I propose that the House suspend for five minutes.
Workplace Relations Bill 2014: Report Stage (Resumed) and Final Stage
Is that agreed?
Agreed.
Sitting suspended at 4.10 p.m. and resumed at 4.15 p.m.
Debate resumed on amendment No. 14:
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.”.
- (Deputy Peadar Tóibín)
The purpose of this amendment is to pierce the corporate veil. There is a major difficulty in society whereby companies are created to defend moneys or individuals in their responsibilities to employees. For example, I know of local authorities that have tendering processes for waste disposal services whereby one company applies for the contract, that is, the company with the assets, while another company employs the individuals. Thereafter, company B, the company that employs the individuals, goes to the Labour Relations Commission to seek a reduction in wages, claiming its financial health is not good enough to pay the employees the wage rates at which they were employed, yet the company in good financial health is the one that holds the tender. The amendment is an effort to pierce the corporate veil, the paper wall behind which individuals and corporations can hide from their responsibilities.
Amendment No. 14 is not appropriate as section 7(2) provides for the criminal liability of certain persons connected with a body corporate in certain circumstances in the case of offences under the Bill. Extending liability for the debts of a solvent company through the officers of a company would, I am advised by the Attorney General, be constitutionally suspect and represent a major departure in company law. The overriding principle of company law is that a director’s duties are owed to the company, 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 or financial institutions or on a director versus director basis.
Liability may arise from lack of care and skill in the performance of a director’s duties, negligent advice or misstatement, any act which goes beyond the limits of the company’s constitution such as extensive borrowing, unauthorised payments, a failure to disclose the full extent of the director’s interests or a failure to comply with requirements that may involve a director or an officer in a personal liability. Company law penalties vary from restriction or disqualification orders to fines and periods of imprisonment.
The Companies Bill 2012 provides for a four-tier categorisation of most offences, with the exception of fraudulent trading and market abuse. The Bill also contains a new provision in section 872 whereby, following conviction for an offence under the companies Act, the trial judge may order that the convicted person should remedy any breach of the companies Act with which he or she was connected.
In effect, the provision of the Companies Bill is more constitutionally robust rewording of section 3(8)(iii) of the 1963 Act, as amended in 2001. From a company law perspective, the proposed amendment challenges the entire principle of company law. If it were to be implemented, the doctrine of separate legal personality would become an exception rather than the rule. Having regard to the foregoing, I am not going to accept this amendment. In the Seanad I will be introducing an amendment to make it an offence to refuse to pay unless the respondent can show he or she is not in a position to pay. Prosecution is also possible under section 7 for conniving. This series of powers and offences goes some of the way, if not all of the way, to meeting the Deputy's concerns.
Amendment put and declared lost.
I move amendment No. 15:
In page 30, line 35, after “offence” to insert “and for the purpose of the performance of the Commissions functions”.
There are concerns that this Bill will restrict the use the Workplace Relations Commission, WRC, can make of information to the purpose only of detection, investigation or prosecution of an offence. Organisations like ICTU, for example, believe it will be too restrictive. This amendment also goes some way towards dealing with the discovery deficit within the Bill.
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 Deputy's proposed amendment to subsection 3 is inappropriate, as it is inconsistent with the section taken as a whole. The Deputy is seeking to amend section 32, the disclosure of information relating to offences to other bodies. He is seeking to go beyond using the information for an offence, which is a legitimate grounds for sharing information, to have a very wide dispersion of information for any purpose. That goes beyond the provisions of privacy within which the information is provided to various bodies. This is going well beyond what is envisaged by this section and it is not something I could support. We are ensuring that information that could assist in the prosecution of an offence is shared. That is the purpose of the section.
Amendment put and declared lost.
I move amendment No. 16:
In page 31, line 4, after “contract” to insert “(and the sub-contracting chain)”.
As the Minister should be aware at this stage, many aspects of the construction industry in this State are broken. There is wholescale migration from direct employment towards relevant contracts tax, RCTs, in an effort by construction companies to gain a competitive advantage with regard to the lack of a minimum wage and pay and conditions that often go with RCTs. This amendment would go some way towards dealing with these issues. I have raised the Kishoge issue with the Minister a number of times. Subcontracting chains are part of the reality of the delivery of contracts in this State and we are in effect extending the liability beyond the principal contractor, with whom the public contracting authority has entered into the contract, with regard to subcontracts. In addition, the contracting authority should be empowered to exclude from the tendering process employers who are seriously or repeatedly in breach of employment rights. This amendment is in line with provisions within the new public procurement directives on the award of concession contracts. These directives provide for joint and several liability. This is an effort to bring this legislation into line with that.
I agree with Deputy Tóibín. I spent my life in the construction industry and sadly the behaviour of many companies leaves much to be desired. There are some powerful companies that never put a foot wrong; they play by the rules and do things well. It is unfair to these companies that others can flout the rules on a regular basis and still manage to get very big contracts, including from the State. I have not examined how Deputy Tóibín has framed it, but I support tighter regulation around anyone who has the audacity to flout the system in this way or in any way related to employment. The idea that they could tender for another State job and be able to get it is unfair to all the contractors that play by the rules.
Deputy Tóibín's amendment seeks to ensure that where the National Employment Rights Authority, NERA, identifies non-compliance with employment legislation, that information would be brought to the attention of the contracting body, which would be a public body, like a council, in respect of the main contractor. He proposes that this would be extended also to subcontractors, in respect of which NERA found some non-compliance. There is some merit in what Deputy Tóibín is putting forward and although I am not disposed to accept this specific amendment, because the drafting is not quite right, I will go back to the Office of the Parliamentary Counsel, OPC, and seek to introduce an amendment in the Seanad that meets this valid concern.
I thank the Minister for proposing to do that on in the Seanad. The logic is very clear. The rights of a worker on a site who is employed by a subcontractor rather than the principal contractor should not be any different from someone employed by a principal contractor. If we do not do that, we are saying that employing a subcontractor, and thereby diffusing responsibility, gives the principal contractor a competitive advantage. I withdraw the amendment in light of that information.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 33, line 9, to delete “42 days” and substitute “28 days”.
This amendment has already been discussed with amendment No. 12.
Amendment put and declared lost.
Amendments Nos. 18 and 19 are logical alternatives and will be discussed together.
I move amendment No. 18:
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”.
The maximum penalty should be at least €4,000. Revenue applies a figure of €4,000 in similar situations. This should help to deal with vexatious employers who seek to delay compliance. In Britain we have seen new legislation similar to this, which allows for a fine of £20,000 to deal with non-payment of the national minimum wage. We acknowledge the constitutional argument, but the bottom line is that lack of compliance with the National Minimum Wage Act undermines good business.
Low pay results in poverty and a transfer of wealth to those who have from those who have not. The proposed maximum fine of €2,000 is not an adequate deterrent and if we do not have an adequate deterrent then behaviour will not change. In many cases it will be worth the employer's while and he will save money by not complying and, even if he gets a fine, he is still quids-in. If the Government intends to stick to the constitutional argument for maintaining a low penalty payment, the Minister should consider increasing the fines administered by the courts instead.
My comments are on the same theme. The idea of imposing a fine on an employer of €2,000 for paying below the minimum wage is almost an enticement for him to try it. He need only get away with it for ten weeks and then it is already paid off and every week that he gets away with it after that is a bonus.
I assure the Minister that having worked not only in the construction industry but the restaurant industry as well I know that there are employers who pay below the minimum wage and it is rather difficult to compete with them. Certainly, the State is keen to create a fair playing field but if the Government wants to do that it should make it unattractive for people to cheat.
In recent months workers have come to me and told me they have been getting paid less than the minimum wage to put in water meters. These were subcontractors. We have a major problem in this area. The general contractor employs the subcontractor and only deals directly with the subcontractor. We have a weakness in this area because we do not oblige the contractor to oversee what the subcontractor does. This should be examined, especially in cases of work given out by the State. A subcontractor who misbehaves should not get work from a contractor who is getting work from the State.
