Workplace Relations (Miscellaneous Provisions) Bill 2021: Second Stage

Question proposed: "That the Bill be now read a Second Time."

I welcome the Minister of State to the House.

I am pleased to introduce the Bill for the consideration of the House. I propose, first, to summarise the background and context of the Bill, the basic aim of which is to ensure the matters of immediate concern identified by the Supreme Court in its majority decision in the Zalewski case are immediately remedied in statute. I will then describe the purpose and reasoning behind each section of the Bill.

On 6 April this year, the majority judgment of the Supreme Court in the Zalewski case overturned the judgment of the High Court, which had found that the Workplace Relations Commission’s, WRC, adjudication service was not administering justice within the meaning of Article 34 of the Constitution. The seven judges of the Supreme Court agreed the WRC’s adjudication service is the administration of justice, traditionally a matter exclusively for the courts. However, the majority decision saved the 2015 Act from being constitutionally repugnant because it found the administration of justice was limited and, therefore, permissible under Article 37. The limited nature is due to the fact the WRC deals with workplaces, has statutory limits on the awards it can make, enforcement of its decisions is required through the courts, its decisions are subject to an appeal, and the decisions and procedures of the adjudication services are subject to a judicial review before the High Court.

In issuing this decision the Supreme Court rejected a challenge to the validity of certain sections of the 2015 Act and section 8 of the Unfair Dismissals Act 1977, as amended. However, separately, the Supreme Court also determined two aspects of the 2015 Act are, in fact, incompatible with the Constitution. First, the court found the practice of holding all hearings in private, as provided under section 41(13), is not an acceptable feature of the administration of justice and, therefore, not compatible with the Constitution. Justice must be done in public and while there are situations where privacy is warranted, a blanket approach of hearing matters in private is not an acceptable feature of the administration of justice. This requirement to administer justice in public will also have an impact on the routine anonymisation of parties under section 41(14) of the 2015 Act. The second procedural weakness the court held was the absence of a statutory provision for the administration of an oath, and any possibility of punishment for perjury, is inconsistent with the Constitution.

While not subject to an express declaration of unconstitutionality by the Supreme Court, the majority decision noted and expressed concern about the statutory drafting concerning the removal of an adjudication officer. This provision is now remedied in section 3 of the Bill before the House through the provision of a constitutionally robust and fair removal procedure, should the requirement ever arise.

Similarly, while the fact that the 2015 Act provides for the enforcement of decisions to be a matter for the District Court, the Supreme Court found the provision to be lacking in fairness. The fact that the enforcement of adjudication decisions is a matter for the District Court is an integral aspect of the limited nature of the WRC’s adjudication service. This, in turn, is crucial in ensuring the commission’s adjudication service is permissible under Article 37 of the Constitution. Accordingly, the provision has been remedied in this draft Bill to ensure employers’ have a right to be notified and heard.

Finally, the Supreme Court’s finding that the functions being performed by the WRC adjudication and the Labour Court are functions of a judicial nature involving the administration of justice under the Constitution, warrants the inclusion of an express statutory guarantee that the membership of the Labour Court shall be independent in the performance of their functions.

This will require amendments to the Industrial Relations Acts, 1946 and 1969.

As the declarations of the court have immediate effect, the WRC's adjudication service has been restricted in the matters that it can dispose of until these amendments are made to the 2015 Act, the Equal Status Act 2000, the Employment Equality Act 1998, the Protection of Employment (Employers' Insolvency) Act 1984, the Unfair Dismissals Act 1977 and the Redundancy Payments Act 1967. These separate Acts contain stand-alone provisions relating to proceedings before the director general or adjudication officer. We have to make changes to them.

My officials have successfully concluded a consultation with the Data Protection Commissioner, in accordance with section 84(12) of the Data Protection Act. This consultation was required as aspects of the Bill involve the processing of personal information.

I am also grateful that the genuine urgency to address this Bill was recognised on a cross-party basis by the members of the joint Oireachtas committee who agreed to waive the requirement for pre-legislative scrutiny on the Bill. I would like place on the record my appreciation for the collegial and productive engagements both I and my officials have had with the members of the joint committee. It is something that we can also benefit from in the future.

