This amendment deals with the commencement arrangements that will apply after enactment. The amendment's purpose is to clarify that section 8(5) contains a specific commencement provision.
Workplace Relations Bill 2014: Committee Stage
SECTION 1
Government amendment No. 1:
In page 9, line 22, to delete “This Act” and substitute “Subject to subsection (5) of section 8, this Act”.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2
Amendments Nos. 2 to 13, inclusive, 20 and 138 are related and may be discussed together.
Government amendment No. 2:
In page 9, to delete line 28.
These amendments are of a drafting and technical nature. They do not result in any substantive change in the Bill.
Amendment agreed to.
Government amendment No. 3:
In page 10, to delete line 3.
Amendment agreed to.
Government amendment No. 4:
In page 10, to delete line 9.
Amendment agreed to.
Government amendment No. 5:
In page 10, between lines 14 and 15, to insert the following:
“ “Act of 2007” means the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007;”.
Amendment agreed to.
Government amendment No. 6:
In page 10, to delete line 18.
Amendment agreed to.
Government amendment No. 7:
In page 10, to delete line 21.
Amendment agreed to.
Government amendment No. 8:
In page 10, to delete lines 24 to 27.
Amendment agreed to.
Government amendment No. 9:
In page 10, to delete lines 31 and 32 and substitute the following:
“(a) an Act of the Oireachtas specified in Part 1 of Schedule 1 or an instrument under such an Act of the Oireachtas,”.
Amendment agreed to.
Government amendment No. 10:
In page 11, to delete lines 1 to 5.
Amendment agreed to.
Government amendment No. 11:
In page 11, to delete line 24 and substitute the following:
“(j) the Competition and Consumer Protection Commission,”.
Amendment agreed to.
Government amendment No. 12:
In page 11, to delete lines 31 and 32.
Amendment agreed to.
Government amendment No. 13:
In page 12, to delete lines 9 to 11 and substitute the following:
“ “relevant enactment” means—
(a) an employment enactment,
(b) Part VII (inserted by section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004) of the Pensions Act 1990, or
(c) the Act of 2000.”.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3
Question proposed: "That section 3 stand part of the Bill."
I may be introducing an amendment to section 3 on Report Stage.
Question put and agreed to.
Sections 4 and 5 agreed to.
SECTION 6
Amendments Nos. 14 to 16, inclusive, are related and may be discussed together.
I move amendment No. 14:
In page 14, line 13, to delete “address;” where it secondly occurs and substitute the following:
“address. For the avoidance of doubt, the address given on any letter or other document to the complainant/employee by a respondent/employer shall also be deemed to be an address at which the person ordinarily resides as shall any address specified under the Registration of Business Names Act 1963;”.
I express my gratitude to the firm Hayes Solicitors for sending me on copies of these amendments with reasoned arguments. When I spoke on Second Stage, I adverted to this fact and discussed it with my good colleague and friend Senator Gerard P. Craughwell. A week later, he tabled them and, for some reason, his name appeared first. We agreed we would do a two-handed job on this in that I would propose the amendments and he would second them. I felt a little strongly about it but Senator Gerard P. Craughwell was extremely amenable about it. I have not been all that well and had to drag myself out of bed to come here. It was a little irritating to find that I was not really required.
The second amendment proposes to insert a new subsection in order that an unincorporated entity as a respondent which does not register the name of the unincorporated entity under the Registration of Business Names Act 1963, or an incorporated entity which in its dealings with a complainant or employee uses a business name which has not been registered under the Registration of Business Names Act 1963, shall be deemed to have committed an offence.
There is a further amendment to section 6 by the insertion of a new subsection (3):
The service of any complaint or the making of a complaint against an unincorporated or incorporated body where the respondent has not notified the complainant in writing pursuant to section 3 of the Terms of Employment (Information) Act 1994 shall be deemed for all purposes to have been validly served on that entity using the trading name as advised to the complainant/employee or in the absence of notification the trade name or other name under which the respondent trades.
This is to address a very serious problem of confusion which arises very often to the great disadvantage of the individual making the complaint or taking the action. Businesses do not always register properly or under their correct trade name. Often they do not engage at all with the Registration of Business Names Act. A number of employers, therefore, do not provide proper statements giving their full legal name. Many companies use trade names. Only the trade name appears on the documentation provided to the employee. The employee, therefore, believes he or she is employed by that entity. Sometimes no documentation is given notifying the employee that a trade name is owned by a company or individual. In many cases, the trade name is not registered under the Registration of Business Names Act 1963. In certain circumstances, employees have to go to the Revenue to get their Revenue file to work out who is their employer. Even then, immense difficulties are created for a complainant because P60 and P45 documentation do not require the full legal name of the employer to be disclosed because there is a problem in identifying the target, the legal entity, that is responsible.
A number of cases have been dismissed because a person with a valid complaint did not have an accurate grasp of the identity of the legal entity against which the complaint was brought. They complain, for example, against a trade name or a company. In fact, the legal responsibility was in some other associated area. A number of claims before the Labour Relations Commission and the Employment Appeals Tribunal are dismissed because the wrong entity is named. In addition, many cases have to be adjourned for correcting applications or orders to be made. This creates a financial burden for the State. This is a cost to the State. I am sure that is something the Minister will want to clear up as it is something that causes cost to the Exchequer. There is no reason employees should not know who is their employer. By this, I mean who is legally their employer. Significant difficulties in claims can be avoided by providing that it would be an offence not to advise an employee who is their employer. There would be an additional saving to the State. Many good compliant employers provide the relevant information. It is a minority which fails to do so. It saves considerable time and expense if employees know by whom they are employed. There is a legal right to know but invariably non-compliant employers use the lack of enforcement to circumvent rights. There is a legal requirement but it is not enforced. This series of three amendments together would give security to the complainant as it would make it much easier to find out the legal entity employing the person. I urge the Minister to accept the amendment.
I will not take up a lot of the Minister's time other than to agree with everything said by Senator David Norris. This is a tremendous Bill. There are many good features to the Bill. The amendments being brought forward by the Irish Congress of Trade Unions, a firm of solicitors, Senator David Norris, Senator David Cullinane, various others and me are being brought forward in good faith to seek as much clarity as possible and to ensure employers and employees are equally represented and protected under the legislation. I am asking the Minister to take on board these amendments, which we bring in good faith, and, where possible, to accept the amendments. It will save us the bother of having to seek amendments to this Bill at a later stage. The Minister might bear this in mind.
I support my two colleagues and the amendment. In a submission to the committee, the Employment Law Association of Ireland, ELAI, suggested this amendment and a number of other amendments also. It noted that a number of employers do not provide proper statements setting out their full legal name. Some companies use a trade name and an employee believes they are employed by that business which in many cases is not registered, resulting in the employee having to get such details from the Revenue Commissioners to work out who is their employer. As P60s and P45s are not required to include the full legal name of the employer, the ELAI has noted that this causes huge difficulties because the case is not being pursued against the right entity. The ELAI advises that making it an offence not to advise an employee of the identity of the legal employer would result in savings and time not being wasted. We have all made that clear argument. We hope the Minister accepts the amendments tabled.