Likewise, we have taken on people in the wine bars. I assure the Minister that some of those who have come to us were not getting the proper rate. Naturally, they were paying no tax. They were simply getting paid €5 or €6 into their hands. We asked them for their P60 forms but they did not have them. I asked how long they had been working in the country and where they had worked last. They said they had worked in such and such a place but had not been registered.
We are trying to sell at a competitive rate against such businesses and sometimes we are close to them. We are dealing with the same customers. I assure the Minister that we do not act in this way, but we are being asked to compete with them and that is not fair. There should be far tighter regulation to ensure that this does not happen, regardless of the sector. I know that this is happening. We are not looking for a nanny State and I realise it is not easy for the State to have its finger in all these areas, but we have the potential to tighten things up a little. We could impose a far larger fine. That is only one aspect of it.
Some employers pay less than the minimum wage. That is different from employing people who are not registered at all. In that area alone a fine of €2,000 is not going to stop them. They only have to get away with it for ten weeks and then everything is a bonus after that. If they are caught, they may decide to pay the €2,000 fine but they will have made money on it and they will have got away with it.
It would be better if the State took a far stronger position. The British have introduced a £20,000 fine for the same thing. Let us consider all the legislation introduced in the past 15 years in Ireland. We are inclined to do what the British do in many cases. We should do what they have done in this case as well.
The debate may be going off on the wrong tack somewhat. The fixed payment notice is not for non-payment of the minimum wage. The case of an employer who is found not to have paid the minimum wage will be prosecuted as a criminal offence and the worker will have rights in respect of the wages he was due.
The fixed payment notices are for more minor offences and they are to be issued by the inspector. They are instruments under several provisions, in particular, section 11 of the Protection of Employment Act, which provides a requirement on an employer to consult with employees and the Minister in respect of collective redundancies. They may also be issued under the Payment of Wages Act, which requires the provision of a payslip. This Act refers to the employer's obligation to provide an employee with a written statement of his average hourly rate of pay. These more minor offences are dealt with by a fixed payment notice under a summary procedure that is carried out by the inspector. The inspector can issue the notice. Then, when it is paid the requirement is met.
The cases that the Deputies have described, in which employers have systematically failed to pay the minimum wage, are offences and would be prosecuted. However, I do not believe it would be appropriate to have an inspector effectively making an adjudication and imposing a €20,000 fine for these offences. Under our system, the jurisdiction to make such decisions lies with the administration of justice, as set out in the Constitution. Those functions are the reserve of the courts. That is the backdrop to the issue. The €2,000 fine is for more minor offences, somewhat like issuing a traffic ticket. That is the category we are dealing with. The type of cases the Deputies have described would be pursued as criminal offences.
Are your concerns allayed, Deputy?
Some of them have been. I have probably misinterpreted the Minister somewhat. The Minister has said that this covers the non-production of a payslip. That would not catch the employer who has not registered an individual. There is not a vast amount of that in the construction industry but there is a fair amount in the restaurant sector. In that sector many people are not registered and get paid below the minimum wage. The amendment would catch them.
There is a perfectly good reason for not producing a payslip. Years ago there was some excuse for people starting off. Some people started companies but did not know how to do things properly and they were disorganised. However, those days are behind us and the excuse of disorganisation is long gone. If an employer does not give an employee a payslip today, there is a good reason for it. More than likely, the employer is breaking the rules in some way. That is not rocket science. This measure could catch the employer who is not paying his staff properly or providing payslips. If he is not doing things properly and he gives his staff payslips then he will be exposed. If an employer is paying less than the minimum wage he could not possibly produce a payslip. In that case, the employee would have paperwork that could damage the employer and, therefore, the employer would have no wish to give an employee concrete evidence on paper. This is why he would not give the employee a payslip and would decide to pay in cash instead.
The restaurant industry would be stronger if everyone had to issue payslips and no one could pay people under the table. We would all be playing on a more level playing field. The State would be better off as well because it would take in more funds. I remain convinced that a fine of €2,000 to cover the non-issuing of payslips is insufficient. The penalty should be more severe.
Deputy Tóibín, are you pressing amendment No. 18?
I seek to press the amendment.
Do I have two minutes to respond to Deputies Tóibín and Wallace?
Sorry, Minister. You do.
If one is providing for a penalty for not providing a payslip, one cannot infer that there is another much greater offence occurring, which is essentially what the Deputy is saying. He is saying that if we catch someone for failing to issue a payslip, he or she is guilty of something much more grave. I do not think we can make such an assumption. We would have to produce the evidence to show that the employer was guilty of the bigger crime, namely, the non-payment of the minimum wage.
As the proposer of the amendment, Deputy Mick Wallace may speak again.
I thank the Acting Chairman. Her flexibility is to be admired
I expect brownie points somewhere along the line.
The Minister is saying it is unfair to assume someone who has not produced a payslip is automatically cheating rather than being negligent in his or her affairs. How does the Minister propose to deal with the guy who deliberately did not produce a payslip because he was paying staff under the table and not paying them the full rate? Is there anything in the Bill to deal with him in an active way?
I know that I am not entitled to speak again, but one prosecutes such persons under the national minimum wage legislation. The legislation is in place to allow prosecution for non-payment. This simply is a fixed-notice penalty for a particular minor infringement. Clearly, if NERA detects that it does not just involve a minor infringement, that it is the tip of a much greater iceberg, it will investigate and prosecute.
Very slowly.
My argument is that legislation enabling such prosecutions is in place and that NERA has the ability to prosecute, but it is not working and the Minister must take my word for it. I have seen too many guys who came from other restaurants and who were not registered and employers are getting away with it. There is a problem with the system. Will the Bill address that problem in any way?
The Minister said that perhaps the guy might have made a simple mistake. If the Minister was to introduce a fixed penalty of €5,000, for example, and also included an appeals system, the guy who was genuinely paying the proper wage and could prove it would be able to appeal against the imposition of the fine and would not be done unfairly. There is something wrong if the rules do not ensure things work properly. They are not. There are lots of people working in the black economy. It would be foolish to deny that we have a problem. If this Bill can help and an appeals system can be built into the process, that will be positive move on the part of the State.
The Deputy has made his point.
Amendment put: The Dáil divided: Tá, 30; Níl, 93.TáNílAdams, Gerry.
The Dáil divided: Tá, 30; Níl, 93.
Tá
- Adams, Gerry.
- Broughan, Thomas P.
- Collins, Joan.
- Colreavy, Michael.
- Coppinger, Ruth.
- Creighton, Lucinda.
- Crowe, Seán.
- Daly, Clare.
- Doherty, Pearse.
- Ferris, Martin.
- Fitzmaurice, Michael.
- Flanagan, Terence.
- Healy, Seamus.
- Higgins, Joe.
- McDonald, Mary Lou.
- McLellan, Sandra.
- Mathews, Peter.
- Murphy, Catherine.
- Murphy, Paul.
- Naughten, Denis.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Sullivan, Maureen.
- Pringle, Thomas.
- Ross, Shane.
- Shortall, Róisín.
- Stanley, Brian.
- Tóibín, Peadar.
- Wallace, Mick.
Níl
- Barry, Tom.
- Breen, Pat.
- Bruton, Richard.
- Buttimer, Jerry.
- Byrne, Eric.
- Calleary, Dara.
- Cannon, Ciarán.
- Carey, Joe.
- Coffey, Paudie.
- Collins, Áine.
- Collins, Niall.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Cowen, Barry.
- Creed, Michael.
- Daly, Jim.
- Deasy, John.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dooley, Timmy.
- Dowds, Robert.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frank.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Fleming, Sean.
- Gilmore, Eamon.
- Griffin, Brendan.
- Harris, Simon.
- Hayes, Tom.
- Heydon, Martin.
- Howlin, Brendan.
- Humphreys, Heather.
- Keating, Derek.
- Keaveney, Colm.
- Kehoe, Paul.
- Kelleher, Billy.
- Kenny, Seán.
- Kitt, Michael P.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- Lynch, Kathleen.
- Lyons, John.
- McCarthy, Michael.
- McConalogue, Charlie.
- McEntee, Helen.
