Amendments Nos. 1, 3, 5 and 6 are related and will be discussed together.
Workplace Relations (Miscellaneous Provisions) Bill 2021: Committee and Remaining Stages
I move amendment No. 1:
In page 6, to delete lines 24 to 28 and substitute the following:
“ “(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own
motion or upon agreement by both parties to the proceedings, determine that, due to the existence of special
circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.
(13A) Where there is an objection under this section by one party to the proceedings being held in public the
adjudication officer shall hear and consider the objection and decide if the proceedings should be conducted
otherwise than in public.
(13B) The adjudication officer shall provide and publish the rationale for decisions made under subsection (13A) of
(13C) Where either party to the proceedings is dissatisfied with the decision made by the adjudication officer under
subsection (13A) of this section they will have recourse to appeal the decision to the director of the WRC.”,”.
The genesis of this amendment comes from engagement that we had with officials and indeed with the Minister of State, and I thank them for all their engagement on this important legislation. At the committee I made clear the problem I envisaged with the legislation as it currently stands where it may result in cases of employers who are alleged to have breached workers’ rights wishing to force proceedings into private session. The amendment has left enough scope for the adjudication officer to make a balanced decision, where one party to the proceedings has made a request for the hearing to be held otherwise than in public.
As is ever the case we need to ensure that there is due process when decisions such as this are made so I have also included a subsection whereby the adjudication officer must publish the rationale for their decision. The best way to ensure fairness and to counter against accusations or allegations is to be transparent and fair and that is what this amendment is about. That is why I have included a final provision whereby if a situation arises where either party to proceedings is dissatisfied with the decision made by the adjudication officer under this subsection, they will have recourse to appeal the decision to the director of the Workplace Relations Commission, WRC.
That is just one appeal. I do not envisage that this will be an endless round of appeals or that there will be unlimited appeals available, and I understand the necessity for the making of a decision but I also feel that people should have the right to make the appeal.
I have tried with these amendments, as we are not taking separate Committee and Report Stages, to look for some words of comfort from the Minister of State. The difficulty we have in the holding of a hearing "otherwise than in public" is I have a genuine concern that there will be a chilling effect on workers, in particular, should they be forced into a situation whereby they have to have the hearing in public. If it is in public and their names are out there, that is all very well if they are going back to their workplace but they may not be in that workplace forever. Employers have recourse to simply enter someone’s name in a Google search and the Minister of State will be aware of this point as we had a conversation about this at the committee. My fear is that this will act as a deterrent to employees and workers to take a case against an employer.
If someone is going in as an individual worker, in particular, the odds are already stacked against that person. The person on the other side generally has more money and resources and possibly top-flight legal representation whereas the ordinary person may not have that and is already in something of a David and Goliath situation even where if he or she is represented, most often, by a trade union organiser, like I used to be, who has no formal legal qualifications but with some experience. My concern is that would act as a deterrent to a worker taking a case.
The reason that I am proposing the amendment is I know that it is not the purpose of the legislation to act as a deterrent but I have a fear that will be an unintended consequence of the legislation. When a worker takes a case, and I know this from my own experience, they ask if their name will come out and be in the paper, who will know and how will they know about this and what details about them are going to be in the public domain. A prospective employer, a couple of years or even a couple of months down the road, might simply carry out a Google search and see that the person took a case to the WRC. The fear would be that if that person is applying for a job and another person is also applying for a job, and they are both equally qualified, the person who has taken his or her case to the WRC might be in a situation where they would not necessarily be discriminated against - that might be overstating it - but it might harm their chances of getting that job in what might be a 50-50 call by an employer.
Workers themselves might also be daunted by the prospect of taking a case if they know that their names are going to end up in the public domain. Notwithstanding the consequences down the road, they might decide that they would rather not risk it at the first stage of taking a case.
I acknowledge that is not the intention of the legislation, and the Minister of State and I have had good engagement on it. I completely get that this is not the intention but I worry that that would be an unintended consequence of this legislation. That is why I have proposed these amendments and I hope the Minister of State will be able to assuage the concerns I have or indeed accept the amendments.
I thank Deputy O'Reilly for tabling these amendments. I understand what she is trying to achieve. I will try to give her words of comfort. We believe that most of what she is asking for is already in the legislation. I will outline the reasons for that belief. I understand the Deputy's concerns but I remind the House that this is a two-way street and that employers might not want their situations discussed in public either. That might encourage them to enter into mediation or to rectify the situation, so this works both ways. There should be no chilling effect on any employee. Our justice system is there to make sure people's rights are pursued and they feel they have the right to justice. They should not be afraid of any chilling effect. I understand why people may think that but they are entitled, if wronged, to have that wrong righted. That is what our justice system is about and what it should be about. I would not want to discourage anybody from trying to pursue his or her rights, and I think any fair-minded employer would assess a situation and see when a person is pursuing his or her rights after being treated poorly by a previous employer.
