Vol. 239 No. 4
Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on it. Each amendment on Report Stage must be seconded.
I welcome the Minister, Deputy Richard Bruton. Amendments Nos. 1 and 21 form a composite proposal and may be discussed together.
Amendment No. 1 inserts an additional term into the interpretation section of the Bill. The term "excepted body" is standard in the Industrial Relations Acts. For the avoidance of doubt, the amendment clarifies that the term "excepted body" used in the Bill has the same meaning as in the Trade Union Act 1941.
Amendment No. 21 is of a drafting and technical nature and provides for the deletion of the interpretation of "excepted body" because an interpretation of the term is being inserted into the interpretation section of the Bill.
Amendments Nos. 2 and 3 are cognate and may be discussed together.
Amendments Nos. 2 and 3 are of a drafting and technical nature and do not result in any substantive change in the Bill.
Amendments Nos. 4 and 5 are related and may be discussed together.
These are technical drafting amendments. They do not result in any substantive change in the Bill.
Amendments Nos. 6 and 8 form a composite proposal and may be discussed together.
These amendments also are drafting and technical in nature and do not result in any substantive change in the Bill.
This, too, is a technical amendment which does not result in a substantive change in the Bill.
This is a technical amendment.
Amendments Nos. 10 and 12 are cognate and may be discussed together.
This, too, is a technical amendment. I should explain to Senators the reason for this. This is complex legislation. Some 30 separate Acts are being co-ordinated in this new procedure, which is why a lot of technical amendments have emerged during the course of drafting from the Office of the Parliamentary Counsel.
I am always fascinated that technical amendments arise long after a Bill has been published and entered debate. It goes to show the human frailties when one goes back and checks. That is not a comment that necessarily requires a response.
This is a drafting and technical amendment.
Amendment No. 13 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly. Amendments Nos. 13, 15 and 16 are related and may be discussed together.
I move amendment No. 13:
In page 14, line 13, to delete "address;" and substitute the following:
"address. For the avoidance of doubt, the address given on any letter or other document to the complainant/employee by a respondent/employer shall also be deemed to be an address at which the person ordinarily resides as shall any address specified under the Registration of Business Names Act 1963;".
I would like to hear the Minister's response first.
I second the amendment.
Amendment No. 13 is not appropriate or necessary, as the issue of the address at which an employer or respondent is deemed to be ordinarily resident is dealt with comprehensively in the Bill by means of a standard provision in legislation which has stood the test of time. What Senator David Cullinane may be hoping to achieve may have more to do with distinguishing the legal entity from the company.
Unfortunately, the company is a legal entity and documents have to be served on that legal entity. Therefore, the issue of the address is not really core. We cannot avoid requiring that the legal entity is correctly named in any such procedure.
Amendments Nos. 14, 22 and 67 are related and may be discussed together.
Amendment No. 14 is of a technical nature and does not result in any substantive change in the Bill.
Amendment No. 15 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh agus Kathryn Reilly. It was discussed with amendment No. 13.
I move amendment No. 15:
In page 14, between lines 25 and 26, to insert the following:
“(3) An unincorporated entity as a respondent which does not register the name of the unincorporated entity under the Registration of Business Names Act 1963 or an incorporated entity which in its dealings with a complainant/employee uses a business name which has not been registered under the Registration of Business Names Act 1963 shall be deemed to have committed an offence.”.
I second the amendment.
Amendment No. 16 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh agus Kathryn Reilly. It was discussed with amendment No. 13.
I move amendment No. 16:
In page 14, between lines 25 and 26, to insert the following:
“(3) The service of any complaint or the making of a complaint against an unincorporated or incorporated body where the respondent has not notified the complainant in writing pursuant to section 3 of the Terms of Employment (Information) Act 1994 shall be deemed for all purposes to have been validly served on that entity using the trading name as advised to the complainant/employee or in the absence of notification the trade name or other name under which the respondent trades.”.
I second the amendment.
Section 53 was inserted on Committee Stage in the Seanad. The section 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. The 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.
Amendments Nos. 18 and 19 are related and may be discussed together.
Amendments Nos. 18 and 19 are of a drafting and technical nature. They make no substantive change to the section. The amendments simply highlight the existing division in Schedule 2 between the provisions of primary legislation, Part 1, that will be repealed and the provisions of secondary legislation, Part 2, which will be revoked on the enactment of the Bill.
Amendments Nos. 20, 26, 32,36, 40, 48, 57, 68, 87 to 89, inclusive, 99, 102, 103, 105, 106, 110, 111 and 113 are technical drafting amendments and may be discussed together.
All of these amendments are of a drafting and technical nature and do not result in any substantive change to the Bill.
Amendments Nos. 23 and 24 are cognate and may be discussed together.
Amendments Nos. 23 and 24 to section 17 are of a drafting and technical nature and do not result in any substantive change in the Bill.
Recommittal is necessary in respect of amendment No. 25. Three Government amendments to the Bill on Report Stage require recommittal as they do not arise from proceedings on Committee Stage.
Section 21 makes provision for the board of the workplace relations commission to prepare a strategy statement on behalf of the commission and to submit this statement to the Minister for approval. Subsection (4) provides that the Minister can approve the draft 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 new 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.
Amendment No. 27 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly. Amendments Nos. 27 and 28 are related and may be discussed together.
I move amendment No. 27:
In page 24, between lines 33 and 34, to insert the following:
“Employer obligation to display notice of Employment Rights in the workplace
26. Every employer shall display in a prominent position in or at the place of work, being a place to which employees have regular access and in such a position that it may be read easily by employees, a notice or notices in a form, manner, and in an appropriate language or more than one language that is reasonably likely to be understood by the employees concerned containing the following information—
(a) entitlements under employment legislation, either generally or by reference to particular enactments or a particular class or particular classes of enactments or to employees of one or more than one particular class or description, as may be specified in the notice concerned,
(b) complaints procedures concerning entitlements under employment legislation, and
(c) the contact details of the Workplace Relations Service for the purposes of—
(i) making general enquiries regarding entitlements under, and the application and enforcement of, employment legislation, and
(ii) communicating information to the Director pursuant to the Protected Disclosure Act.”.
I am not going to speak too long on this amendment as we had a lengthy discussion on it on Committee Stage. We disagreed strongly on what the amendment was seeking to do and on our view of what would be reasonable in terms of a notice that employers would be obliged to provide for employees in the workplace in respect of employment rights. The amendment provides that each employer shall display in a prominent position in a place of work a notice or notices in a form, manner and in an appropriate language or more than one language that is reasonably likely to be understood by the employees concerned. This notice would contain information either generally or by reference to particular enactments or a particular class or particular classes of enactments or to employees of one or more than one particular class or description. It would also contain information about complaints procedures concerning entitlements under employment legislation and the contact details of the workplace relations service. This would refer to the various Acts under which employees are protected, the contact details for the workplace commission service and the procedure for making a complaint. It would make people aware of the various Acts under which their rights are covered and what they need to do in terms of accessing the workplace relations commission. Not every worker is in a union, as the Minister knows.