It should also be noted that the decisions of the Supreme Court provide for certain matters that will require policy and possible legislative attention at a later stage. These matters relate to the independence of the decision makers and necessity to ensure that persons carrying out these functions have the appropriate skills and capabilities. Consideration will need to be given to the potential impact that the court’s judgment may have on other quasi-judicial bodies administering permissible justice. That is why, once the legislation has been commenced, my Department will convene an internal review group consisting of officials with policy responsibility of the various bodes and agencies that may now find themselves administering justice to consider the rulings in full and to analyse its impact on their functions. In doing so, it will engage with the Office of the Attorney General and other Departments with oversight of similar bodies. If any issues are raised, we can discuss them with the members of the committee. The most urgent part of the legislation is what we had to get done, if at all possible, this week.

I will now outline the principal provisions. Section 1 contains definitions. Section 2 is a technical amendment required to facilitate the introduction of amendments in section 41 of the Workplace Relations Act concerning the offence of perjury. Section 3 contains an amendment to section 40 of the 2015 Act. The purpose of the amendment to is to provide for a fair procedure for the revocation of an adjudicator's warrant.

Section 4 contains an amendment of section 41 of the 2015 Act. In respect of the provision in section 41(13), which currently provides that: "Proceedings under this section before an adjudication officer shall be conducted otherwise than in public", the court held, at paragraph 148, that it was appropriate to declare subsection 13 repugnant to the Constitution, and that the effect of this is that "the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public." The proposed amendment provides the either party can make an application to the adjudicator, but also provides the adjudicator with discretion to enquire into the matter on his or her own motion and subsequently to direct that either the whole or part of the relevant proceedings can take place otherwise than in public, where this would be desirable in light of the nature or circumstances of the specific case. The default position in respect of such proceedings is that they will be held in public. That is an issue of particular concern, so I want to be very clear that either party can make the case to have proceedings held in private if they believe that it is justifiable, but the adjudication officer can also make his or her own decision in that respect. Therefore, it is open to either party.

In respect of the proposed substitution of section 41(14), while the judgment of the court did not address the issue of automatic anonymisation, which is currently provided for in the subsection, it is the Department's view, supported by legal advice, that maintaining a policy of anonymisation of all published decisions is contrary to the requirement that justice be administered in public. Section 41(14)(b) provides an adjudication officer with the vires to direct the commission, if he or she is satisfied that the special circumstance of the particular case so requires, not to name parties in the published decision.

A further constitutional issue was identified by the court in respect of the absence of any provision relating to the administration of oaths or an associated penalty for perjury. The amendment to section 41(12) introduces the statutory power for the administration of oaths or affirmations, and to provide for a criminal offence of wilfully and corruptly providing false evidence under oath or while subject to such an affirmation. This provision is aligned with section 12 of the Criminal Justice (Perjury and Related Offences) Bill 2018, enacted on 21 June this year.

Section 5 provides for an amendment of section 43 of the Act of 2015. The purpose of the amendment is to strengthen the rights of employers in matters relating to the enforcement of decisions of adjudication officers in the District Court.

Section 6 provides for an amendment to section 10 of the Industrial Relations Act 1946. The purpose of these amendments is to provide for the statutory independence of the chairperson and ordinary members of the Labour Court. A further amendment to section 21 of the 1946 Act has been provided to align the offence that is provided for in the Criminal Justice (Perjury and Related Offences) Act 2021.

Section 7 provides for an amendment of section 39 of the Redundancy Payments Act 1967 concerning proceedings in public and the administration of an oath or affirmation.

Section 8 provides for an amendment of section 4 of the Industrial Relations Act 1969. The purpose of the amendment is to provide for the statutory independence in the performance of the functions of the deputy chairs of the Labour Court.

Section 9 provides for an amendment of section 8 of the Unfair Dismissals Act 1977 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.

Section 10 provides for an amendment of section 9 of the Protection of Employees (Employers' Insolvency) Act 1984 concerning proceedings in public, anonymisation and the administration of an oath or affirmation. The offence of perjury is also provided for. To align this Act with the WRC Act, a regulation-making power has been inserted, empowering the Minister to make provision in respect of any matter relating to the presentation, referral or hearing of a complaint under section 9 of the 1984 Act, as he or she considers appropriate.

Section 11 provides for the amendment of section 79 of the Employment Equality Act 1998 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.