I checked the point about googling to make sure it is not as simple as that. If somebody wants to investigate whether a potential employee has had a case before the WRC, he or she will not be able to get that information from Google but will have to go into the WRC records and onto its website and pursue the matter there, so it will not be too simple. We could look at that because it should not be as simple as that.
In general, the issue we have is that the Supreme Court has been very clear that the administration of justice must be done in public. We have to allow for that as well as allowing for some exceptions and making exemptions to that rule. Such exemptions are subject to special circumstances such as cases involving a minor, a sensitive health or other social matter, sexual harassment or protected disclosures. These amendments would permit objections to be made to the proceedings being held in public by one party. We believe, however, that sections 4, 7, 9 and 10 already provide that either party can make an application to the adjudicator. They also provide the adjudicator with discretion. That is the key part. The adjudicator, who is the judge in this case, will have discretion to inquire into the matter on his or her own motion and, subsequently, 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 of the circumstances of the special case. The employee coming forward with a concern about an employer can ask but the adjudicator can decide. Not everybody, as Deputy O'Reilly says, comes into these situations having full knowledge of the consequences of a public hearing or what might happen. The adjudicator, a person well experienced in these situations, can make that call or that suggestion for the employee. That is allowed for in this legislation. I hope that gives the Deputy some comfort. I trust the adjudicator will be in a position to do that. In making any such decision, the adjudicator must afford both parties an opportunity to be heard and provide reasons for the decision. That has to happen under law and under fair and proper procedures.
As for a proposal for an appeal of an adjudicator's decision to the director general of the WRC, as the director general will have already delegated a complaint to an adjudication officer, who, as I said, will have been put in charge of the case as the judge, it would be inappropriate for an appeal relating to such a matter to be referred back to the delegator or chairperson. The case is given to the adjudicator. He or she becomes the judge, hears everything and is best placed to make the decision. If you go back to the chairperson of the WRC, he or she will not have heard the case or the evidence and might not be in the best position to oversee an appeal, but there is an appeal mechanism allowed for. Every decision of the adjudication officer on an employment rights case can be appealed to the Labour Court or through a judicial review. That is not ideal, but the Labour Court is there and that is what it is there for, so there is an appeal mechanism in place.
There was the suggestion at the committee that we put in place a review clause after 12 months. We will watch, track and measure this and keep an eye on it. If the Deputy is concerned down the line, we can come back to it. We will make regulations and guidelines to go with this. I would be very happy to sit down with the Deputy at that stage to make sure we have all the i's dotted and the t's crossed in order that when we publish the regulations and guidelines, the adjudicator is given very clear guidance as to what we expect in these situations. However, because of the Supreme Court decision and request that this be very clearly in public as the fallback position, we believe we cannot accept the Deputy's amendments in full. We do believe, however, that most of the suggestions in her amendments are dealt with in the legislation as it stands.
Amendments Nos. 2, 4 and 7 are related and may be discussed together.
I move amendment No. 2:
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.”.
This amendment comes from the same place as the previous one. I have proposed it to ensure a workers' name is not included in a published decision where it will interfere with a potential employment in the future. The section of the Bill I have sought to amend is one which I believe needs to be strengthened. It could possibly be strengthened by the regulations, and I am very open to discussing that, but I would appreciate it if the Minister of State would put on the record of the Dáil this evening his intention to engage with us and to address this specific issue. It would be worthwhile to have engagement with the representatives of workers, including ICTU. I am thinking in particular of the workers' rights section in SIPTU, which takes on a lot of individual cases. A lot can be learned in that regard. It has a huge bank of knowledge on what motivates and demotivates workers from taking cases.
I appreciate what the Supreme Court has said about matters being in public but I am concerned that, as an unintended consequence of that, there will be something of a chilling effect. These are questions I have been asked. I was in the WRC a couple of weeks ago, although it has been a while since I have represented workers regularly, and among the first questions you are asked are, "Who will know about this?", "Will my name be published?" and "Will this be public knowledge?" It is welcome that this will not appear in the results of a Google search, and I would be very interested to hear how that will be prevented if the decisions are in public and how it would not show up in the results of a Google search. The discretion needs to be given to the WRC not to publish the name of an individual where that person is the person taking the case. This amendment will allow for discretion to be shown and for a worker's name to be redacted from the published decision.
