Dáil Éireann - Volume 431 - 26 May, 1993
Unfair Dismissals (Amendment) Bill, 1993 [ Seanad ]: Second Stage.
Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke) Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)
Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke): I move: “That the Bill be now read a Second Time”.
The Unfair Dismissals Act, 1977 was enacted by the Oireachtas in April, 1977. The Act provides that dismissal is unfair unless there are substantial grounds which would justify such dismissal. It provides a system under which claims of unfair dismissal can be investigated impartially by a Rights Commissioner or by the Employment Appeals Tribunal. It also provides for redress for unfair dismissal, reinstatement, re-engagement or compensation for financial loss. The Bill before this House today amends the 1977 Act.
The Bill contains the following main changes to the 1977 Act: extension of the coverage of the Act to include persons employed through employment agencies; access to protection under the Act in the case of the termination of certain second or subsequent fixed term and fixed purpose employment contracts; a new basic award of up to four weeks' pay where the dismissal of an employee is found to have been unfair but where no financial loss has been incurred; extension of the list of grounds for dismissal which are deemed to be automatically unfair to include the sexual orientation of the employee, the age of the employee and  the employee's membership of the travelling community; improved claims and appeal procedures with the Employment Appeals Tribunal and clarification of the role of the Circuit Court in relation to the enforcement of tribunal determinations.
I will deal with each of these changes in more detail in the course of my introductory remarks. The commitment to bring forward this Bill formed part of the Programme for a Partnership Government. I am pleased, so early in the term of the Government, to be able to introduce it in the House. The review of the Unfair Dismissals Act, 1977 has shown it to be a most effective piece of legislation. The legislation continues, in the main, to meet the need for a fair, inexpensive and relatively speedy remedy for employees who have suffered unfair dismissal.
Prior to 1977 there were, basically, two avenues open to employees for resolving the issue of an unfair dismissal. One route was the invariably costly and characteristically tardy legal remedy at common law. The other avenue of redress was instant industrial action, repeated recourse to which obviously was prejudicial not only to the enterprise involved but also to the public good.
This was the context within which the Unfair Dismissals Act of 1977 — referred to throughout the Bill as the Principal Act — was set. The introduction of that legislation reduced significantly the number of days lost due to industrial disputes arising from unfair dismissal. The proportion of such disputes as a percentage of all disputes has fallen from 20 per cent in 1976, the year before the introduction of the Act, to about 10 per cent a year since then and, in some years, the statistic has been as low as 7 or 8 per cent. This fact, taken in conjunction with the number of claims made under provisions of the Act, suggests that the Act has played a major role in reducing industrial relations tensions. Those who criticise the provisions of the Act seldom advert to this positive impact the Act has had on industrial relations.
Listening to some of the commentators  in this field one might get the impression that, prior to enactment of the 1977 Act, there had been no legal framework governing the termination of employment contracts. This, of course, was not the actual state of affairs. The contract between the parties in the employment relationship was and, indeed, continues to be governed by the common law rules relating to contract. The difficulty of employees in exercising such rights had more to do with the problem of access to the common law courts than with any lack of clarity about their entitlements. Indeed, as headline cases in the employment law area in this country have shown in recent years, employees — even in the public service — have been able to secure judgments and significant financial compensation for wrongful dismissal through the courts. Unfamiliarity with court practice and precedents and, most importantly, the likely costs involved have in the past acted as effective barriers to many employees, especially to those on low wages, in pursuing their rights by this avenue.
The 1977 unfair dismissals legislation modified and enhanced existing common law rights but, more importantly, gave ready access to redress for the broad range of employees who had formerly been intimidated by the intricacies and economics of the common law process. Thus, the greater degree of access to redress afforded by the Unfair Dismissals Act, 1977, is the main factor that distinguishes it from the historically available common law remedy.
The need for the type of protection provided by the Unfair Dismissals Act is illustrated by the number of cases referred under the 1977 Act to the Employment Appeals Tribunal for adjudication. In the period 1984-91, inclusive, a total of 7,751 direct claims of alleged unfair dismissal was dealt with by the Employment Appeals Tribunal. Of these, the appeal was allowed in 1,734 cases and disallowed in 2,414 cases. The balance was made up of cases which were either disposed of without a hearing or withdrawn during a hearing. In cases  where dismissal has been found to be unfair — and compensation has been decided upon as the remedy — the average amount of such compensation has risen from £1,864 in 1984 to £2,660 in 1991. In 1991, the size of such awards ranged from less than £100 to £15,000 in the light of the circumstances of individual cases.
The 1977 Act is not concerned with all dismissals but is focused on unfair dismissals. An unfair dismissal is one where no substantial grounds can be shown as justifying the dismissal. This point was raised in the Seanad, in the context of possible amendments. Let us be clear that dismissals arising because of redundancy, rationalisation or other organisational reasons fall outside the scope of the legislation. Similarly, the dismissal by an employer of employees because of incompetence, serious misconduct, inefficiency etc., is not restricted by the legislation — as all these are substantial grounds which justify termination of employment. In addition, all dismissals in the case of employees with less than one year's service, with the exception of dismissals based on grounds of pregnancy or trade union activity, are excluded from the coverage of the Act.
Having said that, everyone — employee or not — has a right to be treated in a reasonable and evenhanded manner. As we are all aware, there is a contract between the parties to an employment relationship which is governed by the rules relating to contract law. As with contract law generally, a contract of employment cannot, without penalty, be terminated by one party without the consent of the other. Both parties have obligations under a contract of employment, one of the most important being that the parties must act in a fair and reasonable way towards one another. Indeed — as the unfair dismissals legislation recognises — summary dismissal of an employee by an employer is permissible where the conduct of the employee has been so extreme as to irreparably damage the employment relationship. In general, however, the 1977 Act imposes an obligation on an  employer to deal with an unsatisfactory employee in a manner which is procedurally fair and reasonable. This ethos in the legislation reflects the common law rule of natural justice which applies in the courts of the land in regard to contract law generally. It may seem that I am covering ground already covered in the 1977 Act but as I am outlining the amendments to that Act it is useful to go over it again.
The Unfair Dismissals Act has had an impact on employers and on how they manage the conflict that is likely to arise in dealing with an unsatifactory employee. Since 1977, there has been evidence of increased codification of disciplinary procedures which have no small part to play in the sensitive handling of dismissals which may be necessary from time to time. These changes will, no doubt, have had financial implications for employers. I suggest, however, that such costs have been well outweighed by the resultant benefits in industrial relations terms. An important benefit, too, for employees flowing from such improved systems is the realisation that they need not fear the possibility of arbitrary unfair dismissal.
As I said at the outset while the 1977 Act has been working satisfactorily, the length of time it has been on the Statute Book suggested that a review of its contents would be worthwhile. In this context a discussion document was published in November 1987. The document outlined possible options which might be considered in three specific areas of our employment protection legislation namely: (i) unfair dismissal, (ii) employment equality and (iii) payment of wages. In relation to (iii), as Deputies will be aware, a new Payment of Wages Act was enacted in 1991. As regards (ii) the present Bill results from consultations and discussions with both sides of industry and other organisations interested in the operation of our unfair dismissals legislation.
The Bill is in line with an undertaking in the Programme for a Partnership Government 1993-1997 “to amend and improve the working of the Unfair Dismissals  legislation” and also fulfils a commitment in the Programme for Economic and Social Progress.
In promoting this legislation, I am conscious that the Programme for a Partnership Government commits this Administration to a review of labour legislation to ensure that it extends full protection against discrimination to a range of minority and disadvantaged groups. Among the possible grounds for discrimination listed in the programme for inclusion in the review are parental status, religion, age, handicap, race, colour, sexual orientation and national or ethnic origin, including membership of the travelling community.
That review falls within the brief of my colleague, Deputy Taylor, Minister for Equality and Law Reform. I have discussed with him relevant aspects of unfair dismissals legislation which already provide protection in a general way against dismissal on the grounds listed in the programme and designates some of them specifically — for example, race, religion, colour — as grounds for automatically unfair dismissal. Indeed, in the course of passage of this Bill through the Seanad I was pleased to accept amendments which added age and membership of the travelling community to the list of reasons for dismissal which are deemed for the purposes of the legislation to be automatically unfair.
In this context, the Minister for Equality and Law Reform has indicated to me that, following the review of the equality aspects of labour law, he will promote proposals for legislation framed to ensure full equality of opportunity for all in the workplace. If necessary, those proposals may incorporate suitable amendments of unfair dismissals legislation.
Another issue raised in the Seanad — and which has perplexed us for some time — is the practice in drafting legislation of using words such as “he” and “him” when references to “she” and “her” are also intended. I am advised that this approach is dictated by the provisions of the Interpretation Act, 1937. On this issue, I and I am sure other Members in the House strongly support  the recommendation in the report of the Second Commission on the Status of Women that this Act be reviewed and amended as soon as possible. I understand that this will be examined in the context of the Equal Status Bill which is being considered by my colleague, the Minister for Equality and Law Reform, Deputy Taylor.
The emphasis in the Unfair Dismissals Act, 1977, and in the Bill before us is on the protection of employees from being unfairly dismissed from their jobs by setting down criteria by which dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unjustified. This objective remains as valid and worthy today as it was in 1977.
Before proceeding to the sections of the Bill, I should mention that the question of the optimum hours threshold for eligibility for protection under the 1977 Act, set at 18 hours per week in that Act, was a matter of major concern at the time of publication of the 1987 discussion document. The debate on this issue however has, in practical terms, been overtaken by the enactment of the Worker Protection (Regular Part-time Employees) Act, 1991. That Act extended the protection of the 1977 Act to regular part-time employees i.e. defined as those who, subject to the one year service requirement, have been in the continuous service of an employer for at least 13 weeks and are normally expected to work for that employer for not less than eight hours a week.
That is the background or a quick overview of the 1977 Act and the matters which have arisen since then. I have also outlined the main changes to that Act contained in this Bill, the Unfair Dismissals (Amendment) Bill, 1993. I will now go on to deal with the Bill section by section. Members realise that this, by its nature, will be very technical. I find the technical pieces difficult to come to grips with, particularly in the context of legislation such as this which is essentially concerned with people's rights.
 I now turn to the provisions in the Bill which provide for changes in the 1977 Act. While no fundamental alteration to the broad thrust and purpose of the 1977 Act is proposed the Bill addresses a number of important issues of substance relating to the Act and effects a range of technical and administrative amendments.
Section 1 is a standard interpretation section. Section 2 makes technical amendments to the definitions of “trade union” and “the Tribunal” in the principal Act, the Unfair Dismissals Act, 1977, and clarifies that an award of reinstatement entitles an employee to benefit from any improvement in terms and conditions of employment which may occur between the date of dismissal and the date of reinstatement.
Section 3 amends section 2 (2) of the principal Act by inserting a proviso to the exclusion in that subsection from coverage by the Act of certain fixed term or fixed purpose contracts of employment. The proviso will allow a rights commissioner — the Employment Appeals Tribunal or the Circuit Court, as the case may be — to examine any second or subsequent fixed term or fixed purpose contract of employment and to take a view as to whether the fixed nature of the contract was wholly or partly for or connected with the avoidance of liability under unfair dismissals legislation. In such circumstances, a claim for unfair dismissal at the expiry of the contract may be heard in the normal way. The section also broadens the scope of the legislation to include temporary officers of health boards and deletes the obsolete reference to a committee of agriculture by amending section 2 (1) (j) of the principal Act.