The Irish Congress of Trade Unions recommended the provision of an obligation to display a notice of basic employment and equality rights information. If the Minister is not minded to accept this amendment, would it be possible for the workplace relations commission to examine what is possible and feasible? This could be one of its jobs of work. It could examine ensuring that employers provide basic information to employees. I imagine the Minister wants the commission to work properly. This is about streamlining the system and making it more efficient in terms of employment rights for both employers and employees. I imagine the Minister wants people to use the service and to be aware of it in order to avail of it. In very simple terms, if we make this service available to people, it is only to the good of the Government which is proposing this commission.
Notwithstanding any concerns the Minister might have about the amendment, will he reflect on the broader point and update the House on what he considers reasonable in terms of the responsibility an employer would have to provide information to employees in respect of this new commission? This is the purpose of the amendment. A new entity is being set up. There should, therefore, be an obligation on employers to ensure that employees have access to it, know about it and that the contact numbers are in their places of work if they need to avail of the service.
I second and support the amendment. The last time we discussed this in the House, the Minister was somewhat concerned about the amount of information that would need to be on the notice and how those notices would find their way through the entire workforce. In my previous life as a trade unionist, I found that lack of information frequently led to more workplace disputes and the escalation of workplace disputes throughout the country. The Minister referred to the amount of detail that would need to be on any such information posters the last time we were here. It could be very simple. It could be as simple as a telephone number and a website address. It should be mandatory in every workplace.
I do not foresee a major issue with this. When someone commences employment, he or she should be handed a copy of the poster in miniature form in order that unnecessary workplace disputes will not arise in the future. A provision in this regard would be a welcome addition to the Bill. Bringing together the various strands is a great idea and what I am suggesting would represent the icing on the cake for workers. I ask the Minister to consider accepting the amendment.
I thank Senators for the constructive spirit in which they have presented this amendment. Section 11(1)(a) states one of the core functions of the workplace relations commission will be to "promote the improvement of workplace relations, and maintenance of good workplace relations", while section 11(1)(h) states that the commission shall "provide information to members of the public in relation to employment enactments". Essentially, the job of the commission will be to maintain good relations and to provide information to which people will have access. The difficulty I have with Senator David Cullinane's amendment is that the legal obligations of an employer emanate from the Terms of Employment (Information) Act, which sets out what an employer is obliged to provide to each employee in a written statement of terms and conditions and so on. As stated, when one enters the realm of putting in place an obligation to provide information on 30 items of legislation, one goes beyond what is reasonable both in terms of being absolutely bang up to date with the development of terms and conditions and also the obligation to provide such information.
The Senators make the point that the commission should examine how it will ensure that information will be accessible in the workplace. While I cannot commit the commission to a course of action in advance, it is clear from its terms of reference, particularly those set down at sections 11(1)(a) and (h), that this is the sort of area in respect of which it could become involved. I have no difficulty with the principle outlined by both Senators. What we are trying to do is make compliance the norm among employers and ensure that workers will be knowledgeable about what they have a right to expect, etc. That is the culture of what will be involved. However, taking the next step and imposing very explicit legal obligations regarding the provision of information in respect of the myriad legislation to which I refer - I must admit that I have difficulty recalling all of the Acts involved - would be to go beyond the bounds of what constitutes reasonable expectation. I will convey the Senators' views to the new commission in the spirit in which they were offered.
I move amendment No. 28:
In page 24, between lines 33 and 34, to insert the following:
“Employer obligation to maintain and produce employment records
26. An employer who does not maintain and produce employment records is liable to a penalty of €4,000, and where that employer is a company, the secretary of that company is liable to a separate penalty of €3,000.”.
I second the amendment.
Amendment No. 29 is in the names of Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly. Amendments Nos. 29 to 31, inclusive, are related and may be discussed together.
I move amendment No. 29:
In page 25, between lines 14 and 15, to insert the following:
“(5) The Minister may authorise other persons, including designated union officials, to carry out inspections and monitoring of Registered Employment Agreements, Registered Employment Orders and Employment Regulation Orders.
(6) The Minister may make regulations providing access, for union officials, to the workplace and employees for the purpose of this section.”.
We discussed the matter to which this amendment relates on Committee Stage. I will not delay proceedings because there are many other amendments with which we must deal. The amendments in this group make provision for the necessary monitoring and compliance mechanisms in anticipation of the industrial relations (amendment) Bill, which is yet to be introduced and which will provide the legal framework for the reinstitution of registered employment agreements, REAs, and registered employment orders, REOs. The amendments contain provisions that would allow access to workplaces for designated union officials and the right for employees to be represented by trade unions.
The amendments also seek to ensure compliance. The Minister referred to compliance in his final contribution in respect of amendment No. 27. One of the things I would like to emerge as a result of the enactment of the legislation and the establishment of the new workplace relations commission is a much higher level of compliance. The vast majority of employers in this State are decent and good and they treat their workers well.
Hear, hear.
However, there are also those who, on occasion, do not treat their employees well. Those individuals or companies do a disservice to their counterparts who are decent and good. Compliance is extremely important. One can have all the legislation in the world but if it is not enforced and if there is not compliance with it, difficulties will arise. The penalties and sanctions for those who deliberately breach employment law must be robust.
I had a discussion in respect of the subject matter of this Bill with an individual who worked as a trade union official for 40 years. He informed me that on numerous occasions he had cause to bring certain unscrupulous employers before the Employment Appeals Tribunal, the rights commissioners and so on in respect of instances where they deliberately refused to pay their employees that to which they were entitled. He indicated that when these employers were brought before the employment rights bodies, they were informed that they had to pay because the money involved was owed to the relevant workers. No penalties were imposed on them, despite the fact that they deliberately held back payment of peoples' wages. If one walks into a shop and removes groceries or other goods without paying, one cannot merely hand them back and apologise. Sanctions and penalties will be imposed. Compliance and enforcement are extremely important. Part of the logic behind amendment No. 29 is to try to strengthen the position in the context of REAs and REOs. Decent employers have nothing to fear in the context of compliance or enforcement. I have no doubt that the vast majority of employers will work with the workplace relations commission in a very constructive manner. That can only be for the common good.
The amendments in this group are consistent with those we tabled on Committee Stage. We were hoping the Minister might give further consideration to the matters to which they relate and we look forward to his response.
Are we dealing with amendments Nos. 30 and 31?
We are dealing with amendments Nos. 29 to 31, inclusive.
I second the amendment. As a trade unionist, I was struck by one of the comments made at yesterday's launch of the commemorative programme for 2016 in respect of the trade union movement and the part it played in the establishment of this republic. In that context, the Bill is lacking to a certain degree in that it does not contain any recognition of the special place trade unions should occupy. We are moving towards the American ideal whereby workplace committees are replacing registered trade unions, which is regrettable. The trade union movement has played a great role in the development of this country and has assisted many companies in their efforts. I am of the view that the type of responsible trade unions we have here can help the country work a great deal better. Companies frequently come here, establish operations and set up workplace committees and then erode employees' terms and conditions over a period. I support the amendments, particularly Nos. 30 and 31.