- McFadden, Gabrielle.
- McGinley, Dinny.
- McGrath, Mattie.
- McGrath, Michael.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Martin, Micheál.
- Mitchell, Olivia.
- Mitchell O'Connor, Mary.
- Moynihan, Michael.
- Mulherin, Michelle.
- Murphy, Dara.
- Murphy, Eoghan.
- Nash, Gerald.
- Neville, Dan.
- Ó Fearghaíl, Seán.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Dowd, Fergus.
- O'Mahony, John.
- O'Reilly, Joe.
- Perry, John.
- Phelan, John Paul.
- Quinn, Ruairí.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Smith, Brendan.
- Stagg, Emmet.
- Stanton, David.
- Troy, Robert.
- Tuffy, Joanna.
- Twomey, Liam.
- Wall, Jack.
- Walsh, Brian.
Tellers: Tá, Deputies Mick Wallace and Peadar Tóibín; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
I move amendment No. 19:
In page 33, line 11, after "€2,000," to insert the following:
"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,".
Amendment put and declared lost.
I move amendment No. 20:
In page 33, line 15, to delete “42 days” and substitute “28 days”.
Amendment put and declared lost.
I move amendment No. 21:
In page 33, line 19, to delete “42 days” and substitute “28 days”.
Amendment put and declared lost.
I move amendment No. 22:
In page 35, line 5, after “dispute” to insert “, but only by teleconference in exceptional circumstances and when agreed to by the complainant”.
Again, this is a very simple amendment. We feel the Bill can provide too much latitude with regard to the procedure to be adopted in the mediation, and some of this is that people can actually use teleconferencing. In our view, this should only be used in exceptional circumstances, for example, if someone is living outside the State, and it should not be used in the normal run of things. That is what this amendment seeks to resolve.
I believe the Deputy is trying to be too prescriptive about the mediation. The truth is that the consent of both parties is always required so, for this to happen, both parties must always consent to the procedure. Our approach is not to be too prescriptive in setting out the procedure because they are protected by the fact that both parties must consent. Because they both must consent, the Deputy's amendment is superfluous and I am not disposed to accept it.
Amendment put and declared lost.
Amendment No. 23, in the name of Deputy Tóibín, and amendments Nos. 24 and 27, in the name of Deputy Wallace, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 23:
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.”.
It has been brought to our attention on a number of occasions that many cases do not get started on the first day. One of the reasons for this is that the relevant documentation is not available. This measure would obviously make that documentation available and would provide for discovery. It would also reduce the cost to the State with regard to lost time and unnecessary delays in case progression. It is a simple amendment that seeks to solve that problem.
My point is the same as Deputy Tóibín's. It would make sense and avoid a waste of time, so it seems a logical resolution. The amendment makes sense.
The purpose of mediation is to try to find a resolution without having to go to adjudication. It is set up in a way that the confidentiality of both parties is protected and whatever is said at mediation cannot be used at an adjudication. It is a protected arena in which people come together and try to find a solution without, if one likes, the fear that any documentation they produce can then be subsequently used in adjudication. That is what it is. It is to try to find a solution without going down the other route, and it is protected.
I think what the Deputies are trying to do is to provide that an officer would direct either party in a dispute which is the subject of mediation to produce documentation and evidence to the other party, which the party intends to rely upon in regard to the respective cases. It is actually defeating the mode of operation of the mediation approach and that is why I am not disposed to accept it. If it does go to adjudication, the power of subpoena for such documentation is open at that stage to the adjudication process. These are two different processes. I think what the Deputies are trying to do is put something from one into the other, which would defeat the purpose.
Amendment put and declared lost.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 36, between lines 17 and 18, to insert the following:
“(3) A complainant may, in proceedings before a mediation officer in respect of a complaint presented, or dispute reverted by an adjudication officer, by the complainant under this Part, be accompanied and represented by—
(a) a trade union official within the meaning of section 11 of the Act of 1990,
(b) an official of a body in respect of which the mediation officer, is satisfied represents the interests of employers,
(c) a practising barrister or practising solicitor,
(d) in the case of a complainant who is less than 18 years of age, the complainant’s parent or guardian in addition to a person specified in paragraph (a), (b) or (c), and
(e) any other person with the permission of the mediation officer, as may be appropriate.”.
Again, it is unclear if the right to be represented is applicable in mediation. Just to make sure it is clear, we have inserted this amendment, which ensures it is applicable.
Mediation is an informal and voluntary process. It is better that the Bill remain silent on the question of representation at mediation and leave it to the skill and experience of the mediator to manage the process. Either party may withdraw from the mediation process at any time. We do not want to create a legalistic process or necessarily require joint sessions to be held, or to create this paraphernalia around the mediation process. That is why the Bill seeks to remain silent and seeks to use the experience of the mediator to find solutions, but in the knowledge that anyone can always have a person who represents them and that anyone can withdraw from the process at any stage. We are not being prescriptive and I believe that is the correct approach. I am not disposed to accept the amendment.
Amendment put and declared lost.
I move amendment No. 26:
In page 36, to delete lines 36 to 38 and substitute the following:
"(6) The terms of a resolution consequent upon a mediation conference under this section shall be binding on the parties and if either party contravenes any such term, in whole or in part, to the terms of the resolution then on an application for enforcement the District Court may make an order directing that person to carry out those terms, or as the case may be the terms to which the application relates; but the District Court shall not by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than mediation) could not have been provided for.”.
There is concern that when an employer reneges on a mediated settlement, an employee will have to take a costly breach of contract action through the civil courts. This amendment seeks to ensure that mediated settlements are enforced in the same manner as adjudicated Labour Court decisions are enforced. This is already the case under section 91 of the Employment Equality Acts, which the Government is seeking to repeal in this legislation.
There is some merit in what the Deputy is suggesting. The Office of the Parliamentary Counsel has requested my Department to consult with the Courts Service and the President of the District Court in regard to this amendment. The wording of the amendment, as proposed, requires some further modification and I will consider putting forward an amended version of the wording by way of amendment on Committee Stage in the Seanad and following consultation with the Courts Service and the President of the District Court. There is an issue to be resolved to make sure that the District Court is in a position to take what we agree would be a good approach. If the Deputy is happy, I will come back in the Seanad and seek to do something along these lines.
Go raibh maith agat. On the basis that the Minister has committed to trying to resolve the problem at the centre of the amendment, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 27 not moved.
I move amendment No. 28:
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.”.
The Equality Rights Alliance has raised a number of concerns with regard to the legislation. As the Minister knows, not all of the employment cases before the Workplace Relations Commission will fall into one specific area, and I understand ICTU has also raised concerns on this. For example, a case dealing with a breach of employment may also include a discrimination dimension. The Equality Tribunal does not operate like an ordinary court in that it investigates cases.
Equality officers will have wide reaching powers, such as the power to compel witnesses. These cases are not reliant on legal arguments as presented by a complainant or respondent. Cases of discrimination are unique in that the burden of proof passes to the respondent once the complainant has made the prima facie case of discrimination. In short, there is concern that future adjudication officers will not be adequately trained to deal with the equal status cases.
The proposed amendment is not appropriate. The new workplace relations commission, WRC, will operate to the highest standards and appropriate and comprehensive training will be provided to all officers of the commissioner, including the adjudication officers. The workplace relations adjudication service will consist of a diverse group of adjudicators, comprising experienced industrial relations and HR practitioners, employment lawyers and civil servants with appropriate skills and experience.
On the establishment of the WRC, the current cohort of equality officers and rights commissioners will be appointed as WRC adjudicators. These will be supplemented by a panel of external adjudicators appointed by the Minister. I have decided that the external panel of adjudicators will be appointed from three different streams, a legal stream, a HR stream and an IR stream, with equal numbers being appointed from each. The Public Appointments Service, PAS, undertook and completed a selection process in December 2014 for the external panel of the WRC adjudicators and has forwarded a list to me of individuals considered suitable for appointment to the panel.