Section 12 provides for the amendment of section 25 of the Equal Status Act 2000 concerning proceedings in public and the administration of an oath or affirmation. The offence of perjury is also provided for.

Section 13 provides for statutory review of certain sections of the legislation. The review is to take place no later than 12 months after the Bill has been commenced. That provision has been made in conjunction with the recommendation of the committee members. We are conscious that this legislation has been rushed through and we had to skip pre-legislative scrutiny. Therefore, it is important that we commit, in the Bill, to undertaking a review within 12 months of its commencement. We are happy to do that and to engage with all the relevant stakeholders and Members as we do so.

Section 14 introduces a Short Title and provides for commencement.

I commend the Bill to the House.

I welcome the Minister of State to the House. I support the Bill. It includes necessary procedural amendments to ensure the WRC adjudication service will continue in its role to protect the rights of employees and employers. I commend the Minister of State on his swiftness in dealing with the matter and the cross-party support it has garnered.

The Bill amends the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977 in response to the judgment of the Supreme Court. We have extensive employment and equality rights. It is essential that the WRC functions in line with the Constitution and that its work is not compromised.

On 6 April 2021, the landmark Supreme Court judgment in Zalewski v. An Adjudication Officer, WRC and Others, upheld the constitutional validity of the WRC and ruled that the WRC process was a constitutional administration of justice in the State within the meaning of article 37 of the Constitution, but declared that certain aspects of the WRC procedures under the Workplace Relations Act 2015 were incompatible with the Constitution. While the WRC was ruled as being constitutionally valid, certain aspects of its procedures were not. That is being rectified through the Bill.

The implications of the decision mean that the holding of all hearings in private, as provided under section 41(13), is not an acceptable feature of the administration of justice. Hearings must now be held in public except in certain circumstances. Up until the decision was taken, all hearings were conducted in private, no evidence was given under oath and names were usually anonymised. Second, the decision means that the absence of the provision for the administration of an oath, or any possibility of punishment for giving false evidence, is also inconsistent with the Constitution. The adjudication officer should be able to require that certain evidence must be given on oath.

These amendments seek to bring the Workplace Relations Commission in line with the administration of justice permissible under the Constitution. Proceedings were far less formal than they will be now. While the pros and cons of this have been discussed to a certain degree and, I imagine, will be discussed more today, overall I believe the change is positive. The integrity of the judicial process is the most important factor. Organisations mindful of corporate reputations will be sensitive to having dirty laundry aired in public and being open to scrutiny by media. Employees will be wary of their professional reputations. It might set a standard for cases that go to the level of adjudication. We might see an increase in mediation and that could be positive, although both parties have to agree to mediation. Some of the articles I have read said that resources will have to be monitored by the WRC in that regard.

There will always be employees who are wary about escalating workplace relations cases. I have seen myself how they do not want publicity or attention. They do not want compensation. They simply want issues to be resolved. We will have to ensure we have space for them and that we respond to their needs.

The change in respect of oaths can only bring more integrity to the process. Again, that is a positive move.

In general, we need to bring the work of the WRC in line with the Constitution as part of the judicial process. I support the Bill and I look forward to hearing the views of my colleagues.

I welcome the Minister of State to the House. I thank him for setting out the rationale behind the Workplace Relations (Miscellaneous Provisions) Bill 2021 and the provisions of same. The Minister of State has clearly communicated these. The provisions are set out in the explanatory memorandum and, in general, I am supportive of it.

My thanks to the Minister of State, Deputy English, for his detailed briefing. Like most Members I welcome the legislation. It will ensure proceedings and investigations before adjudication officers of the Workplace Relations Commission comply with constitutional requirements associated with the administration of justice and that hearings before the adjudication officers can resume in full.

The Workplace Relations Commission is a vital resource for workers and we must ensure it remains so. From my experience in Galway, the majority of the time employees do not want the intrusion. Senator Currie alluded to this. Yet, it is still a major support.

The Supreme Court has identified areas that fall short of proper administration of the permissible justice and this legislation is required to address that issue. The first point is that holding all cases entirely in private is inconsistent with the overall administration of justice. The Supreme Court was highly critical of the fact no provision was made in the statutory framework for the adjudication service. The service provides for the administration of an oath or affirmation and an associated penalty for a person who may wilfully give false evidence or mislead an officer. Naturally, there may be a material dispute of the facts.