The purpose of the legislation is to promote higher levels of compliance. We encountered a number of difficulties in this regard, including the long delays that obtain, the level of complexity in the system and the fact that the same issue could be pursued via different channels. As a result, neither worker nor employer knew where their obligations lay. This did not assist in the context of compliance. There were also problems in the areas of enforcement and recovery. I have sought to bring forward a balanced set of amendments to improve the process and make it more effective to operate. I have also sought to improve the position with regard to recovery whereby if people fail to honour their obligations, it will be easier for workers to pursue them and recover any moneys due. That is the overall purpose of the Bill. A higher level of compliance is the goal. In any modern workplace, the human resource is the key resource of any company. Where employers to do not respect their employees and treat them with dignity, they fail themselves and they treat those to whom I refer in a bad way. We are trying to promote the highest standard of workplace relations. The latter is crucial to our long-term ambition to grow the economy, bring about full employment and so on.
Senator Gerard P. Craughwell referred to the central role trade unions had played for many years.
We need to recognise that our approach has always been voluntarist and that has been at its core. The success of bodies such as the Labour Relations Commission and the Labour Court has been in the way in which they have been able to manage difficult situations. Often even the most intractable dispute has through that process reached a conclusion. It has served us well and we seek to remain within that voluntarist tradition.
The sections of the Bill we are dealing with relate to the appointment of inspectors and their powers. Senator David Cullinane himself recognises that his amendment is going a little beyond these sections in that he seeks to anticipate legislation that we will introduce in due course. That legislation is in preparation and we will, I hope, bring it to the House soon. The debate on that legislation should be for that day.
I thank the Minister for his response and look forward to that Bill being brought before the House. We may table those amendments to it if it does not deal with the issues.
A voluntarist model of collective bargaining or trade union recognition is always very attractive but the difficulty is that some companies do not accept, or recognise and will not work or engage with trade unions. One such employer, as we know, will find itself in difficulty tomorrow when there will be industrial action involving low-paid workers at Dunnes Stores. It is much better for workers who are members of a trade union, who pay union dues, to have a right to be represented by that trade union because they are paying into a service where somebody with expertise, skills and an understanding of how the employment rights system works is there to represent them. The employers who will not recognise trade unions have an array of resources, barristers and qualified people to advise them. The worker on the shop floor in a low-paid job, which can be very difficult, should be entitled to be represented by a trade union. No decent employer will have a difficulty with this. Only those who want to treat their workers unfairly have a difficulty recognising trade unions. I know there is collective bargaining legislation in the offing too. I hope the Minister will bring it forward before the Government dissolves at some point in the next 12 months. I hope it does not slip through the cracks. The reference to allowing trade union officials access to represent the workers is one that I will push because it is vitally important.
I fully support the streamlining and the new effective way of dealing with employment rights because it is good for employers and employees. Employers should have a legal responsibility to recognise trade unions and allow their workers access to their trade union officials. I feel strongly about that despite what some might see as the attractiveness of the voluntarist model.
Collective bargaining legislation is in preparation and will be passed before the expiry of the Government. It is at a very advanced stage. It will deal with cases where employers who refuse to recognise trade unions and fail to offer reasonable terms and conditions comparable with other areas, and will make it possible for trade unions to go to the Labour Court to get an adjudication that could become legally binding upon the employer. This will provide a way in which trade unions representing workers can pursue a case of that nature and get a binding determination. That legislation will come before the House and we can debate it then. I cannot accept the amendment.
I welcome a group from north Sligo, Bundoran and Ballyshannon, who are in the Visitors Gallery. That is my mother’s home region, God rest her.
The bottom line of this Bill is that we want to deliver a world class workplace relations service designed around structures and processes that will have a positive impact on our competitiveness and create more employment. It would be remiss of me, however, not to support what Senator David Cullinane has said about the Dunnes Stores industrial relations, which is appalling and is the opposite of what this Bill is trying to achieve. It is archaic and backward. I am shocked that a company of that size would treat its employees in this awful way with short-term or low-pay contracts.
I move amendment No. 30:
In page 25, between lines 14 and 15, to insert the following:
“Union entitled to represent members’ interests
27. (1) A trade union, at the request of the employee, may represent the employee in relation to the employee’s rights and entitlements under a Registered Employment Agreement, Registered Employment Order or an Employment Regulation Order.
(2) A union is entitled to represent its members in relation to any matter involving the discipline or grievance procedure.”.
I second the amendment.
I move amendment No. 31:
In page 25, between lines 14 and 15, to insert the following:
“Access to workplaces
27. (1) A trade union official is entitled, in accordance with this section to enter a workplace for purposes related to—
(a) monitoring compliance with the operation of a Registered Employment Agreement, Registered Employment Order or an Employment Regulation Order,
(b) monitoring compliance with other Acts dealing with employment-related rights of trade union members,
(c) to seek compliance with relevant requirements in any case where non-compliance is detected,
(d) discuss trade union business with trade union members,
(e) to seek to recruit employees as trade union members,
(f) to provide information on the trade union and trade union membership to any employee on the premises.
(2) A discussion in a workplace between an employee and a trade union official who is entitled under this section to enter the workplace for the purpose of the discussion must not exceed a reasonable duration.
(3) An employer must not penalise or threaten to penalise a worker for invoking section 27 of this Act or for discussing matters relating to this Section nor may the employer deduct from an employee's wages any amount in respect of the time the employee is engaged in a discussion referred to in subsection (1)(d).”.
I second the amendment.
This amendment is of a technical and drafting nature and does not result in any substantive change to the Bill.
I move amendment No. 34:
In page 26, between lines 5 and 6, to insert the following:
“(2) If an inspector removes or copies documents from a place of work or premises, then they shall be required to issue to the owner or person in charge of that place of work or premises with a receipt of any records taken or copied by the inspector.”.
We had a very good debate on this amendment on Committee Stage. This is to give some protection to businesses to ensure they have a record of what documents have been taken. Small and medium-sized enterprises, SMEs, are particularly vulnerable if certain documents are taken. If a business has a record of what documents are taken that will help in future legal proceedings. This amendment is to bring in some safeguards for businesses particularly SMEs. If an inspector is able to take documents away he has to be able to leave a record of what he has taken away with that business. It seems quite logical and I got the impression that it was likely to be accepted when we discussed this on Committee Stage.
I second the amendment. Senator Feargal Quinn is speaking from the employer’s side and I speak from the trade union side, but I agree totally with what he has said. I have seen case after case become complex because documentation was missing or lost. I have seen one side accuse the other, saying it did or did not produce the documents and at the end of cases documents were not available. It is a very reasonable amendment.
It will not substantially change the Bill but it will provide some degree of security for employers who may be reluctant to hand over full documentation at the start of a case. I listened to what the Minister said on the last Stage, but I am still on Senator Feargal Quinn’s side on this issue. Both ends of the spectrum support this amendment, all that is needed is for the Minister, who is in the middle, to accept it. Senator Sean D. Barrett who is also in the middle supports it too. I do not think it will do any harm to include this amendment.
I indicated on Committee Stage that I would consider this amendment further and respond to the Senator on Report Stage. I have done that and I am informed that it is the standard practice of NERA to issue a receipt in circumstances where it is necessary to remove original documents either for copying or for use in the course of the inspection or court proceedings. It is also NERA’s standard practice to return the originals as soon as it has finished with these records.