I hope the Minister of State will accept this amendment and accept the spirit in which it is intended. It is not my intention to delay this. As the Minister of State will be aware, we waived pre-legislative scrutiny of the Bill, we engaged with his Department and we do not have very much time to discuss it this evening. It is important legislation.
The Minister of State will be aware I took on a case recently. I was there only in my capacity as a friend of the worker taking the case. She was very concerned because it had to be explained at the beginning that we were in the interregnum between the Supreme Court decision and the publication of the legislation. The adjudication officer was very patient and explained to us exactly what the ramifications were and exactly what had to happen in respect of publication of the name. The person I was accompanying did have to take some time to think about this and was worried about it. This is a guess on my part, but I would say that, had she known at the start of the process she could potentially have ended up having her name made public, she might have thought twice about it. Every person who takes a case to the WRC will probably tell you this but, to me, the case I was accompanying this woman on was a very straightforward case. It is pretty black-and-white and is a matter of a legal entitlement denied. She therefore has not done anything wrong and there was no suggestion she had done anything wrong. There is no suggestion of any impropriety at all on the part of either party. It was a matter of paperwork. My concern, however, from the conversation I had with her, is that she may not have pursued what is her legal entitlement had she known her name could have been made public.
We had to have a sidebar conference during the start of the hearing to tease out the potential implications. Had I been in a position to say to that woman we could petition for her name to be redacted, I know that would have given her a lot of comfort, and this was a case in which there was no real acrimony between the worker and the boss. It was one of those things. It was a procedural thing. The point is this was not a massive adversarial case in which people were preparing to take entrenched positions.
Of course that can sometimes be the case, but you would not want a situation where any worker would have pause, or indeed any employer. An employer might not want their name associated for whatever reason with cases being taken to third parties.
The amendment allows for discretion and for the adjudicator in the WRC to have the discretion to redact a person's name so that the person would have an opportunity to make his or her case as to why that person thinks his or her name should be redacted. That gives discretion to the adjudicator to be able to offer that to a worker when he or she may be considering withdrawing the case, even where the worker has a decent case to make. We were happy to work with the Government constructively. The amendments I have suggested are intended only to ensure this works. I understand and respect this came from the Supreme Court and that it has to be dealt with but the amendment provides that where discretion can be given, it should be. If it is not possible to accept this amendment, which I think is very reasonable - I am sure that the Ceann Comhairle has probably never heard anyone say they were proposing an amendment they thought was unreasonable, but this one is particularly reasonable because it strengthens the legislation - I want the Minister of State to explain the position and whether it is possible for the discretion to be provided for under the legislation as it now stands.
I share many of Deputy O'Reilly's concerns. I am not a member of that particular committee and have not had the benefit of the debate. We all know why the Bill has ended up before the House, and that is because of the Supreme Court judgement. Amendment No. 1 may be covered in the legislation but the second on redacting names would give a degree of comfort. It seems very reasonable to me. People do ask if their name will end up in the public arena around these things and they do not want to lose their privacy or they are worried it might impact on their future employment.
The Minister of State has said he will look at this in the review. Will that be more than a desktop review? I presume there will be engagement. Has there been a commitment about who will be consulted? That would be beneficial for us to know. A year might not be ideal for looking at how something like this plays out.
As everyone knows, I will talk to anybody, so in any review I have no hesitation in talking to anyone after 12 months, especially those who have been affected by any decision we make here. My officials are the same because in drafting the legislation we have engaged directly with committee members as well as the relevant unions and people involved in this day to day. We are very open on this. I cannot accept the amendment but I do not oppose it because we believe it is already in the legislation. We are all at one on this. We want to make sure justice is visible and public, as per the Supreme Court decision. We want to make sure people are comfortable in vindicating their rights, which is what this is about. The concerns expressed have been put forward on behalf of an employee, but the opposite is that it should encourage any employer to behave correctly, treat his or her employees correctly and make sure he or she does not abuse them and instead respects them. It is a two-way street. I believe the protections are in there and the legislation does allow for discretion, but discretion can only be allowed for. It cannot be guaranteed because discretion is about making decisions. I cannot put it in the Bill that discretion must be given. That is a decision that has to be made by the adjudicator.
