Enterprise Bill: Legislative Consent Motion — Employment Bill: Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 11:00 am on 9th February 2016.

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The following motion stood in the Order Paper:

That this Assembly endorses the principle of the extension to Northern Ireland of the provisions in the Enterprise Bill dealing with the Small Business Commissioner. — [Mr Hamilton (The Minister of Health, Social Services and Public Safety).]

Motion not moved.

Moved. — [Dr Farry (The Minister for Employment and Learning).]

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

Members will have a copy of the Marshalled List of Amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There are two groups of amendments, and we will debate the amendments in each group in turn. The first debate deals with tribunals and assessments and comprises amendment Nos 1 to 8, 18 and 19 and the Minister's opposition to clauses 4 and 8. The second debate will be on amendment Nos 9 to 17, which deal with information, employment rights and traineeships.

I remind Members intending to speak that, during the debates on the two groups of amendments, they should address all the amendments in each group on which they wish to comment. Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If all that is clear, we shall proceed.

No amendments have been tabled to clauses 1 to 3. I propose, by leave of the Assembly, to group these clauses for the Question on stand part.

Clauses 1 to 3 ordered to stand part of the Bill.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

We now come to the first group of amendments for debate. The Minister for Employment and Learning has signalled his intention to oppose the Question that clause 4 stand part of the Bill. With this Question, it will be convenient to debate amendment Nos I to 8, 18, 19 and the opposition to clause 8 stand part. These amendments relate to tribunals and assessments. Members should note that amendment No 8 is mutually exclusive with the opposition to clauses 4 and 8.

Clause 4 (Assessment of likely outcome of any proceedings)

Question proposed, That the clause stand part of the Bill.

The following amendments stood on the Marshalled List:

No 1: In clause 5, page 5, line 10, after "add “" insert

<BR/>

&quot;(irrespective of the number of heads of claim)&quot;. — [Mr Flanagan.]

No 2: In clause 5, page 5, line 12, at end insert



&quot;(2) In Article 25 of that Order (regulations and orders)?—


 


(a) in paragraph (1), for “All” substitute “Subject to paragraph (1A), all”;


 


(b) after paragraph (1) insert?—


 


“(1A) Regulations which include provision under Article 11(2)(a) shall not be made unless a draft of the regulations has been laid before, and approved by resolution of, the Assembly.”.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 3: In clause 7, page 7, leave out line 37 and insert



&quot;for “to Article 46A” substitute “and to Articles 46A and 46B”.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 4: In clause 9, page 8, line 37, after &quot;add “&quot; insert



&quot;(irrespective of the number of heads of claim)&quot;. — [Mr Flanagan.]

No 5: In clause 9, page 8, line 39, at end insert



&quot;(2) In Article 104 of that Order (regulations and orders)?—


 


(a) in paragraph (1), after “101(1)” insert “and no regulations which include provision under Article 84B(2)(a)”;


 


(b) in paragraph (2), after “Schedule 1” insert “and regulations which include provision under Article 84B(2)(a)”.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 6: After clause 9 insert



&quot;Assessment of matters relating to tribunal proceedings


 


Assessment of matters relating to tribunal proceedings


 


9A.—(1) The Department may by regulations make provision for a prescribed person to provide relevant parties with an assessment in accordance with the regulations of prescribed matters in connection with any tribunal proceedings which might be or have been instituted by one or more of those parties.


 


(2) In this section?—


 


“prescribed” means prescribed by regulations under this section;


 


“relevant parties” means such persons as may be prescribed;


 


“tribunal proceedings” means prescribed proceedings before an industrial tribunal or the Fair Employment Tribunal.


 


(3) Regulations under this section are subject to negative resolution.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 7: After clause 9 insert



&quot;Review of early conciliation


 


9B.—(1) The Department must review the operation of?—


 


(a) Articles 20 to 20C of the Industrial Tribunals (Northern Ireland) Order 1996;


 


(b) Articles 46B and 88ZA to 88ZC of the Fair Employment and Treatment (Northern Ireland) Order 1996; and


 


(c) the amendments made by Schedules 1 and 2,


 


at the end of the period of one year beginning with the commencement of this section.


 


(2) The Department shall, having consulted with relevant stakeholders including employers, lay the findings of this review in a report to the Assembly.


 


(3) The report shall in particular include?—


 


(a) a synopsis of consultation responses;


 


(b) an assessment and evaluation of the effectiveness of these provisions;


 


(c) the number of cases overall, the number dealt with by early conciliation, the length of time taken for each and the outcome of each;


 


(d) any savings directly attributable to the introduction of these provisions.