As Members are aware, there is a backlog of more than 300 cases due to the second issue identified. It is important we resolve both areas identified by the Supreme Court so that we can have a fit-for-purpose Workplace Relations Commission. It is vital the commission does the job it is supposed to do. It is welcome the Workplace Relations Commission had continued to schedule cases. I hope the backlog that has built up will be addressed in the short term.

It was vital and important the Government moved swiftly to ensure the commission continued to function after the Supreme Court ruling last April, and it is welcome it has done so. We need to keep this reviewed. I see how it works in practice, especially in terms of all cases no longer being held entirely in private.

Under the legislation, the officer whom the complaint or dispute is being referred to may use his or her discretion to direct that either the whole or part of the relevant proceedings can take place otherwise than in public where it is desirable in light of the nature of circumstances of the case or in the interests of justice. The default position in respect of such proceedings is that they would be held in public. The legislation provides broad guidance on the nature of the considerations that the officers should advert to in determining whether a private hearing would be desirable but the guidance does not set out specifically confined terms to provide the person dealing with the case with no discretion. There is limited discretion.

It is essential both employees and employers retain confidence in the Workplace Relations Commission. We will need to see how this works in practice and potentially make adjustments if needed. The Minister of State has alluded to this. This clearly needed to be addressed following the view of the Supreme Court.

Cuirim fáilte roimh an Aire Stáit. This was not in the programme for Government but we are doing it anyway because it has to be done. My thanks to the Minister of State for his swift action on this.

The Bill is intended to resolve issues raised by Mr. Zalewski, who took a court case. We have to thank him for highlighting this anomaly in the legislation. It is good he has brought us to this today. It is good we are open to listening to people who stand up for their rights and highlight issues. It shows the Government is willing to take them on board. The court found that certain provisions in two Acts were incompatible with the Constitution as they required relevant Workplace Relations Commission proceedings to be conducted in private. The court further found that the lack of provision for the administration of oaths or affirmations was inconsistent with the Constitution.

The Bill is largely technical. The main elements provide that Workplace Relations Commission proceedings will happen in public with some exceptions, that evidence may be given under oath and that there is a penalty for providing false information under oath, which is also important.

Another issue the Bill addresses is the provision of a proper system for the removal of an adjudication officer. Currently, this power rests solely with the Minister and this may undermine the independence of the adjudication officer. It provides for an extra statement on the independence of Labour Court members, and it provides for the strengthening of the rights of employers in the enforcement of decisions of an adjudication officer in the District Court.

I will keep it short. It is fairly straightforward. It has to be done. My thanks to the Minister of State for the time and energy he has put into making this happen.

It is good to see the Minister of State. Sinn Féin is pleased to be able to support this Bill. We have a couple of concerns we might deal with on Committee Stage, but it is important legislation.

We understand the issues that arose for the WRC following the Zalewski case and the subsequent Supreme Court judgment are serious and require swift rectification. A remedy for the issues outlined by the Supreme Court is necessary to ensure the proper administration and working of the WRC. The core issues the legislation seeks to address are ensuring the administration of justice is capable of being conducted in public and the provision of statutory authority to administer oaths and affirmations in circumstances where there is a material dispute of fact. Ancillary to this is addressing an express concern of the Supreme Court with regard to the removal of an adjudication officer.

The sections stipulating that proceedings be conducted in public unless the adjudication officer, on his or her own motion or upon application by or on behalf of a party to the proceedings, determines that due to the existence of special circumstances the proceeding should be conducted otherwise than in public are important. However, I can foresee a problem. If one party to a case requests that proceedings be otherwise than in public, it might cause an issue. Cases are taken by employees and naturally many will want the hearings to be held in private because of concern that a public hearing would damage future employment opportunities and the likelihood of getting promotions.

I am keen to mention the important work carried out by the WRC despite being underfunded and under-resourced. The Workplace Relations Commission does fantastic work on behalf of workers across the State. In spite of the challenges posed by the pandemic, the WRC carried out 7,687 inspections in 2020 and managed to recover almost €1.7 million in unpaid wages for workers.