The first thing to point out is that an employer is obliged under the Terms of Employment (Information) Act 1994 to inform an employee of the legal name and address of the employer. That is provided for in law. Turning to the individual amendments, on the first one about ordinary residence, the advice I have received is that it is not appropriate or necessary as the issue of the address at which an employer or respondent is deemed ordinarily resident is dealt with comprehensively in the Bill by means of a standard provision in legislation which has stood the test of time. In respect of amendment No. 15, the Senators' proposed new subsection (3) refers to matters that are currently already provided for in sections 3 and 18 of the Registration of Business Names Act 1963 and is therefore unnecessary. This is the offence section.
In respect of amendment No. 16, I am advised that for reasons of legal certainty it would not be possible to accept the proposed amendment. To do so would be to attempt to provide that a document may be served on an entity that does not legally exist. A court or a tribunal cannot make a determination or an award against an entity that does not legally exist. Any attempt to do so would be thrown out of court and would be a waste of the court's time and any taxpayers' money expended pursuing the case on such a basis. Any determination made on the basis suggested in the amendment would be unenforceable. There is a very strong alternative legal view available to us than the one provided by the company referred to earlier. The fundamental point is that an employer has an obligation to provide the necessary name and address to the employee. Therefore I cannot accept the amendments.
On amendment No. 15, I appreciate the Minister stated that it is catered for in other legislation. The legislation before us is attempting to bring together all the strands which have made industrial relations confusing and difficult for people to pursue claims. They have not been sure whether something belongs rightly with a rights commissioner, the Labour Court or the EAT. This legislation provides a huge amount of clarity for trade unionists, legal firms and employees. An individual in his own right will be able to approach a single entity and pursue their rights through it. Notwithstanding the fact that the provision is in another Act, I believe in my heart it would no do harm to have it incorporated in this Bill for clarity purposes.
The same applies to amendment No. 16. We clearly have a difference in legal opinion in so far as the amendment that has been proposed by Senators David Norris and David Cullinane and me has come from an impeccable legal source. This is where we run into the difficulties of legal opinions in the drafting of legislation. It would be terrible to think that this will all finish up in the High Court some day as someone tries to sort out whether that paragraph should have been included in this legislation. I ask the Minister to think about it a second time.
When preparing for this debate and looking at the range of tabled amendments and the Bill itself, it was interesting to note a correlation between what the Minister is trying to do in this Bill and what is being done in the Companies Act, on which we had a lengthy debate in this House.
There is an interrelationship between the two in many respects. I accept that some of this comes back to company law. As Senator Gerard P. Craughwell said, the purpose of the Bill is to simplify procedures for employers and employees. We support the Bill because it streamlines the employment rights bodies and makes it easier for both parties to have proper adjudication. There is also a mediation process. However, there is a difficulty where a company uses a trade name and the person believes that is his or her employer but then finds out, if he or she has to take a case, that it is not. This amendment tries to simplify that and to add value to the Minister's attempts to make it easier for everybody so that people know where they stand. I have had experience of this when I was employed by what I thought was a company but which turned out to be a subsidiary of a different company and I did not know who the actual employer was, so this does create difficulties. The Employment Law Association of Ireland has pointed out what it sees as difficulties here. It has lobbied all of us and I would imagine that these amendments have come directly from that source. I ask the Minister to reconsider because, as Senator Gerard P. Craughwell said, it would add value to the Bill if we were to simplify this and be very clear about this issue.
The Minister has said quite clearly and categorically that two of these amendments are already provided for. We will have to mull that over, take advice and see the extent to which this is a complete reflection. I am sure the Minister has put this statement on the record of the House in good faith, and it may very well be true. However, there are certain circumstances that cannot be avoided. The fact that P60 and P45 documentation is not required to carry the legal name of the employer causes confusion in the real world, and cases are dismissed or held up because the wrong entity is sued. That is an objective fact. These amendments, particularly the middle one, are trying to resolve a situation regarding an un-incorporated entity. It is not directly affected by law and cannot be, because we have these situations arising all the time in the courts; therefore, it seems quite reasonable to say that an un-incorporated entity which does not use a name under the Registration of Business Acts should be deemed to have committed an offence. That means that there is an obligation on it. Why do P45s and P60s not require the legal name of the employer? It seems absurd that an employer is not required to put its legal name on these legal documents, because these documents relate directly to employment. Surely something should be done about this.
I note that there are 200 amendments today, of which 134 are proposed by the Minister; therefore, the thinking is obviously evolving. The submissions made to the Minister by the Employment Law Association of Ireland and Senator Gerard P. Craughwell, who is a trade union leader, might merit consideration at the next stage. The Minister's thinking is obviously evolving as he listens to the debates and arguments, and I pay tribute the 134 amendments he has tabled today. They are a sign that this Bill has had a lot of new thinking put into it. Perhaps what my learned colleagues have said here might feature on Report Stage.
I would not be disposed to reconsider. The legal advice I have is that any determination made on the proposals suggested in the amendment would be unenforceable; therefore, I would be inviting people to participate in a piece of legal machinery which, when they test it in the courts, is likely to prove unenforceable. I would be letting people down if I agreed to an amendment that might have superficial attractions but collapsed when it came to be tested in the courts. Given that we are trying to improve or simplify the procedure, we would be serving nobody's interests if we invited them along a path that would ultimately end in failure with their case being dismissed. I know Senator Sean D. Barrett is attempting to be helpful but, based on the advice available to me, I cannot really see that I would be doing anyone a service if I did that.
Senator Gerard P. Craughwell said that one does no harm by repeating offences that are found elsewhere in legislation. If we appended to legislation everything one could conceivably think of, we would have rakes of company law and other forms of law in here. I do not think the Office of Parliamentary Counsel would thank us for asking it to draft stuff that was entirely superfluous. I do not think that is a route we should be encouraged to go down. I do not think these positions are sustainable against the sort of very strenuous legal advice that I am receiving. Unfortunately, I am not in a position to accept the amendments.
Is amendment No. 14 being pressed?
I would like to make a comment first before I withdraw it. Does the Minister accept that there is a situation of confusion out there and that a certain number of complaints are dismissed or held up because of uncertainty regarding the legal entity that constitutes the employer?
There have been some cases, but they are not large in number as far as I can ascertain. The Senator makes a valid point about the P60. I do not know why that was the case originally, but we are not dealing with legislation pertaining to the Revenue Commissioners.
This would be another way of addressing it. I feel particularly strongly about this issue. The Minister accepts that there is an objective situation out there. Despite the fact that the number of cases might be small, the injustice to those cases still remains and it seems that it is up to us to address that. It seems absurd not to require in law that an employer should identify itself correctly and accurately in legal documentation. I will leave it at that, with the possibility of resubmitting some, if not all, of these amendments on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 15 and 16 not moved.
We reserve the right to bring those amendments back on Report Stage.
That is perfectly understood.
Question proposed: "That section 6 stand part of the Bill."
I may return on Report Stage with further amendments to sections, including section 6. These are purely technical and drafting amendments. Will I read the list of sections? They are sections 6, 7, 11, 13, 17, 21, 27, 28, 30, 31, 39, 41, 42, 45, 51, 53, 68, 71, 77 and 81 to 85, and Schedules 1 to 6, inclusive.