All successful applicants will be required to undergo an accredited adjudicator training programme, to be delivered by the National College of Ireland, which commenced on 16 January 2015. The programme will run for 20 days, until the end of March. There will then be an examination and assessment and only those who successfully complete the programme and pass the assessment will be formally appointed as WRC adjudicators and assigned cases. While it is essential that the adjudication officers of the workplace relations commission are appropriately and well trained, the question of the content of training to be provided to them is an operational matter for the commission and not a matter appropriately included in primary legislation. Therefore, I am not willing to agree to the amendment.
I have the modules of the courses and they deal with all the relevant issues. We will also retain the experience of equality officers within the service. Therefore, I believe the way we are tackling this will provide adequate capacity to deal with cases.
Amendment put and declared lost.
Amendment No. 29 not moved.
Amendments Nos. 30 and 31 are related and will be discussed together.
I move amendment No. 30:
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,”.
This goes back to the point I made earlier, that not all the cases that will be heard by the commission will fall neatly into the one area. For example, a breach in employment law may also have a discrimination element to it. How will an adjudicating officer determine an equality claim where there are parallel legislative powers under section 79 of the Employment Equality Act and then proceed to hear other aspects of the case where they have no similar powers?
Similarly, section 95 of the Employment Equality Act provides equality officers and the director of the Equality Tribunal with the power to compel witnesses. Again, this legislation does not allow for employment law breaches.
The Employment Equality Acts and the Equal Status Act 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 provision of section 41. Section 41 does not apply directly to employment equality and equal status cases. Rather, sections 84 and 85 amend the Employment Equality and Equal Status Acts and make them consistent with the provisions of section 41. There is no merit in requiring a separate hearing of equality cases from other employment matters which may be in dispute between an employer and employee. Therefore I will not accept these amendments.
The purpose of this Bill is to have a single hearing, which is what we seek to provide for. The criticism of the old procedure was that because there were different sections, there could be different hearings around the same incident. What we are trying to do is avoid that complexity by having a single hearing that deals with the issues in a comprehensive manner. What the Deputy proposes is not consistent with that aim.
Amendment put and declared lost.
I move amendment No. 31:
In page 39, between lines 21 and 22, to insert the following:
“(iii) in relation to the disposal of goods and provision of services and the disposal of premises and provision of accommodation as set out in the Act of 2000,”.
Amendment put and declared lost.
I move amendment No. 32:
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.”.
This is a simple amendment providing that where the claimant and respondent agree, the adjudication officer may revert the dispute for mediation by a mediation officer. This provides flexibility within the system, whereby both parties can agree and revert to mediation.
In principle, there is some merit in facilitating that where after an adjudication has started and where both agree that the parties return to mediation. We need to do some more work to see if this is possible. I am disposed to do something on this and will look at the possibility of an amendment in the Seanad to accommodate the Deputy's proposal.
Amendment, by leave, withdrawn.
Amendments Nos. 33 to 36, inclusive, are related and will be discussed together.
I move amendment No. 33:
In page 39, line 26, to delete “6 months” and substitute “2 years”.
This amendment proposes to delete the words "6 months" and substitute "2 years". We seek to extend the length of time for which a complaint can be submitted, from the date of contravention. This would allow the legislation capture more of these circumstances. Where there are difficulties in the workplace, there may be a raft of reasons individuals do not submit their complaint immediately. We should not close the door too tight against those individuals and should broaden the term for bringing a complaint. All we seek to do is to enable the capture of situations of wrongdoing or difficulties, which is surely the purpose of the legislation.
Read together, subsections (5) and (7) of section 42 provide that the standard limitation period for bringing a complaint under employment and equality legislation will be six months from the relevant date, extendible by a further six months by an adjudication officer where the complainant has demonstrated reasonable cause for his or her delay in initiating the complaint.
The Deputy's proposed limitation period of two years with an additional six months extension would be unworkable from a practical point of view. It would be inconsistent with the key principle running through the reforms the Bill seeks to achieve, namely, the resolution of employment-related complaints and disputes as close to the workplace as possible and at the earliest date. A period of two years within which to refer a complaint to the WRC would be unnecessarily long and unreasonable. Such a proposal would also be inconsistent with employment legislation in other EU member states and, therefore, I am not willing to accept the amendment.
Amendment put and declared lost.
Amendments Nos. 34 to 36, inclusive, not moved.
Amendment Nos. 37 and 45 are cognate and will be discussed together.
I move amendment No. 37:
In page 41, line 4, to delete "public." and substitute the following:
"public save:
(a) where the Labour Court considers it appropriate to hear the matter otherwise than in public; or
(b) where both of the parties agree that it shall be heard in private.".
The legislation provides that cases would automatically be heard in private. If both parties agree the case should be heard in private, that is fine but unless both want it in private-----
I accept what the Deputy is saying. The default setting will be in public. He has correctly identified a weakness in the legislation. My intention is that the hearings will be in public and they will only be in private where there is a compelling reason. I accept this needs to be amended and I will do so in the Seanad.
Amendment, by leave, withdrawn.
I move amendment No. 38:
In page 41, line 8, after "section" to insert the following:
"and shall keep a register of all decisions available for inspection for such fee as shall be determined by the Minister".
I have lost my notes on this.
I am sure the Minister has notes and can respond.
The Deputy's proposal is inappropriate having regard to the requirement on the commission to publish every decision of an adjudication officer on the Internet. It would be an unnecessary administrative and financial burden on the commissioner to maintain a physical register of decisions in addition to requiring the publication of decisions on the Internet. The current provision is adequate.
If somebody wants to avail of the information at a later date, can he or she do so under the Freedom of Information Acts?
The decisions will be public.
Will there be a problem accessing the information?
No, they will be public records.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
I move amendment No. 40:
In page 41, to delete lines 25 to 27 and substitute the following:
"(13) The Minister may, by regulations, make provision in relation to any matter relating to the presentation of a complaint, referral of a dispute or conduct of proceedings under this section that he or she considers appropriate. Without prejudice to the foregoing the Minister may—
(a) in consultation with the Chairman of the Labour Court make such regulations relating to representatives of a complainant or a respondent to include the terms of engagement but not limited to contingency fees or percentage fees, evidence of indemnity insurance of a minimum figure as specified by the Minister per complainant or respondent represented and as to the standard of conduct of such representative or representatives in cases before an adjudication officer or the Labour Court and such other matters as he or she in consultation with the Chairman of the Labour Court considers appropriate,
(b) without prejudice to paragraph (a) the provision of paragraph (a) shall not apply to a counsel or solicitor or trade union or employer representative body having a negotiating licence not to any person, body or entity not providing their services for gain or profit.
(14) The chairman of the Labour Court may on his or her own volition or having received a complaint from an adjudicating officer may refer any counsel or solicitor to such regulatory body responsible for regulating any counsel or solicitor if the Chairman of the Labour Court considers it appropriate. In respect of any other body or entity the Chairman may issue an admonishment either in private or by doing so in public to include a statement on the internet in respect of any matters the Chairman considers breached any provision of any regulation made by the Minister.
(15) Any regulation made by the Minister shall include a procedure for a complaint against any representative of a complainant of representative being made, heard and adjudicated upon.".
The Deputy's proposal is not appropriate. The professional terms of engagement between parties and their professional representatives is primarily a matter of contract. Professional representatives such as lawyers are subject to statutory regulation and/or guidelines issued by their professional associations. Such professionals are also subject to the oversight of those associations in the event of a disciplinary matter arising. It would be inappropriate for the Chairman of the Labour Court to prejudge the outcome of any such disciplinary process. It is not within the scope of the Bill to provide for the regulation of professional representatives, legal or otherwise, who hold themselves out as suitably qualified or experienced in the areas of industrial relations, human resources, employment law, etc. I will, therefore, not accept the amendment.
We do not intend that people be obliged to have a lawyer. We are not regulating representatives or making provision for awards of costs. What the Deputy is seeking is not appropriate under the legislation given people could represent themselves and the issue of their relationship with someone they choose to bring as a representative will not be adjudicated on by the Labour Court.