Data recently revealed in response to a parliamentary question outlined that since 2011, the WRC has recovered almost €18 million in withheld wages for workers. This proves the worth of the WRC and makes a very compelling case for the further funding of this particular institution. Further data also revealed the scale and number of breaches of employment law detected by WRC investigations since 2015. In those six years the WRC has detected breaches in employment law in more than one third of all investigations. Of the number of cases investigated, breaches were found by employers for non-payment of the minimum wage, employment permits, protection of young persons, annual leave, public holiday breaches and unpaid wages, to name just a few. Sectors such as food and drink, retail and wholesale, hair and beauty, and construction have seen consistent breaches of employment law in recent years.

The scale and nature of these breaches reveal the dark underbelly of the Irish economy which must be stamped out. The idea that there are only a few select bad apples breaching employment rights and workers' rights has been blown apart by the data. We can see that it is not just a tiny minority and that there are in fact breaches right across the board. It is not every employer and not even the majority of employers, but it is a significant number of employers and they must be dealt with.

In six short years, more than a third of employers investigated by the WRC have been found to be in breach of employment law. Added to all of this is the fact that the WRC is underfunded and understaffed to quite a shocking extent. We must remember that the commission has only 53 inspectors carrying out this work despite being authorised to recruit 90 inspectors back in 2006. In other words, it has just over half of the staff that it should have. These 90 staff members should be the floor - not what we aspire to but the absolute minimum given that there are more people in work now than there were in 2006 when that agreement was reached. I would be interested if the Minister of State could comment on that in his response and how quickly that deficit might be closed out.

When people feel that they are in a vulnerable situation, they probably have to wait for six months or longer to get into the WRC. That is just not acceptable or good enough but it has always been the way, certainly going back to my ten years in SIPTU. All the while these workers are probably continuing to work in the place where the issue has arisen. Added to that is the fear that they will be exposed.

We need to give careful consideration to how we can ensure workers can have the confidence to take a case to the WRC and also have the capacity to maintain their anonymity and not suffer from any potential backlash. I look forward to this Bill progressing and working with the Minister of State on it.

I thank the Minister of State for coming to the House. We in the Labour Party are also pleased to be supporting this Bill. I thank the Minister of State for engaging with the members of the Joint Oireachtas Committee on Enterprise, Trade and Employment and providing us with a briefing on the Bill a number of weeks ago.

We have seen two very serious challenges to workers’ rights infrastructure in the State this year, the first of which was the prospective finding of unconstitutionality in the workings of the WRC in the Zalewski case. Thankfully, that was not the eventual finding but a prospective one. Second, there was the challenge to the sectoral wage bargaining provisions under the Industrial Relations (Amendment) Act 2015. Fortunately, in ruling on the constitutionality of both cases, the Supreme Court has found that although they are imperfect in their current form, sectoral wage bargaining is constitutional and the work of the WRC and the administration officers is constitutional, albeit that changes are required.

The backlog has been mentioned by Senator Crowe and others. We know that there has been an enormous backlog since 6 April due to the fact that where evidence is contested, cases need to be adjourned. There is a complete urgency to this Bill, which is why we are pleased to facilitate its urgent passage through the Houses.

This Bill is very important in ensuring a sound constitutional basis for adjudication officers to issue decisions. In that context, section 4 provides for proceedings to be held by default in public, the administration of an oath or affirmation and the revoking of the appointment of an adjudication officer on the grounds of misconduct and other grounds. We would hope that this latter provision might never have to be used but it is nonetheless important in ensuring public confidence in those who use the WRC, both employers and workers, workers' representatives and trade unions.

I raise a concern, which has been raised by others, as regards the implementation of section 4. I understand this is about that balancing of rights and protections, including the right for justice to be administered in public but also the need for the protection of individuals because, clearly, we do not want to deter workers from taking cases. I appreciate that this section gives discretion to an adjudication officer to determine the exceptional circumstances in which a hearing is not held in public. Nonetheless, I worry that this is not strong enough. I believe a mechanism needs to be in place whereby an appeal can be made to the director of the WRC for the case to be heard in private.

The other side of this is the need for balance from an awareness and educational perspective. Other Senators, including Senator Currie, have referred to employers and workers being deterred from bringing forward cases that are not without good grounds. Employers know that they could be potentially subjected to publicity if they act incorrectly. There is that balance.