These will be technical amendments.
Yes, and there may be a requirement to introduce certain provisions in the Bill which provide for transition arrangements arising from the establishment of the new workplace relations structures. The Office of the Parliamentary Counsel is reviewing the transitional provisions in sections 8, 53, 54, 57, 81, 84 and 85, and any issues arising will be dealt with by way of amendment on Report Stage.
Question put and agreed to.
Section 7 agreed to.
SECTION 8
Amendments Nos. 17 to 19, inclusive, are related and may be discussed together.
Government amendment No. 17:
In page 15, line 9, to delete "in respect of" and substitute "in relation to".
These amendments are related to the transitional arrangements that will apply to certain complaints under the Minimum Notice and Terms of Employment Act 1973 and the Unfair Dismissals Act 1977. Subsections 3 and 4 are amended to ensure the relevant repeals provided for in Schedule 2 to the Bill will not apply to complaints under the aforementioned legislation referred to in the Employment Appeals Tribunal before the commencement of Part 4 of the Workplace Relations Act 2015.
Amendment agreed to.
Government amendment No. 18:
In page 15, line 12, to delete “section 11 of the Act of 1973” and substitute “sections 11 and 13 of the Minimum Notice and Terms of Employment Act 1973”.
Amendment agreed to.
Government amendment No. 19:
In page 15, to delete lines 15 to 17 and substitute the following:
“(4) The repeal of sections 11 and 12 of the Unfair Dismissals (Amendment) Act 1993 effected by subsection (1) shall not apply in relation to a claim for redress under the Act of 1977 brought before the commencement of Part 4.”.
Amendment agreed to.
Section 8, as amended, agreed to.
Sections 9 and 10 agreed to.
SECTION 11
Government amendment No. 20:
In page 16, line 15, to delete “Act of 1941” and substitute “Trade Union Act 1941”.
Amendment agreed to.
Amendments Nos. 21 and 22 have been ruled out of order as they are not relevant to the subject matter of the Bill.
Amendments Nos. 21 and 22 not moved.
Section 11, as amended, agreed to.
Sections 12 to 19, inclusive, agreed to.
SECTION 20
Government amendment No. 23:
In page 21, between lines 5 and 6, to insert the following:
“(10) In this section “employment enactment” does not include the Act of 1998.”.
Amendment No. 23 is necessary to clarify that the definition of an employment enactment for the purpose of section 20 does not include the Employment Equality Act 1998. This means the Workplace Relations Commission will not have responsibility for the preparation of codes of practice under the Employment Equality Acts, as this function would come under the remit of the newly established Irish Human Rights and Equality Commission. This was previously a function in the remit of the Equality Authority.
Amendment agreed to.
Amendments Nos. 24 and 25 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 24:
In page 21, between lines 5 and 6, to insert the following:
“(10) The Chairman of the Labour Court may require any representative, of a complainant or respondent, for gain, to comply with any code of practice made by the Commission under subsection (1)(a) of this section."
This concerns the direction as to the manner in which business should be conducted, particularly by people who are not solicitors or barristers. There are many representatives plying for trade and providing services for gain in the employment area, which is a growth area. By no means all of them are professionally qualified in the manner that one would assume. Some are regulated - for example, solicitors and senior counsel - while others are not. A number of cases have to be adjourned before Rights Commissioners and the Labour Court because relevant documentation or procedures are not complied with, despite the fact that parties would be advised of what they need to bring to any hearing. Where a code of practice is put in place, it seems reasonable that, where an individual or entity is providing services for gain, the Labour Court can direct the manner and basis on which they will act and that it would be enforceable by the Labour Court against the individual. It would be a cost saving to the State, employers and employees where their representatives who are providing services for gain do not comply with a code of practice, as it would be a control element for the court. This would maintain good standards of practice for people who are not legally qualified, a number of whom are plying for trade.
I second the amendment.
The purpose of codes of practice promulgated by the Workplace Relations Commission, WRC, is to provide general guidance to employers, workers and their representatives in terms of good practice in the workplace. They would be admissible in proceedings before an adjudication officer or the Labour Court. Although they are not enforceable at the direction of the Labour Court or any other body, they would be used as an example of good practice, with which, perhaps, the employer did not co-operate and would therefore stand outside a normal approach. I do not agree that the WRC should take a role in regulating whom people should choose to represent them at hearings. We are not trying to be legalistic or confine it to licensed lawyers but we are trying to make it accessible. We do not see the WRC entering into competence testing, for example, regarding whom people choose to represent them. It is not a proper role to ask the WRC to take on. Therefore, I do not support the amendments.
The Minister referred to people choosing who they want to represent them. Nobody has any problem with it and there is nothing in the amendments to suggest anything to do with people not having the complete right to choose who they want to represent them. All that is involved is the code of practice made by the commission. The commission makes the code of practice. This amendment would require people to abide by it, and I see no difficulty with it. If the chairman of the Labour Court makes a determination on the way business should be carried out, surely it should be a requirement that those representing plaintiffs in the Labour Court should observe them. I see no difficulty with it and it seems only good practice that would obviate a series of delays.
I concur with what my colleague Senator David Norris said. I have been before the Labour Court and rights commissioners on many occasions and while I respect that individuals have a right to choose whomever they want to represent them, we have a responsibility to ensure that it is a competent person. I will be accused again of supporting the creation of a nanny state. I have seen too many people's cases put back and resubmitted because somebody who had no clue what he or she was talking about misled the complainant in the first instance. The staff in the Labour Court and the Rights Commissioner Service have always been excellent at assisting, in so far as they can. The Minister has gone a long way towards ensuring we do not make the process overly legalistic, and I do not want that to happen. At the same time, I want some protection for the unsuspecting claimant who brings a case.
There is a power in the Bill to make regulations governing the proceedings before the Workplace Relations Commission, WRC, the adjudications and the Labour Court. The WRC can make rules on how a case will be handled. The Senators seek to go beyond this and confine representation to counsel and solicitors - people with negotiating licences.
We are not.
We are dealing with codes of practice. The purpose of a code of practice is to guide employers and workers as to what is fair and equitable treatment based on the Workplace Relation Commission's experience in dealing with industrial relations situations. The Senators are seeking to make codes of practice, which are about guidance, compelling in some way and to get into the issue of regulating those who would attend at the hearings. I do not intend to establish a workplace relations commission which proceeds to invigilate the people chosen by people in good faith to represent them.
We are dealing with the behaviour of people, not any requirement that they should be part of a professional group, and the Minister is disingenuous to suggest it. He is suggesting the amendments are tabled to ensure that only barristers, solicitors and members of the legal profession are in this situation.
That is not the case at all. We are simply looking to govern the behaviour of people in a situation where it is clear that the practice in the past has been unsatisfactory and to weed out unsatisfactory behaviour. There is no requirement in any of these amendments that the persons involved should be members of the legal profession. We have scrupulously avoided that, although the Minister appears to be very suspicious. We are regulating the behaviour of those who purport professionally to represent the individual citizen before the court.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 21, between lines 5 and 6, to insert the following:
(11) A representative for gain shall include but shall not be limited to counsel, solicitor, trade union or employer representative body with a negotiating licence, a body corporate or unincorporated body or individual including but not limited to any insurance company but shall not include any unincorporated body or incorporated body which does not provide services for any fee or reward, premium or annual or other premium or fee.”.