Section 4 provides for certain minor amendments to subsections (1), (2) and (3) of section 5 of the principal Act, the main purpose of which is to ensure consistency of approach in relation to lockout and dismissal as between the principal Act and paragraph 2 of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973.
Section 5 extends the scope of section  6 (2) of the principal Act to include three circumstances: (i) sexual orientation, (ii) age and (iii) membership of the travelling community in the list of reasons for dismissal which are deemed to be automatically unfair for the purposes of the legislation. Section 5 also provides for a new section 6 (7) of the principal Act to reinforce the concept of procedural fairness by providing that a rights commissioner, the Employment Appeals Tribunal or the Circuit Court, as the case may be, in deciding whether a dismissal is an unfair dismissal, may have regard to the reasonableness or otherwise of the conduct of the employer and to compliance, or failure to comply, by the employer with dismissal procedures or codes of practice.
Section 6 alters section 7 of the principal Act as follows: paragraph (a) amends section 7 (1) of the principal Act to provide for a new basic financial award for unfair dismissal in certain circumstances. The amendment will allow a rights commissioner — the Employment Appeals Tribunal or the Circuit Court, as the case may be — to award compensation — of up to four weeks' pay — for unfair dismissal in cases where no financial loss has been incurred by the employee. Paragraph (b) amends section 7 (2) of the principal Act by clarifying some of the considerations that are required to be taken into account in calculating the amount of compensation payable to an employee who has been unfairly dismissed. Paragraph (c) inserts a new subsection (2A) in section 7 of the principal Act to provide that, in calculating financial loss, for the purpose of compensation, payments to an employee under the social welfare and income tax codes which arise from an unfair dismissal shall be disregarded.
Section 7 alters section 8 of the principal Act as follows: paragraph (a) inserts a new subsection (1A) in section 8 of the principal Act which requires that, henceforth, a rights commissioner, the Employment Appeals Tribunal or the Circuit Court, as the case may be in awarding reinstatement, re-engagement or financial compensation in respect of  an unfair dismissal must state why either of the other two forms of redress are not awarded; amends section 8 (2) of the principal Act to allow flexibility to a rights commissioner — the Employment Appeals Tribunal or Circuit Court, as the case may be — to extend the time limit for hearing a claim for redress for unfair dismissal to up to 12 months in cases where exceptional circumstances have prevented the lodgment of the claim within the normal time limit of six months; amends section 8 (3) of the principal Act to provide a time limit of 21 days for objections by a party to a hearing of a claim by a rights commissioner; amends section 8 (4) of the principal Act to allow the Employment Appeals Tribunal to issue a determination confirming the recommendation of a rights commissioner in circumstances where the employer concerned has neither implemented the recommendation nor appealed the case.
Paragraph (b) amends section 8 (5) of the principal Act to permit a party to make a claim directly to the Employment Appeals Tribunal without reference, in the first instance, to a rights commissioner as required by the present wording of the section. Paragraph (c) amends section 8 (9) of the principal Act to increase the fine from £20 — as set in 1967 under redundancy legislation — to £1,000 for failure to attend before the Employment Appeals Tribunal, refusal to give evidence or failure or refusal to produce documents. It is necessary that the fine should be sufficiently high to act as a deterrent. Quite obviously the deterrent set in 1967 is completely out of date.
Paragraph (d) amends section 9 (10) of the principal Act to prohibit explicitly the processing of a claim-dispute both under unfair dismissals legislation and by a rights commissioner or the Labour Court under industrial relations legislation. The paragraph also inserts new subsections (11) and (12) into section 8 of the principal Act. These subsections provide that in the case of a contract of employment tainted with illegality the employee shall, nonetheless, be entitled to redress for  unfair dismissal. In such cases the rights commissioner — the Employment Appeals Tribunal or the Circuit Court, as the case may be — shall notify the Revenue Commissioners or the Minister for Social Welfare, as appropriate, of the matter.
Section 8 amends section 9 (2) of the principal Act by increasing from six weeks to seven weeks the time within which a copy of a notice of appeal must be given by the Employment Appeals Tribunal to the other party to the appeal. Administrative problems have been encountered by the tribunal under the existing provision in the case of appeals lodged at the last minute.
Section 9 provides for some minor technical amendments to section 14 of the principal Act.
Section 10 amends section 15 of the principal Act to allow flexibility to an employee in changing a claim as between redress in common law or under unfair dismissals legislation. The amendment will allow a claimant flexibility as to which avenue of redress to pursue — without losing his-her right to proceed under the alternative avenue — up until the point where, on the one hand, a recommendation of a rights commissioner has issued in the case — or a hearing of the claim by the Employment Appeals Tribunal has commenced — or, a hearing in the courts under the common law has commenced.
Section 11 provides an avenue of appeal to the Circuit Court from a determination of the tribunal. In cases where an employer fails to implement an order made by the Circuit Court on appeal or a determination of the tribunal — which has not been appealed — the section allows the employee concerned, or the Minister on behalf of the employee, to apply to the Circuit Court for an order directing the employer to implement the determination. In such circumstances, the Circuit Court is empowered to make an order against an employer which would include interest on the amount of any financial compensation awarded. In cases where an order for reinstatement or  re-engagement is concerned, the Circuit Court may direct the employer to pay to the employee financial compensation in respect of the period during which the employer failed to implement the order of re-instatement or re-engagement. The section provides also that the Circuit Court may change the nature of an award from re-engagement or reinstatement to financial compensation.
Section 12 deals with evidence in relation to the prosecution of a person for failure to attend before the Employment Appeals Tribunal or refusal to give evidence or failure or refusal to produce necessary documents. The section specifies that a document signed by the chairman or a vice-chairman of the tribunal, stating details of the alleged offence, shall be admitted by the court as evidence of the matters so stated without further proof.
Section 13 extends the scope of the unfair dismissals legislation to include persons employed through employment agencies. For the purposes of the legislation, the organisation where the person works is deemed to be the employer of the agency worker.
Section 14 replaces section 6 (7) of the principal Act. In an effort to respond to difficulties identified in relation to the understanding and identification in the Act of this section, the provision has been redrafted. As before, the purpose of the section remains to confirm the application of the protection of the legislation to employees dismissed for trade union activity who would otherwise not be covered because of their failure to satisfy the minimum one year service requirement or because of certain exclusion relating to training, probation and apprenticeship.
Section 15 provides that in cases where a business is transferred to another owner, the acceptance and retention of a redundancy payment on the part of an employee will break that employee's continuity of service.
Section 16 repeals section 10 of the principal Act, which is overtaken by the provisions of section 11 of the Bill.
Section 17 is a standard provision dealing  with the short title, collective citation, construction, commencement and application of the Bill. The Bill now specifies 1 October, 1993 as the date for coming into operation of the legislation. We had hoped that the operative date would have been 1 July 1993.
Before concluding, I would like to make a few comments on what I see as a moral issue at the heart of the Unfair Dismissals Act. The legislation allows for third party scrutiny of the fairness, or otherwise, of the treatment of employees by employers in the matter of dismissal. The availability of such independent scrutiny in dispute situations is, I believe, the mark of a civilised society. I would be surprised if, in this day and age, there are many who would support the former practice of employers to hire and fire, virtually at will. Indeed, the evidence is there that, even before the 1977 Act, industrial muscle and the common law process had been utilised successfully to ensure, as far as possible, an effective means of redress where unfair dismissal was concerned. The 1977 Act placed a greater emphasis on the achievement of a resolution of these difficulties by more peaceful means. It is my strong view in industrial relations matters that, at all times “jaw jaw” is better than “war war”.
It is central to our industrial policy that we have a fair and acceptable code of employment rights legislation. The existence of satisfactory statutory unfair dismissals machinery is an important element in this context. We should not expect our workforce to accept arbitrary dismissal without an effective means of redress while, at the same time, remaining as committed, flexible and motivated producers of the wealth on which the future of our country depends.
Accordingly, I commend the Bill to the House.
I look forward to the contributions of Members on all sides. We debated this Bill in the Seanad during past weeks where it provoked very lively and stimulating debate. I look forward to the same in this House. I intend to be present up to midday tomorrow for Seanad Stage and for the entire Committee Stage.
 There are always people who will say that legislation such as this is weighted in favour of one side and there will be people who will take opposing points of view. I hold the view, as I know most Members do, that it is correct and proper that we enact labour legislation because we always seek a proper balance. I do not hold the view that legislation which gives decent rights to people should not be enacted when times are difficult. A workforce is better motivated, more productive and in better tune with the realities of the day when they know their proper rights are guaranteed; likewise employers knowing the scope of legislation and all the principal features of it are more assured in an industrial relations climate. Accordingly I commend the Bill to the House and I look forward to the contributions.
Miss Flaherty Miss Flaherty
Miss Flaherty: The Unfair Dismissals (Amendment) Bill, 1993, is by and large a welcome and reforming measure. It updates and amends the 1977 Unfair Dismissals Act. It honours the Government's commitment given in section 9 of the programme for Economic and Social Progress.
As the Fine Gael spokeswoman on labour I welcome the Bill and will be proposing some amendments. I hope the Minister has not exhausted in the Seanad her willingness to concede amendments. We will certainly press her on some important issues to concede further. We shall be raising some new matters also.
I shall begin where the Minister finished. Because this is my first opportunity to speak as spokeswoman on labour I would like to outline my philosophy of labour relations to the House. It is very similar to that of the Minister. I consider the working life is important to human happiness and to self respect, whatever the nature and level of employment. A valued, adequately paid and trusted employee is likely to be a highly productive, reliable and contented worker. There are those, to whom the Minister referred in her closing remarks, who suggested that high standards of worker protection,  conditions and rights somehow lead to fewer employment opportunities.
During the past three years we in Fine Gael have studied the jobs crisis from every angle in round table discussions with employers, economists and welfare specialists and no employer there seriously claimed that such legislation prevented them taking on an employee. Yet it is a view that is regularly and, seemingly, seriously trotted out. I welcome the fact that the Minister in her speech to the Seanad challenged this notion and I know that the studies available to the Minister support Fine Gael's analysis of the situation.
In her contribution in the Seanad the Minister referred to a UCD study, published in 1987, on the impact of the Unfair Dismissals Act, 1977, on workplace industrial relations which was very positive in relation to its impact. She referred also to a 1986 survey commissioned by the Department of Labour. That study found that practically none of the firms surveyed saw the legislation as one of the main problems facing them and only a small minority cited it as having caused a problem in the previous year. The view from other studies was that it had contributed to improving personnel practices and to a more stable industrial relations climate. I share that view and, indeed, it has led to more professionalism in the managing of employment. That is something which we in this House should seek to develop and encourage rather than stunt.