While counsel and solicitors are regulated by a regulatory body and will in the future be regulated under the Legal Services Bill when enacted, other representatives for gain, in particular, are unregulated. They are entitled to charge percentage and contingency fees, which is illegal for a solicitor. They do not have to have indemnity insurance, yet many of them advertise that they provide legal services. It is important that these entities be regulated. There are many non-legal entities by which it is meant non-solicitors or counsel, trade unions or employer representative bodies with a negotiating licence that provide an excellent service. Many do not claim to be in some way legally qualified or to provide legal services and many have insurance. A world class service requires that those who are providing services for gain should be in some way regulated in order that minimum standards would be expected. This would be a protection for employers and employees and it would mean that they would know that where they pay for a service to be represented, the representative would have to meet a minimum standard.
The Deputy is making an argument for statutory regulation of professional representatives but the legislation deals with the Labour Court adjudicating on cases brought before it. The cases can be brought by individuals, their trade union official or, if they choose, a lawyer but it is not appropriate that the court would seek to introduce regulatory standards in respect of various professions that might hold themselves out to assist people in presenting their case. It is not reasonable to expect the court to provide the regulatory environment for all the potential advisers that might offer their services. This is not appropriate to this Bill. I am not sure it is appropriate anyhow to adopt such an approach but it is unreasonable to expect the Labour Court to set up a regulatory structure of that nature for barristers, solicitors, trade union officials and so on when people can representative themselves. They are regulated by their trade union or professional body and that is a reasonable approach.
People could be regulated by their own body but they may not necessarily be fit to represent someone in one of these cases, even though they might present themselves as being able to do so. If individuals choose to represent themselves, that is fine but professionals could say they will look after them and it will only cost so much where many of those making appeals do not understand much about the law or regulation and their entitlements. Some people are naive and they may employ professionals who might not be fit to represent them and agree to pay them. I accept the Minister's comment that where people can represent themselves, we cannot introduce such a regulation but, generally, the employee will be in a vulnerable position, more so than the employer.
More often than not, anyone looking for money from a financial institution can be in a vulnerable position. The person is in a weaker place than the institution as it is the one with the money and the one who knows the game. The guy going in is trying to start a business or invest in something. He is not always on a stronger footing than the guy across the table with whom he is dealing.
Likewise, many employees might not be quite as strong and know as much as they should about how they should go about presenting the best case. Can the Minister envisage a scenario where people out there may say "oh, I'll sort that for you but it will cost you this much."? Would it close off that possible weakness?
Strictly speaking, the debate on this amendment is ended as Deputy Wallace has made his third contribution. It is possible that I missed Deputy Clare Daly indicating so I will give her one minute.
There is a certain validity in what the Minister has said. We are dealing with how workers enforce their legal employment rights but it is a legal process that should be accessible. I would be somebody who has often gone into the Labour Court representing people even though I do not have any professional qualifications per se other than what I learned on the shop floor and a certain knowledge. That accessibility needs to be protected.
However, we need to address people promoting themselves as representatives and legal experts, being unregulated, purporting to represent workers' rights and not being able to do so. Sometimes people have been very badly let down by their unions or representatives and have no right to recourse. Perhaps the Minister is saying that this is not the Bill in which that very valid concern can be addressed but I hope that he would recognise that it is a valid concern. Workers certainly have recall over their representative if it is a solicitor but they need to be able to do it with a union representative or somebody posing as a legal expert. That type of regulation needs to be there.
Is Deputy Wallace pressing the amendment?
Yes.
Amendment put and declared lost.
I move amendment No. 41:
In page 41, between lines 36 and 37, to insert the following:
"(c) for the avoidance of doubt a specified person shall include a barrister, solicitor, trade union or employer representative body having a negotiating licence.
Does the Minister wish to speak on this amendment?
I just think it is unnecessary in view of what is already there at (a) and (b).
Amendment put and declared lost.
Amendments Nos. 42 and 43 not moved.
I move amendment No. 44:
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.
We are simply seeking to remove the proposed cap on re-engagement and reinstatement introduced by the Government. This provision is a significant step back for equality rights and is in breach of the EU equality directive in Article 18 on compensation or reparation.
The Deputy's proposed amendment is inappropriate as it would have the effect of 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 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 that 104 weeks is the maximum under an unfair dismissal case. That is the maximum that an adjudication officer can award. What the Deputy is seeking to do is to allow the District Court without retrying the case to award more than that. That is where it would fall foul of the Constitution.
Amendment put and declared lost.
Amendment No. 45 not moved.
I move amendment No. 46:
In page 44, between lines 11 and 12, to insert the following:
"(14) The Labour Court may remit a case to a different adjudication officer on such terms as the Labour Court shall determine to include directing an adjudicating officer to rehear the case applying the law to the facts as determined by the Labour Court.".
There are cases which appear before the Labour Court where there is a misapplication of the law but not a misapplication of the facts. In such circumstances, time can be saved in the Labour Court by remitting a matter back to an adjudication officer to apply the law as determined by the Labour Court to those facts. This may mean that any subsequent appeal will only run on the issue of quantum. This may well save on costs to the State.
The Deputy's proposal that the Labour Court be empowered in the case of a matter which has come before it on appeal from a decision of an adjudication officer to refer that matter back to another adjudication officer to be determined again at the first instance does not appear to take into consideration that on appeal, the Labour Court hears the entire case de novo. In the arrangement outlined in the Workplace Relations Bill 2014, both parties to a complaint have a right to have the matter heard fully on two occasions - at first instance and on appeal. This arrangement fully meets the requirements of fairness and justice. To provide an additional remedy to the Labour Court other than upholding or denying the appeal as proposed would be akin to giving the Labour Court a concurrent jurisdiction akin to judicial review - a jurisdiction that is exclusive to the High Court and the Court of Appeal on appeal therefrom.
Far from expediting proceedings, the amendment, if adopted, would serve to delay them as it would be necessary to have a minimum of three hearings and in most cases, four in place of two. Therefore, I will not accept this amendment. The strong point is that the Labour Court retries the entire case. It is not like a court that looks at the way the judge handles the matter, examines whether there was a technical breach and sends it back. It just looks at the entire merit of the case and makes a fresh decision on the entire merit. That is the approach we are adopting.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 46, line 2, after "out" to insert "having given the party a period of 30 days to pursue the complaint".
There can be reasons why a complaint may not be pursued within a year. An individual may have been involved in an accident or God knows what or may be suffering from a disability. It would appear reasonable that they would be given a period of time to pursue a complaint.
The Deputy's proposed amendment would introduce a further and unnecessary administrative burden on the workplace relations commission and the Labour Court in dealing with complaints in respect of which the complainant has failed over an extended period to manifest any intention of prosecuting. The introduction of such an additional administrative layer and the consequent extension of the period for which an unprosecuted complaint would remain open is not desirable in the context of a new system which is premised on the efficient processing of cases from the perspective of both complainants and respondents. As drafted, section 50 empowers but does not compel the director general and the Labour Court to strike out a complaint or appeal that has not been prosecuted for a year or longer. In each case, the director general and the Labour Court must be satisfied the complainant-appellant has not pursued the complaint or appeal for the specified period. How the director general or Labour Court would seek to establish this to be the case in practice is an administrative matter. In practice, they will write and notify the person concerned that this has not been pursued but I do not want to extend this or provide another round in this as the Deputy would do with his amendment.
Amendment put and declared lost.
I move amendment No. 48:
In page 48, between lines 17 and 18, to insert the following:
“Safeguarding employees
58. In addition to existing provisions in enactments to 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.”.
This amendment might be useful to backbench Fine Gael and Labour Party Deputies. Workers are often afraid to raise their heads above the parapet, particularly during periods of high unemployment-----
There is not great opposition in the Deputy's own party.
-----in case they get into trouble and lose their jobs. All the legislation in the world will not necessarily resolve the problem of workers being blacklisted or victimised for standing up for their rights. The amendment would provide a safeguard against this type of victimisation. It is important that we make such a statement in the legislation in order to give confidence to workers. The Minister will likely argue that the purpose of the Bill is to provide for the structures and mechanisms for dealing with complaints and is not necessarily concerned with the primary rights and entitlements of workers but there is a lack of universal protections for employees facing discrimination, victimisation or blacklisting. The Government needs to strengthen workers' confidence by removing the fear of retaliation.