The amendment clearly states "shall include but shall not be limited...". That could not be clearer. I do not know what the Minister is on about saying this is an attempt to confine it within limits. I withdraw the amendment with the intention of resubmitting it on Report Stage.
Amendment, by leave, withdrawn.
Section 20, as amended, agreed to.
Sections 21 to 24, inclusive, agreed to.
SECTION 25
I move amendment No. 26:
In page 24, between lines 17 and 18, to insert the following:
“(c) who has a minimum of seven years practical experience in representing employees and/or employers in employment cases before the Workplace Commission and/or the Labour Relations Commission and/or the Employment Appeals Tribunal and/or the Equality Tribunal and/or the Labour Court.”.
The provisions relating to the appointment of a registrar as they currently stand mean an individual who is an employee of the State could be appointed. A registrar should be a person who has practical experience before the employment fora now and into the future. The reason for this is to ensure people bring practical and relevant experience and apply the same.
The matter is self-explanatory and I concur with Senator David Norris.
We are providing that a lawyer or a public servant with legal qualifications can apply for this position. If we confined this to people who have a minimum of seven years practical experience representing employees or employers in employment cases before the LRC, we would rule out many perfectly qualified applicants. The system will be that the PAS will select people based on suitability and the best candidates will win but I will not exclude people who might have all the relevant strengths, including legal experience, but who do not have the specific requirement of seven years practical experience that the Senators have set out. It is unnecessary to confine this and a more general provision provides for a wider range of applicants. The PAS will select the best qualified person, bearing in mind all the attributes of the applicants rather than one dimension.
I accept the Minister's comments and there is no doubt eminent legal professionals and public servants will apply for these jobs. There is a huge difference, however, between being suitably qualified and having the experience to run the position. Employment cases and employment law can be extremely difficult and specialism is required, which can only be gained through experience. I will push for this again on Report Stage even if the Minister continues to reject the amendment.
They are practising barristers and solicitors in respect of whom a recommendation has been made. The Senator is trying to reduce the field from which we would select. I do not see the justification for that. Let the dog see the hare and let the best dog win.
If I am fishing for sharks, I would rather fish where the sharks are rather than bother myself with salmon and the like.
Amendment, by leave, withdrawn.
Amendments Nos. 27 and 28 are related and will be discussed together.
I move amendment No. 27:
In page 24, to delete lines 24 to 27 and substitute the following:
" "practising barrister” means a person having been called to the Bar of Ireland;".
These amendments define "practising barrister" and "practising solicitor". It is simply a question of definition and clarity.
Section 25(4) does not contain exhaustive definitions of the terms "practising barrister" or "practising solicitor". It merely clarifies that certain persons are deemed to come within those groupings in addition to those persons included in any plain English interpretation of the words.
It has been a long-standing practice in the State when drafting statutory criteria for legal, including judicial, appointments to ensure such criteria are not drafted in such a restrictive manner as to render ineligible suitably qualified persons whose experience has consisted partly or wholly of service to the State. To include an amendment along the lines proposed by the Senators would most likely have the effect of confining eligibility for appointments to the position of registrar to too narrow a pool of candidates. It is the same argument. A common plain English language interpretation as opposed to a specified enrolment in whatever roles are involved is what we tend to put in place. This is the way it is done to broaden the pool of people who can apply and who nonetheless are qualified as barristers or solicitors. As I understand it, the Senators are seeking to restrict the appointments to certain persons.
I am afraid the Minister's reply is patent nonsense. While he read it out, he did not read it with any great conviction. This is a question of definition. The definitions do not rule anybody out who is there already. They simply state what are practising barristers or solicitors. Will the Minister give an example of a practising barrister or solicitor who would be ruled out by this definition, as I cannot think of any?
Then why bother with the amendment if it does not rule anyone out?
To make it perfectly clear. The Minister is moving his position. He has admitted it is as the definition and there is a place for definitions.
Not at all. I am using what the Senator would call Occam's razor. One does not start putting stuff into legislation that is unnecessary.
Occam's razor prohibits the hypothetical discussion of the non-existent, as I am sure the Minister knows only too well. He only threw it in because he thought it would floor me but I know as much as about philosophy as he does.
I would say a lot more. I am inclined to joust on the same grounds as the Senator very feebly.
Is the Senator pressing the amendment?
Not at this stage but we will consider it again on Report Stage because I do not see why a definition should be ruled out.
Amendment, by leave, withdrawn.
Amendment No. 28 moved.
Section 25 agreed to.
NEW SECTION
Amendments Nos. 29 and 30 are related and will be discussed together.
I move amendment No. 29:
In page 24, between lines 33 and 34, to insert the following:
"Employer obligation to display notice of Employment Rights in the workplace
26. Every employer shall display in a prominent position in or at the place of work, being a place to which employees have regular access and in such a position that it may be read easily by employees, a notice or notices in a form, manner, and in an appropriate language or more than one language that is reasonably likely to be understood by the employees concerned containing the following information—
(a) entitlements under employment legislation, either generally or by reference to particular enactments or a particular class or particular classes of enactments or to employees of one or more than one particular class or description, as may be specified in the notice concerned,
(b) complaints procedures concerning entitlements under employment legislation,
and
(c) the contact details of the Workplace Relations Service for the purposes of—
(i) making general enquiries regarding entitlements under, and the application and enforcement of, employment legislation, and
(ii) communicating information to the Director pursuant to the Protected Disclosure Act.".
The amendment seeks to place an obligation on an employer to display notice of employment rights in the workplace. It does not provide that all legislation relevant to workers' rights, employment law or industrial relations should be on notice.
It is very specific with regard to entitlements under employment legislation, either generally or by reference to particular enactments. Generally, there would be notices on the Acts governing a worker's rights in various spheres and on complaints procedures. More crucially, there would also be information on making general inquiries regarding entitlements under, and the application and enforcement of, employment legislation and the workplace relations service itself. The amendments would oblige employers to display as much information as possible on the rights of workers, what the Workplace Relations Bill seeks to do and, more importantly, what procedures a worker is obliged to follow or take if he or she wants to make a complaint and the proper information on how to do it. This is the purpose of amendment No. 29.
Amendment No. 30 seeks to increase the penalty from €3,000 to €4,000. It is our experience and that of unions, and the Irish Congress of Trade Unions has lobbied on this, that too many employers do not take seriously their obligations to maintain or produce employment records. This is in stark contrast with how they maintain Revenue records. There is an obligation on employers to maintain Revenue records and they place emphasis on this because huge penalties are involved, but they do not seem to have the same approach when it comes to employment rights or employment law. I could argue that we still have many weaknesses in terms of compliance and enforcement in this area and employers still do not take their obligations seriously. For consistency in penalty monetary amounts we propose that the penalty in the Bill be increased from €3,000 to €4,000.
I do not think it is practical to require under section 29 that every employer display in a prominent position information about employees' rights.
Basic information.