 


(4) The Department shall also review and report as in subsections (2) and (3) at the end of the period of three years beginning with the coming into operation of early conciliation.&quot;. — [Mr Swann (The Chairperson of the Committee for Employment and Learning).]

No 8: After clause 9 insert



&quot;Review of neutral assessment


 


9C.—(1) The Department must review the operation of?—


 


(a) Article 20D of the Industrial Tribunals (Northern Ireland) Order 1996; and


 


(b) Article 88ZD of the Fair Employment and Treatment (Northern Ireland) Order 1998,


 


at the end of the period of one year beginning with the commencement of this section.


 


(2) The Department shall, having consulted with relevant stakeholders including employers, lay the findings of this review in a report to the Assembly.


 


(3) The report shall in particular include?—


 


(a) a synopsis of consultation responses;


 


(b) an assessment and evaluation of the effectiveness of these provisions;


 


(c) the number of cases overall, the number dealt with by neutral assessment, the length of time taken for each and the outcome of each;


 


(d) any savings directly attributable to the introduction of these provisions.


 


(4) The Department shall also review and report as in subsections (2) and (3) at the end of the period of three years beginning with the coming into operation of neutral assessment.&quot;. — [Mr Swann (The Chairperson of the Committee for Employment and Learning).]

No 18: In schedule 3, page 24, line 21, column 2, at beginning insert













 



&quot;Article 38(1A).


 



 



In Article 46(1), the words from “and to any regulations” to “2003”.&quot;.



— [Dr Farry (The Minister for Employment and Learning).]

No 19: In schedule 3, page 24, line 33, column 2, at end insert













 



&quot;In Schedule 5, paragraph 4(1) and (2).&quot;.


 


 



 




— [Dr Farry (The Minister for Employment and Learning).]

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

I call the Minister to address his opposition to clause 4 and to speak to the other amendments in the group and his opposition to clause 8 stand part.

Photo of Stephen Farry Stephen Farry Alliance

At the outset, I want to place on record my appreciation to the Chair, members and staff of the Committee for Employment and Learning for their extraordinarily efficient and speedy processing of the Bill's Committee Stage and the publication of their Committee report. It is particularly constructive in light of the pressing timetable as we approach the end of the mandate. That has of course been completed while giving full and thorough scrutiny to the Bill.

I turn first to my opposition to clause 4. Clause 4 deals with the proposed process of neutral assessment as it relates to industrial tribunal claims or potential industrial tribunal claims. I refer Members also to clause 8 because it has the same purpose except that it relates to claims or potential claims to the Fair Employment Tribunal. I am opposing the inclusion of those two clauses because, as drafted, they are more restrictive than key stakeholders have now suggested they ought to be. As the provisions stand, they allow an independent assessor, with parties' agreement, to provide a view on the likely outcome of a particular case that may be or has been referred to a tribunal. That would be in the context of the Labour Relations Agency (LRA) trying to promote a conciliated settlement between the parties.

The drafting of both clauses reflects the approach originally envisaged by my Department to the new neutral assessment service. It was always intended that the detail would be developed following a process of further engagement with stakeholders.

I now oppose the clauses because feedback received in response to the Employment and Learning Committee's call for evidence on the Bill has raised issues with the original approach, and it is right to take the opportunity to address them. There was concern that the implications for other services, particularly the arbitration scheme operated by the LRA and the early neutral evaluation process being piloted by the tribunals, had not been fully considered. On the basis of that feedback, I have re-engaged with the tribunal service and the Labour Relations Agency. Each organisation has a key role in helping to develop practical solutions on the delivery of neutral assessment, with the key being to provide parties with a clear sense of direction when dealing with a dispute.

Taking account of my discussions and the evidence to the Committee, I have concluded that the clause, as it stands, does not set the right enabling framework for the service. The proposed neutral assessment service will be the first of its kind in these islands. It is important to take on board points that have been raised about the framework under which it is to be developed and to improve the enabling legislation so that, when the service is established, it is fit for purpose.

