something that is causing us concern.

Deputy John Brady

It is really unhelpful for the Minister to throw this on the table at this point. Committee Stage is when legislation is supposed to be teased out and any potential pitfalls or issues of concern debated and amended. For this to come before the house at, essentially, the 12th hour is really unhelpful. My party is here to strengthen this legislation because workers right across the State are screaming out for this and have been for many years. That is where Sinn Féin is coming from. We have listened to the trade unions representing those workers and they are concerned by the Government's amendment seeking to remove this from the legislation. They indicate that it is critical because it is there to strengthen workers' rights in terms of the burden of proof. The amendment would delete the lines on page 10 of the Bill which state, "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that this section has been contravened the onus shall be on the respondent to prove the contrary." That is what the Minister wants to remove. My party and I oppose its removal. The Minister has stated that she is removing it because the WRC said it causes it serious concern and that it has serious questions around it. All legislation is open to legal challenge. That is always the case. It is concerning that the Minister has come in and said that. Mandate has said the complete opposite. It is saying it is imperative it remains. I am not sure. I think the Minister needs to elaborate on the points she has made. It is a matter of concern that this has appeared at, as already stated, the 12th hour.

Deputy Róisín Shortall

I concur with other speakers on this. Where a provision has been agreed on Committee Stage - when one would expect the Minister to be in possession of all of the facts, details and advice - it is extremely unsatisfactory that there be a proposal to change it a few weeks later on Report Stage. One cannot help but think that there is a connection between this and other deletions the Minister is proposing and the strong lobbying by IBEC and others on the proposal to strengthen workers' rights. It seems to be a bit of a coincidence that this is happening. One can understand why people are sceptical about what is being said. It would certainly seem that on the surface the Minister is seeking to weaken the provisions of the Bill by proposing this amendment. In a situation where it is presumed that the section in question has been contravened, surely the burden of proof should be on the employer. The Minister is seeking to remove this, which, by anyone's standards, seems to indicate that she is weakening the protection she had earlier proposed.

We are sceptical about what the Minister is saying but we have to take it on face value. It would be worthwhile if we just held off on voting on the amendment. We are nearly out of time in any event. Will the Minister commit to circulating the representations she has received from the WRC and the Labour Court straight after this debate? It is important that we hear what they are saying about it and the points they make about the legislation because we are open to considering it if they have made a strong case. I ask the Minister to circulate the representations she has received from the industrial relations machinery immediately after this debate.

An Leas-Cheann Comhairle

If there are no other Members offering, I call on the Minister to reply. I remind the House we will be taking Private Members' business at 8 p.m.

Deputy Regina Doherty

I will talk for the next two minutes and then we will adjourn. I will undertake to do exactly what the Deputy suggested.

I will correct a number of inaccuracies from the past couple of minutes. I am not trying to change anything that I put into the Bill. When the penalisation provisions were attempted to be amended on Committee Stage, the Government voted against the proposal. I articulated for all of the Members who were present for the Committee Stage debate the reasons the Government was voting against it. It is no different from what I described just moments ago, with the exception that I have had the time and space to go to the WRC and the Labour Court and ask them their opinions on the Committee Stage amendment. That is what I read out a few moments ago. I am not sure at what other point I could have given the House that information other than on Report Stage. The only reason I am trying to amend the Bill by making both of the deletions in amendments Nos. 3 and 4 is to strengthen it and bring it back to where it was. Effectively, what the Labour Court and WRC are telling us is that because we have inserted two standards, nobody has to meet either because if an employee made a complaint on one standard there is the option for an employer to appeal or initiate a judicial review because the employee did not make the case on the basis of the other standard. The likelihood is that one or other of the provisions will be rendered useless. What we all wanted through Second Stage and Committee Stage was to have a penalisation provision and protection for employees to make sure if they took a case to the WRC the burden of proof was equal and that it was the WRC, as is its right in statute, that would adjudicate on the merits of the complaint. We absolutely acknowledge there are no such things as frivolous complaints being made. When employees take cases to the WRC or the Labour Court, they have substantive reasons for doing so.

As I have run out of time and given that my word is not good enough, I will commit to furnishing to the members of the Joint Committee on Employment Affairs and Social Protection, between now and tomorrow evening, the representations and responses I received from the WRC and the Labour Court.

Deputy Róisín Shortall

On a point of order, could the Minister circulate them more widely than that? We are not all members of the committee.

Debate adjourned.