It has long since struck me that the economies that have performed well and have been most productive have included Germany and the Scandinavian countries where conditions of pay and employment and social welfare are among the best in the world. It is interesting also to look at the Far East, the new engine room of the world economy. While one could not say that workers' conditions and pay there are all that we would desire, they do have something different in that the Japanese and Taiwanese understand how to look after the workforce. The factory is much more than a workplace, it is a way of  life for them in many cases. This mutual commitment yields results for owners and workers. In Taiwan where holiday entitlements are less than in Ireland, many workers never take them up entirely. That is a philosophical approach that we will never have any problem with and I am not encouraging or expecting it. It is an interesting point, but on the other hand the employer provides medical services, sporting facilities and in a country where a profound housing shortage exists one can sometimes reside on the factory campus.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: One may not want to.
Miss Flaherty Miss Flaherty
Miss Flaherty: For Irish managers and workers a session of Tai Chi eastern shadow boxing at the start of the day might improve the industrial relations climate rather more than our approach to business. The culture and philosophy of the East reinforces a holistic approach to work. I shun an approach that doles out improvements in conditions to workers frugally and cautiously. With rights come obligations. The unfair dismissals legislation clarified not just when and how it was wrong to dismiss but how and in what circumstances one could dismiss.
If a person becomes an employer, learning responsibly and professionally to manage his or her staff should be a primary responsibility not to be shirked or moaned about but to be tackled. Unfortunately, this is an attitude that gets little support at times of economic hardship. There is a very special problem in achieving this desirable objective for small businesses. They, in particular, cannot afford large personnel departments or do not have the time to train in this area, a critical information gap exists for them. The Minister could play a role here. Some of the money now expended on the IMI and other training activities could go, via IBEC and other small business associations, towards making low cost training courses on the topic of labour laws available, particularly to small businessmen. Every “start your own business” course run by FAS should contain a substantial unit on these issues.
 Every person registering with the Departments of Social Welfare and Finance as an employer should be provided with an information leaflet. This is essential as the Bill contains a new provision on procedural fairness, whereby even justifiable dismissals could be overturned as a result of failure to follow the correct procedure.
Perhaps the Minister might mention to the Minister for Education that labour law should be included in personal development courses in secondary schools. This would promote good workmanship and good management as everybody would have information about the rights and responsibilities of being a worker or employer. None of these areas has been adequately addressed to date. In my experience good professional management, working with experienced and intelligent union representatives, creates a working environment which produces the goods for both. Sloppiness at many levels is the scourage of Irish industry and, at a political level, we should not tolerate whining at lower standards but expect higher standards and help to achieve them.
I welcome the amendment to the 1977 Act. Indeed, my admiration for the 1977 Act led me to become active in politics. The Government of 1973-77 left behind a memorable legacy of labour law and the 1977 rout was particularly unjustified in the year in which the principal Bill became law.
The 1977 Act defined parameters within which one can act to dismiss fairly and established grounds for compensation and reinstatement where dismissal is unfair. It clarifies that the employer is free to act, but only within clear parameters while offering protection to all employees regardless of whether they are organised.
There has been a significant number of cases taken under the Act but one of the very positive outcomes has been that industrial relations have matured and that a good, firm, sound practice has developed based on prevention rather than cure. The stages in the unfair dismissals procedure can and have been  used to bring about improvements in performance by employees. The Act has balanced rights and obligations. However, there are occasions when there are unfair dismissals and this legislation seeks to resolve the difficulties that have emerged in relation to the inadequacies of the 1977 Act, 16 years after its initiation. As a result of the tremendous changes in the working environment it is clear that no Bill, however good, could survive without being updated.
Another major benefit of the 1977 Act was the separation of unfair dismissals disputes from the procedure for settlement of other labour disputes. It has greatly reduced, although not eliminated, the incidence of industrial action associated with individual cases. In 16 years much has changed in the work environment. The secure job has become the exception rather than the norm and contract, temporary and other new forms of employment have become much more common. There is evidence that, as a result, some workers are losing the protection afforded by the 1977 Act. This will be corrected and I wholeheartedly support this.
Fine Gael welcomes in particular the proposals in the Bill to extend the scope of the Act to agency workers and fixed term contracts in certain circumstances. In relation to agency workers the Minister is probably aware that IBEC in particular and other groups have asked for further clarification of how that will apply and we will look more closely at that at a later Stage of the Bill.
I very much welcome the decision to include sexual orientation among the grounds for unfair dismissal and the additional grounds conceded by the Minister in the Seanad of age and membership of the travelling community. Other areas should be included. A view by the trade unions and by the women's groups is that the issue of dismissal on grounds of pregnancy and associated problems has not been adequately resolved here. There is some difficulty in following all the arguments put forward in the Seanad because the Committee Stage debate is not yet available.
Mrs. O'Rourke Mrs. O'Rourke
 Mrs. O'Rourke: The Deputy is relying on newspapers.
Miss Flaherty Miss Flaherty
Miss Flaherty: I am relying on a number of fairly reliable sources. That issue has been inadequately addressed and it is important to address it in the context of this Bill where the onus of proof in each case is on the employer, whereas under other legislation the onus of proof is on the claimant. Dealing with a case under this legislation can sometimes produce a fairer result than pursuing it under other legislation. I am sure many of us will argue that with conviction and it is one of the areas on which I hope the Minister will concede.
Another welcome proposal is the provision of a new basic award. It acknowledges what many speakers in the Seanad said about dismissal which is that regardless of whether there is a financial loss, there is a huge loss of dignity, shock, disruption and disappointment, not just for the individual but for the whole family. However, unions and employers have pointed out that as it is framed new anomalies will arise in that people who are at a small financial loss could end up receiving less compensation than those who did not suffer a financial loss but who qualified for the basic award. Perhaps we can look at that again when we are examining the Bill in more detail.
The proposal to deal with the deduction of social welfare payments and tax rebates in the calculation of financial loss is welcome. I gather that proposals were put forward in the Seanad by an employer representative there in his capacity as Senator about which the Minister spoke positively but they do not seem to have been adopted here. I would like to know the Minister's intentions in relation to that.
There is a welcome for the removal of the difficulty created by contracts tainted with illegality. Some of the employer groups have questioned whether persons who collude in relation to this should qualify for the protection of the Act. Although I do not take a rigid position on this, those matters should be pursued under the other relevant revenue Acts  and the employment rights should remain based on the qualifying period deemed appropriate.
I also welcome the clarification on the question of a lockout being defined as a dismissal if an employee is not reinstated when it is over. However, we are concerned that the Bill, as drafted, does not include proposals for the reform of the Employment Appeals Tribunal. The Minister indicated the number of cases which come before the tribunal, it is largely a part-time agency with a variety of chairmen, each with two assessors. The number of people involved, all on a part-time basis, begs the question whether the time has come for a full reform of the tribunal to set it up as a permanent establishment for the sake of greater clarity and professionalism. We should ensure that those charged with the onerous task of making important decisions have broad knowledge and experience in that area. It would certainly be easier to train adequately a core group of skilled people than a large group of persons who give a relatively small amount of time to such work and who are drawn from many and varied walks of life.
My colleagues in the Seanad argued for an appeals system separate from the courts. They are raising important issues. That proposal was argued productively in the Seanad in terms of a likely response, and, therefore, I will not press the matter here. However, I would be interested in the Minister's views on the employment appeals system and redress to the courts which can involve a case being taken from the Circuit Court right up to the Supreme Court. By and large many of the groups who have made representations to us seem to be relatively content with an appeal to the Circuit Court.
If this Bill is to be of maximum assistance to employees — those it is meant to protect — it should be accessible to them. By choosing to amend the Unfair Dismissals Act, 1977, we now have a body of legislation added to other legislation. We are talking about ordinary employees who are trying to come to terms with their rights under the law. Having spent  12 or 13 years in this House I still have to sit down and work my way carefully through legislation in order to understand it.
Of all the legislation I can think of, the Bill before us is one that should be urgently and speedily consolidated. Some groups have argued for a consolidation of all labour law into a single booklet, but the consolidation of the two pieces of legislation would have been a more desirable approach. I hope the Minister will make a commitment as soon as possible to ensure that information relating to the protection of employees is made available as a matter of urgency.
The Bill does not address adequately a number of problems that arise in regard to employees who are pregnant and in regard to the private lives of employees. There have been some very high profile cases where the private life of an employee was used as a basis for dismissal. Amendments in this regard were tabled in the Seanad but I am not aware as to whether they were reached or, if they were reached, whether they were pressed. Such matters should be dealt with in this legislation.
An outstanding issue of concern relates to workers' representatives, I am not sure that section 5 deals adequately with the matter of selection for redundancy. That matter is clear where there is an agreed procedure in a company, but where there is not, the practice of allowing the employer to select is the norm. Section 5 refers to this but I would like the Minister to clarify whether it proposes some fairer means of selection than that of an employer which can be based on any number of criteria. Where there is no agreed procedure in place, can we be sure that the selection for redundancy is fair?
The Minister stated that it is central to our industrial policy that we have a fair and acceptable code of employment rights legislation and that the existence of satisfactory statutory unfair dismissals machinery is an important element in that context. I share that view and the proposals, as far as they go, are worthy of our support. However, I hope the  Minister will consider amending the Bill, based on the substantial and rational arguments which we will put forward.
I am sure the Minister has received many representations both from the Irish Congress of Trade Unions and the employers' groups in relation to this Bill. Obviously, those representations were made to the Minister in the past few weeks, but I hope that, based on the Minister's reading of them and the arguments we will put forward, we will see further improvements in the Bill. Some of the proposals that will be put to the Minister will be conflicting. For example, IBEC refers to the fact that in Great Britain the protection of such legislation does not apply to small businesses for up to two years whereas ICTU suggests that the qualifying period should be reduced to six months. The secretarial staff in this House, for example, are made permanent after six months. I understand that six months is a common period within which people are made permanent employees. Employees are in a kind of limbo until such time as they are covered by the legislation. In my view the current period gives even the smallest employer reasonable time in which to consider whether an employee is satisfactory. Indeed, in many cases where there are question marks in regard to an employee's ability, the employer could give him or her a further six month trial period in which to prove satisfactory. Therefore, a one year qualifying period is a reasonable balance in this context although some people may hold a different view.
The practice of employing workers through agencies has increased substantially here. The Minister made a clear amendment in this regard. Nevertheless, I would like her to outline whether research was carried out about that practice. For instance, how often would an agency employee be employed for more than one year? Regardless of the circumstances, if a person is employed by the same employer for a period of one year he or she should be entitled to all the benefits accruing from this legislation.
That raises the question regarding payment  to an agency who, in turn, pays the employee. Why was it decided that the obligation should rest on the person on whose premises the employee is working rather than on the agency who, in another sense, is the employer of the person involved? I would like the Minister to clarify whether the onus should rest on the agency or on the employer.
In regard to dual remedies, the explanatory memorandum attempts to make it clear that a person may have recourse to only one means of redress at a time. The section which deals with this in the Bill is less clear and this issue was raised in the Seanad but, again, because the debates are not available, I am at a loss as to the Minister's response. It appears that action can be taken under the industrial relations Acts, up to an advanced point and only at the point of making an award or a decision must one or other avenue be selected. Is there duplication in this regard and does it not contradict what the Minister stated to be her intention?