In moving amendment No 6, I am proposing the inclusion in the Bill of new clause 9A, which is a rethinking of the enabling provisions originally in clauses 4 and 8, taking into account the issues that have been raised. Clause 9A is intended to replace those clauses and give the Department power to establish the service and to determine the means of delivery through regulations. Neutral assessment could, as originally envisaged, be delivered by the employment relations experts appointed by the LRA who have a strong practical experience of workplace practice. It could also be delivered by employment judges who have authoritative knowledge of case law and of what a person will need to do to succeed in presenting a case. It could also be that some other prescribed person identified in the regulations would be the most appropriate to deliver the service.

The regulations will be able to set out the means of delivery, the scope of the service and the steps involved. The regulations will be developed on the basis of evidence gathered from the forthcoming review of the LRA's statutory arbitration scheme; an evaluation of how the new early conciliation arrangements in the Bill are bedding down; and consideration of the effectiveness of the early neutral evaluation process that is already being offered on a pilot basis by employment tribunals. To be clear to the House, this is not a step back from the intention behind the policy, which is to provide people with an early assessment of the issues in their case so that they can make better informed decisions about how to deal with it. On the contrary, it is a recasting of the enabling provision to ensure that the legislative framework gives sufficient flexibility to develop a process that is fit for purpose and which works well for its users.

I will turn to the issue of tribunal deposits, which is dealt with in clauses 5 and 9. There are four proposed amendments that are relevant: amendment Nos 1, 2, 4 and 5. Clause 5 gives my Department broader flexibility than has been available to it before to make provision dealing with the placing of a requirement on parties to industrial tribunal proceedings to pay deposits in order to continue with those proceedings. It does so by amending the enabling power in article 11 of the Industrial Tribunals (Northern Ireland) Order 1996. Clause 9 makes a comparable amendment to the Fair Employment and Treatment (Northern Ireland) Order 1998. The amendment fulfils the same purpose in respect of proceedings before the Fair Employment Tribunal.

During the Employment and Learning Committee's consideration of those clauses, members expressed concern about the potential for revised enabling powers to be used to introduce a requirement on parties to pay more than one deposit in a given tribunal case. My officials accepted that that was a potential use to which the revised enabling powers could be put. The question of whether there should be the option of requiring more than one deposit in a case was an issue on which, among many others, my Department consulted from July to September last year. My officials indicated to the Committee that no change along those lines would be made without fully considering the potential impacts on access to justice.

Members of the Committee remained concerned, however, that such a change could be brought about by regulations subject to the negative resolution procedure. I fully appreciate that changes to the tribunal deposits regime have the potential to be contentious. It is certainly clear from responses to the public consultation on developing more efficient, effective and modern tribunals that there is both opposition to and support for that type of measure. I think that we have a responsibility to consider options to encourage tribunal claimants and respondents to think very carefully before bringing forward for the tribunal's consideration matters in which they are unlikely to succeed. When weak claims or responses are presented, other parties can incur costs in contesting them.

I want a system that is focused on the areas that have substance and merit, and it is right that there are proportionate mechanisms to discourage people from bringing to our tribunals matters with little substance. At the same time, I fully accept that people have the right to access the employment tribunal system for a judgement, and, if they believe strongly that they have a case, they should be entitled to pursue it. That is why there are safeguards around a party's ability to pay when the imposition of a deposit is considered.

Having thought carefully about the issue and taken on board the points made in Committee, I seek the agreement of the House to amendment Nos 2 and 5, which, respectively, would make any regulations that utilise the deposits provision for industrial tribunals or the fair employment tribunal subject to the draft affirmative procedure before the Assembly. I believe that the amendments establish the safeguard that the Committee seeks, in that any relevant regulations will need to be positively endorsed by the Chamber.

I do not, however, support amendment Nos 1 and 4 tabled by Mr Flanagan, Mr McCann and Ms McGahan. There has been a public consultation focused on developing a better tribunal system, and policy decisions still need to be taken forward following full consideration of the evidence presented by stakeholders in response to that consultation. I do not believe that it is the right approach for us at this stage to rule out any possibility of regulations dealing with multiple deposits when the evidence is still under review. The proposed amendments would establish exactly that restriction, closing off options even if the evidence suggests that they should be explored. Given that amendment Nos 2 and 5 will give the House the ultimate say over whether regulations dealing with deposits are introduced, I hope that Members will agree with me that it is premature to close off options at this stage with regard to the enabling powers. We can now ensure that full safeguards are put in place to guarantee that the views of the Assembly are to the forefront. The amendments from the respective Members are not necessary at this stage.

