Unfair Dismissals (Amendment) Bill, 1993 [Seanad Bill amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 82, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question: "That the Bill be received for final consideration", the Minister may explain the purport of the amendments made by the Dáil and this is looked upon as the report of the Dáil amendments to the Seanad. The only matter, therefore, that may be discussed is the amendments made by the Dáil.

For the convenience of Senators I have arranged for the printing and circulation of the amendments. As Members are aware, they may speak only once.

Question proposed: "That the Bill be received for final consideration."

Thank you. I join with Senators in the good wishes expressed to you. I did not see you but I sent numerous messages. I am disturbed to hear you will be livelier with 20 extra heartbeats per minute. I hope it does not mean you will be running around the consituency but I am sure your duties as Cathaoirleach will not allow that. We are genuinely glad to see you back.

The Seanad will recall that in early May of this year I introduced the Unfair Dismissals (Amendment) Bill, 1993, to this House. I was glad to introduce it in the Seanad, I listened to a variety of proposals and amendments from Senators aimed at improving the provisions of the Bill. I was pleased to accept some of those proposals in amendments put forward by Senators and by myself. Similarly, further proposals were put forward by Deputies during the passage of the Bill through the Dáil. As in this House a few weeks earlier, I was happy to accommodate Deputies where possible. I now wish to report to this House the amendments made in the Dáil and to explain briefly why each one was made.

I proposed amendment No. 1 in the Dáil after listening to the concerns of several Deputies regarding a practice of some employers. This practice relates to what I would term ordinary open-ended contracts of employment being terminated after, say, 11 months followed shortly afterwards by the offer by the same employer to the same employee of a new open-ended contract of employment which, in turn, is terminated after the expiry of another period of 11 months.

Senators will recall that section 3 of the Bill as initiated in this House aimed to prevent abuse of fixed term and fixed purpose contracts by employers who use such contracts, wholly or in part, to avoid liability under unfair dismissals legislation. Having listened to Deputies I considered a similar provision was necessary for ordinary open-ended contracts of employment so as to prevent their misuse by a small number of employers.

The purpose of this amendment, therefore, is to provide that a Rights Commissioner or the Employment Appeals Tribunal will have the discretion to consider whether the dismissal of an employee by an employer followed by the re-employment of the employee within 26 weeks of the dismissal was used for the purpose of avoiding obligations under unfair dismissals legislation and where it is so decided, will not operate to break the continuity of service of the employee.

This amendment will help provide a remedy for certain employees who find their employer persistently breaks their service by their dismissal after 11 or 11½ months of successive contracts so as to prevent them gaining the 12 months' service necessary to qualify for protection and rights under the original Unfair Dismissals Act. Henceforth it will be possible for such cases to be brought before a Rights Commissioner or the Employment Appeals Tribunal.

Section 13 of the Bill as originally drafted extended the scope of unfair dismissals legislation to include persons employed through employment agencies. For the purposes of the legislation the party hiring the individual from the employment agency was deemed to be the employer. This provision was drafted so that the extension of the protection of the 1977 Unfair Dismissals Act to workers placed by employment agencies would apply only to contracts entered into after the legislation comes into effect, i.e., after 1 October 1993. On that basis, therefore, an agency worker working for a user firm at the time the new Act comes into operation would not be covered until a new placement contract is made.

On reflection, I considered this would be discriminatory. Amendment No. 5 therefore clarifies that on the coming into operation of the new Act existing agency workers will be placed on a par with future such workers in that as and from that date their service will begin to count towards the calculation of the one year's service requirement necessary to obtain the protection of the Act.

I think the House will agree they are two useful amendments. In this House I had an open mind in accepting amendment as far as I could. I applied the same in the Dáil with the same fruitful effects.

Amendment No. 2 is a technical amendment to an amendment which I accepted in this House from Senator Joe O'Toole, the effect of which is to include in the list of automatically unfair reasons for dismissal the employee's membership of the travelling community. The wording of the amendment passed in this House was subsequently found to be at variance with the rest of the list in the Bill and in the principal Act in that it makes no specific reference to the employee. I am, therefore, proposing this technical amendment specifying the employee's membership of the travelling community as being an automatically unfair reason for dismissal.

Amendment No. 3 is similar to an amendment made in this House. It is a technical amendment and arises from the enactment of the Social Welfare Act, 1993. Accordingly the reference in the Bill to the Social Welfare Acts, 1981 to 1992, at this part of the Bill requires to be amended to read the "Social Welfare Acts, 1981 to 1993".

Amendment No. 4 arose from representations that were made to me by the Employment Appeals Tribunal in the period between the passage of the Bill through the Seanad and its passage through the Dáil. The purpose of the amendment is to remove the rigidity of the time limit provided to the Employment Appeals Tribunal for notifying the other party of an appeal to the tribunal from a Rights Commissioner recommendation. This amendment will give to the tribunal the same flexibility in the matter of notification of an appeal as is provided to it in respect of notification of a claim at section 7 (2) of this Bill.