It could run to a book. NERA provides this information on its website, and the Bill will embody NERA. It is an obligation of the State to ensure people are well informed. To expect employers to have such a comprehensive amount of information and keep it up to date would be unfair. We have websites to ensure both sides can easily understand their material. The Senator stated this information should be in a number of languages, which is going beyond what could be a reasonable expectation on an employer to provide this amount of detail displayed in a prominent place at work. We will have what I hope will be a world-class workplace relations commission, which will provide people with easy access through all forms of contact so people will be able to acquire information. There will be phonelines and websites.
In respect of amendment No. 30, the requirement to make and retain employment records to demonstrate compliance with individual enactments is already comprehensively provided under the enactments. The Senator's proposal would have the effect of replicating these provisions. Likewise, the failure to retain records and produce them for inspection are offences under enactments in respect of which summary prosecution can be brought. There are powers whereby if employers are not able to produce records when an inspector comes they are subject to offence provisions.
To be fair the Minister has misrepresented the point I made. If he listened to what I said it was very clear we do not expect employers and it would be unreasonable to do so, to put on notice or make available every piece of legislation that would impact on workers and workers' rights. The third element of the amendment is to have the contact details of the workplace relations service available. This is not an onerous responsibility to put on employers. With regard to the complaints procedures concerning entitlements under employment legislation, the amendment could be tidied up to state the pieces of legislation are simply listed rather than having to detail all of the legislation. It could be the same with regard to entitlements under employment legislation either generally or by reference to particular enactments or pieces of legislation.
Perhaps because of how the amendment is worded the Minister may be of the view we are looking for employers to place on notice huge amounts of information and pieces of legislation, which is not the purpose. It is to provide limited but important information that employees should have. The amendment seeks to strengthen employees' rights and make employers responsible for ensuring they make employees aware of their rights.
I will withdraw the amendment and look at the wording and come back with something a little tighter on Report Stage. I ask the Minister to take on board the point I am making, namely, to provide limited but important information about employment rights legislation, particularly about the workplace relations service, which is what we are seeking to do. If the Minister wants the legislation to be effective and wants employees to know the services available, how they can make a complaint and to whom they should make it, why is it unreasonable to suggest an employer should have to make this information available to employees? I ask the Minister to reconsider this, not today because he is not minded to accept the amendment, but perhaps he might look at the wording and come back on Report Stage.
I find myself in total agreement with my colleague, Senator David Cullinane. I have been involved in workplace relations committees from local branch level through to national level and the level of ignorance with respect to knowledge of employees' rights is unbelievable. What Senator David Cullinane is asking for - I look forward to him tabling an amendment on Report Stage - is basic information. He is not looking for a 500-page document hanging on the wall. We are looking for a notice that points to all of the wonderful websites the Minister speaks about with all of the wonderful information.
I ask Senator David Cullinane to examine a provision that this basic information would be in the handbook an employee receives when he or she is employed in the first instance. There should be a one-stop page where one can find relevant websites. This is vital information. A number of employees in this country are not aware of the basics of the Working Time Act and are not sure as to when they are entitled to a tea break. These are very simple matters which make work a pleasure. The absence of this information can sometimes turn work into a nightmare. I ask the Minister to work with the Senator or table his own amendment.
One can have all the rights in the world but if one does not know about them one will be unlikely to be in a position to want to enforce them or try to enforce them. It is a question of information. I remember a previous Government quite some years ago closing down a series of Citizens Advice Bureaux, which was deliberately done to stop people getting information as to their rights and entitlements and save the Exchequer money. It is rather mean-minded. People are entitled to the maximum information as to their entitlements in work. This is a good amendment and I support it.
I cannot say I agree. We have obligations for employers, which are set out under the Terms of Employment (Information) Act 1994.
It requires employers to provide each employee with a written statement of the employee's terms of employment and to notify him or her of any change in the particulars given in the statement. An employer cannot provide terms of employment that are in breach of any of the provisions of the approximately 130 Acts that govern this area. An employer has an obligation to tell an employee exactly the grounds on which he or she is employed. The National Employment Rights Authority, NERA, and, in future, the workplace commission do not only have an obligation, but also good procedures for informing people through websites, telephone lines, simplified complaints forms and plain English guides to the various enactments. Putting up some abbreviated form or notice in the corner of a tea room that was not kept up to date would confer no benefit that would be worth making it an obligation on employers.
We are trying to provide something that encourages compliance without finding new obligations. The Senator knows well what the response would be, namely, the cost would be an unfair burden and it would not be effective. If people want up-to-date information on employment rights, they ask NERA, which covers all of the legislation. It is not the obligation of an employer to refresh continually a notice of these provisions in one or more languages. I do not see the practicality of what the Senator is seeking. We are trying to make it easier for employers to employ, not to add costs. We are trying to make a system that is more easily and effectively enforced. We are not trying to make new provisions that, though appearing nice on paper, will require 200,000 or 300,000 workplaces to take action, keep notices up to date, etc. It would not be the correct approach.
If the Minister or his Department were to undertake research on workers' awareness of their rights and employment rights bodies, they would be astounded to find that, as Senator Gerard P. Craughwell stated, many do not know. As with anything else, unless one needs something, one does not give it much thought. The Minister mentioned NERA. If he were to survey workers in any factory, I wonder how many would know what it was or what website or section on employment rights to visit. I challenge the Department to do this.
There used to be a number of routes, for example, the Labour Relations Commission and the rights commissioners. Now, the Government is simplifying the process through this body. It might make matters easier, but the Minister is missing the point entirely. Many employees do not have the confidence to ask an employer for information. It is not always an equal relationship. If someone who is in a vulnerable position wants to challenge an employer on a matter, he or she will not ask the employer for that information. The employer may be legally obliged to give it, but that does not mean that the person should be forced to ask the employer.
This amendment seeks to have provided basic information that sets out a map in simple terms of the route people should take if they have complaints. It would simplify the workplace relations service's process. Basic information should be made available in a prominent place in the workplace. If an employee needs to access that service, he or she could do so without having to ask an employer, a local politician, a solicitor or Google for information on employees' rights.
The Minister is exaggerating the intent of the amendment and overestimating the knowledge that many workers have of their entitlements and the various employment rights bodies. The Minister and I might be aware of them, but that does not necessarily mean that a worker on a factory floor, in a supermarket or in a job where many such workplace disputes arise is as aware, comfortable or knowledgeable in that respect. That is the purpose of my amendment. I will withdraw it, but the Minister should consider the wording and revert with a different amendment on Report Stage. I hope he will be in a position to reconsider the matter in light of the amendment's intention rather than his interpretation of same.
I have no wish to stifle debate, but there has been an extended discussion on this amendment and its proposer is withdrawing it. As the Minister has also replied, we should move forward.
I wish to make a point. If there are a couple of hundred thousand employers, could a leaflet not be provided centrally that gave information on contact details? In this way, people would know where to go if they had complaints. This is not an extravagant demand. Will there be a programme whereby employees will be made aware? Will there be some kind of propaganda exercise or a general information distribution on this matter? How are employees supposed to know about the commission when it comes into operation?
The amendment is being withdrawn, by leave of the House.
I would like to hear the Minister's response.