Amendment No 3 relates to clause 7. As it stands, clause 7 amends the Fair Employment and Treatment (Northern Ireland) Order 1998 to provide for an extension of the time limit for making a claim to the fair employment tribunal to allow for early conciliation under the auspices of the Labour Relations Agency. In reviewing the clause, officials established the need for a small technical amendment. I seek the agreement of the House to amend clause 7 to remove from article 46(1) of the Fair Employment and Treatment Order a reference to statutory dispute resolution procedures that are no longer operative. The procedures were repealed by the Employment Act (Northern Ireland) 2011. This is simply a tidying amendment to remove statutory references to procedures that no longer apply, and I hope that Members will support it.

Amendment Nos 18 and 19 are related. They apply to schedule 3, which sets out repeals. Amendment No 18 removes references from the Fair Employment and Treatment Order that relate to statutory dispute resolution procedures that were repealed by the Employment Act (Northern Ireland) 2011. Amendment No 19 repeals provisions of the Employment (Northern Ireland) Order 2003 that relate to the same procedures. They are also tidying amendments, reflecting the fact that the statutory dispute resolution procedures in question have ceased to have effect.

I turn now to amendment Nos 7 and 8, tabled by the Chair of the Committee for Employment and Learning. Amendment No 7, which is new clause 9B, requires my Department to review the entirety of the Labour Relations Agency's conciliation service at the end of one year and again after three years following commencement of the early conciliation provisions of the Bill. It also requires the Department, having consulted relevant stakeholders, to lay a report before the Assembly setting out the findings of the review. Amendment No 8, which is new clause 9C, establishes the same requirements in relation to neutral assessment.

I am content with the objective of the proposed review clauses. While my Department, the Labour Relations Agency and the tribunal service consider the effectiveness of their work on an ongoing basis, I have no difficulty in general with the requirements. However, I have a concern about aspects of the proposed wording of subsection 3(c) in each clause. As the draft stands, the Department would be required, among other things, to report on the time taken for each case and the outcome of each case. Those requirements seem reasonable at first glance, but the phrasing is important. An analysis or report that touches on information about each individual case has implications for confidentiality. The LRA is under a legal duty to maintain confidentiality in delivering its services. Indeed, that duty is expanded on by clause 20. It is important that early conciliation is not compromised by a reporting requirement that touches on individual cases.

A similar issue arises in relation to neutral assessment. Although the regulations establishing that service have yet to be developed, there is a real possibility that confidentiality could be an important consideration. A reporting requirement that does not touch on individual cases but seeks aggregated information on cases would deal with this concern. I understand the Employment and Learning Committee’s rationale for tabling the amendments, and I know that the Committee has been made aware of the issue. I look forward to hearing the Chair’s remarks on the matter.

On a more technical point, if, as I hope, Members are positively disposed to new clause 9A on neutral assessment and the exclusion from the Bill of clauses 4 and 8, there will be a need to look again at proposed clause 9C to reflect that position. In conclusion, I look forward to hearing the views of Members on the amendments in the group.

Photo of Robin Swann Robin Swann UUP 11:15 am, 9th February 2016

I am happy to speak on behalf of the Committee for Employment and Learning at Consideration Stage of the Employment Bill. First, I also pay tribute to and thank the staff and members of the Committee for their work over the time that we have put in in scrutinising the Bill. The Minister described it as an extraordinarily efficient use of legislative time through the Committee. I do not think that he has used such an adjective often in reference to the work of the Committee. We will take note of what he said, and I note from his opening comments that he has taken due cognisance of the recommendations and concerns that were brought forward by the Committee.

The Committee for Employment and Learning recognises the Minister’s aims in bringing forward the Employment Bill: to make provision for early resolution of workplace disputes and to create an assessment service; to introduce significant reform to the law around public interest disclosures; and to allow the Department to make provision for careers guidance, apprenticeships and traineeships through regulations. The Committee has always supported the Minister in that endeavour. On behalf of the Committee for Employment and Learning, I thank the Minister and his officials for his open engagement throughout the course of the Bill and in responding promptly to Committee concerns.

The Employment Bill was introduced on 7 December 2015 at the First Stage. The Committee wrote to key stakeholders and inserted public notices in the regional newspapers seeking written evidence by 21 December. The Bill reached Second Stage on 12 January 2016 before being referred to the Committee for scrutiny on 13 January 2016. At this stage, I pay tribute again to the Committee staff for having everything in process. It may be a legislative record that the Committee Stage started one day after the Second Stage was read in the House. A total of 10 organisations responded to the request for written evidence, of which four provided oral evidence to the Committee. Those four organisations were the Labour Relations Agency, the Law Centre Northern Ireland, the Northern Ireland Committee of the Irish Congress of Trade Unions and the Northern Ireland Commissioner for Employment and Skills. The Committee greatly valued the input of all of the stakeholders in assisting the scrutiny of the Bill at Committee Stage.