If for some reason NERA wishes to retain the original records it will give copies to the business on request. It does not issue receipts for copies of records given to it by an employer where it retains the originals. I am informed that there has never been any issue raised by employers regarding the manner in which NERA deals with this matter.
As I said on Committee Stage, the power given to an inspector by section 27(1)(c) to remove any such books and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under the Act is an appropriate, necessary and proportionate power. I envisage that it will ordinarily be used only in cases of suspected fraud. There is nothing in section 27 which prohibits an employer from whom records are being temporarily removed from requesting an inspector to allow him or her to take copies of such records before they are removed by the inspector. It is intended that the practices in this regard, which have been successfully operated by NERA since its establishment, will also be adopted by its successor to the WRC compliance service following the enactment of the Bill. Therefore, I am satisfied that it is not necessary to put these procedures on a statutory footing.
I thank the Minister for his explanation. I am always worried when I hear that something is "standard practice". That is because it is standard practice until it does not happen. Then, when a trade union or an employer seeks to get the information, they have no legal right to it. I am disappointed to hear the Minister say that as it is standard practice there is no need to put it into legislation. It seems to be a very sensible, moderate, mild and very short answer to what is likely to become a much bigger problem if we do not do something about it. I am concerned that the Minister is satisfied by the fact that it is standard practice, rather than wants to make it enforceable.
This amendment is of a technical nature to ensure consistency of terminology in the subsection. 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 An 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.
Government amendment No. 36 has been discussed with amendment No. 20.
I move amendment No. 37:
In page 28, after line 37, to insert the following:
"Liability of a company officer or officers for a breach of employment law
29. Where a breach of employment law is committed by a body corporate or by a company officer or officers acting on behalf of a body corporate and is determined to have been so committed, with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person or persons who, when the breach was committed was a company officer or officers of the body corporate, then that person or persons shall be personally liable for the breach committed.".
We discussed this amendment on Committee Stage. It is concerned with piercing the corporate veil and is a matter on which ICTU has lobbied all of us. It will enable the pursuit of directors of a company ensuring employees can seek recovery of payments and access to entitlements. We have heard of a number of situations like this in recent times. Connolly's Shoes is one example where a lack of legislation in this area was a problem. We are trying to plug a hole by proposing this amendment and I hope the Minister is in a position to accept it.
I second the amendment.
Amendment No. 37 is not appropriate as section 7(2) of the Bill already provides for the criminal liability of certain persons connected to a body corporate in certain circumstances in the case of offences under the legislation. To extend liability for the debts of an insolvent company to the officers of the company would, I am advised by the Attorney General, be constitutionally suspect and would represent a major departure in company law.
The overriding principle of company law is that a director's duties are owed to the company and not to individual shareholders or employees. If there is a breach of duty on their part which causes damage to the company they can be sued and held liable for damages. Claims can be brought by shareholders, a financial institution or on a director versus director basis. Liability may arise out of the lack of care and skill in the performance of the duties, such as negligent advice or misstatement. Any act which goes beyond the limits of the company's constitution, such as excessive borrowing, unauthorised payments, a failure to disclose the full extent of the director's interests or a failure to comply with requirements, may involve a director or officer in a personal liability.
Company law penalties vary from restrictions to disqualification orders to fines or periods of imprisonment. The new companies Acts provide for a four-tier categorisation for most of the offences with the exception of fraudulent trading or market abuse. The Companies Acts also contain a new provision whereby a judge, following a conviction for an offence under the companies Acts, may order that they remedy any breach of the Companies Acts in respect of which they were convicted. In effect, the provision in the Companies Acts is a more constitutionally robust rewording of section 383 of the 1963 Act, as amended by section 100 of the Company Law Enforcement Act 2001.
From a company law perspective, the proposed amendment challenges the entire principle of company law. If it were to be implemented then the doctrine of separate legal personality would become an exception rather than the rule. Having regard to the foregoing, I am not prepared to accept this amendment.
This amendment is of a drafting nature and does not result in any substantive change to the Bill.
This amendment to subsection (1) of section 30 is required so as 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 purpose 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 is a private dwelling the inspector will first have to have obtained a warrant pursuant to section to section 27(3).
There seem to be a lot of technical or Government amendments and this is another one of them. Why is that? This is Report Stage and it is not good practice that Oireachtas Members are given such short notice about amendments of this nature. I wonder why there are so many. This seems to be the case with many Bills brought forward by the Department. The matter was raised in a meeting of the Committee on Jobs, Enterprise and Innovation and the committee has agreed to write to the Minister on the subject. Can the Minister tell us why there are so many Government amendments? He must accept that it does not represent good practice. It might be understandable on Committee Stage but not on Report Stage.
The reason is that the changes we are making such as in the areas of adjudication and enforcement have a knock-on impact on dozens of pieces of legislation elsewhere. One has to ensure the original legislation is correctly amended to reflect the new process. That involves going back over swathes of legislation to ensure everything is correct. In all cases the amendments are technical and tidy up legislation but the Office of the Parliamentary Counsel tries to ensure the legislation carries no risk of ambiguity. Scrubbing the text goes on throughout the process. I accept that it is a bit frustrating, but all I can do is assure the Senator that they are not substantive amendments. If the amendments made any change of which the Seanad needed to be aware we would alert Members accordingly.
The Senator will be able to imagine the geometry of the legislation where 30 pieces of legislation have 40 sections each. We then change parent legislation and that causes a domino effect; therefore, the Senator will imagine the multiplication of work involved.
While I understand fully what the Senator is saying, from my point of view it is better to get all these technical things done right and done now than to come back and be obliged to start the process again.
I move amendment No. 41:
In page 30, line 35, after “offence” to insert “and for the purpose of the performance of the Commission’s functions”.
I second the amendment.
On amendment No. 41, section 32, as drafted, is strictly limited in its application to information relating to the alleged commission of an offence under a relevant enactment or the contravention of a relevant enactment. For this reason, the Senator's proposed amendment is inappropriate, as it is inconsistent with the section taken as a whole. Essentially, the issue here is that agencies share information where there are suspected criminal offences. However, there also is a balance to be struck in respect of confidentiality and privacy of people's dealings with individual agencies. Consequently, if no suspected offence is being pursued, there is no automatic right or expectation of sharing. This provision seeks to strike a balance in order that anyone pursuing an offence absolutely has a right to get access to this information but other than that, people have a right to expect a degree of confidentiality and privacy in their dealings. That is the balance being struck.
I move amendment No. 42:
In page 33, line 11, to delete “€2,000” and substitute the following:
“€4,000, save and except in the case of failing to pay the national minimum wage under section 23 of the National Minimum Wage Act 2000 a sum not exceeding €20,000 per employee”.
I will be brief.
Is the amendment being seconded?
I require a seconder.
I second the amendment.
While the Senator may not agree with the amendment, he can second it. As I will not be pushing it to a vote, it is okay.