As someone who worked for SIPTU for many years, like Senator Gavan, and as someone who testified as an expert witness for SIPTU in many Labour Court cases where I had to take an oath, I understand the need for the oath. It is an uncomfortable experience but it is important nonetheless. I understand that the Minister of State’s Department is working hard to get that affirmation and oath as seamless as possible.

Finally, I pay tribute to the work of the WRC and, indeed, of the Labour Court, which is also included within this Bill. These are State institutions of great importance and are located outside of the normal judicial system but are intended to ensure a more accessible, less legalistic and more encouraging environment for workers in need of adjudication in a workplace equality claim. The WRC, of course, does a great deal more than that in respect of conciliation and mediation, but we are dealing with a particular context today.

Senator Gavan is completely correct in that there is a resources and staffing issue here. He has set out very eloquently the very significant shortfall at the moment but there is also an issue here where we are about to see the very welcome broadening of workers’ rights, hopefully and belatedly, with the provision of a right to paid sick leave by the end of the year. I know that there has also been a vague promise on the right to disconnect. We can have all the laws in the world but we need to have proper enforcement procedures and inspections.

I also want to hear from the Minister of State on his plans and those of the Department and the Government to expand the inspectorate and the enforcement mechanisms within the WRC.

I thank the Minister of State for attending the House today. He is always very welcome.

The WRC and the Labour Court are to be fully commended. They are fantastic bodies and under their previous guises as the Labour Relations Commission have done a great job and are certainly there as the barrier towards stopping poor employment practices and outing the abuse of employees. I welcome the decision of the Supreme Court and our quick response to it. This emboldens, widens the scope of and strengthens the powers of the WRC. The fact that evidence will now need to be given on oath and heard in public will do an even greater service to the operations of the WRC.

It has been said - I have often quoted it in submissions over the years and it has been said in the High Court - that next to losing one's liberty the worst thing that can happen to one is to lose one's job because of all of the financial consequences that flow from and are dependent on our income. The idea now is that once somebody attends before the WRC and has to go through the unfair dismissals procedure, evidence needs to be on oath and in public.

My experience of it, from both an employer's and an employee's point of view, suggests that the same repeat offenders of employers are there again and again. There are some big names that should just have bunk beds in the corner, as I have said before in the Chamber, because they are repeatedly in there. There is never a day when one goes there that the same name is not on the screen. That pattern and ability to report and name names will be a very important feature. In my view, it is regrettable that it was not included from the very beginning when the Workplace Relations Commission Act 2015 was introduced.

From an employee's point of view, I can understand the sensitivities and the nervousness. I have sat beside people, in both instructed and pro bono cases, and I appreciate the fear of the process. Employment law can be underestimated as to how complex at times it can be. While the WRC is meant to be accessible, it requires legal assistance or experienced union personnel, and I have been there as both over the years. There can be sensitive content on the part of the employee and, therefore, being able to make a submission to have the matter anonymised or in private will be important. It is important also that the adjudicator can operate in his or her own regard.

There are solicitors practising in the country who submit vexatious, spurious claims and throw the sink at it on behalf of a person making a rather vague claim. In one instance, I was briefed for 147 claims. Timesheets and everything else could be produced, but it was vexatious. There are repeat offenders among legal practitioners as well who are guilty of that, and this may expose them too.

One feature that needs to be addressed relates to the lack of a pre-determination of a prima facie case and the lack of having preliminary matters dealt with before hearing the matter in full. That lends itself to clogging up the system. People can sit there and argue a preliminary matter that there is no jurisdiction, and then still have to go through the case just in case it is found that there is jurisdiction. Something along the lines of the Master's court for the High Court, or the county registrar for the Circuit Court, could be put in place and unclog the system in order that there would be a better system for adjudicating whether a case should go to hearing. Not everything should go to hearing, given that some cases either should not be defended because they are so blatant and they should go to hearing, while some cases do not even reach the bar of prima facie.

The removal of adjudicators is, I hope, very rare. I have had the experience of the other side handing a birthday card to the adjudicator. Fortunately, I was robust enough to argue it, but if that person had been there on his or her own, without counsel or a representative, he or she would not necessarily have known to handle such a matter. It is to be applauded that there is this mechanism for complaint and transparency.

I commend the legislation.