I do not intend to accept the amendment because existing Acts provide protections against victimisation. Section 36 of the National Minimum Wage Act 2000 prohibits an employer from victimising an employee. The Employment Equality Acts protect employees from victimisation. Section 15 of the Protection of Employees (Part-Time Work) Act provides that part-time employees may not be penalised for claiming their rights. As the parent legislation contains such provisions as standard and core protections, it is superfluous to provide them in this Bill.
The addition is that employee will have the option of using the workplace relations commission. We need to add that provision to the list of protections outlined by the Minister so that people are not victimised for using the commission.
The workplace relations commission will only adjudicate on claims for breach or complaint. The protection against victimisation is at the core of the aforementioned Acts. The commission will adjudicate on cases or on appeal but the parent Acts offer protection against victimisation in each case. That is the legislative basis on which the Labour Court will consider the merit of individual cases.
Amendment put and declared lost.
I move amendment No. 49:
In page 52, to delete lines 31 to 36.
This section deals with fees. I recognise it is not the Minister's intention to introduce fees but the legislation enables a successor to do so and, therefore, we have to address that possibility. Research carried out in Britain by the Citizens Advice Bureau found that seven out of ten potentially successful cases that employees could have taken against their employers did not proceed following the introduction of a fee system. Between October 2013 and March 2014, there was a decrease of 73% in the number of cases being taken compared to the previous year. One example identified in the research involved a man who worked as a kitchen porter for 40 hours per week for more than two months and was thereby entitled to holiday pay of less than £300. He abandoned his case after being told that his fee for accessing the tribunal would be £390. In other words, he would have incurred a net loss if he had accessed the structures designed to vindicate his rights.
It is unlikely that the Minister will still be in his current position 15 months from now.
Deputy Tóibín might be Minister of State.
I will not tempt fate. Somebody else could introduce fees under this legislation, thereby preventing people from accessing the system.
I strongly support this amendment. It is uncanny to see the amount of social legislation that is pushed in this State on foot of what happens in Britain. The evidence from Britain is indisputable in this regard. The introduction of fees for these cases was a tactic aimed at denying workers the ability to access the industry relations machinery of the State. Once this provision is in the legislation, a successor to the Minister could introduce fees. We need only look at the attempts to charge money for freedom of information requests or planning applications to see how fees deter ordinary people from seeking justice. I do not think there is any justification for fees. The ability to enforce one's legal rights in respect of employment should be facilitated through an accessible public service which is not subject to a charge.
Amendment put and declared lost.
I move amendment No. 50:
In page 55, after line 42, to insert the following:
"(e) the Chairman of the Labour Court for the purposes of having any particular case dealt with may -
(i) appoint a person or persons to be a temporary member of the Labour Court,
(ii) appoint a person or persons to be a temporary Deputy Chairman of the Labour Court,
(iii) the Minister shall from time to time nominate a body of persons who may be appointed as a temporary member of the Labour Court or a temporary Deputy member of the Labour Court on such terms and conditions as he or she may determine,
(iv) any person who may be nominated as a temporary member of the Labour Court or temporary Deputy Chairman of the Labour Court shall be appointed to a list of persons whom shall be reviewed every five years. Any person nominated by the Minister shall be subject to a nomination from the Public Appointment Service and the production by the 31st March in each year of a certificate from the Revenue Commissioners confirming compliance with the Taxes Consolidation Act 1997 (as amended).”.
The chairman of the Labour Court lacks the power to nominate other persons in the event of a conflict of interest. Equality legislation gives such powers to the director of the Equality Tribunal but they are not provided elsewhere in legislation. The number of members of the Labour Court will be relatively small and problems arose in the past where members knew one of the parties involved. A completely independent division should be appointed for the purpose of ensuring a completely fair hearing. It could arise, for example, that a member of the workplace relations commission brings a claim. Members of the Labour Court would know this individual from meeting him or her on a daily basis but they would have to hear the case despite the possible perception of prejudice. The Labour Court considers matters impartially but even in the High Court judges excuse themselves. There are sufficient judges to avoid any perceived prejudices but with only four divisions in the Labour Court, there is potential for every member of the court to know a particular employee or employer.
The Bill makes adequate provision for an increase in the staffing of the Labour Court and for temporary appointments to the court to cover certain absences of a full-time officer or member. There is no case to support the creation of a panel of temporary members. The Labour Court is bound to act judicially at all times and to avoid bias or the perception thereof. When the new appointments to the Labour Court envisaged in the Bill have been made, the court will consist of 13 officers or members. This will allow for a significantly increased number of combinations of personnel to deal with any particular case and thus considerably reduces the possibility of a division of the Labour Court having to recuse itself to avoid the perception of bias. For this reason I am not accepting the amendment. I am also establishing a new division of the Labour Court, with an extra deputy chair, and a second person who will have a roving brief. This will further increase the strength of the court.
Am I right to say four members will be sitting at any one time?
Currently there are three but there will be four.
How many will there be to pick from?
There are 13.
Is the Minister saying there are bodies to stand in for those who may have a perceived bias?
There are two members and one deputy chair in each division, and there are four divisions. There is also one additional deputy chair.
Right.
If the Deputy has more questions, he might put them together. The Minister has one more chance to reply.
I know. I apologise to the Leas-Cheann Comhairle for being on the confused side. I am just seeking clarity. If the Minister is arguing that the situation could never even arise given that there are enough people in place already to cover for an eventuality where one or other may have a perceived bias, I am happy enough. I will let it run.
Amendment, by leave, withdrawn.
Amendments Nos. 51 to 54, inclusive, are related and will be discussed together, by agreement.
I move amendment No. 51:
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.".".
The Paris Bakery, Vita Cortex, La Senza, HMV, Game, Thomas Cook, Connolly Shoes and the old Darnely Lodge in Meath were all shocking situations where workers who had lost their jobs were made to wait extended periods before their legal entitlements were awarded. There is a gap in the legislation which allows unscrupulous employers simply to walk away from their obligations and leave hundreds of workers in the wind. Families were left trying to pay mortgages and rent, to feed and clothe themselves and ensure children got to school. It is a significant issue. It was only in June 2014 that the Paris Bakery issue was resolved. These issues are being resolved not because of the actions of Government but for other reasons. It is a very serious issue that while the Government offers tea and sympathy, it will not necessarily do anything about these matters.
I have put legislation before the Oireachtas previously and here I suggest a mechanism by which we can try to seek resolution of this issue. Amendment No. 51 seeks to amend the interpretation section of the Protection of Employees (Employers' Insolvency) Act 1984 to enable workers to access the insolvency fund where their former employee has ceased to trade and is, in effect, insolvent but has not been formally placed in liquidation, receivership, declared legally bankrupt, died or been deemed insolvent under legislation in another EU member state.
The proposed amendment goes way beyond the scope of the legislation. The Deputy is seeking to introduce a new procedure for adjudicating on insolvent companies. The issue he raises is on access to the insolvency fund and the Minister for Social Protection is reviewing the position on informal insolvencies to establish what can be done, if anything, to progress payments to individuals in situations where employers cease trading without engaging in a formal winding up process and owe moneys to their employees. The Minister is examining access to the insolvency fund, which offers protection to workers, but introducing legislation of this sort in relation to companies and how they are deemed insolvent is way beyond the scope of this legislation.
It seems to go way beyond the scope of the Government. We are four years into its term of office yet this is one of the first issues that fell heavily upon the Oireachtas as soon as we walked in the door after the last general election. There was an avalanche of companies going to the wall in this way. Looking at it does not afford protections; only through legislation can we achieve that. I ask the Minister to imagine he is back in 2010 and canvassing during the election. Would he say to an interviewer that every opportunity the Government gets to fix a problem will be missed and the issue pushed over to another Bill? I have come at the Minister at every opportunity to resolve this. Every Bill that lends itself to potentially resolving this is described by the Minister as "not the right place for it". The Minister is not searching for the right place. We should take advantage of every opportunity to resolve this.