I am satisfied that these amendments will not affect the balance which I sought to achieve in preparing this legislation between the needs of employers and employees. Naturally I believe these amendments will enhance the provisions of the Bill and I trust this House will have no difficulty in accepting them. I commend the Bill as amended by Dáil Éireann to Seanad Éireann.

I welcome the amendments and I commend the Minister for accepting amendments from both Houses. I appreciate that amendment No. 1 tidies up the problem of 11 month contracts. Section 3 (b) states:

each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series...

I thought this adequately covered the situation but from what the Minister said, although I have not studied it in detail——

We thought we could clarify it.

I thought that part of section 3 would have covered this situation but I welcome any clarification in that area. Amendment No. 2 is a technical one and is a clarification of the amendment proposed by Senator O'Toole and Fine Gael.

And it was agreed by all Members.

Amendment No. 3 is an update of the present position. One cannot but accept that this amendment has been brought forward, and rightly so, because the situation has changed with the passage of time, even since the introduction of the Bill. Amendment No. 5, which arose from representations made to the Minister by the Employment Appeals Tribunal, gives more flexibility to the tribunal's officials in doing their work and I do not think there is any harm in this.

Amendment No. 2 deals with agencies. By this amendment the Minister is making the legislation retrospective for people operating through employment agencies. There has been debate within the employment bodies on this and they had decided that under the original Bill it was operative from the date it was passed. There was a query about the constitutionality of making such legislation retrospective, that such legislation would only become operative from the date the Bill was passed into law. I ask the Minister to comment on the approach to making such legislation retrospective.

I will do that in my concluding remarks.

I do not see this as being retrospective but, nonetheless, it does seem to apply to an existing contract for the purposes of dating the service from the date of the Act. To that extent, in the case of contracts which have been entered into, one wonders whether this change will satisfy the legal requirements, but I expect that the Department and the Minister have considered this.

I welcome amendments Nos. 1 and 2 which deal with open ended contracts and employment agencies. These were being used by very reputable firms and institutions to dismiss employees. When I looked into this I was astonished to learn the names of these firms and institutions.

No provisions has been introduced in relation to officers of health boards. I was one of those who pointed out that employees and officers could often be in similar working situations and I am sorry to see that they are still in different categories. I cannot find any reference to pregnant women. Some of us made objections to the fact that they were not covered by the Bill.

They come under the scope of the original 1977 Act. This Act contains provisions relating to workers who are pregnant. There was a strong debate in the Dáil on this matter and it is a matter for the Minister for Equality and Law Reform, Deputy Taylor, to ensure its implementation.

The Minister explained that. I am sorry, and the Minister probably is too, that a year will pass before the enactment of that legislation under the EC directive and during that period women could technically be dismissed because of pregnancy. However, I realise, as the Minister explained the last time she was here, that she could not do anything about this.

I am extremely glad about amendments Nos. 1 and 2. The others are technical. I was one of those who supported the travelling community. I wish that something could be done about the situation of officers of a health board who can be in very similar situations to employees.

I thank Senators for their comments on the amendments made in the Dáil. Senator Neville said I was making legislation retrospective. I am not doing so. In my speech I stated that:

The provision was drafted so that the extension of the protection of the 1977 Unfair Dismissals Act to workers placed by employment agencies would apply only to contracts entered into after the legislation comes into effect, i.e., after 1 October 1993. On that basis, therefore, an agency worker working for a user firm at the time the new Act comes into operation would not be covered until a new placement contract is made.

On reflection [and following discussion] I considered that this would be discriminatory. Amendment No. 5 [which results from suggestions made in the Dáil by several Deputies and has been slightly altered to ensure it is legally correct] therefore clarifies that on the coming into operation of the new Act [i.e., 1 October next] existing agency workers will be placed on a par with future such workers in that as and from that date their service will begin to count towards the calculation of the one year's service requirement necessary to obtain the protection of the Act.

I again thank Senators for their contributions to the debates on this Bill. The Unfair Dismissals Act, 1977, was enacted by the Oireachtas in April 1977. This Bill, which I introduced in this House, brought forward to the Dáil and have now returned here, contained the following changes to the 1977 Act: extension of the coverage of the Act to include persons employed through employment agencies; access to protection under the Act in the case of the termination of certain second or subsequent fixed term and fixed purpose contracts; a new basic award of up to four weeks pay; extension of the list of grounds for dismissal to include the sexual orientation of the employee; improved claims and appeals procedures with the Employment Appeals Tribunal and clarification of the role of the Circuit Court.

In the course of the passage of the Bill through the Oireachtas the following further important changes were added: extension of the list of grounds for dismissal which are deemed to be automatically unfair to include the age of the employee and the employee's membership of the travelling community — this change was proposed in this House; the placing of existing agency workers on a par with future such workers so that as and from the commencement date of the new Act, the services of such workers shall begin to count towards the calculation of the one year service requirement — this change was proposed in the Dáil; and the provision of a remedy for certain employees who find themselves in a situation where their employer persistently breaks their service by a dismissal after, say, 11 to 11½ months.

The last change I mentioned was referred to by Senator Neville. He thought, as we did too, that section 3 of the original Bill I introduced here covered this situation, but having thought about and discussed it and having consulted on it, we decided there might be occasions where this might not be the case so we sought to clarify the situation and to make it crystal clear.