I will first speak on amendment No 2, which amends clause 5. Clause 5 concerns the payment of deposits at industrial tribunals. The Committee raised concerns with the Department on 6 January 2016 about why negative resolution was being used for enabling powers relating to tribunal deposits as opposed to the draft affirmative procedure. On 20 January, the Department briefed the Committee on outstanding issues in the Bill and advised that it had taken the concerns on board and had drafted an amendment to clause 5 so that deposits would be subject to the draft affirmative procedure. The Minister confirmed that today in his opening comments. The Department advised that this would provide a full opportunity for Members to consider the merits of any proposals brought forward in this area. The Committee accepts the logic of that decision and is content with clause 9 as amended.

Amendment No 5 amends clause 9. Clause 9 is the same as clause 5, except for the fact it relates to deposits to the fair employment tribunal instead of industrial tribunals. The Committee accepts the Minister’s amendment to clause 9 to make deposits subject to draft affirmative procedure as opposed to negative resolution and is content with clause 9 as amended.

I now turn to amendment No 6, which concerns a departmental amendment to insert new clause 9A. The Committee was advised by the Department on 19 January that it was proposing a revised approach to the neutral assessment service. The Department was doing so on the basis of the evidence presented to the Committee on 6 January, in particular the concerns raised by the Labour Relations Agency about the operation of the service. Clause 9A is drafted so as to replace clauses 4 and 8 and give the Department power to make regulations conferring on a specified person power to deliver a specified process of assessment.

The Committee is content with proposed new clause 9A and that the Minister has opposed clauses 4 and 8.

I will now speak to the Committee’s amendments, which the Minister referred to. Amendment No 7 inserts new clause 9B into the Bill. Clause 9B will place a duty on the Department to conduct a systematic review of the early conciliation service. At its meeting on 9 January, the Committee heard from stakeholders about their concerns regarding the operation of the early conciliation service. The Committee therefore agreed to table an amendment to insert a review clause into the Bill. Clause 9B will review the operation of the early conciliation service one year after it commences and, from then on, the service will be reviewed every three years. It has come to the attention of the Committee that subsection 3(c) of clause 9B may breach confidentiality requirements. On 3 February, the Department advised the Committee that it would be content to support the Committee’s amendment, provided that the Committee redrafted subsection 3(c) of clause 9B and tabled it with the Bill Office to be debated at Further Consideration Stage. That will be debated at the Committee tomorrow, with agreement from the Minister.

If the opposition to clauses 4 and 8 is supported by the House and, equally, if the House agrees the new clause as tabled by the Minister in amendment No 6, I expect that the Committee's amendment No 8 will not be called. It is the Committee's intention to accommodate the changes brought by the removal of clauses 4 and 8 and the insertion of amendment No 6 by re-tabling an updated version of our amendment, as we are very keen to see that policy intention placed in the Bill.

I will now make a few brief comments as the Ulster Unionist spokesperson for employment and learning. We will be opposing clauses 1 and 4, as we believe that the draft affirmative resolution procedure will provide as adequate an amount of scrutiny by the House as was achieved by the Committee. There will be a move from negative resolution to draft affirmative resolution as proposed in the original Bill. We will be supporting clauses 2 and 5. That concludes my opening remarks.

Photo of Thomas Buchanan Thomas Buchanan DUP 11:30 am, 9th February 2016

I welcome the opportunity to speak on the Consideration Stage of the Employment Bill. Like the Chair, I thank the Minister, the Department and even the Committee staff for all the work they have done in bringing the Bill to this stage.

Very briefly, I welcome amendment No 2 to clause 5 and amendment No 5 to clause 9. Those two amendments are similar, in that they deal specifically with deposits: clause 5 dealing with industrial tribunals; and clause 9 dealing with fair employment tribunals. Those amendments will ensure that deposits will now be subject to the draft affirmative resolution procedure of the Assembly and that any regulations that utilise the deposits provision for either of the two tribunals will require Assembly approval before being made. I think that that cuts out any concern that there is on those issues.

Amendment No 3 to clause 7 is simply a technical amendment, which has already been outlined by the Minister, and is necessary to include provisions on conciliation to help employers and employees.