He has already replied, unless he wishes to add anything further.
He did not reply to my question.
Of course, there will be.
That was very clear.
Amendment, by leave, withdrawn.
Amendment No. 30 not moved.
Section 26 agreed to.
SECTION 27
Amendments Nos. 31 and 39 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 31:
In page 25, line 17, to delete "enter" and substitute "enter (if necessary by the use of reasonable force)".
Amendments Nos. 31 and 39 are being introduced in aid of the labour inspectors and will provide them with a statutory basis to use reasonable force where necessary in order to gain entry to premises connected with the employment of persons. In the majority of inspections, the employers consent to the inspections and inspectors are not required to use force to gain entry. However, the inspection of certain time-sensitive matters would, in the absence of the power to use reasonable force, be frustrated where the employer locked and-or abandoned the premises, for example.
Amendment agreed to.
Amendments Nos. 32, 33 and 36 are related and may be discussed together. by agreement. Is that agreed? Agreed.
I move amendment No. 32:
In page 25, line 23, to delete "take" and substitute "make".
It is my first time to speak on this Committee Stage. I am concerned by paragraphs (b) and (c) of section 27(1), under which inspectors can enter a place of work or any premises. I am particularly concerned by their powers to remove business documents. It is not fair that an inspector can remove a document from a business, particularly one that could be of vital importance to a small business, and perhaps impede that small business' ability to defend itself in a subsequent legal action. An inspector should only be allowed to make copies of relevant material, not remove it. For instance, if certain documents were seized from a small to medium-sized enterprise, SME, and it did not have copies, its day-to-day business could be impeded because it might not know whom to pay and when. If one loses certain documents, it can have a major impact on one's business, particularly if one is a small business owner. Paragraph (e) compels the business owner to furnish relevant materials. The inspectors already have a great deal of power through such a provision.
My amendment aims to give a little protection to businesses so as to ensure vital documents of which they might not have copies are not seized. It allows inspectors to make copies of relevant documents, but not to remove them. Inspectors will already get a great deal of power through this legislation. There is a slight concern about the word "take". If an inspector may make a copy of relevant material, there will be no misunderstanding. However, if an inspector may take a copy, there could be a misunderstanding. "Taking a copy usually" means making a copy, but it could mean the other also.
I have concerns around those two particular issues.
Amendment No. 36 seeks to insert the following:
"(2) If an inspector removes or copies documents from a place of work or premises, then they shall be required to issue the owner or person in charge of that place of work or premises with a receipt of any records taken or copied by the inspector.".
The purpose of the amendment is to provide some protection to businesses by ensuring they have a record of what documents have been taken. SMEs in particular are vulnerable if certain documents are taken. If businesses have a record of what documents are taken this will help them in any future legal proceedings. The purpose of this amendment is to provide some safeguards for businesses, particularly SMEs. It makes sense and removes any doubt.
Senator Feargal Quinn's amendment is well thought out, particularly in a situation where documentation that would have a crucial impact on the day-to-day running of a business is removed. That seems to be a crippling of business for no good reason. Unless an original document is required for legal purposes - for example, by the court - then a copy of it should be taken and the original should remain with the business. Often, it is only the information contained in the document that is necessary. That is reasonable.
With regard to amendment No. 36 and the provision of a receipt, that is absolutely essential. One has only to recall the number of times Garda files and public records have gone missing. Documents have been lost on many occasions and from places where one would imagine they would be secure. It is vital that receipts be provided. It is natural, when one takes something, to issue a receipt for it. That is inarguable.
I support Senator Feargal Quinn's amendments, which many may find a little surprising. I agree wholeheartedly with what he said. I have, however, one caveat which, if these amendments are accepted, I will address by way of amendment on Report Stage - namely, that where a copy of a document is taken it be certified as a true copy of the original document. I do not want to see a situation where a copy would be presented at a hearing and then the employer would present the original and say he or she forgot to include this or that. From that point of view, I would want the copy to be certified.
While some of what is proposed makes sense, I do not agree with some of it. Senator Feargal Quinn is proposing the deletion of the subsection that allows an inspector to remove any books, documents or records from a place of work or premises and detain them for such period as he or she reasonably considers to be necessary for the purpose of his or her functions under the Act. That is a proportionately stated right. It follows the provision which allows the inspector to take copies of documents. In other words, he or she cannot remove the books or documents. It is only in cases where an inspector has reasonable grounds for considering it necessary for the purposes of his or her act that he or she can remove books or documents. I believe that is a reasonable power to give to an inspector. I will come back to Senator Feargal Quinn on amendment No. 36, which provides that where records are taken a receipt be provided. I understand it is perfectly permissible for the employer to request that he or she retain copies of the records before they are removed by the inspector. However, I will consider whether there should be a formalised record taken in those circumstances.
I understand what the Minister is saying and welcome his undertaking to take another look at the point raised in amendment No. 36 prior to Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 33 not moved.
Amendments Nos. 34, 35 and 40 to 42, inclusive, are related and will be taken together.
Government amendment No. 34:
In page 25, line 39, to delete "and".
The purpose of these amendments is to clarify and remove confusion surrounding the effect of subsection (7) of this section and the capacity to use incriminating evidence given voluntarily after caution. Currently, the statutory functions and powers of labour inspectors are scattered over a large number of Acts dating back to 1946. Section 27 restates and consolidates all of those functions and powers in one location having regard to current best practice and development in case law.
These amendments place on a statutory basis the practise of the labour inspectors of issuing a formal caution to a person in appropriate circumstances before questioning that person in relation to compliance issues. The use of a formal caution before questioning is consistent with a person's constitutional right not to incriminate himself or herself and serves as a reminder that the information that he or she gives on being questioned may be used in any subsequent legal proceedings arising from the inspection in question.
Government amendment No. 35:
In page 26, to delete lines 1 to 5 and substitute the following:
"(f) require any person, whom the inspector has reasonable grounds for believing to be, or to have been, an employer or employee, to answer such questions as the inspector may ask relative to any matter under this Act or a relevant enactment and to make a declaration of the truth of the answers to those questions, and
(g) examine with regard to any matter under this Act or a relevant enactment, any person whom the inspector has reasonable grounds for believing to be, or to have been, an employer or employee, following the inspector’s having cautioned the person that the person is not obliged to say anything unless he or she wishes to do so but that whatever he or she says will be taken down in writing and may be given in evidence.".
Amendment agreed to.
Amendment agreed to.
Amendment No. 36 not moved.
Amendments Nos. 37 and 38 are related and will be discussed together.
I move amendment No. 37:
In page 26, line 6, to delete "may" and substitute "shall".
Amendment No. 37 speaks for itself. On amendment No. 38, we should strictly limit access to a person's property to An Garda Síochána and should not be opening it up to many other State officials. Also, when presenting a warrant an inspector should be accompanied by a member of An Garda Síochána.