This amendment pertains to enforcement of the national minimum wage. The question of whether it is increased or decreased will now be an issue for the low pay commission, which is a different story. However, this amendment seeks to increase the minimum fine from €2,000 to €4,000 for non-compliance. Sinn Féin believes this amendment will deal with vexatious employers who will seek to delay compliance and this reverts to the issue of compliance about which I spoke earlier. In Britain, new legislation has been introduced that provides for fines of up to £20,000 for non-compliance or non-payment of the national minimum wage. Sinn Féin does not advocate a penalty of that size and believes it is being reasonable in this regard. Moreover, the Irish Congress of Trade Unions also has asked for consideration to be given to increasing the fine from €2,000 to €4,000 to act as a sufficient deterrent to employers who may not pay the minimum wage. If there are increases in the minimum wage, the Senator may have concerns that some companies may not be able to afford to pay them. Again, I imagine the Minister or the low pay commission will deal with this issue. There are mechanisms in place for employers who genuinely cannot pay any increase in the national minimum wage not to so do. As there is an inability-to-pay element to all of that, I do not believe it should be a real concern. As for those who can pay, if they can do so they will pay and no major issue arises. However, this amendment is about those who can afford to pay but do not, which is a different story. The proposal is to increase the penalty from €2,000 to €4,000.
The Senator may be mistaking what is being provided for. This provision is dealing with fixed payment notices and the penalty for such fixed payment notices. Essentially, they are minor offences and these are fixed charges that are issued without proceedings and they concern only limited offences. One is a requirement on the employer to consult with employees' representatives in respect of collective redundancies, another is to provide an employee with a payslip and a third is to provide a written statement of the hourly rate of pay. Penalties of this nature can be set by way of a fixed charge without a substantive case. It is a limited category and is not the broad category to which the Senator refers. Obviously, were one to opt for higher penalties in this regard, there would be a conflict between the fixed charge without a process, the seriousness of offences and the scale of the penalty. These are minor offences with minor charges, which are appropriate to a fixed notice procedure. I do not propose that the fixed notice procedure would apply in cases like failure to pay the minimum wage, which of course would be a criminal offence. There may be something of a misunderstanding in the Senator's amendment here. These are very limited cases for which I am providing in this regard and I do not believe the doubling of the penalty as suggested would be appropriate.
I move amendment No. 43:
In page 35, line 5, after “dispute” to insert “, but only by teleconference in exceptional circumstances and when agreed to by the complainant”.
I second the amendment.
Amendment No. 43 seeks to provide that a complaint that has been referred to mediation or case resolution could only be dealt with by a mediation officer or by way of teleconference in exceptional circumstances and upon the agreement of the complainant. It is implicit that the consent of both parties is a prerequisite to all forms of mediation and case resolution. The Senator's proposed amendment therefore is superfluous in this regard and inappropriate, in so far as it focuses only on the claimant. Essentially, mediation is a voluntary process and the mediator is a professional person who seeks to use whatever ways he or she can to reach an agreement. At any point, however, both sides can withdraw and consequently, to try to be too prescriptive of the approach would not be helpful to the successful execution of the mediation. Therefore, I do not believe it is appropriate to make this amendment.
Amendments Nos. 44 to 46, inclusive, are related technical amendments and may be discussed together, by agreement. Is that agreed? Agreed.
As the Acting Chairman noted, these are technical drafting amendments and make no substantive change.
I move amendment No. 47:
In page 36, between lines 2 and 3, to insert the following:
“(9) Where the provision of subsection (5) applies the case resolution officer may direct either or both parties to produce such documents, statements or particulars to the other party as the case resolution officer shall determine to include but not limited to an outline of any evidence, witness or documents either party intends to rely upon.”.
The amendment seeks to provide for discovery in order that where cases are being processed, the relevant documentation is available.
I second the amendment.
I think it goes somewhat further than that. This amendment seeks to introduce a new subsection to section 39, which would provide that a case resolution officer could direct either or both parties in the dispute or complaint that is the subject of mediation to produce documentation and evidence to the other party upon which that party intends to rely in respect of their respective cases. As I stated, mediation is a voluntary process from which either party can withdraw at any stage in favour of pursuing the adjudication option. Giving a case resolution officer the power to direct the parties to produce information would undermine the voluntary nature of the mediation process. The Senator's proposal to include a new section 39(9) is inappropriate, as what is proposed confuses the case resolution and adjudication function. The point being made is that in adjudication, it is clear that there should be production of documentation that people can see and so on but where one is mediating between the two sides, using mediation as a form of discovery would not be appropriate. It is not the environment in which mediation is being considered. It is where two sides are seeking to find a resolution without going to the ultimate adjudication. The view is that this provision would not be helpful to a successful implementation of mediation.
I move amendment No. 49.
In page 37, between lines 32 and 33, to insert the following:
“(c) Any person appointed as an adjudication officer immediately after the commencement of this Part will be required to be adequately trained in the area of equality legislation, in addition to all relevant industrial relations and employment law.”.
I second the amendment.
The amendment proposes that any person appointed as an adjudication officer immediately after the commencement of this Part will be required to be adequately trained in the area of equality legislation, in addition to all relevant industrial relations and employment law. The Equality Rights Alliance and the Irish Congress of Trade Unions have expressed their concerns to us and directly to the Minister that some cases to be taken will have an equality dimension to them if a case involves an element of discrimination. The staff and officers who deal with these cases must be properly trained in equality legislation.
A selection procedure has been carried out by the Public Appointments Service, PAS, in order to deliver high quality staff with a capacity to adjudicate. All successful applicants have been required to undergo an accredited adjudicator training programme which has been delivered by the National College of Ireland during the past three months. The training programme covered areas such as employment equality and industrial relations law as well as administrative law and human rights law, how to conduct an inquisitorial hearing and how to write comprehensive and reasoned decisions. The training programme has concluded and all the participants have undertaken an examination and assessment. Only those who successfully pass that assessment will be formally appointed as WRC adjudicators and assigned cases.
That deals with the concern raised by the Senator. All applicants have been through a rigorous training process.
Amendment No. 50 is intended to ensure all complaints in disputes referred to a rights commissioner prior to the commencement of Part 4 of the 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 that were vested in him as a rights commissioner under the relevant legislation. This is to ensure the legitimate expectations of the parties in question concerned are respected and legal entitlements that applied on the date the complaint was referred. It is a transitional provision.
This amendment is being introduced to bring clarity to the situation as regards to whom complaints can be made under the Employment of Employees (Temporary Agency Work) Act 2012. The 2012 Act is a unique 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 which 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 the 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 the 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 in section 42 do not change the broad scheme of section 42 as it relates to the temporary agency workers Act. It remains the case that those provisions of the temporary agency workers Act which can be subject of a claim against an employer included in Schedule 5 to 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 proposed provisions in Schedule 5. The previous text did not specify against whom a complaint could be made, simply stating that an employee or a specified person could present a case or complaint to the director general that a provision in Schedule 5 had been contravened in relation to the complainant. This ambiguity is now being clarified. Instances where a complaint under the temporary agency workers Act can be made against the hirer are dealt with in Paragraph 3A and there is no change in this regard as no clarification was deemed necessary. This distinction between hirer and employer has to be reflected accurately in the making of a complaint to clarify that in certain cases it is the hirer who is responsible and not the employer.
Amendments Nos. 52 and 54 are related and may be discussed together.
I move amendment No. 52:
In page 39, between lines 15 and 16, to insert the following:
“(iv) make a decision that a separate hearing for an employment equality case is required, in addition to a general employment rights decision,”.
I second the amendment.
