I move amendment No. 1:
In page 5, line 18, to delete “other than section 35” and substitute “other than sections 23 and 35”.
Amendment No. 1 is a technical amendment to insert a reference in the new section 23, to be proposed in amendment No. 24, and which provides an amendment to the Workplace Relations Act 2015. This amendment excludes section 23 from the collective citation for the Industrial Relations Acts.
Amendment No. 3 is a technical amendment which adds a definition to the Workplace Relations Act 2015 for the purpose of the Bill. This is necessary as the Workplace Relations Act had not been enacted at the time of the publication of the Industrial Relations Bill 2015.
Deputy Tóibín's amendment, No. 19, seeks to provide an enforcement role for trade union officials. The amendment would also provide for the Minister to make regulations to provide for a right of access to trade union officials to the workplace and employees. It also prohibits an employer from coercing workers to relinquish or abstain from a registered employment agreement, REA. With the indulgence of the Chair I wish to go into some detail in response to the particular proposal.
Deputy Tóibín is absent, but he would probably know that I have seen a more general variation of the proposals and some alternative versions have been submitted to me by the trade union movement. I have had an opportunity recently to reflect on them and to give them detailed consideration. Proposals along those lines do not appear in the Bill, and I will not accept the amendments for the following reasons.
The first point is that the legislation is being introduced because its previous incarnation was struck down by the Supreme Court as unconstitutional on the grounds that the Oireachtas had transferred the law-making powers of the State from itself to external bodies. In the McGowan case in 2013 the Supreme Court referred to “private bodies” being given the power to make laws. This is a point of which we should always be mindful when considering this much-needed legislation. I hope members will agree that inspection, policing and enforcement of laws is as much a core function of the State as the making of those laws in the first place, and to delegate that function to a private, external body, no matter what its standing and regardless of where we might stand personally on the principle raised by the issue under consideration, could be considered to be an abrogation of State responsibility. Even if it could be done under the Constitution it seems to me to be wrong in principle on a number of points. However, such provision would leave the legislation possibly open to legal challenge as regards an employer’s constitutional right not to engage with or to recognise unions. Whether one accepts that or not, this is a consideration that I as Minister am obliged to take very seriously. Having worked with the relevant sectors and actors recently to restore the sectoral frameworks following the McGowan decision in 2013, I am absolutely loath to open the door and to actively invite such a challenge.
Members should be reminded as well that the powers of the National Employment Rights Authority, NERA, inspectors are quite extensive and they include the power to use reasonable force to enter a place of work or a premises reasonably believed to be used in relation to the employment of persons or keeping of records. NERA inspectors have powers to copy records, remove books, documents or records for a period the inspector reasonably considers necessary. Inspectors can, under warrant of the District Court, enter a domestic dwelling with other inspectors or members of the Garda Síochána in pursuit of documents or records. Those extensive powers are rightly and appropriately reserved for officers of the Minister, who are public servants of the State. Ultimately, Deputy Tóibín’s proposed amendments relate to his concerns about possible compliance and enforcement issues.
In respect of REAs, it is clearly a matter for the parties concerned whether they wish to include in the agreement provisions access to the workplace for trade union officials. Sectoral employment orders, SEOs, will operate in sectors that might include large unionised workforces on the one hand and the smallest enterprises on the other, where employees are counted sometimes on the fingers of one hand and where the question of union membership in all likelihood does not arise. The sector may also include workplaces run by employers who insist on exercising their right, regardless of whether we might like it, not to recognise or negotiate with unions. The Bill and the SEOs made under it will have to apply and be enforced in a smooth and even-handed way across every workplace that would be a party to them or subject to their provisions. SEOs may well be enforced in workplaces where there is not an REA and no collective bargaining. It is not the function of an SEO to govern relations between unions and employers, and while there may well be room in a collective agreement for provisions to do with dispute resolution or compliance and monitoring or trade union access to workers, these provisions do not have a role in the context of an order which must be complied with and enforced in every workplace in the relevant sector. I emphasise that SEOs are all about securing minimum sectoral rates of pay. If an employer does not have trade union members in the workforce or if the employer does not recognise the union, the question then arises about how we can oblige the employer, by law, to provide what might be considered to be privileged access to union officials and under the remit of law enforcement.