The Bill does not address the need to reform the Employment Appeals Tribunal and to enact comprehensive legislation on unfair dismissals. The issue of the treatment of pregnant women is one about which my colleagues and I are deeply concerned. I hope the Minister has had a re-think on this issue. Today I heard details of a number of cases where women were dismissed on grounds of their pregnancy due to necessary limitations on their activities in the use of machinery or an unwillingness by employers to facilitate them with less demanding employment. These are regular and not isolated occurrences. The effective application of this Bill will be extremely important in relation to that issue. I would like the message to go from this House that pregnant women should be treated fairly in the workplace and allowed make their valuable contribution to society.
The issue of trade union membership is not adequately dealt with in the Bill. The Minister indicated that this matter was adequately deal with, even in cases  where people were employed for less than 12 months. Unlike other areas provided for in this Bill the burden of proof in this case rests on the employee to prove that his or her dismissal was related to union membership. In other sections of the Bill the burden of proof rests on the employer. The trade unions are concerned that this Bill in failing to resolve this issue is not as comprehensive as it might be. They have expressed the same concern in relation to redundancies.
Those are the main points I wish to raise. I look forward to detailed discussions on this Bill. I would refer to the 1977 Act which was a milestone in industrial relations legislation. I hope this amending Bill will be comprehensive and that we will continue the good work in this area. I would ask the Minister to clarify, in her concluding remarks, whether the commencement date of 1 July is still an achievable target. It is important that this date be clarified for people who may be applying provisions relating to the Bill. We support the speedy passage of this legislation. I hope we will see it amended on Committee Stage and we will work hard to achieve that. We hope that workers will benefit and that industrial relations will improve.
Mr. Cullen Mr. Cullen
Mr. Cullen: The Progressive Democrats welcome this Bill. This type of legislation needs to be updated on a more regular basis than most other legislation, given the changes in the employment market during the last few years and the fact that there is likely to be continuous change in that area. Our definition of employment is changing dramatically and it will remain flexible for the foreseeable future. It is important that the Unfair Dismissals Act, 1977, should be updated. It is the type of legislation that should not be set in tablets of stone. It should be open to dealing with matters as they change, as established practices become outdated and new ones take over and as working relationships improve.
The improvement in industrial relations during the past few years has been tremendous. Many good work practices have been introduced. Some Irish  companies could compete with the best of foreign companies in respect of the attitude of the workforce and existing industrial relations. It is important that a legislative framework should be set down to deal with grievance matters and difficulties that arise from time to time, particularly when a person loses his or her job. It is very traumatic for anyone to lose a job. I am sure there are politicians who believe that their dismissal was unfair at election time.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: I had considered applying for unfair dismissal at one stage. Perhaps I could set up a tribunal and chair it.
Mr. Cullen Mr. Cullen
Mr. Cullen: I was referring also to Members who lost their seats. I do not know whether we can have redress under legislation in this regard or whether it would be wise to seek to do so. One tends to forget about the trauma, difficulties and social problems faced by families where one of the family members loses his or her job. It is particularly difficult for families to survive where there is a number of young children of school-going age or where university fees and mortgage repayments must be paid.
In cases where the main source of income is cut off in a sharp way this can lead to a traumatic time and pose enormous difficulties for those involved. It is very frustrating when one believes one has been unfairly dismissed. It is necessary that legislation is put in place to redress that balance in those cases. People lose their jobs when the market changes, as happened recently in Digital. Companies close down, trends change and this is not the fault of the workforce or the management. When one loses one's position at work and believes that one was unfairly dismissed, it is important that this type of legislation is available to bring about a satisfactory and fair outcome.
Legislation to deal with these matters tends to become a legal quagmire for those involved and it is difficult to know how to counter this. There is a contradiction and a dichotomy involved in  that area. The Minister made the point that in this legislation, we are dealing with moral issues in respect of how people deal with people. Common sense should be at the root of this legislation. If common sense is not an obvious thread running through this legislation, as the years go by and other Departments introduce legislation which impinges on this area we will face many difficulties. This will give rise to problems and the simple manner in which it was intended to deal with the problem will involve a series of legal procedures. That will require a person to employ solicitors and will involve the whole apparatus of the legal system. Indeed, as some people take this course of action those who do not will feel inadequate and will feel that unless they take similar action they will not get a fair crack of the whip. In introducing this legislation and in dealing with this area we must be extremely conscious of the work we are undertaking. We are dealing with a serious difficulty that arises from time to time in the area of unfair dismissals. I am glad to see the figures are indicating that the trend is not on the increase and that since the establishment of the Employment Appeals Tribunal there is an improvement in the way these matters are handled.
Earlier my colleague, Deputy Flaherty, drew attention to the raft of legislation now in existence, that it is likely to increase and that people will be required to go to different arenas to deal with various problems. We must organise the legislation — it may not be an area for this Minister to address but for the Minister for Equality and Law Reform —and examine the type of forum within which we could perhaps centralise many of these questions. For example, the Rights Commissioner could operate on one level with the Employment Appeals Tribunal operating on the other.
With the likelihood of growth in this area of legislation we must now tackle the difficulties which may increase greatly in the future. Because of our involvement in the European Community and the legislation which is constantly  generated from Europe and which influences Governments — much of it very positive — the question is raised as to how we can cope with this in a way that is beneficial to the individual who is struggling against the system. We cannot allow the system to become so omnipotent that the person simply cannot see his or her way forward to dealing with it. Serious questions arise in that context which must be examined and I ask the Minister of State when discussing this with her colleagues, particularly the Minister for Equality and Law Reform, to consider how best this question can be addressed.
One of the questions that has been raised by the free legal aid centres— and I have no knowledge in this area— concerns the extension of their services to people who may require advice and legal aid to deal with some of the matters that arise specifically in this area. I do not have first hand experience of what is taking place in this regard but it would appear that the legal aid centres are dealing with much of this type of legislation and the difficulties that arise therein. Due recognition should be given to them to deal with this area. I make that comment as an outside observer because I do not want to see this area become legalised.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: That is the point.
Mr. Cullen Mr. Cullen
Mr. Cullen: If we are to stop the requirement for the growth in that area I would rather see it handled in this way rather than allocating additional funding to the free legal aid centres to deal with these problems. These two points are fundamentally joined and the way to proceed in this regard is to reduce that requirement. Dealing with the issue in that way would be better than dealing with it the other way — on a long term basis—which would not be in the interest of the individual who would be required to go through such process at a time of trauma.
There is a number of amendments to be dealt with on Committee Stage. I do not propose to go into those in detail as  the majority of them have been referred to already this afternoon. However, I welcome in particular in this Bill the recognition of the sexual orientation of a person. This is aptly timed given the indications from the Minister of State's colleague, the Minister for Justice, of other welcome substantive changes occurring in that area generally. Discrimination of the type that could be construed in an unfair dismissals case should not be allowed to occur. Some of the Government's indications in this area are welcome and I am heartened at its approach. I realise they are only indications at present but they will be welcome when they are put into effect.
I agree with the Minister of State concerning the issues of age and the travelling community and she was correct to have accepted the amendments in that regard. It broadens section 5 of the Bill and gives it a clearer definition. However, I do not see a definition of religious grounds but perhaps that is covered in the original Act.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: It is.
Mr. Cullen Mr. Cullen
Mr. Cullen: In that case I am happy. The whole area of people being employed on a part-time basis, on a temporary basis and on contract work must be addressed. The Bill does not go far enough in that regard because changes have occurred even in the past few months. Talking to people who I thought were permanent employees of companies I was amazed to discover that they were not permanent employees even though they are employed for quite a long time. The old ideal of permanent employment has been, effectively, eliminated. The definition and the encompassing of part-time workers, etc., in the context of this Bill must be expanded. If it is not done in this Bill it will be required to be done in the not too distant future by further legislation. The fact that the Minister of State is attempting to proceed in this direction in this Bill is an indication of what is happening in the marketplace with regard to how people are employed. The fact that the Minister of State recognises  the problems should encourage her to go even further than she has done in the context of the Bill. It is always those who are the least well off and the least capable that are the most vulnerable and we must be conscious of that when dealing with this type of legislation. We must ensure so far as is practical that as many people as possible have redress under this legislation. When we come to Committee Stage I will be exploring how we can enhance the legislation in that area.
On reading the definition of people who are employed through agencies — perhaps it is the way I read the legislation — I understand it to mean companies who recruit staff through these agencies. Many people who work, not for officially defined employment agencies but——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: Consultancies.
Mr. Cullen Mr. Cullen
Mr. Cullen: ——in multiples, supermarkets and so on, for example, wine tasters, are employed on an agency basis. People who conduct cookery demonstrations, etc., in supermarkets and multiples are third party employees in the sense that an agency employs them for the manufacturer or producer of the product or for the multiple store. There could be four potential employers in these circumstances and I am not sure that the Bill covers that point. However, we will have time to consider that matter later.
This is a matter with which I have been familiar in the past and difficulties arise in that people are sometimes abused, unfairly treated and unfairly dismissed. Because of the nature of marketing and the importance placed on demonstrations and so on people who are permanently employed for nine or ten months of the year may be unfairly treated. There are rivalries in some cases, leaving people very vulnerable. Perhaps this Bill could be extended to provide for these circumstances.
Good industrial relations are at the heart of successful companies. They can make the difference between survival and failure. If ever a company deserved to succeed it was Digital. In spite of the fact that the company closed it did much for  the country in terms of good industrial relations and the professional manner in which it conducted its business. I was very proud of and encouraged by that company in terms of industrial relations. Even though it did not succeed we can learn a lot from it.
The involvement of worker directors in companies is vitally important in this area. I am sure most people agree there is not sufficient involvement of worker directors——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: The Deputies can come to Brussels with me next Tuesday.
Miss Flaherty Miss Flaherty
Miss Flaherty: We would love to go.
Mr. Cullen Mr. Cullen
Mr. Cullen: I would be delighted to accept that invitation, I am sure the same applies to my three colleagues. Emphasis was placed on the question of worker directors some years ago but of late it seems to have slipped back on the agenda. Communication is very important for good industrial relations. Although this matter does not relate to the Bill it is a fact we should not forget. Companies, indigenous or foreign, developed in the last decade have very good industrial relations. There is a good understanding of this type of legislation in these companies. I agree with my colleague that companies setting up concentrate on the grants they will receive, but part of the package of forming a company should be an understanding at management, trade union and employee level, of the rights and redresses available to workers. Legislation such as this might never be required if there is such an understanding, prevention is better than cure. Management of new companies should be aware of this legislation as it will lead to good relations and successful companies.
I welcome the provision relating to the four week award even when no financial loss is incurred by employees. Nobody could construe the receipt of a social welfare payment as a bonus. In many instances it is not just a question of the money involved but of people's dignity, how people perceive themselves and how  they feel they are perceived by others. This is a positive measure by which payment is made even though no financial loss has been incurred to the person wronged. This is a very sensible approach. I am concerned that four weeks may not be a sufficient timescale. One could pick any figure — it is a subjective matter in many respects, but it is an important measure and I welcome its inclusion in the Bill.