The anonymisation of parties in a published decision is already provided for in the Bill. While the judgment of the court did not address the issue of automatic anonymisation, which is currently provided for in subsection (14), it is the Department’s view, supported by legal advice, that maintaining a policy of anonymisation of all published decisions is contrary to the requirement that justice be administered in public. We have to respect the Supreme Court decision. I am not opposing the Deputy. I have no choice, but we are trying to do the best that we can.
Paragraph (b) of subsection (14) provides an adjudication officer with the vires effectively to direct the commission, if he or she is satisfied that special circumstances exist, not to name parties in the published decision. Again, I have to accept that the adjudicator is a reasonable person, has the qualifications to do the job and can make that decision. The discretion is clearly there but discretion is just that. I cannot go beyond that in the legislation. Beyond this, it is difficult to see how an adjudication officer or indeed any other party could reasonably be expected to predict with a degree of accuracy the potential future impact of being a named party in a decision and, accordingly, I cannot accept this amendment.
I commit here to engaging on the guidelines and the regulations. I am a totally open book on that and will sit down with anyone who wants to before those guidelines and regulations are finalised. The 12-month review was suggested by Deputy O'Reilly and committee members. I have accepted that. I have said before in the other House and will say it again that the review after 12 months is to ensure we have got this right. We have to respect the Supreme Court judgement and we are doing that as best we can while allowing for all possible scenarios. We want people to be able to use the WRC to vindicate employees' rights, as they already do successfully. That is what it is there for and it does a good job, in my view.
I want to ask the Minister of State one further question on the consultation. He has said he will talk to anyone, and I know it is the case that he will. Just like me, however, no one's job here is guaranteed. I seek confirmation from the Minister of State that he will engage proactively with employers and unions, not only to monitor the progress of this but also to hear if there is a chilling effect. I have expressed my concern that this may inadvertently have a chilling effect. I sincerely hope it does not. I understand the need to legislate because of the Supreme Court ruling and that in many ways the Minister of State's hands are tied because the requirement is to implement the court's judgement.
I know the intention is not to discommode or disadvantage any worker or employer. I note the Minister of State has referred several times to decent employers but, to be honest, they are not usually the ones who end up in the WRC. Most employers never see the inside of the WRC. I am not sure if it is on Haddington Road or elsewhere now. Most employers are never down there. We are talking about legislating for all workers and employers, good, bad and indifferent, but in my own experience, most workplace disputes are settled at the level of the workplace. That is the best place to resolve them and the place where you usually get the most satisfactory outcome. That involves dialogue and maybe informal mediation. We are talking only of those cases that are sufficiently protracted to have ended up in the WRC. Plenty of good employers also end up in the WRC, but we are talking about those employers who are in the minority, or indeed those workers who are in the minority who might seek to take a case to put the name of the employer up in lights. Equally, an employer could seek to take a case or a worker could be taking a case and the employer might think, "Well, I'll soften your cough now and see how you like it when your name is up in lights", as they would perceive it. The vast majority of workers and employers deal at local level and do their business in a collegial way, and ensure they get the best outcome. It is for the minority we need to be careful.
Talking about precarious employment, apart from one person, nobody in this Chamber who is elected has a guaranteed position. In general, our positions are not guaranteed. While I fully respect that the Minister of State does talk to everyone and anyone - I appreciate that he does, as it is a good thing - somebody else may not be so disposed, and I would like him to put on record that there will be engagement in a timely manner with a view to ensuring that those who are practitioners, which are not just the employers but also the legal people who will use it and the unions, will have an input into ensuring that should it be required and should any amendments be required to the legislation, that they will be based on their experience. With reference to the Supreme Court judgment, there has to be a win on that.
I confirm that I am speaking on behalf of my Department. My officials are very much disposed towards engaging with everybody on this issue because they want justice to be administered properly and people's rights to be vindicated.
We have a concern with the term "chilling effect" being used all the time because we want to encourage people to use the WRC, not to be afraid to use it and the legislation allows for that. We cannot bring forward a statutory provision that expressly anticipates victimisation or penalisation of a person. We must assume that people will use the law to vindicate their rights and not be afraid to use it. For that reason, I do not refer to a chilling effect. While I recognise that people might have concerns, we want to be able to say it should not happen because a person is entitled to have his or her rights vindicated. That is what justice is about and that is what we are about as well. Any future Minister of State in my seat or departmental officials will engage in 12-monthly reviews with the appropriate personnel who are familiar with the situation.
The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 6 July: “That in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Title is hereby agreed to in Committee, the Bill is accordingly reported to the House without amendment, Report Stage is hereby completed and the Bill is hereby passed.”