The Employment Equality Acts and the Equal Status Acts will continue to govern the presentation of complaints of discrimination to the WRC and the adjudication officers will have regard to the specific provisions governing such cases in the Equality Acts and not the provisions of section 42. Section 42 does not apply directly to employment equality and equal status cases but rather sections 84 and 85 amend the Equality Acts and Equal Status Acts and make them consistent with the provisions of section 42. There is no merit in requiring a separate hearing of equality cases from the other employment matters which may be in dispute between an employer and an employee. If there was an employment and equality aspect to a case, this could lead to four separate hearings of the same case with the same facts, two at first instance and two at appeal. There is no justification for this and it would add unnecessary cost to the employer, employee and the State. The Senator's proposal runs contrary to what the Bill is trying to achieve by providing a fast and effective independent streamlined adjudication service. Therefore, I am not disposed to accept the amendment.
This is a technical amendment to section 42(4)(b). It reflects the drafter's proposed reconfiguration of the Schedules. Senators David Norris and Gerard P. Craughwell queried why trade unions had been singled out for mention in section 42(3)(a) of the Bill. This section 42(3)(a) provides for the presentation of complaints by an agency worker or any trade union of which the agency worker is a member, that a hirer within the meaning of the Protection of Employees (Temporary Agency Work) 2012 has contravened sections 11, 24 or 14 of the Act. The language used mirrors the wording of Paragraph 11B of Schedule 2 of the temporary agency workers Act which sets out the redress provisions under the 2012 Act. I draw the Senator's attention to the fact that this wording is not in fact unique to the Protection of Employees (Temporary Agency Work) Act. Many pieces of employment rights legislation use the same wording which provides that unions can present a complaint on behalf of an employee. These include the Organisation of Working Time Act, the Protection of Employees (Fixed-Term Work) Act and the Protection of Employees (Part-Time Work) Act. The wording in each piece of employment rights legislation is the product of careful consideration of the nuances around each piece of legislation and consultation with stakeholders. Section 42(3)(a) simply reflects the wording of Paragraph 11B of the said Act. This is how it should be and the Workplace Relations Bill is not the appropriate place to make substantive changes. There was a concern that there were different treatments in different Acts but that is the nature of the originating Act which makes different provisions which we do not wish to disturb.
As amendment No. 53 has been agreed to, amendment No. 54 cannot be moved.
I move amendment No. 55:
In page 39, between lines 23 and 24, to insert the following:
“(5) Where the claimant and respondent agree the adjudication officer may revert the dispute for mediation by a mediation officer.”.
I second the amendment.
As I indicated on Committee Stage, I have afforded further consideration to this issue with a view to addressing the matter by way of amendment, if necessary. I have carefully considered this issue and thoroughly explored the matter with officials in my Department.
I am not satisfied that an amendment to this effect is warranted for a number of reasons. The system that will apply following the establishment of the workplace relations commission provides for mediation to be offered if, in the opinion of the director general of the workplace relations commission, the complaint or dispute is capable of being resolved without being referred to an adjudication officer. Only cases where mediation is not offered or is unsuccessful will proceed to adjudication. This amendment would allow an adjudication officer to refer a case back to a mediation officer for mediation following referral of the case by the director general for adjudication.
The philosophy underpinning the new workplace relations system is that issues should be resolved as informally as possible as soon as possible. To this end, the system is designed to provide information in order that, where possible, issues can be resolved at the level of the employment without ever being referred to the workplace relations commission. Where this is not possible, a complaint can be made to the commission. Where parties indicate an interest in mediation delivered by the early resolution service or face-to-face mediation, such an intervention will be offered, subject to capacity constraints. Where the issue is not resolved or the parties are not interested in mediation, the case will move to adjudication for a decision. The role of the adjudicator will not be to broker a settlement but to consider the case made by both sides, apply the relevant law and come to a decision.
The proposed amendment would fundamentally alter the role of the adjudicator as envisaged in the new system. Mediation is already provided for at an early stage in the new system. To refer the dispute formally back to mediation would add time and cost to the entire process, possibly making the process twice as expensive for the State. One would have the costs of the first adjudication, the costs of mediation where the case is referred back and the costs of a second adjudication if the mediation is not successful. Both parties have the option of engaging in mediation before the adjudication and both have the option of reaching agreement and withdrawing the case before it goes to adjudication. Both parties also have the option of reaching an agreement and withdrawing the case during the adjudication hearing. In practice, an adjudicator would adjourn for a short period to facilitate this option if exercised. Introducing a second chance of mediation would reduce the incentive to reach an agreement at the initial mediation stage and lead to inefficiency in the system, increased costs and knock-on delays for other cases.
I assure the Senator that we gave much thought to whether this amendment was a good suggestion. I hope the reflections I have outlined set out a reasonable case for sticking to the approach we have adopted, which I believe to be fair.
Amendments Nos. 56 and 58 to 60, inclusive, are cognate and may be discussed together.
I move amendment No. 56:
In page 39, line 26, to delete “6 months” and substitute “2 years”.
We discussed the amendment at length on Committee Stage and I intend to press it again on this Stage.
I second the amendment.
We have introduced a uniform six-month timeframe within which a complaint must be submitted. This period can be extended by a further six months. The Senator proposes to introduce a longer period, which would not be practicable or workable. This is an issue on which there is a difference of view.
If amendment No. 61 is agreed, amendment No. 62, which is an alternative to amendment No. 61, cannot be moved. Amendments Nos. 62, 84, 85 and 104 are related. Amendments Nos. 61, 62, 84, 85 and 104 may be discussed together.
I move amendment No. 61:
In page 42, lines 31 to 33, to delete all words from and including “but” in line 31 down to and including “1977” in line 33.
The purpose of the amendment is to remove the proposed cap on re-engagement and reinstatement which was introduced by the Government on Committee Stage. The Irish Congress of Trade Unions has warned that the inclusion of this provision is a significant step backwards for equality rights and may be in breach of Article 18 of the EU equality directive which relates to compensation and reparation. I ask the Minister to respond to ICTU's concerns which Sinn Féin shares.
I second the amendment.
The proposed amendment is inappropriate as it would have the effect of the giving the District Court jurisdiction to award uncapped financial compensation in certain cases of unfair dismissal. This would be inconsistent with the status of the District Court as a court of local and limited jurisdiction under the Constitution. It would also be inconsistent with the scheme of the Unfair Dismissals Act 1977, which provides for a maximum two years of pay by way of compensation. The District Court may only operate within this legislation.
Amendments Nos. 63 and 65 are related and may be discussed together.
Amendments Nos. 63 and 65 are of a technical nature and are intended to ensure certainty regarding the jurisdiction in which District Court proceedings for the enforcement of a decision of an adjudication officer and the Labour Court should be commenced.
Recommittal is necessary in respect of Government amendments No. 66 and 67. The amendments form a composite proposal and may be discussed together.