I wish to refer to two matters. Apart from the very useful amendments which were put down here and in the Dáil, issues came up during the debate in both Houses which will be of interest and which I intend to pursue. Reference was made to the desirability of various employment laws being better explained and understood. In this connection, I am glad to be able to say that a revised guide to labour law is near completion. This new booklet, which I hope will be available shortly, will provide in a comprehensive but non-technical manner a quick guide to the range of labour laws. It will, I hope, help to ensure that such laws are more accessible and better understood.

In the course of the debate in both Houses, Deputies and Senators referred to aspects of the activities of the Employment Appeals Tribunal. The tribunal exists to provide a relatively quick and inexpensive method for individuals to seek remedies for alleged infringements of their rights under various legislation. The annual report of the tribunal will be published shortly and will provide a useful description of the range of activities undertaken by that body. I remain convinced that there must be greater operational efficiency and attention to detail in the running of the Employment Appeals Tribunal.

Our excessive legalism was quoted extensively in this House. Growing statistical evidence shows that both employers and employees are using the legal system with regard to the Employment Appeals Tribunal. The establishment of the tribunal allowed for that to happen. I am sure the legal people will not mind if I briefly discuss this matter. The tribunal was meant to provide a fair, fast and inexpensive route for the consideration of certain cases. I am satisfied that it is fair in the justice sense, but I am not satisfied that it is fast and inexpensive. The increasing use of legal representatives in cases is hindering matters. A date has been fixed to meet everyone involved in the tribunal and I will address this issue at that time. I hope exhortation will have an effect. I feel strongly about this matter and I will deal with it.

I emphasise again my view that fair practices and procedures in the workplace, particularly in relation to dismissal, are an essential part of any civilised economic system. I am annoyed, as I am sure are others, with those who say that labour legislation is hindering employment. Labour legislation is not hindering employment. It is a proper civilised umbrella under which people can get their rights in an employment situation. There is clear evidence that the passage of properly debated and executed labour legislation has the effect of diluting causes of dissent in workplaces and it allows workers to work in an environment where they feel motivated and can make a contribution.

Too often, labour legislation is used as a scapegoat by certain bodies and people who blame it for the ills of the marketplace. The ills of the marketplace do not rest in the realms of labour legislation and, least of all, on the shoulders of employees. I would encourage a greater understanding of labour law, a measure to look at it and a greater reliance on the balance of forces between the employer and the employee. Gains can be made by both the employer and the employee in the proper review, perusal and execution of labour legislation in the workplace.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

I thank the Minister of State, Deputy O'Rourke, for coming to the House and sharing her views. We outlined our views on the growing presence of legal people in the Employment Appeals Tribunal and the extra expense it creates for people, especially employees, who, although they are not in a position to do so, are obliged to pay in order to obtain justice. I welcome any measures which will counteract this.

I concur with the Minister of State's remark about the operational efficiency of the Employment Appeals Tribunal. Like everything in the Civil Service, one of the restrictions is the amount of money supplied to the tribunal to carry out its work. We would like the Minister of State to consider this carefully in the context of this year's budget to see if some money can be provided. We are talking about small amounts of money — in the region of £30,000. Funding for the tribunal has been further reduced this year. A large backlog of cases await a hearing and funding is not available.

The operation of the tribunal has become more expensive because of what happened at the last appointments to the tribunal, but I do not wish to discuss this now. The Minister should recognise this fact and allocate funding to the staff of the tribunal, who do excellent work, in order to ensure that it is seen and continues to be seen as an efficient arm of labour relations throughout the State.

I congratulate the Minister of State. Her commitment to introduce fair legislation is important. I share her view that poor labour legislation is never productive and that it is ridiculous to blame good labour legislation for low employment. I support Senator Neville's point about the Employment Appeals Tribunal. It has a large backlog of cases and Senator Neville has put a tremendous amount of work into this area. I hope sufficient support is given so that the tribunal can continue the good work it has been doing over the past few years.

I thank the Minister of State for coming to the House. We had a good debate as this Bill progressed through the Seanad. I thought we had covered the item which the Minister of State mentioned in one of the amendments.

We all thought we had but it has been copperfastened now.

I am glad the Minister of State mentioned labour relations and the arguments that our labour laws have caused problems for the creation of employment. The opposite is the case. Before the Unfair Dismissals Act, 1977, was enacted, there was no protection for people who were employed individually. It is right that people now have that protection. I do not see the provision of protection for the employee being against creating employment. It is a necessary part of good employment that, under the law, we provide protection for employees.

I compliment the Minister of State for the way she has moved the legislation through the House, for the fact that she listened to our views and incorporated them into amendments where possible. No opportunity should be lost at ministerial level to express views, as the Minister of State has done, on the perception that protective legislation is a disincentive to employment. In that context, perhaps I could make a suggestion, although it may not be feasible, I am delighted the revised guide to labour law is almost complete. Perhaps the Minister of State could use what is on the record here in a foreword to the new revised guide, which will have a wide circulation.

Question put and agreed to.
Sitting suspended at 3.20 p.m and resumed at 4 p.m.