The Criminal Law Act 1996 provides for entry and search of any premises, including dwellings, by An Garda Síochána to make an arrest in certain circumstances, namely, to enter a premises on a specific criminal matter. The Bill, as drafted, provides that an inspector is potentially allowed to enter a premises, which does not appear to fit. If the legislation is enacted as drafted it may erode the power of An Garda Síochána, as it provides other actors with more power to enter property. I do not believe we should be adding to the list of people who can enter a premises. Article 40.5 of the Constitution states: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law." If the amendment is accepted, then an inspector who has a warrant from the District Court to enter a premises will have to do so with a member of An Garda Síochána. I believe this provision would ensure greater protection for everybody. It may give more assurance to business owners that entry of their premises is in full compliance with the law, as opposed to a situation in which an inspector, who has a somewhat uncertain legal status compared with a member of An Garda Síochána, may enter the premises. I believe acceptance of these amendments will ensure the legislation will be more compatible with the Constitution than is the case.
The Senator may be mistaken. Inspectors have always had the power to inspect. The Bill provides that for the purposes of the legislation an inspector may enter at all reasonable times a place of work or any premises to do the work that inspectors do. This power is essential to their normal everyday work. Subsection (2) provides that an inspector may in certain limited circumstances be accompanied by a garda but only where he or she deems it appropriate.
If the party was under some sort of duress, he or she could ask to be accompanied by a garda. If the party was accompanied by a garda and the process was subject to warrant, that would have to be respected also. The Senator's amendment would inadvertently require all inspectors entering the premises to have a garda with them. That would be totally impractical. Inspections occur on a regular basis in workplaces to ensure compliance. This is part of an effective inspection service. The next section indicates that an inspector shall not enter a dwelling except under certain circumstances, so any entrance to a dwelling would be done in accordance with the law as set out in the next subsection. The Senator's amendment probably goes too far.
I may come back to subsection (4) on Report Stage.
I appreciate that. I am still of the opinion that the intrusion into one's own private property needs to be protected by the State. We must do this very carefully and not give too much power to somebody who would not otherwise have that power. That is why there should always be a garda accompanying the inspectors, although I understand the Minister's point. I would like the Minister to give this some thought before Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
Government amendment No. 39:
In page 26, line 19, to delete "enter" and substitute "enter (if necessary by the use of reasonable force)".
Amendment agreed to.
Government amendment No. 40:
In page 26, line 20, to delete "and (f)" and substitute ", (f) and (g)".
Amendment agreed to.
Government amendment No. 41:
In page 26, to delete lines 26 to 30 and substitute the following:
"(b) fails or refuses to comply with a requirement of an inspector or member of the Garda Síochána pursuant to paragraph (d) or (f) of subsection (1), or in purported compliance with such requirement gives information or makes a declaration to the inspector or member that he or she knows to be false or misleading in any material respect.".
Amendment agreed to.
I move amendment No. 42:
In page 26, line 35, to delete "shall not" and substitute "made to the Inspector after receiving a caution shall".
Amendment put and declared lost.
Question proposed: "That section 27, as amended, stand part of the Bill."
I wish to refer to amendment No. 42.
The amendment has already been discussed and disposed of but the Senator may speak to the section. We cannot open a discussion on the specific amendment but the Senator may debate the section if he wishes.
I will not do so at this time.
I will speak to the section. Section 27 undermines the powers of inspectors in that it prohibits inspectors using any statements provided by the employer during the inspection. It states, "A statement or admission made by a person pursuant to a requirement under subsection (1)(d) or (f) shall not be admissible as evidence in proceedings brought against the person for an offence (other than an offence under subsection (5))." The Migrant Rights Centre of Ireland has drawn attention to this issue and pointed out that labour inspectors currently issue a caution if, in their view, the inspection may result in a prosecution. This is similar to the approach of the Revenue Commissioners. The centre argues that the watering down of the powers of inspectors to prosecute cases is a worrying development. What I suggest purely aims to ensure that statements made subsequent to the employer being given a caution would be admissible as evidence. It would be fair and reasonable. Our straightforward amendment should have been accepted.
We are seeking to respect constitutional requirements. The inspector may question anyone and demand answers but if a caution has not been issued to the person, this cannot be used as evidence against that person, although it could be used against another person. If a caution is issued, the evidence provided could be used against the individual being questioned. That is what we are seeking to achieve. It is a reasonable approach. One cannot require questions to be answered but if compelling force is used with pain of offence for not answering, one cannot use any resulting evidence because of the right not to incriminate oneself. It could be used against another person. If a caution is issued, the evidence may be used. There has been considerable thought given and legal advice obtained as to how this could be done. This is a robust way to proceed.
I would like the Minister and his officials to give our amendment some thought before Report Stage.
We shall do so. I know that there is quite a bit of debate around this issue but whatever we put in place needs to be legally robust and respect constitutional rights. We must proceed with caution and ensure that we have is robust. This is robust enough to withstand any challenge.
I am sure the Minister will proceed with caution.
The proposed amendment mentions evidence made to the inspector "after receiving a caution". There is a proviso. Is the constitutional provision met by this?
As I understand it, the amendment requires a caution.
We sought to remove the phrase "shall not" and substitute the phrase "made to the Inspector after receiving a caution shall".
I will revert to the Senator and check it out before Report Stage. We are seeking to achieve a balance in order that where there is a caution, evidence can be used. If compulsion has been used to obtain the answers, the evidence cannot be used. I will revert to the Senator about this.
I do not wish to delay the Minister. Does he wish to gather information without compelling somebody in doing so? If we use the word "caution", are people compelled to answer, which may damage the collection of evidence?
As I understand it, the power would allow a person to question a party and demand answers. Compulsive powers of an inspection are used in that case. The evidence could only be used against another person and not the person against whom the compulsory powers are used. This is in order for the process to be legally robust. We have had engagement to ensure anything we put in here is legally robust and there has been quite a bit of debate to ensure we get this right. I will revert on Report Stage and provide in the mean time an explanation of the approach we are taking to the Senator.
I understand the Minister's comments about rights. It is rather like the Miranda rights in American criminal law. The Minister has indicated that if information is elicited as a result of questioning without a caution from an individual, it is not admissible against the person who makes the statement.
However, it can be used against a third party. I am perplexed by this. If a thing is inadmissible against a person who is saying it but it can be used against a third party, that appears to be absurd on the face of it, but perhaps there is some reason this is the case.
I would have thought every court case involves witnesses who produce evidence against a person. That is what is used ultimately as-----
They are given their rights.
If one takes a case against an individual, one arraigns the witnesses and seeks to establish that an offence was committed. The testimony of those witnesses is evidence against a third party. The Senator is saying it is unthinkable that one would have evidence against a third party. If the information was acquired from that individual under some compulsion, the provision provides that if there is compulsion on witnesses they cannot incriminate themselves. That is my understanding of our law. If one compels people to answer a question, they have a right to silence. If they give up their right to silence, having been cautioned, that answer can be used against them. However, if they provide evidence under compulsion, that evidence can be used in a case against somebody else. An accomplice can always provide evidence that can be used to prosecute. It is not my understanding that this is any breach or unusual in the way a case could be conducted.
Surely they should be warned and given their rights.
There are two ways of doing this. Either one warns them and says, "Anything that you say will be taken down in evidence and may be used against you", or one says, "I am compelling you under my rights as an inspector that you must answer the following questions, but in compelling you to do so your answers cannot be used as evidence against you because you cannot be compelled to be a witness against yourself."