To speak to the other amendments in the grouping, it is also proposed that the Minister should make a decision on an application to the insolvency fund within 60 days of it being made. If the decision is not made within 60 days, the Minister will have to make a statement on it within 30 days. It is further proposed that the Minister should publish further updates at 30-day intervals until such time as the matter is determined. Like the legislation, amendment No. 54 makes provision for a person who has not had a decision from the Minister under section 6 of the 1984 Act to make a complaint to the tribunal. It is a system that motivates a Minister who is standing idly by to act on behalf of workers who simply want to be paid their wages, holiday pay and redundancy. I appeal to the Minister to ensure that he is proactive in taking any opportunity that presents itself finally to resolve this issue.
Having had a bit of experience in this area, I understand the principle behind Deputy Tóibín's amendment. I do not know either where the right place to address this issue is, but it would be hard to argue that workers' rights had not been undermined to a great degree over the past 30 years. As an employer running into difficulty, the bank may pull the plug on one. It happened to a lot of companies which dramatically ceased to trade. Sometimes, workers lost out. It is not black and white but is a complex area. I do not know of examples where this has been put in place, but the erosion of workers' rights is not confined to Ireland. Workers' rights have been eroded across the developed world.
There should be a mechanism in place whereby workers are taken care of before the financial institutions. If one was a financial institution, one might say that one would not lend money out if that were the case. However, legislation might provide that to some degree - and I am not talking about an unlimited scenario - workers' rights should be addressed before those of financial institutions. If a financial institution is lending money to a construction company which is involved in development over 15 years, it will make a larger profit on its investment over the period than the worker who provides his service to the employer. More often than not, the worker does not have the same potential to accumulate a serious profit on a weekly basis. Obviously, with some work he can put away some money, but his opportunities are not as great as those of the financial institutions.
If the financial institutions were to take a small bit more of a hit to ensure that the worker was taken care of first, it would not be such a mad scenario. Perhaps it would be regarded as revolutionary, but it would be a very positive step. I do not know either if this is the right Bill in which to include such a provision. The Minister argues that it is not. However, will the Minister consider in principle the idea of putting in place a protection for workers where a company is forced to cease trading dramatically and without being in a position to prepare itself so as to take care of its workers before the banks move in?
It would be very positive if the Government could consider this area. What does the Minister think about it?
I support the spirit of the amendments. There have been situations, some that received publicity and some that did not, in which workers have been left high and dry while other creditors were catered for. Workers have been forced to occupy places of employment in order to get basic rights. The amendments would establish an institution that would, hopefully, give workers much quicker access to their rights in the event of a dispute. The inclusion of the amendments would send a message that in the event of the forced closure of a business, workers cannot be treated as some sort of commodity, that they are people rather than some sort of fixture or fitting that can be discarded with no notice or regard for the consequences. The inclusion of these amendments, or something similar, or a commitment by the Minister to frame something that could be included in the legislation that will establish what will be the primary agency in the country for attaining one's employment rights when it comes before the Seanad, would send a strong message about where this country's interest lies.
Under our system of company law, workers, as creditors, take precedence over unsecured creditors when a company is wound up. The State has also provided the insolvency fund to protect workers when a company winds up. The difficulty the Deputy raises is a situation in which a company does not go into insolvency. In this case, the hope is that employees would get the money from the company. While a company might go to the courts to wind it up, it probably would not have resources from which employees might get a return. The issue is how employees can access the insolvency fund, which was established as a State protection for workers. The Tánaiste and Minister for Social Protection, Deputy Burton, is examining the issue. This will not be resolved by finding a super role for the Minister within company legislation in the realm of insolvencies. The problem is access to the insolvency fund, which is a State-provided safety net. The approach proposed by the Deputy is not the right one.
Amendment put: The Dáil divided: Tá, 45; Níl, 82.TáNílBoyd Barrett, Richard.
The Dáil divided: Tá, 45; Níl, 82.
Tá
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Calleary, Dara.
- Collins, Joan.
- Collins, Niall.
- Colreavy, Michael.
- Coppinger, Ruth.
- Cowen, Barry.
- Crowe, Seán.
- Daly, Clare.
- Donnelly, Stephen S.
- Dooley, Timmy.
- Ellis, Dessie.
- Ferris, Martin.
- Fitzmaurice, Michael.
- Fleming, Sean.
- Fleming, Tom.
- Healy, Seamus.
- Healy-Rae, Michael.
- Higgins, Joe.
- Keaveney, Colm.
- Kelleher, Billy.
- Lowry, Michael.
- Mac Lochlainn, Pádraig.
- McConalogue, Charlie.
- McGrath, Mattie.
- McGrath, Michael.
- McLellan, Sandra.
- Martin, Micheál.
- Mathews, Peter.
- Murphy, Catherine.
- Murphy, Paul.
- Ó Caoláin, Caoimhghín.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- Ó Snodaigh, Aengus.
- O'Sullivan, Maureen.
- Pringle, Thomas.
- Ross, Shane.
- Shortall, Róisín.
- Smith, Brendan.
- Stanley, Brian.
- Tóibín, Peadar.
- Troy, Robert.
- Wallace, Mick.
Níl
- Barry, Tom.
- Breen, Pat.
- Bruton, Richard.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Eric.
- Cannon, Ciarán.
- Carey, Joe.
- Collins, Áine.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Creed, Michael.
- Daly, Jim.
- Deasy, John.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dowds, Robert.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frank.
- Fitzgerald, Frances.
- Fitzpatrick, Peter.
- Gilmore, Eamon.
- Griffin, Brendan.
- Hannigan, Dominic.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Tom.
- Heydon, Martin.
- Howlin, Brendan.
- Humphreys, Heather.
- Humphreys, Kevin.
- Keating, Derek.
- Kehoe, Paul.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- Lynch, Kathleen.
- Lyons, John.
- McCarthy, Michael.
- McEntee, Helen.
- McFadden, Gabrielle.
- McGinley, Dinny.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Mitchell, Olivia.
- Mitchell O'Connor, Mary.
- Mulherin, Michelle.
- Murphy, Dara.
- Murphy, Eoghan.
- Neville, Dan.
- Nolan, Derek.
- Noonan, Michael.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Dowd, Fergus.
- O'Reilly, Joe.
- Perry, John.
- Phelan, John Paul.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Stagg, Emmet.
- Stanton, David.
- Tuffy, Joanna.
- Twomey, Liam.
- Varadkar, Leo.
- Wall, Jack.
- Walsh, Brian.
Tellers: Tá, Deputies Aengus Ó Snodaigh and Seán Ó Fearghaíl; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.
Can we have ciúnas and order please for Deputy Tóibín?
I move amendment No. 52:
In page 62, between lines 25 and 26, to insert the following:
“(2) 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.”.”.
Amendment put and declared lost.
I move amendment No. 53:
In page 63, between lines 4 and 5, to insert the following:
“(g) by the insertion of the following subsections—
“(11) Without prejudice to subsections (5), (6) and (7) and section 8 the Minister shall make a decision on an application without delay but in any event no later than 60 days after the application is made.
(12) If the time limit provided in subsection (11) expires before the Minister makes a decision on an application the Minister shall, not later than 30 days after the expiry of the time limit, publish a statement containing the reasons for the delay in making a decision.”.”.
Amendment put and declared lost.
I move amendment No. 54:
In page 63, between lines 16 and 17, to insert the following:
“(b) the insertion of the following subsection:
“(1A) A person who has applied for payment under section 6 of this Act of a debt or an award and to whom no decision of the Minister has been communicated may 60 days after the application is made present a complaint to the Tribunal that the Minister has failed to process their application.”.”.
Amendment put and declared lost.
Recommital is necessary in respect of amendment No. 55 as it relates to the instruction to the committee motion.
Bill recommitted in respect of amendment No. 55.