The Minister of State is welcome to the House. The Bill is important and urgent, in light of the decision of the Supreme Court of April last regarding the Zalewski case. It is important that when a constitutional question mark is placed over the State's system for resolving workplace disputes, it has to be resolved.

The Bill will give clarity to our legal system for dealing with workplace disputes. Above all in law, we need clarity and consistency, as well as transparency. The remedies provided for in the Bill relate to the necessity to ensure that administration of justice is capable of being conducted in public, which is very important. This requirement to administer justice in public addresses the transparency issue but will also have an impact on other legislation. We need a constitutionally robust and fair procedure, and the Supreme Court found that the current provision was lacking in fairness. Accordingly, while we have to reflect, respect and protect workers' rights, it is important that there be a provision, which has been included as a remedy, to ensure an employer's right to be notified and heard. That is the key element of this legislation.

As a party, we will support the Bill to ensure that the proceedings or the investigations before the adjudication officers of the Workplace Relations Commission will comply with the constitutional requirements associated with the administration of justice, and that hearings before adjudication officers can resume in full. There is an urgent necessity to address certain matters, as was highlighted in the Supreme Court decision in April. The Bill adheres strictly to the areas expressly identified by the Supreme Court in that we are falling short of the proper administration of permissible justice.

At the moment, all matters before the adjudication service are held entirely in private, and this has been found to be inconsistent with what is known as the administration of justice. While the Supreme Court did not suggest that everything and anything must be done in public, some consideration must be given to those matters. The second issue, namely, that adjudication cannot continue or be effectively concluded until this provision has been introduced in law, stemmed from the fact that the Supreme Court was critical of the lack of provision in the statutory framework for the adjudication service, which provides for the administration of an oath or affirmation and an associated penalty who may wilfully give false evidence or mislead an adjudication officer.

I welcome the Minister of State to the House. Much of what I had intended to say has been said, but I welcome the Bill and the fact that it will strengthen the Workplace Relations Commission and deliver more transparency to the eligibility of adjudication officers, particularly through the amendment of section 40 of the 2015 Act. I welcome the amendment to section 40(c) of that Act, which will now state:

“(d) if the adjudication officer concerned—

(i) is convicted on indictment of an offence,

(ii) is convicted of an offence involving fraud or dishonesty,

(iii) has a declaration made against him or her under section 819 of the Companies Act 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or

(iv) is subject to, or is deemed to be subject to, a disqualification order within the meaning of Chapter 4 of Part 14 of the Companies Act 2014 whether by virtue of that Chapter or of any other provision of that Act.”,

The amendment zones in on cases where the integrity of the selection and eligibility process for an adjudication officer is compromised by any form of fraud. It is important for transparency. While the Bill is technical and I understand the reason it was brought about, arising from the Supreme Court decision, I pay tribute to the Workplace Relations Commission and the Labour Court because they do an awful lot of fine work. It is about protecting the rights of the employee as well. I welcome the Bill and the amendment I highlighted, and compliment the Minister of State on his work to date in respect of it.

I thank all the Senators for their contributions and for assisting us with having a timely debate on the Bill and progressing it this week in order that we can, I hope, get it finalised. We will be back in the House on Thursday or Friday to deal with any amendments they might wish to put forward.

Some amendments were put forward in the other House. We dealt with them, went through them and explained the rationale behind them. Hopefully, we can do the same and reach agreement in this House and progress the legislation quickly.

Again, I thank all Senators for their contributions. I think everybody welcomed the publication of the Bill, which is a positive thing. This reflects our debate in the other House. I know people still have concerns on some aspects. It is important we respect the decisions of the Supreme Court and implement the changes, so that the Workplace Relations Commission, WRC, can get on with its work. We compliment the work of the WRC and recognise the great work it is doing. Generally, it moves cases through quite swiftly. We want to respond to that and enable it to continue to do that work quickly.

As I said earlier, the purpose of the Bill is to ensure we deal with the matters of immediate concern identified by the Supreme Court in the case. It is important that this was a majority decision. There is the case we are trying to remedy as quickly as we can. Senator Crowe and others mentioned the delays and backlogs in cases that might come about because of that. I want to be clear that the WRC is continuing to schedule cases. I am informed that of the 1,601 hearings scheduled from the 6 April 2021 to 22 June 2021, only 27 were adjourned. That is the most recent data, although I am conscious that we are now in July. Senators Crowe and Sherlock were concerned about this. However, 27 were adjourned, due to the adjudication officers' concluding that adjournment was necessary to facilitate a note or an affirmation to be administered. That is why this legislation it is important.