My final concern relates to the sheer impracticality of the amendment as tabled. The proposals submitted would themselves require a level of policing that would be unachievable, and it would be unreasonable to expect me to make and then enforce regulations about legitimate and illegitimate grounds for access, permissible conversations with staff who are not union members and the reasonable duration of such conversations, and then to construct a legal framework around that to allow for a worker’s pay to be deducted where a trade union official overstays his or her welcome. My question is who would stand there with a stopwatch conducting that particular exercise. The measure is not practical at all. That said, I agree there are legitimate and validly held concerns about the enforcement of sectoral employment orders and they have been raised with me by both sides of industry. A recent submission I received from the Construction Industry Federation points to the importance of ensuring contractors, for example, can tender on a level playing field, and that is what the legislation is all about as well, from the perspective of employers in the construction sector in particular. On the enforcement and compliance piece, in many ways this is not an issue that will go away, so I have to close my mind to any additional responses, whether they be administrative or legislative. I will continue to examine any reasonable approach that may be taken to improve the enforcement of the law in the interests of workers and industry.
Amendment No. 20 provides for an entitlement for a union to represent an employee’s interests under an REA or sectoral employment agreement, including matters involving discipline and grievance procedures. In this regard, section 41(15) of the Workplace Relations Act 2015 already provides that a trade union official can accompany a worker in proceedings before an adjudication officer in relation to a complaint, while section 44(9) of the Act has the same provision in respect of proceedings before the Labour Court. Accordingly, I cannot accept the amendment.
I have dealt with amendment No. 21. Amendments Nos. 22 to 24, inclusive, provide for the enforcement provisions in relation to registered employment agreements and sectoral employment orders. Amendment No. 22 introduces a new section 21 in the Bill which provides for the standard record-keeping requirements. Employers to whom an REA or a sectoral employment order applies will be obliged to keep such records as are necessary to show whether they are compliant with the terms of the REA or SEO. Any employer who fails to keep such records shall be guilty of an offence and liable on summary conviction to a class C fine. In any proceedings before the Workplace Relations Commission, WRC, or the Labour Court, the onus of proving compliance with the record-keeping requirements is on the employer.
It has been necessary to await enactment of the Workplace Relations Act to include enforcement and compliance provisions in relation to REAs and SEOs under this Bill. That was necessary to ensure enforcement and compliance measures are consistent with the measures in the Workplace Relations Act in relation to employment rights compliance and enforcement provisions generally. The Workplace Relations Act has recently been signed into law and my colleague, the Minister, Deputy Bruton, has announced that the Workplace Relations Commission will commence operation on 1 October next. The Act provides for procedures aimed at delivering a world-class workplace relations service which is simple to use, independent, effective, impartial and cost-effective.
Amendment No. 23 provides for the functions of an adjudication office of the WRC and the Labour Court in relation to section 19, which deals with the prohibition on penalisation by an employer of a worker for invoking any right or making a complaint in relation to provisions dealing with SEOs, breaches of an REA, and breaches of an SEO. That is an important point to make. If it is determined that a complaint considered under section 41 of the Workplace Relations Act in relation to the provisions of this Act was well-founded, an adjudication officer shall do one or more of the following: require the employer to comply with the provision in respect of which the complaint relates and, for that purpose, require the employer to take a specified course of action, or require the employer to pay to the worker compensation of such amount as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration.
A decision of the court under section 44 of the Workplace Relations Act, on appeal from a decision of an adjudication officer, shall affirm, vary or set aside the decision of the adjudication officer.
Amendment No. 24 inserts a new section 23 which provides for the necessary amendment to the Workplace Relations Act of 2015 to accommodate the enforcement requirements in respect of registered employment agreements, REAs, and sectoral employment orders, SEOs. These include the addition of provisions relating to complaints concerning victimisation under section 19 of the Bill and breaches of REAs to the list of enactment set down in Part 1 of Schedule 5 of the Workplace Relations Act; and the addition of provisions relating to complaints for breaches of a sectoral employment order to the list in Part 2 of Schedule 5.
In addition, new inspection powers given to the National Employment Rights Authority, NERA, under the Workplace Relations Act 2015 will be extended to the provisions of Part 2 of this Bill, that is, the REAs and the SEOs section. In this context, section 27 of the Workplace Relations Act 2015 restates and consolidates all of the functions and powers of NERA inspectors in one location, having regard to current best practice and developments in case law. The powers of inspectors are supported by criminal sanctions provided to ensure that inspectors can carry out their duties without hindrance or obstruction and it will be an offence to obstruct, mislead or provide false information or documents to an inspector or to fail to follow a lawful requirement of an inspector.
Amendments proposed to Schedule 6 of the Workplace Act 2015 provide the necessary redress provisions on decisions of adjudication officers of the Workplace Relations Commission and decisions of the Labour Court.
Amendment No. 29 is a technical amendment to the Long Title of the Bill to insert a reference to amending the Workplace Relations Act 2015, as the new section 23 of the Bill provides for amendments to the Workplace Relations Act 2015.