I move amendment No. 55:
In page 69, after line 19, to insert the following:
“Other amendments
87. (1) The Organisation of Working Time Act 1997 is amended—
(a) in section 19, by the insertion of the following subsection:
“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—
(a) at his or her place of work or at his or her employer’s disposal, and
(b) carrying on or performing the activities or duties of his or her work.”,
and
(b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):
“(c) to the leave being granted—
(i) within the leave year to which it relates,
(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or
(iii) where the employee—
(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and
(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.”.
(2) Section 23 of the Industrial Relations Act 1990 is amended, in paragraph (a) of subsection (3), by the deletion of “(other than established civil servants within the meaning of the Civil Service Regulation Act 1956)”.
(3) Section 2B (inserted by section 2 of the Financial Emergency Measures in the Public Interest Act 2013) of the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 is repealed.”.
Amendment No. 55 provides for the amendment of section 19 of the Organisation of Working Time Act 1997 to provide that for the purposes of the entitlement to paid annual leave provided for in section 19(1), an employee who is absent from the workplace on certified sick leave will be deemed to have worked on a day of illness the hours he or she would have worked on that day, had it not been a day of illness.
This amendment implements the key principle established by the Court of Justice of the European Union, CJEU, in the Schultz-Hoff-Stringer line of cases that employees can accrue statutory annual leave while out of work due to illness. It also provides for the amendment of section 20 of the 1997 Act to provide that where an employee has been unable to take annual leave due to absence from work on sick leave, the timeframe for taking the annual leave accrued during a particular leave year shall be extended to a carry-over period of 15 months following the end of that leave year. The amendment also gives effect to, and is in line with, the main findings of the KHS case which was that the EU working time directive permits national law to put a cap on the unlimited accumulation of paid annual leave during successive periods of absence on sick leave. I am satisfied that the 15 month carry-over period strikes the right balance between respecting the rights of vulnerable workers who absent from work due to a serious illness and trying to minimise the cost to business and the Exchequer.
This amendment also makes provision for subsection (2) of the new section 87 in relation to section 23(3)(a) of the Industrial Relations Act 1990 by the deletion of "other than established civil servants within the meaning of the Civil Service Regulation Act, 1956". This amendment, subject to designation by the Minister for Public Expenditure and Reform, will provide access for established civil servants to the normal industrial relations machinery of the State, namely, the Labour Relations Commission and the Labour Court and the soon to be established workplace relations commission. Currently, civil servants, unlike the majority of workers in the State, avail of a conciliation and arbitration scheme. This is an enabling measure and any actual changes to procedures will only be undertaken in consultation with all stakeholders, including the relevant Civil Service unions and the LRC, Labour Court and workplace relations commission, as necessary.
Subsection (3) of the new section 87 provides for the deletion of section 2B of the Financial Emergency Measures in the Public Interest, FEMPI, Act 2009. Section 2B was inserted into the FEMPI Act by the Financial Emergency Measures in the Public Interest Act 2013 as a limited contingency measure in the event that no collective agreement was concluded with staff associations and trade unions following the negotiations leading up to the Haddington Road agreement. This section would have, should the need have arisen, allowed public service employers to take steps that would impact on non-core pay and working hours of staff in their organisations to effect savings. In the event, the public service unions and associations signed up to the Haddington Road agreement, which has produced a significant dividend to the public finances while, crucially, maintaining industrial peace. The removal of section 2B is in recognition that any requirement for this measure has now passed. All other provisions provided under the FEMPI Acts 2009 and 2013 remain in place and form a continuing necessary component of the fiscal consolidation programme to achieve the general government deficit target below 3% of GDP by 2015.
Amendment agreed to.
Bill reported with amendment.
Amendment No. 56 has been ruled out of order.
May I speak briefly to amendment No. 56?
No, it has been ruled out of order.
Amendment No. 56 not moved.
It seems such a basic right that any facility would be accessible to people with disabilities. I am not sure why the amendment has been ruled out of order. Perhaps it is the case that there could be a cost implication and as a result as an opposition party Sinn Féin is prohibited in that regard. Given that the Minister will have an opportunity to make such an amendment in the Seanad perhaps he would comment briefly on the matter.
The issue can be discussed on Fifth Stage.
Bill, as amended, received for final consideration.
When is it proposed to take Fifth Stage?
Question proposed: "That the Bill do now pass."
On the matter raised by Deputy Tóibín, the workplace relations commission will be bound by the Disability Act, which is the parent legislation that provides the rights for persons with a disability. That legislation is comprehensive in its provision.
I take this opportunity to thank Deputies for their participation in passing this legislation, which is a major piece of public service reform. Huge efforts have been made by a number of agencies in working out a coherent form of interaction and a world-class system that it is hoped will encourage compliance and, where compliance does not occur, will provide clean and easy access by people to having their rights vindicated and also provides for penalty clauses that are enforceable. I am conscious that further provisions are required. I have indicated on a number of occasions on Report Stage that I propose to take on board some of the suggestions made by Deputies which will strengthen the Bill, particularly those relating to the creation of an offence of non-compliance with an order of the District Court to enforce decisions of the workplace relations commission or Labour Court under employment legislation. Many people are frustrated about the enforceability of some of these decisions. It is an area in respect of which I propose to introduce amendments in the Seanad. I will revert to Deputies if I get the support of the Seanad for those amendments.
I thank my officials for the huge amount of work they have done on this Bill. I also thank the Oireachtas committee and Deputies who enabled passage of this legislation. I hope it will bring about improvement in the way this process works. We can already see signs that the new system is working more speedily, has streamlined processes and has made it easier for people to understand their obligations and rights. I hope it will prove valuable.
I thank Deputies for the many flaws which they spotted, which I will have to address during passage of the Bill through the Seanad, and for their participation in the debate.
I, too, welcome the passage of this Bill. I confess to having a certain proprietary interest in it as it is a process that commenced during my time as Minister of State at the then Department of Enterprise, Trade and Employment.
I acknowledge the great service given to the State by the staff, secretariat and members of organisations such as the Employment Appeals Tribunal, the Labour Relations Commission and Equality Tribunal. This is about providing more rights and respecting the rights that people currently have, as evidenced by the tone of the debate.
I am sure the Minister will join with me on this significant day for employment rights in this country in wishing Ms Patricia King every success in her new role as President of ICTU. This is an area in which she has shown great interest. She is very much a no nonsense operator. I know she will be very involved in standing up for the rights of workers in this country. I again pay tribute to all of the officials involved in the preparation and passage of this legislation, including staff of the Houses of the Oireachtas and thank the Minister's officials for their assistance in providing information on it.
Ba mhaith liom mo bhuíochas a ghabháil le foireann na Roinne agus leis an Aire mar gheall ar an eolas a scaip siad agus a roinn siad linn i rith na díospóireachta seo. Ba mhaith liom buíochas a ghabháil leis an Aire freisin mar gheall ar na leasuithe a ghlac sé a chuir mise os a chomhair. Tá brón orm nár ghlac an Rialtas an deis atá againn leis an reachtaíocht seo chun cearta oibrithe a dhaingniú níos fearr ag an mbomaite seo. Táimid ag teacht chuig deireadh an Rialtais seo agus níl ach bliain amháin fágtha aige. Caithfimid déileáil leis na deacrachtaí, go háirithe rudaí mar insolvency. Ba mhaith liom buíochas a ghabháil le foireann an LRC agus leo siúd a bhí gafa leis an infreastruchtúr a bhí againn go dtí seo, a d'oibrigh go dian chun fadhbanna a réiteach. Guím gach rath ar an bhfoireann nua a thiocfaidh isteach anois de bharr na reachtaíochta nua.
È possible per me a parlare in Italiano? We can legislate until the cows come home. However, unless there is a mindset to ensure provisions are adhered to, legislative provisions will not materialise. The perfect example is building regulations. We probably have as good a building regulations system as any other country but because we do not implement them or carry out proper inspections, we end up with some very poor buildings. Likewise, this legislation should bring improvements in workplace and employment conditions. It is important that it is not just on paper but made a reality. That will require funding, too. It is important that the State be prepared to back it up with whatever funding is necessary to ensure it becomes a reality.
Question put and agreed to.
Sitting suspended at 6.35 p.m. and resumed at 7.30 p.m.