There are a range of outcomes that may arise when hearings are scheduled. These are: that they will be postponed prior to the meeting; that the hearing can be completed; or that issues case managed to reduce the matter to be dealt with if adjourned. They may be part-heard, requiring them to reschedule later. They may also settle prior to, or during, the hearing. Some Senators asked if a case had already started whether parties could go back to mediation if they wanted to. The answer is that they can. Not everybody wants to his or her case heard in public and might prefer to go back to mediation.

The issue of privacy, as well as of public and private, has been raised as a concern. I agree with Senator Seery-Kearney that is important we have justice administered in public. There are clear mechanisms for people who have concerns with that, and who, for various reasons, want to have the case held in private. Both parties or a single party can apply to do so. The adjudicator can decide to administer the justice in private if needs be. We have a review in 12 months' time to allay concerns around that.

There will be regulations and guidelines to inform that practice and to make sure that it is administered and used properly. I would be happy to engage with Members, like we did before with the committee, around the regulation and the guidelines before we fully sign off on them. I am open to doing that with Members who want to involve themselves in that process, because we are determined to do this right, and with the approval of Members. I am happy to do that and to share the regulations with Members. I am confident that it is about bringing transparency to all of the decisions of the WRC. It welcomes that, as would most people.

I do not agree that this would deter employees bringing cases forward. People should recognise that in this country we are entitled to have our rights vindicated. We should have no fears in doing that. On previous days, there was commentary that this would prevent that. It should not and will not. We do not want to encourage this in any shape or form. Any decent employer will not hold it against a potential employee who took a case to the WRC to vindicate his or her rights under our employment law. We are proud of our legislation in this country. People should feel free to be able to use it and should not be deterred from going to the courts or the WRC. Hopefully, we can work with Members to give people assurances and the confidence they need. The WRC can do its job well, either in public or private. That is what we are trying to do.

Senator O'Loughlin raised the issue of the offence of perjury. All fraudulent claims should be prevented because people’s reputations are affected on all sides of this. That is why perjury is included in the amendments. It should strengthen the case with the WRC in terms of justice.

I have dealt with private hearings and with most of these things I was asked about. A few Senators raised the work the WRC does and whether it has enough people to do it. They quoted the number of inspectors. At this stage, the WRC's budget is approximately €15 million. It has been that amount for the last number of years and it will remain at that. We engage with the chair of the WRC and its team to ensure it has enough resources to carry out its work. Of course, it is extremely busy. We are in the process of recruiting new inspectors to back up its service. At the moment, there are approximately 53 WRC inspectors, 48 of whom are at executive officer, EO, level, while five are at higher executive officer, HEO, level. We are engaging in the process to bring in new people. We recognise there needs to be an increase in its staff levels. I am happy to work with the WRC directly on that in the years ahead. Part of my job as, Minister of State with responsibility for it, is to secure extra money for it. I am glad we are doing that. We will continue to do that.

There is also training for the WRC inspectors and we will do that as well. A decision made in 2006 about the number being 90 is often referred to. To be clear, many changes and reforms have happened since that point. That year predates the WRC being set up. Five bodies were brought together to create the WRC. We made these changes nine or ten years later. In 2015, we brought in a new law. Therefore, I do not think 2006 is the best point of reference. The agreement was made with the unions in 2006, prior to what happened in this country in 2007, 2008, and 2009. There were many changes on the way, and not just in terms of what happened financially to the country, but in how the WRC was set up and how it was run. The bodies have changed. While I accept we need to strengthen numbers, I do not necessarily think 90 is the right number to get to. However, we will work with the WRC to make sure we are at the appropriate level. That is what I am doing under the direction and guidance of the Tánaiste.

I hope I have covered all the questions that were raised. I look forward to being here again during the week to complete the legislation, if we can.

Question put and agreed to.

When is it proposed to take Committee Stage?

Next Wednesday.

Committee Stage ordered for Wednesday, 21 July 2021.
Sitting suspended at 6.08 p.m. and resumed at 6.30 p.m.