Amendments Nos. 11 and 12 are related and may be discussed together.
SECTION 7.
I move amendment No. 11:
In page 7, subsection (2) (b), to delete lines 37 to 39.
The reason I tabled this amendment has been picked up in the Minister's amendment. It seemed extraordinary that the rights commissioner would be able to effectively create any terms of employment that he would choose. That is the way it was originally drafted. The Minister is now saying that the rights commissioner can only add to the statement or alter a statement of the terms of employment for the purpose of correcting any inaccuracy or omission in the statement. That would seem to meet the thrust of my concern but perhaps it will still be necessary for the Minister to clarify what is meant by an inaccuracy or omission in the statement. Is there a strict interpretation for what exactly an omission constitutes in the eyes of what the rights commissioner can add? The rights commissioner should not be in a position to rewrite terms of employment.
Deputy Bruton is correct in saying that my amendment follows through on the main import of his amendment. It just shows that even at this stage one can reach agreement in consultation with interested parties. IBEC came to see me in regard to the Bill because I believe in the policy of talking to all parties both before the compilation of a Bill and during the course of it and we had a good meeting. I saw the point of what they were saying which is more or less what Deputy Bruton has put down here and then I wanted to put a spancel on the open-endedness of it but I did not want to do away with it as proposed in the Deputy's amendment. Section 2 (b) (2) allows the rights commissioners to alter or add to the statement of employment particulars. The Deputy's amendment seeks to delete it. Mine, which was put forward following representations, seeks to clarify the purpose of the provision.
I have considered in detail the amendment proposed by the Deputy and, while I am not disposed to accepting it, I wish to discuss amendment No. 12, not because I want to be one better but because it clearly defines the provision's intent and the role of the rights commissioner in applying the remedy intended. I am aware of the genuine concerns expressed in relation to this provision that the role of the rights commissioner should be clearly defined. For that purpose my amendment proposes that the powers of the rights commissioner in adding to or altering a statement will be, "for the purpose of correcting any inaccuracy or omission in the statement". The purpose of the provision is to allow the rights commissioner to correct any omissions in the statement or to alter the statement only if it is factually incorrect. The rights commissioner deals with various situations. He is not spancelled in his consideration of matters. I do not want his decision to be judgmental, but precise as to whether there were factual inaccuracies.
The Minister's amendment is a good one. I would not delete lines 37 to 39, as Deputy R. Bruton suggested, because the remedy available to an aggrieved employee in these circumstances would be limited without subsection (2) (b) (ii). If the rights commissioner does not have the authority to alter the statement, where the statement is found to be inaccurate or there is a manifest omission, the complainant would not get a hearing. In these circumstances there would be no point going through the process of appealing to a commissioner to correct the statement.
Sanction must be given at the end of the day, but I agree with Deputy R. Bruton that it should not be too broad. The rights commissioner should be in a position to determine the nature of the employee's work or to change their job description. If the rights commissioner finds something inaccurate or a blatant omission, he should be given the authority in this Bill to put it right. The Minister's amendment seems to meet this requirement.
I agree with the point made by Deputy Rabbitte. A rights commissioner has greater flexibility than the personnel of the Employment Appeals Tribunal and that is the way it should be. The function of a rights commissioner is to act as a go-between between the employer and the worker in the case of a dispute or a division of interests. I support the expansion of the role of the rights commissioners, because conflict should be avoided if possible. The rights commissioner is well positioned and equipped to play that role. The rights commissioner should be given more powers to act in that area and to have discretion to use his experience. The rights commissioner has the experience of dealing with tricky situations. Therefore, greater flexibility should be given to him and he should be allowed to continue his work.
When I tabled my amendment I had not seen the Minister's amendment. At that stage an open-ended power was being given to the rights commissioner to alter the terms of employment. I am satisified that the Minister's amendment confines a rights commissioner's rewriting of the terms to factually incorrect statements or to omissions from some of the items instances in section 3 (1). I am satisfied that the amendment deals satisfactorily with the situation and that we are not giving the rights commissioner excessive discretion to deal with a case. Like Deputy Kemmy, I am a great admirer of the service provided by the rights commissioners and their capacity to deal with issues in a flexible way. However, this subsection, as first drafted, was over-the-top. I am happy with the Minister's amendment.
I see the point of Deputy Bruton's amendment. My amendment came about as a result of my discussion with IBEC.
It is restricting the work of the rights commissioners, for whom I have great respect, to allow their intervention only for the purpose of correcting inaccuracies.
Inaccuracies or omissions in the statement, because this is a Bill of information.