Amendment No 6 to clause 9A, which replaces clauses 4 and 8, will be welcome news for many stakeholders, in particular the Tribunals Service and the Labour Relations Agency. The flexibility that that will provide will allow for the structuring of the neutral assessment service to better provide and deliver for the purpose that it was designed for.

Amendment Nos 7 and 8 from the Committee have been laid out in detail. The Committee Chair mentioned them, and I do not intend to reiterate those points. <BR/>Turning to amendment Nos 1 and 4 in the name of Mr Flanagan, Ms Bronwyn McGahan and Mr Fra McCann, let me say first of all that we will be opposing those amendments. I have heard and listened to the arguments for the purpose of those two amendments and the concerns about the implications of having more than one deposit of £500 on any single claim. However, it is fair to say that this is a potentially contentious area and that there is support for and opposition to any change of this kind. That is why the Committee pressed for this to be brought in under the affirmative resolution process, rather than being placed in the Bill.

I believe that, should the amendments be made, they will close off the option on which a policy decision remains to be made in light of the outcome of the public consultation on the future of tribunals. I do not believe that we should be in the business of closing down the option that we have to look at those issues following the consultation process. That is why we will oppose those two amendments today, but with the assurance that the individual taking a claim is protected from multiple deposits, as that would require Assembly approval first. With that, I will conclude on this group of amendments.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

Go raibh maith agat, a Cheann Comhairle. I welcome the Consideration Stage of the Employment Bill, and I commend the Minister for getting it this far. As I said at Second Stage, he has had some difficulties in progressing it, but he is flying through it now. I commend the Committee staff and my colleagues on the Committee for the speedy and diligent approach that they took to scrutinising the Bill and progressing it through Committee Stage.

Robin highlighted the two amendments that the Committee has brought forward. I largely agree with what others have said, so I do not intend to rehearse the discussion that has taken place around the Committee amendments. Instead, I intend to focus my contribution on amendment Nos 2 and 5, which deal with the need for future regulations on deposits in fair employment and industrial tribunals to be approved by draft affirmative resolution, and amendment Nos 1 and 4, which are tabled in my name and that of my colleagues, which would prohibit multiple deposits against somebody taking a claim to either of the two tribunals.

First, I welcome the Minister's tabling amendment Nos 2 and 5. I proposed in Committee that we should ask the Minister to bring that forward. Everybody accepts the need for it. When the Minister presented his response to the Committee, he indicated that, historically, deposits at tribunals have not been a contentious issue and, as such, negative resolution may have worked well in the past. However, if we look at what is happening in Britain and how denying people the right to access a tribunal is being used to erode workers' rights, it is very clear that tribunals are becoming a contentious issue. There have been a number of legal challenges in England with regard to the whole issue of tribunals, fees and multiple deposits. So, the whole issue of deposits and fees at tribunals is an area of contention, and I am glad to see that the Minister has accepted the Committee's proposal to make sure that any future changes to deposits must have the consent of the House before the change is made.

In the past, that was not required, and we could have had a situation where a change was made to a deposit or a tribunal, and Members in this House could then have dragged the Minister or his successor back into the Chamber to reverse that decision. So, this is for good governance reasons, and it will send out clarity and surety to people who are involved in tribunals, which are a very complex business. The testimony that we received as a Committee about tribunals indicates that it is very complex, and people do not really want to go there, but when they do, it should be made fairly easy for them to do it. So, it is good that there will now be surety for people in that they will know what the maximum deposit is, and subsequent change will need the approval of the House before it happens.

As I said, I am concerned about the direction in which tribunals are going in England. There was a massive push to introduce fees, and I am glad that the Minister very quickly stepped away from introducing fees for accessing tribunals. In England, where the introduction of fees has taken place, there has been a 79% decrease in the number of tribunal cases taken against employers. I do not think that we want to go down a similar route. I think that it would be better if we could see a reduction in the number of cases that make it to court, but that needs to happen through the Minister's proposals for early conciliation and trying to get as many of these things settled amicably as early as possible, instead of just denying people the right to get their day in court, to get their good name restored and to get any compensation or back pay that they might be entitled to.