I wish to refer to the question of lockouts and people's status in the event of a lock-out. Abuses may occur in the event of a lock-out, a strike or a company closure where some staff are reinstated while others are not. That abuse occurred in the past and we would all welcome measures to prevent it.
The Bill is welcome. There is always room for improvement in legislation and the fact that the Minister accepted amendments in the Seanad is encouraging. I have always found the Minister reasonable in her approach, particularly when important and sensible amendments are being made. I look forward to dealing with this Bill on Committee Stage.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: I too welcome this Bill. But many Members will oppose the improvements in the legislation. They strengthen the rights of workers and clear up many of the defects, some of which may not have been foreseen when the 1977 legislation was enacted. I welcome the extension of the scope of the legislation to agency workers and to fixed contract workers in certain circumstances. I welcome the inclusion of sexual orientation among the grounds for automatic unfair dismissal, the provision of a new basic award and the new arrangements for the exclusion of social welfare payments and tax rebates in the calculation of compensation.
In many respects this is a practitioners' Bill. It seems to come mainly from the experience of people working the 1977 Act, whether on the trade union side, lawyers, employer organisations, Rights Commissioners or people in the Employment  Appeals Tribunal. The areas of the 1977 legislation which are being amended were identified by people with experience of the 1977 legislation. The Bill should have gone further in taking account of the very substantial changes in the labour market since 1977.
The Bill, welcome as it is, seems to come from the era of the “job for life” days of 1977. I am not begrudging it and I am making my comments in a positive sense. The world has changed since 1977 when Jack Lynch told us that any Government that allowed the level of unemployment to reach 100,000 did not deserve to be re-elected. It is probably accurate to say that no Government has been re-elected, at least not in the form in which it went out, since 1977, so perhaps he was making a prediction. In any event, the fact that unemployment is now three times the level Jack Lynch would have considered unacceptable in 1977 has very serious implications for what is happening in the labour market and for the relationship between employers and employees.
The huge pool of surplus labour, one in five of the labour force, now creates a set of circumstances in which the bargaining power of the employee has significantly changed, where it is an employers' market and where the temptation to replace an employee is all the greater.
Similarly, since 1977 there have been changes in relation to emigration. In 1977 most people regarded emigration as a dark memory from the 1950s and many of the people who emigrated then returned in 1977 to work here in the new industries. In the intervening time they discovered that having come back to settle themselves and their families here they were faced with a situation in which members of their own families, albeit equipped with the highest academic qualification, had to go abroad to work. That factor too is giving rise to a significant change in the labour market.
There has been a huge technological revolution since 1977. New technologies have affected offices, industries and services. Allied to that there was an ideological  revolution, particularly in Britain and the US, which reoriented the thinking between employers and employees, and broke down the kind of social contract that existed in the 1970s which gave rise to the kind of legislation that so excited Deputy Flaherty that she joined Fine Gael, although I recall that the Minister who introduced it was a member of the Labour Party.
Miss Flaherty Miss Flaherty
Miss Flaherty: He also later joined Fine Gael.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: It did not get him too far.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: When the Unfair Dismissals Act was enacted in 1977 there was a labour market in which the nature of the employment contract was very different from now. A job in 1977, by and large, meant 40 hours a week for 40 years at the end of which there would be a pension. For the most part it was a job likely to be unionised and if it was in one of the new industries it was likely to have been unionised in the form of a preemployment agreement. The set of relationships and the procedures in 1977 and which the Unfair Dismissals Act assumed—no longer apply. Many of the assumptions reflected in the original Act do not now apply, for instance the assumption that there would be a probationary period of one year, and that there would be redundancy procedures.
There is an assumption in the 1977 Act that normal employment would be based on an agreement between the union and employer regarding selection for redundancy, or that the employment would have been there so long that a custom and practice would have built up. That no longer applies. The assumption that led to the two year maximum period on compensation assumed an ability to get alternative employment but that no longer exists. If one is sacked today one's chances of employment are considerably less than they were in 1977.
The nature of the employment contract is very different. There has been a growth in part-time employment, fixed term  employments, casual employment and various kinds of irregular employment. We even have self-employment which, in theory, is self-employment but which in practice is essentially a relationship between employer and employee. The building industry is now increasingly using forms of subcontracting and so on. Manual labourers in the building industry are now being contracted as selfemployed people even though the essential relationship they enjoy is of employees. Because they are, in theory, self-employed, they are completely out of the scope not just of this legislation but of virtually the remainder of the normal employment protection legislation.
Similarly, the penetration of trade union organisations has changed considerably since 1977. For example, as a full-time public representative, I am often before the Employment Appeals Tribunal, in front of Rights Commissioners, representing employees who have been sacked or treated unfairly. They are not members of a trade union and, in many cases, never even thought of joining one because they thought the cards were stacked against them.
There is exploitation of workers at present which needs to be addressed by legislation which takes account of the reality of the varying types of employment contracts.
For example, in regard to the one year rule, a person is not covered under the provisions of this Bill unless he or she has been in continuous employment, which is unusual nowadays. Some employers, aware that an employee has one year's continuous employment, try to circumvent the provision by letting the person go for a period and then reemploying him later. I know that the Bill, in certain circumstances, seeks to remedy that loophole in the case of fixed term contracts. I also know that the Irish Congress of Trade Unions made a recommendation that the 12 months should be reduced to six which is the kind of normal, accepted probationary period in employee relations generally. There should be a general provision in the Bill —something we might address on Committee  Stage — which would allow for a dismissal to be examined irrespective of the period of employment of an employee or the nature of the employment contract, but which would recognise the rights of employers to a probationary period to assess the suitability of an employee. A greater degree of flexibility should be given to Rights Commissioners and the Employment Appeals Tribunal to assess whether a dismissal was unfair. Members have come across many cases of dismissals which were patently unfair but which could not be processed as an unfair dismissal because of the time limitation.
Previous speakers referred to the need to consolidate the present employment legislation and referred to the tendency of the overall area of employment legislation to be increasingly the preserve of lawyers and legalised in that way
FLAC and the Coolock Community Law Centre summarised the position in their submission as follows:
It is to be regretted that this Bill has made no attempt to standardise procedures in labour law matters. An employee who finishes work may have a claim under up to ten different pieces of legislation for wages, holiday pay, notice pay or a claim against the Insolvency Fund. Yet, different procedures operate in several forums for each claim which may arise out of the one dismissal. For example a claim for unfair dismissal can be brought before a Rights Commissioner or the Employment Appeals Tribunal. Yet a claim under the Payment of Wages Act, 1991 must be brought only before a Rights Commissioner. Furthermore a claim under the Minimum Notice and Terms of Employment Act, 1973 must be made before the Employment Appeals Tribunal and cannot be heard by a Rights Commissioner. Moreover, if an employee wishes to appeal a notice pay determination he is obliged to go to the High Court on a point of law, yet where the appeal is against a decision  under the Unfair Dismissals Act, he has to go to the Circuit Court.
Is it any wonder that so much of labour law has begun to slip into the domain of the legal profession, for whom it was never intended? There is a very strong argument for the consolidation of labour legislation. I disagree with Deputy Flaherty, it is necessary to go beyond simply consolidating the two Unfair Dismissals Acts of 1977 and 1991 because, quite clearly, many of the definitions and procedures of the Minimum Notice and Terms of Employment Act, 1973, the Redundancy Payments Act, 1967, and so on are inter-related.
A number of areas have been mentioned as being in need of additional attention under the provisions of this Bill. Pregnancy was mentioned by previous speakers, the most obvious difficulty, particularly in relation to the Maternity (Protection of Employees) Act, 1981, is the requirement of an employee to give four weeks' notice before going back to work. I have come across many cases, certainly in the early days after the implementation of the provisions of the Maternity (Protection of Employees) Act, 1981, when people did not even realise they had to give four weeks' notice to their employer of their intention to return to work and employers used that provision to avoid taking such employees back. The Irish Congress of Trade Unions referred to section 6 (2) of the principal Act and wonders whether its provisions comply with the EC Directive on Pregnancy. That area needs to be explored in greater depth on Committee Stage.
The question of trade union membership has also been referred to by the Irish Congress of Trade Unions. It draws attention to the extent to which the burden of proof is placed on the employee. For example, if people are dismissed for trade union membership and want to pursue a case on those grounds, they must prove they were dismissed for being a member or for having been active in a trade union, which is virtually impossible. Many employers  have tended — both in the area of trade union membership and generally in the operation of the provisions of the Unfair Dismissals Act, 1977 — to find ways of shifting the burden of proof to the employee. The classic case would be where an employer claims it was not a dismissal. The first thing that happens, is that the relevant employee must establish that there had been a dismissal in the first place. In the implementation of the provisions of the 1977 Act there has been an increasing tendency on the part of employers, obviously advised by legal people, to attempt to find ways to shift the burden of proof to the employee. As soon as the question of trade union membership is mentioned in an appeal —it may not constitute total grounds for dismissal although it may be a substantial part thereof — the employers' side will say that the case is based on trade union membership and that, therefore, the burden of proof is on the employee. That is very difficult to prove.
A number of areas have been mentioned in which unfair dismissals will take place — discrimination against, say, members of the travelling community or on grounds of age, religion, sexual orientation and so on. I am surprised that discrimination on political grounds was not included. Perhaps that area needs to be addressed, indeed in all employment. It also needs to be dealt with in the context of participation in politics. I know that a debate took place in the Seanad on the whole question of dismissal on grounds of membership of the Oireachtas. That is a matter about which I would have much to say if I had the time.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: Look at what happened to the Deputy's colleague.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: In response the Minister of State said she accepted, in principle, the case that was being made and that it could be dealt with——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: Explored.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore:——in an electoral Bill  but I am not sure if that is the way it should be dealt with. Other grounds for dismissal are not dealt with in other legislation——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: One is taking up particular employment.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: I recall that when I was dismissed on the grounds that I was a member of the Oireachtas I did not feel that my rights as a citizen, protected under electoral legislation, had been infringed but rather my rights as an employee which I would have expected to be protected under employment legislation. Similarly, dismissal on the grounds of trade union membership is not dealt with in industrial relations legislation but in legislation dealing with dismissals. Furthermore, it is now proposed that dismissal on the grounds of sexual orientation should be dealt with not in the legislation which will be introduced by the Minister for Equality and Law Reform and under which homosexuality will be decriminalised but in employment legislation. The issue should be dealt with in this legislation, and I ask the Minister of State to think again before——
Miss Flaherty Miss Flaherty
Miss Flaherty: The Minister of State should have a survey carried out to see how many Members have been affected; a surprising number have been.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: I have been affected. This has an adverse effect on the practice of democracy in that many people who would otherwise contemplate allowing their names go forward for election and pursuing their political views in that way are deterred from doing so. This issue should be dealt with.