The impression was given that we were extending their role, rather than restricting it in this case.
Not from anything I said.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 7, subsection (2) (b) (ii), line 37, after "statement" where it firstly occurs to insert "for the purpose of correcting any inaccuracy or omission in the statement".
Amendment agreed to.
I move amendment No. 13:
In page 7, subsection (2) (d), lines 45 and 46, to delete all words after "circumstances" in line 45 down to the end of the page and in page 8, lines 1 and 2, to delete all words down to and including "1977" in line 2.
This issue deals with the payment of compensation not exceeding four weeks' remuneration. Why should we impose a maximum limit and why should we cap these compensation payments? In this case it might be difficult to conceive a situation where damage could be substantial because it is only a statement of conditions of employment. In principle, if an employee could demonstrate to a rights commissioner that they had suffered damages which exceeded four weeks' remuneration, why should we cap it?
It is normal practice to place an upper limit on the amount of compensation which may be awarded under labour legislation. For example, the Unfair Dismissals (Amendment) Act, 1993, specifically allows for an award of compensation of up to four weeks' pay where no financial loss has been incurred. The Payment of Wages Act, 1991, also provides for compensation, subject to an upper limit, where there has been an unlawful deduction from wages. Therefore, this provision is consistent with provisions in previous labour legislation.
The Minister is saying that in other legislation this is the maximum amount payable if no loss of earnings has been incurred. However, the Minister has not included that provision in this Bill. The Minister is capping the amount of compensation which may be awarded even if the employee is able to establish that he has incurred a substantial loss.
The primary purpose of the Bill is to give information. As the Deputy said when he was talking about this amendment, one does not envisage a situation where there would be a substantial loss of earnings.
I cannot think of one off the top of my head.
I also thought about it when we were discussing the Deputy's amendment and I could not envisage such a situation. We decided to keep it in line with previous legislation. The level of compensation enshrined in the Bill is appropriate, having regard to the purposes for which it is intended. The primary purpose is to ensure that an employee is given an accurate statement of particulars on the terms of employment. The powers of remedy in later sections allow the rights commissioner to confirm all or any of the particulars contained in the statement. I am reasonably satisfied that we have covered any eventual loss which could occur by the four week cap.
Deputy Bruton raised an interesting point. Since the section requires the rights commissioner to be satisfied that any compensation, in all circumstances, is just and equitable, why is it necessary to place a ceiling on it? One could find oneself a serious loser in circumstances where one's job was wrongly described. I have seen the situation being used subsequently for somebody to take a serious diminution in pay because they did not have a job description. At a later stage of their employee/employer relationship the employer seizes on the opportunity to oblige employees to do some other work or to shift them within the employment, and so on. Arising from that there could be a consequent reduction in pay. Because they cannot fall back on precise terms of reference they could lose over quite a prolonged period. So, why not leave the discretion to the rights commissioner requiring him to decide that in all of the circumstances, as the section says, it is just and equitable?
The figure of one month's wages, I feel, has come from the custom and practice of rights commissioners. In my experience of dealing with rights commissioners, when they do find in favour of a worker in a dispute with an employer they usually award very modest sums centred around one month's wages. I wonder if the period of one month came into the Minister's head because this was the general trend of awards made by commissioners in the past and so a pattern emerged which was around one month's wages. It is too much of a coincidence that one month's wages or salary is included in the Bill. It must have been based on custom and practice on the record of awards made by commissioners down through the years.
Deputy Rabbitte, inter alia, spoke about unlawful deduction of an employee’s wages which might occur. If an employee is dissatisfied with his statement he can, there and then, bring it to the rights commissioner. The Payment of Wages Act, 1991, with which the Deputy would be familiar, covered the eventuality of unlawful deduction of wages, and an employee has redress under that Act.
Deputy Kemmy is right — and he has far wider experience in dealing with this than I have — in that there is a general thrust in matters such as this. We have gone along with that in this legislation.
I do not think I said "an unlawful deduction of wages". It is not so much that there would be an unlawful deduction of wages; in industry there can be, and frequently is for whatever reason, a situation where an employee can be changed from the job he or she traditionally did. Arising from that, a reduction in pay can be applied by the employer. The employee often has very little redress in that situation, especially if the statement wrongly describes what the terms of reference of the job are. It is not that there is an unlawful deduction but just that he or she is doing a different job. If the rights commissioner, in this case, felt that there was an omission in the statement given to the person, he would put that omission right under the Minister's amendment. However, a person might have lost a considerable amount of money over a considerable period of time and so it seems to me that the discretion ought to be left to the rights commissioner to weigh the facts of that and make a recommendation.