The Office of Public Works has advised that there is a difficulty with the provisions in this section in respect of their constitutionality. As drafted, the section allows the prosecution to prove all of the ingredients of the offence by way of statements in a document. The prosecution would not be required to call witnesses and, consequently, the defence would not have an opportunity to cross-examine, which is a fundamental requirement in any proceedings for an offence. As a result, section 47 is to be replaced by a modified version of this provision, which is proposed as an amendment to section 75 of the Bill. The modified provision will result in a new subsection being inserted into section 21 of the Industrial Relations Act 1946. The section created an offence of failure to appear before the Labour Court on foot of a summons to so appear. As originally drafted, section 47 would have allowed the prosecution to prove all the ingredients of the offence in question by way of statements in a document. The prosecution would not be required to call witnesses and consequently the defence would not have an opportunity to cross-examine, which is fundamental to proceedings for an offence.
Amendments Nos. 69 and 70 are related and may be discussed together.
Amendments Nos. 69 and 70 are drafting amendments.
I move amendment No. 71:
In page 47, after line 36, to insert the following:
“ Safeguarding Employees
55. In addition to existing provisions in enactments that safeguard workers from penalisation and victimisation, an employer or any person acting on behalf of an employer shall not penalise an employee for seeking to exercise or having exercised any entitlement under employment legislation including availing or cooperating with the Workplace Relations Commission.”.
The amendment relates to victimisation and those who are defending employment rights. While the area of anti-victimisation is broad, the issue is frequently and correctly raised by trade unions and should be central to efforts to address or redress issues related to employment rights.
Unfortunately, some employees are victimised by their employers, for example, for joining a trade union. It is a much more substantial issue. The Minister might be able to inform the House as to whether anti-victimisation legislation or measures may form part of whatever collective bargaining legislation he intends to bring forward. We see it as a critical area of employment rights.
I was being indulgent to the Senators to allow Senator Davjid Cullinane speak so that somebody might come in and second the amendment. As amendment No. 71 has not been seconded, I will not call on the Minister to speak because the amendment lapses automatically.
This amendment is of a drafting nature and provides that the Labour Court, rather than the commission, will be the successor in titled to the Employment Appeals Tribunal following its dissolution.
Amendments Nos. 73 and 74 form a composite proposal and may be discussed together.
These are of a drafting and technical nature.
Government amendment No. 74:
In page 51, lines 19 to 21, to delete the text inserted by amendment 109 at Seanad Committee.
This amendment to the wording of subsections (1) and (2) of section 71 is intended to provide greater clarity and legal certainty in the transfer of the functions of the Employment Appeals Tribunal, on its dissolution, to the workplace relations commission and the Labour Court, respectively. Subsection (1) clarifies that any statutory act of tribunal which remains incomplete on the date of the tribunal's dissolution can be carried to completion by the relevant transferee body. Subsection (2) provides for the continued efficacy of instruments and documents made by the tribunal prior to its dissolution; such instruments and documents will be deemed to have been made by the relevant transferee body.
I move amendment No. 76:
In page 52, to delete lines 31 to 36.
This section provides for fees. While it may not be the intention of the Minister to introduce fees, the legislation enables his successor to do so. Research published in Britain this year by the Citizens Advice Bureau revealed that seven out of ten potentially successful cases by employees against their employers are not going ahead following the introduction of a fees system. Between October 2013 and March 2014, there was a 73% drop on the same period the previous year in claims. The research included, for example, the case of a man who worked 40 hours a week for more than two months as a kitchen porter, was entitled to holiday pay of just under £300 and abandoned it when told that his fee for accessing the tribunal would be £390.
I second the amendment.
I assure Senator Trevor Ó Clochartaigh I have no intention of introducing fees. However, I have provided a reserve power here to deal with what I might describe as gaming of the system. The one specific instance that has been brought to my attention is where someone does not go to the hearing of first instance but then seeks to appeal at the later stage. It is appropriate, if an employer decides to appeal at that stage, that a penalty fee would apply. I will use the reserve power to have a special fee in such a case. I intend to have no fees to act as a deterrent to persons to pursue their rights but I am taking the reserve power for cases such as the one I describe to prevent abuse of process.
Government amendment No. 77:
In page 53, to delete the text inserted by amendment 110 at Seanad Committee and substitute the following:
"Amendment of section 21 of Act of 1946
75. Section 21 of the Act of 1946 is amended—
(a) in subsection (1), by—
(i) the substitution of "The Court may, for the purposes of any proceedings before it under this Act, the Unfair Dismissals Act 1977 or Part 4 of the Workplace Relations Act 2014, or any investigation under the Industrial Relations (Amendment) Act 2001, do all or any of the following things" for "The Court may for the purposes of any proceedings before it under this Act or any investigation under the Industrial Relations (Amendment) Act 2001 do all or any of the following things", and
(ii) the substitution of the following paragraph for paragraph (b):
"(b) take evidence on oath and, for that purpose, cause to be administered oaths to persons attending as witnesses before it,",
and
(b) by the insertion of the following subsection:
"(4) A document purporting to be signed by the chairman or the registrar of the Labour Court stating that—
(a) a person named in the document was, by summons under subsection (1), required to attend before the Labour Court on a day and at a time and place specified in the document, and
(b) a sitting of the Labour Court was held on that day and at that time and place,
shall, in proceedings for an offence under this section, be evidence of the matters so stated unless the contrary is shown.".".
Amendments Nos. 78 to 84, inclusive, are related drafting amendments and may be discussed together.
If they are just drafting amendments, does the Minister wish to speak on them?
I only wish to say they are to ensure that the process whereby complaints under the Redundancy Payments Act of 1967 can be referred to an adjudication officer is consistent with the general scheme of Part 4 of the Bill.
Amendment agreed to.
Amendment No. 85 is a technical amendment.
Amendments Nos. 86 and 90 are related and may be discussed together.
Section 81 amends the Unfair Dismissal Act of 1977. Amendments Nos. 86 and 90 to section 81(1)(c) of the Bill are intended to ensure the procedure whereby a complaint of unfair dismissal may be referred under the 1977 is as consistent as possible with the general scheme for the referral of complaints as provided for in Part 4 of the Bill.
Government amendment No. 89:
In page 60, line 29, to delete "by".
Amendment No. 91 is in the names of Senator David Cullinane and others. Amendments Nos. 91, 94 and 95 are related and may be discussed together. I note Senator Trevor Ó Clochartaigh's difficulty that he has no seconder.
I move amendment No. 91:
In page 62, between lines 25 and 26, to insert the following:
"(2) Section 1(3) of the Act of 1984 is amended by the insertion of the following paragraph:
"(e) the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de facto been stopped on a permanent basis for a period of six weeks or more.".
(3) Section 4 of the Act of 1984 is amended by the insertion of the following paragraph:
“(g) where following notification in writing by the employee, employees or a representative body to the Minister the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de facto been stopped on a permanent basis for a period of six weeks or more.".".
This amendment proposes, in page 62, between lines 25 and 26, to insert the following:
"(2) Section 1(3) of the Act of 1984 is amended by the insertion of the following paragraph:
"(e) the employer is deemed to be insolvent in circumstances where he has ceased trading and payments to employees have been determined by the Minister to have de facto been stopped on a permanent basis for a period of six weeks or more.".
This amends the interpretation section of the Protection of Employees (Employers' Insolvency) Act 1984 to enable workers access the insolvency fund where their former employer has ceased trading and is, in effect, insolvent but has not been formally placed in liquidation or receivership, has not been declared legally bankrupt, has not died, or has not been deemed insolvent under legislation of another EU member state.