The question of dismissal on the grounds of one's behaviour outside the place of employment also needs to be addressed in this legislation. Reference has been made to the Flynn case which is probably the best known case where an employee was dismissed on the grounds of their conduct outside the place of employment. There is a need for an amendment to the legislation which  would define the conduct on which somebody could be dismissed. We do not want a situation — and this appears to be the case at present — where what one does in one's personal life is taken into account by an employer in coming to a decision to dismiss what is subsequently upheld by the Unfair Dismissals Tribunal.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: That case went up all the way, as the Deputy is aware.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: I am aware of that but the problem in this case is the legislation. While I understand all of the arguments made in that case, the issue that needs to be addressed is the extent to which one's behaviour and conduct outside the place of employment can be used by an employer to justify dismissal. I recall that a person was dismissed because he had been convicted of poaching, not trade union members——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: A nice fat salmon.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: He had been convicted of poaching. The employer said that he would get a bad reputation as an employer because there was a conviction against the person concerned and he produced all kinds of reasons to justify dismissal and succeeded in having it upheld. Therefore there is a need to strike a balance.
The question of selection for redundancy has been raised. I am disappointed that in her own contribution the Minister of State ruled out dismissals on the grounds of redundancy, rationalisation or other organisational reasons. The provision in the redundancy legislation is being widely abused. I suspect that if the Minister of State was to take her own case which, as she indicated earlier, she might wish to take she could well find that reasons such as reorganisation, rationalisation or some other euphemism which is widely used now in the employment area would be used to justify dismissal. The Redundancy Payments Act dates back to 1946. The problem is that, because of technological changes, it is  much easier to justify redundancy on the grounds of rationalisation and reorganisation——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: Fresh new faces.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: ——and all the other excuses that are used to dump one set of employees and replace them with another. I am sure the Minister of State understands this only too well.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: It is a pity we cannot make it retrospective.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: The issue of health is omitted from the legislation. I am thinking in particular of those people who have been dismissed following heart surgery or heart attacks. In this regard I recall the case of a bus driver who had a heart attack but made a full recovery. The employer claimed that the contract of employment was being frustrated and he could no longer have confidence that the person would be able to do the job properly because of his illness. I have also come across cases of general workers in local authorities who, while they held temporary positions, sought permanent positions but were told that they would not be insured and could not be offered permanent employment because their cholesterol levels were high or they were suffering from a heart-related illness. The question of dismissal on the grounds of health needs to be addressed in this legislation to prevent employers claiming in respect of someone who is unfortunate enough to suffer from a serious illness but has made a full recovery and is perfectly capable of continuing in employment, that the contract has been frustrated and the person has to go.
On the question of redress the Minister of State made it clear that the levels of compensation paid during the years have been small. To a large extent this is because social welfare payments and tax rebates are taken into account. Incidentally, this happened only when the legal profession became involved. In the early years compensation was calculated by reference to gross pay. It was only as  time went on that it began to be calculated on the basis of net pay.
The one area where there is a need for legislation is in non-unionised, casual, irregular, low paid employment where workers are badly exploited. This is becoming more common. In those circumstances if workers are to be provided with the protection they need the legislation will have to be broadened to allow access to it by a wider range of employees. I hope we will have the opportunity of dealing with this point on Committee Stage.
Notwithstanding my reservations about the legal profession's involvement in the operation of this legislation, it is nevertheless a fact that many employers turn up with their lawyers and many employees, particularly those who are not unionised, go to legal aid centres to seek assistance with their case. There is a necessity, therefore, to provide legal aid for people appearing before the Employment Appeals Tribunal, if they are not to be at a disadvantage.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: That will make the spiral huge.
Mr. Gilmore Mr. Gilmore
Mr. Gilmore: I agree. Perhaps another way of dealing with it is by — and these are not mutually exclusive — extending the categories of people who by right may represent people at the Employment Appeals Tribunal. As I understand it the 1977 legislation reserves to lawyers, trade union officials and employer representatives the right to represent. In practice, other people do so by permission of the Employment Appeals Tribunal and I am not aware of any case where such permission has been refused, but it would be helpful if the representation could be drawn from a wider net. People who opt to be represented by a member of the legal profession, particularly in cases where the employer has legal representation——
An Leas-Cheann Comhairle Joe Jacob
An Leas-Cheann Comhairle: The Deputy is obviously revelling in his subject.
Mr. Gilmore Mr. Gilmore
 Mr. Gilmore: I will conclude on that note and revel at some other time.
Mr. B. Fitzgerald Mr. B. Fitzgerald
Mr. B. Fitzgerald: I welcome the opportunity to debate this legislation. Like Deputy Gilmore I have had some experience of this legislation down through the years. I advise the Minister not to be rushed into concluding the Bill by a certain date because it will be at least 15 to 16 years before we have another opportunity to consider change in the legislation. We should now try to rectify some of the difficulties that have arisen since the 1977 Act took effect.
My clear understanding of the Unfair Dismissals Act, 1977, is that it was enacted to protect employees who were unfairly dismissed. However over the years employers have availed of it to dismiss people legally. That is an unfortunate development. It would be unfair to brand all employers, because a great many have never had to attend the Employment Appeals Tribunal as they were able to solve their industrial relations problems through in-house mechanisms.
Over the years a number of bad practices has developed. I was interested to learn that, back in 1976, 20 per cent of industrial disputes related to dismissals and that this has been reduced to between 8 and 10 per cent. That is still far too high as dismissal should not give rise to industrial disputes. I know from my own experience that people have lost confidence in the Unfair Dismissals Act and are resorting to the Industrial Relations Act to deal with dismissals. I can see this trend developing unless we make the necessary changes in the law.
The spirit of the 1977 Act is that the industrial relations mechanism would be applied in a similar fashion to cases of unfair dismissal instead of dealing with the problem in court. However, a great many cases are ending up in the Circuit Court and this is certainly not in keeping with the spirit of the Act as introduced. I hope changes will be introduced to try to avoid this in the future. As Deputy Gilmore mentioned, at a hearing before the Employment Appeals Tribunal the  employer will certainly be represented by a solicitor and perhaps even a barrister. Obviously if the employee is represented by a trade union, the legal profession will not be involved, in keeping with the spirit of the 1977 Act. The tribunal is comprised of a chairperson and a representative of the employers' organisation and an employees' representative. They have a great deal of experience and will apply commonsense in determining each case. It is intimidating for someone who has gone through the trauma of losing his job to try to prove he has been dismissed unfairly.
The Unfair Dismissals Act has become a legal minefield. When a case comes before the Employment Appeals Tribunal, precedents from as far back as the 1800's are being cited as reasons for dismissing somebody. That is an unfortunate development and we should try to stem its growth by introducing amendments in the course of the passage of this Bill.
Under the Industrial Relations Act a case heard by a Rights Commissioner may be appealed to the Labour Court whose decision is legally binding. I see no reason therefore why the decision in a case appealed to the Employment Appeals Tribunal under the Unfair Dismissals Act should not be legally binding on the appellant. It would give the individual who has been dismissed an option to decide which route to take, common law or the unfair dismissals legislation, which I believe should be amended. At present if one takes that route one could end up not alone in the Circuit Court but in the High Court and that should be avoided. It can take well over a year before a final determination is made in the courts and indeed if it goes to the High Court it can take up to two years. That limits the options of redress under the Act.
Obviously the Rights Commissioner will hear the case after a number of weeks when the person has gone through the procedure of deciding whether to appeal. When there is an application to appeal  there is a certain timespan, in which the employer can object or accept, and many weeks can go by before a date is set. If it goes from the Rights Commissioner to the appeals tribunal, particularly outside Dublin, it could take several months before the tribunal hears the case, apparently because of a system whereby members of the tribunal do the circuit at intervals, which takes time. Having heard the case, it can then be appealed within six weeks to the Circuit Court. When it goes to the Circuit Court it may be listed for, say, July, but it may be the following July before it is heard. Having heard the case in the Circuit Court somebody, on a point of law, may decide to appeal it to the High Court in which case it could be two, three or three and a half years before it is determined. During that time the person may be unemployed or in part-time employment. What possibility has that person of being reinstated in employment? The chances of fitting in again in the employment are probably nil, indeed the employer may have employed somebody to fill the position. After 12 months that employee has rights under the Unfair Dismissals Act and cannot be removed to allow the other person to return. Those are some of the practical problems that arise when a case takes so long to process. I hope that aspect can be examined with a view to taking it away from the courts. However, an employee should have an option in this regard.
To take both options would not be in the employee's interest in the long term. The Minister said the average compensation payment is £2,660, a little over £800 more than the 1984 average. This is very low compensation — based on the maximum 104 weeks net wages — for a person who has lost a job. If that person is in receipt of social welfare or due a refund of income tax that would be welcome. If somebody who has lost their job — and gets two years' net wages — obtains employment that would be taken into consideration. Effectively the maximum a person will get, if they have been employed during the course of their dismissal before the determination of  their case, is four weeks' wages. That does not take into consideration the fact that somebody may have been 15 or 20 years in employment and may have accrued various benefits, not necessarily cash benefits, such as security, pension rights and various others which they would not have in their new employment, which may only last a year or less.
If an employer unfairly dismisses somebody he should be made to pay dearly. I do not believe 104 weeks net pay is fair compensation and that area will have to be examined.
We have an opportunity here to redress many of the problems which have arisen. Consideration should be given to the Irish Congress of Trade Unions and indeed to the employers' representatives who experienced the difficulties at the coalface in the past. We must ensure that cases are heard within a couple of months because if it goes beyond that period it is very difficult to reinstate a person. The main objective of processing a case of unfair dismissal is to have the person reinstated.
I know employees prefer to take compensation, for many reasons but in cases where there is a large number of employees it would be more practical for people to be reinstated. If, after two or three years, people lose their skills, they will not fit in and for that reason we must take this matter out of the courts, which was the original principle behind the 1977 Act. Let us deal with it as it was meant to be dealt with, as an industrial relations issue and try to consider, as I suggested, the Rights Commissioner and the appeal to the tribunal, making it legally binding on the appellant. During the few weeks we have to consider the Bill I hope the Minister will introduce amendments along the lines suggested.
Mr. R. Bruton Mr. R. Bruton
Mr. R. Bruton: I welcome the Minister of State who introduced her first Bill and I wish her success. Everyone would see this as welcome legislation. It is good housekeeping legislation in many ways in that it tidies up many loose ends in the earlier legislation. Like others who have spoken, I share the belief that there is no  objective evidence that labour law has been an effective barrier to employment. The barriers to employment are probably being more throughly debated in a committee of this House where the Finance Bill is being examined as well as the disincentives in the taxation system, the attendant bureaucracy in the administration of the tax regime and the various anomalies affecting lower paid workers. That is where many of the barriers to employment arise, not in the labour law which employers and trade unionists accept has brought welcome stability to our industrial relations, contributed to a situation where people are being treated fairly and in which we are creating a better quality of employment.
In the case of amended labour legislation, as a general principle there should be an attempt to include a statement, accompanying legislation, stating what effect this will have on costs. This legislation will not have an impact on costs and there is no doubt that cost competitiveness is here to stay in terms of our competition within the EC.