We are now into the sort of judgmental area of the rights commissioner where we have sought to spancel him in how he views this Bill. Under section 5, if an employee's terms of employment change and if he or she is sent to another section of the firm, or if their work changes, they are entitled to a fresh information sheet about their new requirements and duties. I am inclined to the view that the compensation as allowed for here is more than adequate to meet any circumstances which may arise.
I do not want to prolong the debate unduly but presumably the Minister must have some fear that massive compensation claims could come under this to motivate her to say that it must be capped, because there is a fear that the rights commissioner, in viewing what is just and fair, might award massive compensation claims that would jeopardise the employer's position. There is an onus on the Minister to describe such situations if we are to ask, what would then be the weaker party in most situations, to go to the rights commissioner to accept capping. There must be situations the Minister could indicate to us where the rights commissioner might run riot with this and where we need to protect the employer against excessive claims. I do not know whether there is a statute of limitations on some of these payments but if, over a very long period, some error was made in the statement — or the employer had failed to offer some of the information on rights that should have been made to employees — perhaps at the end of a working life they could discover that they were statute barred from claiming things they might otherwise have laid claim to. There could conceivably be an injustice, with significant losses for employees occurring under this section. Instead of the House seeking to justify why the cap should be removed, perhaps the onus is on the Minister to justify why the cap should be there.
As I said at the outset, Chairman, it is a thrust in many pieces of labour legislation that there is a ceiling, a cap element. When I started talking about this section I spoke about that. We have followed through pretty consistently with the capping section, certainly with the two pieces of legislation that I have been concerned with, the amendment to the Unfair Dismissals Act and this Bill. Interestingly enough, a group who came to see me about this felt that there should be no compensation in this measure at all. That is the same group to which I referred earlier. However, I am not going along with that line. I have put in the four weeks which we think is consistent with other pieces of labour legislation and commensurate with the optimum likelihood of loss.
And provides a sanction?
Yes.
In my experience most workers are not aware of their rights in this area and many employers are not aware of their obligations either. What the Minister has done is to encourage employers' awareness of their obligations. The four weeks is a token — not using that word in an offensive sense — gesture in favour of workers who would be discrimianted against. The case history given by Deputy Rabbitte is true; workers can be discriminated against and have been in the past. When an employer wants to make a worker's life unbearable or difficult he can change the job the worker had been doing and give him a menial or difficult task to perform, hoping that the employee will pack up the job and leave.
This measure is an indication of the Minister's concern to stop exploitation and abuses. With the passage of time we can see if there are more abuses and perhaps the legisation could be amended at some future date. It is a recognition by the Minister that all is not well in this area and is also a sanction against employers who abuse workers in this regard.
The Minister drew our attention to section 5 and the requirement of notification of change. What happens when it is found or the right commissioner finds that the employer did not comply? What is the remedy?
There is a right of further appeal to the tribunal, as is normal in these matters.
If there is a ceiling imposed on the rights commissioner, the Employment Appeals Tribunal could not——
We have agreed that the rights commissioner can only intervene where there is factual misinformation or wrong information given. If the rights commissioner believes that the statement has not been explicit enough or has been wrong in its information, the employee has the right of appeal, as is the case under all labour legislation.
I appreciate that. The Minister drew my attention to section 5 as an explanation of why there ought to be a ceiling. It is due to the requirement imposed in that section on the employer to notify the employee of a change in terms of employment not later than one month after the change takes place. However, what happens when the employer does not do that for three months or six months or for one and a half years? What if the employee takes his case to the rights commissioner and the rights commissioner decides that the employer ought to have so informed the employee? What about compensation? Is it restricted to four weeks?
As the legislation stands it is. I understand your point, but I wonder if we are trying to make this legislation do too much and interfere with areas of other legislation.
The Minister may have a point in that regard. However, Deputy Bruton is not seeking to specify in the amendment what compensation, if any, should be paid. He proposes that the commissioner should decide according to equitable principles, depending on the particular case.
I have followed the debate and it is a fair point. As a point of information, chairman, can amendments be withdrawn and proposed again in the select commmittee?
That is correct, and if the amendments are defeated they can be reentered on Report Stage.
That would give me the opportunity to think further and consult about this matter.
Is Deputy Bruton pressing his amendment?
Like Deputy Rabbitte, I have not been persuaded by the Minister's arguments. I recognise that one can appeal the decision in order to vary the recommendation, although it is not clear from section 8 whether the tribunal in varying the recommendation can set aside the four weeks cap.
That is not clear to me either. We need time to clarify the point.
Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.