The second part of the amendment amends the definition of insolvency for the purpose of application of the Act of 1984 to facilitated workers being in a position to apply under the insolvency fund where their former employer has ceased trading but has not been formally placed in liquidation or receivership, has not been declared legally bankrupt, has not died, or has not been deemed insolvent under legislation of another EU member state.
Amendment No. 94 proposes to amend section 6 of the Protection of Employees (Employers' Insolvency) Act 1984.
I have been advised that when there is nobody here to second the amendment, Senator Trevor Ó Clochartaigh speaking on it is somewhat futile and we must move on. I am not being difficult. I have allowed the Senator, the same as Senator David Cullinane a while ago, a little time in order that a seconder might come in. I was merely being courteous. In the absence of a seconder, amendment No. 91 lapses.
Amendments Nos. 92, 93, 96 and 97 are related drafting amendments and may be discussed together.
Seeing as these are drafting amendments, does the Minister wish to make a brief comment?
I have nothing to add.
Government amendment No. 98:
In page 64, to delete lines 26 and 27 and substitute the following:
"(a) the deletion, in section 65, of the definition of "the Director" (inserted by section 24 of the Social Welfare (Miscellaneous Provisions) Act 2003),
(b) the substitution of "Director General of the Workplace Relations Commission" for "Director" in each place that it occurs, and".
Amendments Nos. 100, 101, 108 and 109 are related drafting amendments and may be discussed together.
Under current legislation, a complainant is permitted to refer a complaint of unfair dismissal under the Unfair Dismissals Act and a complaint of discriminatory dismissal under the Employment Equality Act arising from the same facts. However, a person is not permitted to proceed to have both complaints heard. As currently framed, section 101 of the Employment Equality Act provides an effective bar against double recovery for dismissal in these circumstances. The proposed amendment to section 84 is a necessary amendment to section 101 of the Employment Equality Act 1998 and ensures in the new framework that a complainant cannot recover under both the Unfair Dismissals Act and the Employment Equality Act in respect of the same dismissal. This objective is achieved by providing that a person who referred a dismissal complaint under both Acts must elect between one or the other by a prescribed date or date to be inferred from regulations by the Minister. If the person fails to elect by this date, the discriminatory dismissal complaint will be deemed to have been withdrawn.
These amendments are of a technical drafting nature and further refine changes that must be made in the Equal Status Act in the light of the establishment of the Workplace Relations Commission and the transfer of functions of the director of the Equality Tribunal to the director general of the commission.
This again is a technical drafting amendment.
Amendments Nos. 116 to 120, inclusive are related and will be discussed together.
These again are technical and drafting amendments which clarify enactments.
Amendments Nos. 121 and 122 are related and may be discussed together.
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5. |
No. 5 of 1994 |
Terms of Employment (Information) Act 1994 |
Sections 9 and 10 |
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10. |
No. 30 of 1998 |
Parental Leave Act 1998 |
Part IV (other than sections 18(1) and (2) and 21) and sections 24 and 27(5) |
Amendments Nos. 123 to 126, inclusive, are related and may be discussed together.
Schedule 5 sets out details of the individual employment enactments, specified provisions of enactments and statutory instruments under which a person will be able to present a complaint or refer a dispute to the director general of the WRC. Amendments Nos. 123 to 126 are of a technical and drafting nature and are necessary to ensure that all of the enactments, specified provisions of enactments and statutory instruments under which a complaint or dispute can be referred to the WRC in accordance with the provisions of section 42 are accurately reflected in the Schedule.
Amendments Nos. 128 to 140, inclusive, are related technical amendments and may be discussed together.
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(b) a claim under Part IV of the Act of 1967 as extended by section 29.”. |
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(b) consisting of a question to which section 39(15) of the Redundancy Payments Act 1967, applies.”. |
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21. (1) A decision of an adjudication officer under section 42 of the Workplace Relations Act 2014 in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Act (or any matter arising out of or related to those entitlements or otherwise arising under this Act) or a decision of the Labour Court under section 45 of the said Workplace Relations Act 2014 on appeal from the first-mentioned decision, may contain such directions to the parties concerned as the adjudication officer or the Labour Court, as the case may be, considers necessary or expedient for the resolution of the dispute or matter and such other redress as the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all of the circumstances and the provisions of this Act, and accordingly may specify— |
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(4) Without prejudice to the generality of subsections (1) and (2), a decision of an adjudication officer under section 42 of the Workplace Relations Act 2014 in relation to a dispute referred to in subsection (1) may contain a direction that the commencement of parental leave be postponed for a specified period (whether or not being the period specified in the relevant notice under section 11(1)), provided that the adjudication officer— |
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(6) Without prejudice to the generality of subsections (1) and (2), a decision of an adjudication officer under section 42 of the Workplace Relations Act 2014 in relation to a dispute referred to in subsection (1) may contain a direction that— |
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(b) the deletion of subsections (3), (5), (6) and (7), |
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Section 34 is amended by the insertion of the following subsection: |
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“(6) In this section ‘inspector’ has the same meaning as it has in the Workplace Relations Act 2014.”. |
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1. |
S.I. No. 231 of 2000 |
European Communities (Parental Leave) Regulations 2000 |
The following Regulation is substituted for Regulation 8: “8. An adjudication officer within the meaning of the Workplace Relations Act 2014 or the Labour Court may, if the adjudication officer or the Labour Court, as the case may be, considers it reasonable to do so, having regard to the illness or other incapacity of an employee entitled to parental leave by virtue of Regulation 3 or any other circumstance, direct that the leave be taken at a time other than a time that accords with Regulation 4.”. |
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4. |
S.I. No. 623 of 2006 |
European Communities (European Public Limited – Liability Company) (Employee Involvement) Regulations 2006 |
Schedule 2 is a amended by— (a) the substitution of the following paragraph for paragraph 2: “2. A decision of an adjudication officer under section 42 of the Workplace Relations Act 2014 in relation to a contravention of Regulation 19(1) shall do one or more of the following: |
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(a) declare that the complaint was or, as the case may be, was not well founded; |
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(b) require the relevant undertaking or the SE to take a specified course of action; |
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(c) require the relevant undertaking or the SE to pay to the person referred to in subparagraph (1) compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration in respect of the person's employment.”, and |
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(b) the substitution of the following paragraph for paragraph 3: |
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“3. A decision of the Labour Court under section 45 of the Workplace Relations Act 2014 on appeal from a decision of an adjudication officer referred to in paragraph 2 shall affirm, vary or set aside the decision of the adjudication officer.”. |
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8. |
S.I. No. 36 of 2012 |
European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 |
The following Regulation is substituted for Regulation 18: "Decision of adjudication officer under section 42 of Workplace Relations Act 2014 18. A decision of an adjudication officer under section 42 of the Workplace Relations Act 2014 in relation to a complaint of a contravention of Regulation 5, 8, 9, 10, 11 or 12 shall do one of more of the following, namely- |
This is worthwhile legislation which has involved significant work going through amendments. That is its nature, as it tries to consolidate legislation and merge agencies. Inevitably, we must try to meld a number of different systems. I thank Senators for their interest in and support for the Bill. It is a worthwhile piece of work.