We cannot regard welcome reform in labour law or in other forms of law as a free lunch if, at the end of the day, significant extra costs will be imposed. As necessary and welcome reforms in labour law evolve, will the Minister ensure that her Department sets out a cost statement so that we know there will not be hidden costs or that in a couple of years the legislation is creating problems we did not envisage? If there was to be such a cost statement there would be a far greater cost statement attaching to the Finance Bill today with a £130 million extra burden in income levies alone.
There is no doubt it was envisaged that the whole procedure in relation to unfair dismissals would be an informal setting in which employers and workers and their representatives could resolve difficulties. That concept has been lost sight of and this has been particularly to the disadvantage of workers because, as a rule, employers will have more resources to get access to legal representation. The procedures at the Employment Appeals Tribunal have become dotted with more  and more lawyers and a greater frequency of appeals to the Circuit Court, which is unsatisfactory and never envisaged. There is some chance for unionised workers who can get the necessary financial and legal support from their trade union. This may not be the case for non-unionised labour for which in any event we should be more concerned to provide protection because they are less likely to be able to pursue redress. There is no doubt that the present situation is creating obstacles.
In the discussion document there was a general endorsement of the fact that the legalistic approach was resulting in lenghty and costy delays and that ordinary workers, for whose assistance the system was set up, are often intimidated by that approach. We should try to go back to a more informal way of dealing with such problems and do away with the cost of appeals to the Circuit Court. I am disappointed that the legislation does not seem to have covered that territory.
Further on in this document there is a reference to the frequency of appeals to the Circuit Court and it notes, quite interestingly, that the Congress, the FUE, as it then was, and the Employment Appeals Tribunal all expressed dissatisfaction with the role of the Circuit Court; all three bodies considered that appeals to the Circuit Court should be limited to references of determination to the High Court on a point of law only. That seems to be the general consensus but it has not been reflected in the legislation. It would seem a missed opportunity that we did not go with the general consensus among the social partners and the tribunal itself. In many ways that introduces the concept Fine Gael put forward in the Seanad of a different appeal mechanism. Maybe that has sense in that it would short-circuit what is going on and, if it did not bring to an end the legalistic approach that is perhaps inevitable in these circumstances at least it would reduce the potential costs of pursuing cases.
Another issue to which I would like to draw the Minister's attention, which I  hope she might consider by way of an amendment, is the very unsatisfactory situation in pursuing awards where a company winds up its operations. I know of cases where it was only through the remarkable persistence of workers that an outstanding award of compensation was eventually secured through the insolvency fund after the winding up and liquidation of companies. It is unsatisfactory that it should be left to the persistence of workers or unions in pursuing companies that may wind up to get those rights. If, as I suspect, there is a defect in this area, the Minister should use this opportunity to table amendments that would protect workers in the event of a company winding up. Perhaps, as a result of the new Companies Act it is not as frequent, but there was a time when “shell” companies operated one day and were gone the next and limited liability seemed to protect the directors from being pursued personally for the amounts outstanding relating to unfair dismissals awards. If we are doing a good housekeeping job on this legislation the Minister should come back to the House with amendments that might accommodate that situation. Perhaps we on this side of the House should also try to draft something for her consideration although we do not have the Minister's resources.
I am not an expert in industrial relations but it seems inherently unfair that, where there is a dismissal but it cannot be proved there was a financial loss, the amounts would be limited to four weeks' pay. It seems that someone should have the freedom to interpret the extent of culpability. Why do we put in a ceiling without giving the Employment Appeals Tribunal the ability to assess the case on the facts presented? It seems that these things should not be capped. Equally I do not see why, in the event that the employer has acted recklessly and dismissed someone without justification, both financial loss and fine should not apply. Perhaps it is to contain the cost element of this legislation. On the other hand if we are providing for redress for loss, I do not see why it should be capped. One can envisage a situation  where there would be very significant losses and it seems artificial to impose limits on them.
Another issue that I would be interested in hearing the Minister develop is this notion of “back to back” contracts. I certainly welcome protection in this area. I was amazed recently to meet a constituent, a young 18 year old builder's labourer who was being employed on the basis of these contracts at £140 or £150 a week. He was on contract and the employer was not paying PRSI so, presumably, he was not getting the protection of labour law and so on. I was shocked at how prevalent contract work had become. The legislation is complex and hard to interpret quickly. Am I right in assuming that if an employer breaks the contract by three months, the Employment Appeals Tribunal, the Rights Commissioner or whoever is involved does not have the chance to examine the situation to see whether these contracts were wholly or partly established purely to circumvent this law?
In the case of workers like the one I described employed on contract with three months breaks, will this legislation make things more tenuous? Workers get a spell of employment and then a spell of unemployment, they are kept on that kind of drip system. Far from this reform getting over the problem faced by those workers, it will probably aggravate it in that there will be even more unreliable working patterns for them. It begs the question whether this legislation gets to grips with the situation. Perhaps we should consider why employers prefer to contract out work and whether other legislation can deal with that. I suspect it relates more to PRSI than to labour law. Again, this raises the question whether, in the interest of continuity of work, we should be examining the burden of PRSI. Those are the main issues about which I am concerned. I welcome most of the provisions in the Bill. People will now have more confidence in its operations but we have missed an opportunity to deal with the legalistic aspect of the matter.
 The pursuit by the Minister's own Department of awards which have been fixed by the tribunal but not paid by employers leaves much to be desired. I have dealt with cases in my constituency clinic which have taken an exceptionally long period of time to settle. There appeared to have been a breakdown in communications between the Minister's Department and the solicitor involved. That is a lenghty and frustrating procedure and is unfair to a person who has received an award for an unfair dismissal. It is a traumatic experience for a worker to take an unfair dismissals case against an employer. Obviously, they fear that there will be a black mark against them in future employment. It takes a great deal of courage to go down the road of an unfair dismissals action and therefore, it is unfair that employers are not made pay up more promptly in such cases. The Minister's assistance to workers in that position should be more streamlined and people should be kept informed of developments.
I welcome the provision in the Bill which states that interest should accrue on such awards. Indeed, I would contend that it should be a penalty interest. The Revenue Commissioners impose a penalty interest on overdue tax liabilities and the same should apply to awards in unfair dismissal cases. The Minister should examine the procedures in her Department for dealing with such awards. She should examine also the procedures outside of her Department which are carried out under her instructions. Are such cases being shunted to the bottom of a list in a solicitor's office because the sum of money involved may not be significant and, therefore takes lower precedence? Such cases may involve small sums of money but they are significant to the people who have gone through a traumatic experience in taking the case. Therefore, when they succeed in winning an award we should ensure they receive their money promptly.
Finally, I appeal to the Minister to examine the injustice to pregnant women. The Minister is endeavouring to introduce a fairer system and is committed to the recommendations in the  report of the Commission on the Status of Women. It appears inconsistent with what she has said elsewhere that this injustice has not been faced up to and resolved.
Mr. Penrose Mr. Penrose
Mr. Penrose: I compliment the Minister on the speed with which she introduced this legislation, but that does not surprise me as a constituency colleague, because she is well known as a good worker in my constituency.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: The Deputy is not doing bad work himself.
Mr. Penrose Mr. Penrose
Mr. Penrose: As somebody acting on behalf of the ordinary people, I am surprised at the tone and tenor of some of the comments. I am not carrying a lawyer's hat by any means, but lawyers have helped in no small way to bring about some of the amendments to the principal Act and that is to be welcomed. The main focus is to update the 1977 Act. It was important that the Minister noted the shortcomings in that Act and set about eliminating them to ensure that the Act operates satisfactorily. This commitment was given in the Programme for Government and is being honoured. People outside the House should note this because many commentators have condemned the Government for the slowness with which it introduces legislation. This legislation has been introduced speedily and the Minister and the Government should be complimented for that.
I welcome the proposal in the Bill for a minimum award of four weeks' pay following dismissal. Employees deserve that because of the trauma and stress that many of them go through in taking an unfair dismissals case. I welcome also the increase in the fine for failure to attend at hearings before the tribunal from the present measly sum of £20 to £1,000. That fine can be imposed for refusing to give evidence or a failure or refusal to produce documents. That gives teeth to the legislation. Persons employed through employment agencies will be covered  under the Bill and this is a welcome inclusion. Section 5 includes sexual orientation as a ground for an automatic unfair dismissals case. That is a welcome addition to the list of reasons for dismissal.
The Bill sets out the role of the Circuit Court in relation to enforcement to ensure compliance with an award. Some speakers, including Deputies from my own party, indicated that the courts should have a de minimis role in relation to this legislation. That is a Utopian view. Where people have varying views on such matters it is obvious that cases will eventually make their way to the courts for final resolution. This Bill sets out clearly the role of the Circuit Court in relation to enforcement in that regard. In view of the plethora of legislation relating to employment law, the Minister might consider publishing a comprehensive, simple guideline to the legislation which could be readily understood by lay people. I appreciate that the Minister and her Department have published a number of booklets which set out clearly the precise details of the various legislative measures, for example, the Unfair Dismissals Act, the Maternity (Protection of Employees) Act, the Holiday (Employees) Act. It would be a worthwhile exercise to bring those Acts together and make them available to enable ordinary people to be au fait with their rights and duties under the various enactments. As the Minister stated, almost 8,000 cases have been brought under the Unfair Dismissals Act, 1977, of which about 1,750 have been allowed.
I welcome the provision in section 3 which allows for the extension of the legislation to temporary employees in health boards. Contract work is now commonplace. The majority of nurses are employed on a temporary basis. Heretofore they could not avail of the benefits of the legislation. This Bill rectifies that anomaly and I welcome it.
Section 6 provides that payments to employees under the social welfare and income tax codes can now be disregarded. That is an important provision. In view of the relatively low level of  awards of approximately £2,660, it is vital that any payments the claimant receives under the social welfare or income tax codes should be disregarded in the calculation of financial loss.
Members will be aware that prior to the 1977 Act very few protections were available to the employee dismissed in an unfair, arbitrary or unjust manner. The 1977 Act was positive and progressive legislation which provided redress for people who were unfairly dismissed by the mechanism of reinstatement, re-engagement or compensation for the financial loss incurred. The argument that the unfair dismissals legislation is so restrictive on employers that it forms a barrier to the creation of employment does not hold up to any objective scrutiny. I agree with the Minister's analysis in this regard. The 1977 Act played a major role in the industrial peace and harmony which prevailed in the late seventies, throughout the eighties and into the nineties. There is now a beneficial interaction between employers and unions. The Act has served to give certainty in the workplace. The legislation clearly sets out the rights, duties and responsibilities of employers and employees in this regard.
Section 7 is novel, particularly in regard to the opportunity provided for the Circuit Court to outline reasons for its decisions. Transparency has been brought to court decisions. It will assist people in understanding how decisions are arrived at. Consequent on that there will be a greater understanding of the legislative provisions and that will help more people in relation to this matter.
I would be eager to ensure that the legal aid scheme is extended to cover claimants before the Employment Appeals Tribunal. That would render nugatory any arguments in relation to the absence of legal assistance in cases where there may be non-unionised labour.
Miss Flaherty Miss Flaherty
Miss Flaherty: Should we have a declaration of interest?