The introduction of fees or overly high deposits is a barrier to justice. It largely impacts on the most vulnerable workers in the economy, those people who do not have the same protection as others, who are in non-unionised workplaces and part-time workers. Therefore, it would disproportionately impact on women who are trying to take a case to a tribunal to get a fair hearing. So, I am glad that the Minister did not pursue the issue of fees, but the issue of deposits being a prohibitive barrier for people trying to access justice remains. Currently, a deposit of up to £500 can be imposed by a fair employment or industrial tribunal in cases where the person who will now be referred to as an employment judge decides that there is little possibility of success. If claimants wish to continue and lose the case, they will forfeit the deposit.

Clauses 5 and 9 establish enabling powers that would allow the Department to introduce regulations that are subject to negative Assembly procedure. As we have all said, the change will move that to affirmative resolution. As it stands, without the two amendments that we have tabled, the Bill would allow for multiple deposits to be imposed within one case, and the current maximum of £500 would be set aside. You could see a scenario in which an aggrieved or former employee takes a case to a tribunal for four, five or six different reasons. The judge, or chairperson as they are still called, could say that each of those claims was subject to a £500 deposit. Somebody who has recently lost their job, is working part-time, is in a very low-paid job or who has been badly treated by an employer may be subject to a deposit of £1,500, £2,000 or £3,000 depending on the number of claims.

A deposit of £500 is sufficiently high. If somebody has recently lost their job and wants to take a case to a tribunal, asking them to put up a £500 deposit that they might not get back is a sufficient barrier to stop them taking what employers claim are cases that have no prospect of success and that are only there to waste their time. I think that £500 is sufficient. Going down the road where £500 can be applied to each claim instead of to each claimant would present a massive barrier to people who are trying to access justice.

I hear what the Minister has said about any future changes needing to come to the House for approval before they take effect, but the reality is that we are being pushed down a road where workers' rights will be eroded. In the second group of amendments, we will deal with other issues that affect the rights of working people but, in this group, we are dealing with the rights of people —

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I will surely, Fra. Go ahead.

Photo of Fra McCann Fra McCann Sinn Féin

The point that you are making is important. I accept that the Minister has said that he is leaving room for changes down the line, but who is to say who will be back here in the near future and whether they will hold to the promises that are being made by the present Minister? When we discussed this, one of the things that we were concerned about was the fact that there are many people who, by the very fact that they will have to pay the deposits, will shy away from taking a case. Justice is being denied to people who wish to go down that road.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Member for his intervention and I agree with him. There are enough problems with people being unable to get to a tribunal. Imposing multiple deposits on claimants would be a regressive step and we should not allow it. I accept that the Minister has said that it is not in the Bill, but it is allowed for. By passing our amendment, the Assembly would write into the Bill that multiple deposits would be prohibited. That would be a good step for us to take. It would send out a message that we will not implement any changes to tribunals that would dissuade or discourage people from taking cases, beyond having to pay a £500 deposit. We have tabled an amendment to put a rule into the Bill that multiple deposits would not be allowed. That is a fairly pragmatic approach.

The Minister has carried out a consultation on multiple deposits and other changes to tribunals. I might be misquoting him — it is a good thing that he has the chance to respond at the end — but I think he said that there was no evidence to support the introduction of multiple deposits. I do not see why some are opposing that change when there is no evidence to support the introduction of multiple deposits. In essence, they are a bad thing. As I have said on several occasions, they deny people access to justice, and that is not the purpose of the Bill.

Anything over £500 would be a substantial sum of money for people to pay. When you go to an employment tribunal to have your employment rights enshrined, you are not entitled to legal aid and, as a result of European directives, case law and a range of appeal decisions, it has become so legalistic and complex that most people need a solicitor or barrister to represent them. Most employers feel that they need that representation and, when one side goes in with a solicitor or barrister, those who make claims often feel that they need to do it as well. So, on top of the issue of deposits, there is also the cost of going to employment tribunals. <BR/>I am very keen for us to send out a message through the Bill that we will not allow multiple deposits. It is all well and good for the Minister to say that it is not a proposal on the table, but it might come back at some stage. If we make the amendment, it will stop any future Minister trying to bring in a regulation that would not be subject to the same level of scrutiny as primary legislation.

I accept that this proposal has not been subject to much, if any, scrutiny. It did not go through a consultation process apart from the one carried out by the Minister, in which no evidence was found that introducing multiple deposits was a good thing. It does not protect anybody and does not give employers better rights; all it does is introduce yet another barrier for workers trying to get to a tribunal to access justice.