That appears to be grotesquely unfair on the third party. It could lead to all kinds of wild accusations.
That is what happens in every case.
No, they are sworn. They are under oath.
In gathering evidence a person can be compelled. We are giving compulsion powers to require people to answer questions. It is much like a tribunal, as I understand it. If somebody refuses to answer a question in a tribunal, that is an offence. Equally, we know that evidence produced in a tribunal cannot be used to prosecute the people who were compelled to come to it.
Evidence from a tribunal cannot be used to accuse third parties either.
Question put and agreed to.
SECTION 28
Amendments Nos. 43, 44, 46 and 103 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 43:
In page 27, line 4, to delete “in this Act” and substitute “in this section”.
Section 28 currently provides that the manner in which an appeal against a compliance notice to the Labour Court would be effected and likewise an appeal of the decision of the Labour Court to the Circuit Court under this section, would be subject to regulations made by the Minister. This amendment obviates the need for the Minister to make such regulations and provides that the aforementioned appeals would be regulated by rules made under section 20 of the Industrial Relations Act 1946.
Amendment agreed to.
Government amendment No. 44:
In page 27, line 30, to delete “prescribed manner” and substitute “manner prescribed by rules under subsection (5) of section 20 of the Act of 1946”.
Amendment agreed to.
Amendments Nos. 45, 47, 53, 56 and 57 are cognate and may be discussed together. Is that agreed? Agreed.
I move amendment No. 45:
In page 27, line 31, to delete “42 days” and substitute “28 days”.
As all of the amendments seek to do the same thing, there is no problem with them being grouped. We are seeking to reduce the time an employer has to appeal a compliance notice from six weeks to four weeks. We previously sought two weeks when the Bill was before the Dáil on Committee Stage, but this was deemed too short a period for an employer to prepare the necessary documentation and information. The Minister says it should be six weeks. However, I note that the Government is giving the survivors of symphysiotomy just 20 working days from the commencement date of the redress scheme to apply for redress. If one applies for social welfare and one's claim for benefit is turned down, one has 28 days to appeal. The standard for the vast majority of citizens appears to be 28 days. However, when it comes to employers, who in these cases are unscrupulous employers who have already been found guilty of a breach of employment law, they are given six weeks. We do not understand the logic of this.
The reason for tabling the amendment is that obviously an appeal would hold up whatever compensation would be due to an employee. If the Minister cannot accept a two week period, he should at least opt for the standard four weeks which appears to apply in most situations where one is entitled to appeal. That is the purpose of the five amendments.
I support Senator David Cullinane's request to reduce the period from 42 days to 28 days. It never ceases to amaze me that we provide such latitude to organisations that have all the resources in the world available to them to prepare documentation. A period of 28 days is an ample amount of time for an employer to put together any documentation required. A period of 42 days is excessive and not required. As Senator David Cullinane pointed out, if I apply for social welfare and I do not have a seat in my pants, I have 28 days in which to submit my appeal. The 28 days period is ample for anybody.
I also support the amendment.
The period of 42 days an employer has to initiate an appeal against a compliance notice issued by an inspector and an appeal from the Labour Court to the Circuit Court, mirrors the standard appeal period which applies, for example, to the bringing of an appeal to the Labour Court from the decision of an adjudication officer. An important principle underlying the procedural reforms which the Bill introduces is that of consistency. The Bill aims to make navigation of the employment rights compliance and enforcement system more user friendly by providing for standard procedures and timeframes wherever possible. On this basis it would be inappropriate to accept the Senator's proposal to shorten the period within which an employer may appeal a compliance notice.
The Minister has not addressed the point. I ask him to reflect on it and to take on board the points we made. Why is it that the vast majority of citizens are given 28 days, which appears to be the standard, to make an appeal in most situations yet when employers are involved that does not appear to apply? In addition, one of the flaws in employment law is that often the enforcement, penalties and sanctions do not deter an employer from doing something they should not do. For example, if an employer do not pay someone his or her proper entitlements and the employee then brings the employer to an employment rights body which agrees that the employer has not paid the employee the proper wages and orders the employer to do so, that is akin to somebody walking into a supermarket, walking out with a basketful of goods, getting caught and just saying, "I am giving back your goods and I am sorry". That appears to be the case when dealing with unscrupulous employers, which is what we are discussing here.
There appears to be a different set of standards when it comes to the vast majority of citizens. The victims of symphysiotomy are another example. Perhaps the Minister would address that point. I am sure he would have supported thousands of people in making appeals regarding various social welfare claims; therefore, he knows one has 28 days either to seek a referral or to make an appeal. Why is that the standard across those areas but not when it comes to employers? The Minister said he is working from what is already in place, but why is that the case? Why is there a different set of rules for employers? The point is that this then delays the entire process. That is the reason trade unions would query why it should be six weeks. They say it should be two weeks, but we have opted for the compromise of four weeks. I do not see why that cannot be agreed.
We are providing the same period for workers and for employers. It is six weeks in both cases. That is fair. Not all employers have all the resources in the world, as Senator Gerard P. Craughwell said. That is not the truth for all employers.
They have a lot more than their employees.
It is an even-handed approach. The same provision is being made for all parties in respect of these periods.
Amendment put:
The Committee divided: Tá, 12; Níl, 16.
Tá
- Barrett, Sean D.
- Byrne, Thomas.
- Craughwell, Gerard P.
- Cullinane, David.
- Leyden, Terry.
- Mullen, Rónán.
- Norris, David.
- Ó Murchú, Labhrás.
- Power, Averil.
- White, Mary M.
- Wilson, Diarmuid.
- Zappone, Katherine.
Níl
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Conway, Martin.
- Cummins, Maurice.
- D'Arcy, Jim.
- Gilroy, John.
- Hayden, Aideen.
- Keane, Cáit.
- Mulcahy, Tony.
- Mullins, Michael.
- O'Neill, Pat.
- Quinn, Feargal.
- van Turnhout, Jillian.
- Whelan, John.
Tellers: Tá, Senators Gerard P. Craughwell and David Cullinane; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.
Government amendment No. 46:
In page 28, to delete lines 5 to 7.
Amendment agreed to.
Amendment No. 47 not moved.
Question put: "That section 28, as amended, stand part of the Bill."
The Committee divided: Tá, 16; Níl, 8.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Conway, Martin.
- Cummins, Maurice.
- D'Arcy, Jim.
- Gilroy, John.
- Hayden, Aideen.
- Keane, Cáit.
- Mulcahy, Tony.
- Mullins, Michael.
- O'Neill, Pat.
- Quinn, Feargal.
- van Turnhout, Jillian.
- Zappone, Katherine.
Níl
- Barrett, Sean D.
- Craughwell, Gerard P.
- Cullinane, David.
- Leyden, Terry.
- Mullen, Rónán.
- Norris, David.
- Power, Averil.
- White, Mary M.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Gerard P. Craughwell and David Cullinane.
Question declared carried.
Progress reported; Committee to sit again.
When is it proposed to sit again?
Next Tuesday at 2.30 p.m.
The Seanad adjourned at 4.30 p.m. until 2.30 p.m. on Tuesday, 24 February 2015.