Mr. Penrose Mr. Penrose
Mr. Penrose: I intend to stay in the House for a few years. I make this suggestion  based on what I have found in practice. One brings one's practical experience to bear on legislation and puts it forward for what it is worth. The Free Legal Aid Centre has made the same point.
Miss Flaherty Miss Flaherty
Miss Flaherty: We have raised it.
Mr. Penrose Mr. Penrose
Mr. Penrose: I am not blowing a trumpet for the legal profession. No one can say that the Free Legal Aid Centre represents solely the legal profession. I am disappointed that there is no provision in this regard and I would venture to say that it is the only lacuna I would observe in what is otherwise an excellent Bill. I appreciate there is a financial implication involved and I am sure the Minister will contact the Minister for Equality and Law Reform, Deputy Taylor, in this regard.
I am aware from experience that claims will often include the presentation of a technical point of law and, accordingly, it helps if someone au fait with the legalities of the legislation presents that point. In relation to constructive dismissal, the onus is on the employee to prove that his dismissal was constructive and that is an exceptionally high standard. I would be grateful to learn from the Minister the number of employees who alleged constructive dismissal, who have been successful in taking cases as complainants to the tribunal. It is a high standard to achieve and assistance should be given to employees in relation to the formidable barrier which they must overcome to succeed at tribunal level. There is a need for representation especially in regard to non-unionised workers on low incomes for whom there is no other legal resource.
It might be profitable for the Minister to examine the possibility of bringing forward a consolidation Act which would consolidate the many legislative provisions. There must be 23 or 24 Acts and Statutory Instruments involved. It is not as major a task as it might appear at first sight although the parliamentary draftsman might shudder at the thought of drafting such an Act. A consolidation  Act would make it easier for employees and employers to understand the various remedies available to them in the labour law area. There have been numerous promises in the past to reform the labour code and I am pleased that the Government has seen fit to bring this promise to fruition.
I note with satisfaction the provision in relation to the enforcement of awards. The Minister should consider including the High Court in the provisions dealing with enforcement. I am aware that the awards are low. The Circuit Court has certain jurisdiction and if it was exceeded, which is doubtful, it might be worthwhile including the High Court in any amendment.
A Free Legal Aid Centre submission outlines the case where an employee is awarded compensation. Deputy Bruton asked earlier about the case of an employee who is awarded compensation but the respondent is a company which has ceased to trade and has not yet been formally wound up. For the claimant to recover would necessitate bringing a petition to wind up that company. That would be an extremely costly process.
Reference was made earlier to the cost of entering the legal domain. In view of the low level of awards it would not be an attraction for an employee who finds himself or herself in that position to take legal action. In such circumstances the Minister of State should consider allowing the claimant to recoup any sum awarded from the insolvency fund to bring it into line with the redundancy package. Not only would this bring the unfair dismissals legislation in line with the redundancy Acts but it would also make it easier for people in that position — they would be very few — to obtain assistance. Legislation should always be broad enough to deal with unforeseen circumstances during the course of its transition through the courts.
One area which the Minister of State might take a personal interest in — this was referred to by Deputy Bruton — is the maternity protection legislation.  Section 22 of the Maternity (Protection of Employees) Act, 1981 stipulates that an employee who is on maternity leave must notify her employer in writing within four weeks of her intended date of return to work and this must be confirmed within a further two weeks of the specified time. This requirement has been interpreted by the courts as being mandatory and very often through an oversight, if an employee fails to furnish this required notice her claim under the unfair dismissals legislation might well be defeated. The Minister should consider amending this legislation and it might be an issue for the consolidation Act which the Minister will be examining. The section should be amended to state that the notification requirements which I have alluded to, while they might be desirable, would not be mandatory. That would address this problem and would be of assistance to employees, particularly women, who are returning to work following their 14 weeks maternity leave.
A claim under the Unfair Dismissals Act, 1997, must be initiated within six months of the relevant date of dismissal. The Bill now confers on the Rights Commissioner and the tribunal the discretion to hear cases where exceptional circumstances prevail and they can do so within 12 months. That is welcome and I would like to see the prima facie period for bringing a claim extended to 12 months. However, we must recognise that the Minister of State has acknowledged the problem and has taken action consequently in this regard.
I welcome the provisions in section 6 in relation to financial loss. It is a worthwhile inclusion. The Minister might consider in view of the low level of awards, extending the period under which awards are made from the present 104 weeks to 156 weeks which represents an extra year. The awards are low and the two year time limit for the making of awards in relation to the calculation might be an influence.
I wish to compliment the Minister of State on the speed with which she brought forward this much needed legislation.
Mr. Gallagher (Laoighis-Offaly) Mr. Gallagher (Laoighis-Offaly)
 Mr. Gallagher (Laoighis-Offaly): I wish to join in the compliments paid to the Minister of State, and the Government, for the speed with which this legislation was brought before the Seanad and now, the Dáil. I note that the Bill was initiated in the Seanad. The greater use of the Seanad for the initiation of legislation is another example of how serious the Government is about the question of Oireacthas reform and better use of both Houses. Many other changes have taken place including the introduction of the committee system which initially is taxing everybody's powers of endurance, concentration——
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: And attendance.
Mr. Gallagher (Laoighis-Offaly) Mr. Gallagher (Laoighis-Offaly)
Mr. Gallagher (Laoighis-Offaly): ——and on occasion calls for bilocation. I welcome this Bill and I look forward with confidence to the speedy introduction of the remaining reforms outlined in the Programme for Government. This issue has been the subject of much comment and promise in the past and I am happy it is being implemented so quickly.
As the explanatory memorandum points out this Bill is, in effect, tidying up — with the benefit of experience — the 1977 Act. It is timely because the 1977 Act, which was welcomed when it was introduced, as experience has shown through changes in employment and so on, needs to be amended.
Previous speakers referred to the fact that the area of work and employment is changing rapidly. While the legislation deals with many of the needs the continuing change in the nature of work and employment means that the labour legislation must be given constant attention. It will not be sufficient to come back at ten, 15, or 16 year intervals to update laws.
In my previous employment I dealt with many young people who were unemployed having left school. I was helping them in the transition to the world of work which was often difficult. They often obtained employment for three months, six months, or ten months but few of them obtained employment for  longer than 12 months at a time. If they succeeded in obtaining a job soon after losing their first job they remained outside the scope of much of the employment legislation. For that reason I ask the Minister to ensure that her Department keeps a constant watch on this area of labour law and introduce the necessary changes to cover temporary, casual and part-time work. As the Minister is aware this affects women, in particular. Many of them are part of families where unemployment is a feature and they try to earn extra money to support their families.
Legislation such as this is only good if its provisions are implemented. There is an element both of the carrot and of the stick in this matter and both elements need to be addressed. In encouraging people to use this legislation and ensure it is complied with, there is a necessity for the updating of publications of the Department in the area of labour law and making them more attractive in terms of presentation. These publications should be circulated much more widely than is the case at present — they are available through FAS offices, citizen information centres and other areas. It is important that people be made aware, not alone in booklet form but through media such as television, radio and videos, which could be used in schools and so on, of the legislation governing the world of work.
There is also a need to strengthen the industrial inspectorate, an area which has become very rundown, particularly in the last number of years, due to the recruitment embargo and other measures introduced in the public service to reduce employment. When introducing legislation we must make provision to ensure it is enforced. By expecting industrial inspectors to cover large areas without adequate support and back-up we are not ensuring that legislation is complied with.
A number of significant improvements are being introduced in the area of unfair dismissals. I compliment the Minister on clarity of presentation in this regard. With the change in the labour market here and abroad there has been a growth in employment agencies in the last number of years. People employed  through employment agencies experience difficulties in claiming for unfair dismissal. I welcome the protection extended by this Bill to people working through an employment agency. It provides that a person does not have to follow the employment agency to seek redress. I also welcome the improvements regarding employment by contract, which is an increasing feature of employment. I welcome the powers being given to the Rights Commissioner to examine contracts of employment to see if they are drafted with the intention of breaking the law. This measure will be of benefit to many people who experience difficulties under the existing Act.
I welcome the measure which provides that in exceptional circumstances an examination may be made and permission given for a claim to be lodged within a period of 12 months — under existing law the period laid down is six months. Normally one would expect a claim to be made very quickly after an alleged unfair dismissal but for many people the trauma involved and the difficulty in coping with financial, personal and family circumstances meant that it was some time before they lodged a claim. I welcome the hardship clause which allows extreme cases to be readmitted and considered.
I am aware that it is difficult in legislation such as this to take account of the needs of people working in the Defence Forces and the Garda Síochána. Representative associations now exist not alone in the Garda Síochána but also in the Defence Forces. I ask the Minister to bring this matter to the attention of her colleagues in the relevant areas with a view to improving the regulations covering the Defence Forces and the Garda Síochána.
The Government is committed to the removal of discrimination and promotion of equality in Irish society and this matter features prominently in the Bill. It provides that cases automatically considered as unfair dismissal cases will include cases of discrimination on the basis of race, colour, sexual orientation, age and being a member of the travelling community —  the latter two being included in the course of the passage of the Bill through the Seanad. This measure is very welcome. We may say we are not a racist people but that is because not very many people of other ethnic backgrounds live here. In general people are tolerant but in some cases subtle forms of racism are practised. I ask the Minister to take up with the aliens section of the Department of Justice the problem of people who are discriminated against on racial or ethnic grounds. Improvements in that area should be considered as a matter of priority.
I welcome the elimination of age discrimination in the Bill. As there are so many young people in this country and the labour market caters mostly for young people, at times the needs of older workers are disregarded. The number of people over 65 years — in the region of 12 per cent of the population — is considerably in excess of the number on the unemployment register. A feature of the last decade has been that older workers were pushed out of the labour market, sometimes on the justification that it creates openings for young people. This is a somewhat officially sanctioned form of ageism. Instead of putting people on unemployment assistance or social welfare pension they receive a pre-retirement allowance which leaves them in limbo. I am glad discrimination in this regard is being eliminated in this legislation.
I also welcome the elimination of discrimination in relation to the travelling community. This is an example of the urgency and seriousness with which the Government is tackling the problem of inequality in this area. I do not know how many people will be affected by this measure because, as somebody who has worked in the area of training and education, I know it is difficult, even where travelling people participate in education and training, to have them placed in long term employment. I hope that with this measure more of these people will find employment.
When this Bill is passed it should be the subject of a publicity campaign by the  Department. Much good work has been done in the area of health and safety, particularly in the last two years. Part of the improvement in that area was brought about as a result of people's fear of being sued or having insurance claims taken against them in the event of non-compliance with regulations. Here again there is the example of the carrot and the stick. I ask the Minister to ensure that an effective campaign of advertising in the media is embarked on by the Department on the passing of the Bill.
In the current circumstances of high unemployment there is a large — to use an old-fashioned term — reserve army of labour and it is easy for people to lose sight of the fact that those in work deserve protection. There is a danger that the application of labour law will slacken because there are so many people ready to take up jobs if somebody is dismissed. The necessary resources should be put into ensuring that this legislation becomes reality on the ground.
Dáil Éireann 431 Unfair Dismissals (Amendment) Bill, 1993 [ Seanad ]: Second Stage.