The Minister, in his opening remarks, claimed that it was premature to close off the options for multiple deposits. I think that I speak for a significant number in the Chamber when I say that I will never support the introduction of multiple deposits to employment tribunals. It would be good to hear the Minister say that. He says that he does not want to close off the option: can he say that, in the future, he will not support the introduction of multiple deposits? We could have a situation in which a majority of MLAs supported their introduction. We heard Mr Buchanan teeter on the edge of being in favour of it, and we know there are conflicting views on the subject. Maybe he is taking the line of the employers who really want to abolish fair employment and industrial tribunals of any nature so that workers do not have any right to recourse through the legal system. I know that that is what some employers want, but I hope that not too many MLAs would adopt such a position.

I say to the Minister that affirmative resolution would be an improvement. I am glad that he has accepted the rationale that the Committee put forward, but it would be a mistake for the Assembly not to have a clause prohibiting the use of multiple deposits. That would be a very slippery road to go down, denying people the right to go to an employment or industrial tribunal in order to get back pay, to get an unfair dismissal overturned or for any other reason.

We all see how employment rights are being eroded all the time. It is important that we protect workers at every opportunity. This is not about making a change; it is about keeping what is currently enshrined in legislation. I am not saying that, at this stage, we should give workers additional rights; I am saying that we maintain what we have at present and do not allow a situation to develop in which former employees trying to take to a tribunal a case against an employer who, they feel, has treated them illegally are forced to pay a deposit of several thousand pounds just to get their day in court.

That is all I have to say on this group of amendments. I hope that the Minister has reflected on that and look forward to his response to the comments made.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party 11:45 am, 9th February 2016

I welcome the opportunity to contribute to the debate. As a new member of the Employment and Learning Committee, I come to this late. On behalf of SDLP Members, I express our appreciation to the Minister, the Department and the members of the Committee. Even from reading the genesis of the Bill and what has happened over the last few years, I know that considerable time, effort and energy has gone into it, and we would like to put that on record.

We made a number of points at Second Stage about the Labour Relations Agency, particularly on neutral assessment. Under the Bill, the LRA would be required to establish a neutral assessment service that, by agreement, could give disputing parties an idea of how their case might be decided should they not resolve it between them. It seems that, as stakeholders such as the Equality Commission expressed, an extra layer of relatively informal adjudication would serve only to protect employers from a burdensome process. We are glad, therefore, that clauses 4 and 8 may be removed and that the amendments seem to be more rational mechanisms to provide for neutral assessment and good practice. The question that still needs to be answered is whether that facilitation of early dispute resolution is as fair to those taking a case to tribunal as it is to employers.

We are happy that amendment Nos 7 and 8 and the new clauses providing for a review of early conciliation and neutral assessment are to be included. It is right and proper that we examine whether this addition is working in the interests of employers and claimants.

The LRA addition is not the only change to tribunal procedure. The Bill includes enabling powers that relate to tribunal rules, and it brings tribunal rules and regulations into line with current practice, permitting the chairmen of employment tribunals to be referred to as employment judges. Secondly, it includes enabling powers to allow the Department to specify in employment tribunal rules the additional circumstances in which a tribunal may order a party to pay a deposit in order to continue with proceedings. That measure is intended to attach a consequence to bringing claims or responses that have little prospect of success.

What again may be apparent in the second stage of the tribunal process is the potential for a greater burden on the claimant. As the Bill is only at its Second Stage, it is important that the House consider the implications of that extra requirement on the claimant and whether it may prevent access to a fair resolution. That is particularly true when an extra amount of money is required; for example, a deposit to proceed with the tribunal. I share the concerns that Mr Flanagan and Mr McCann outlined around deposits and how that could be detrimental to the interests of achieving justice for those taking a tribunal. I am sure that, as public representatives, we have all dealt with people who have had difficult experiences and been treated badly in work situations. We would not want to have anything in the Bill that will present a problem in taking it forward in the interests of natural justice.

We welcome the amendments, and I look forward to speaking on the second group.

Photo of Sydney Anderson Sydney Anderson DUP

As a member of the Employment and Learning Committee, I welcome the opportunity to speak to some of the amendments in group 1. The Committee has been favourably disposed to the Bill, and a lot of work went into the scrutiny of it. I record my thanks to the Committee staff and all who have helped to bring the Bill to this stage.

The Bill has been some time in the making, but we accept that there is a need to modernise employment law. If we are to be a growing economy, we want to see good industrial relations, which can only be in the best interests of employers and employees. We must also ensure that we reduce bureaucracy to a minimum so that businesses can develop and expand without the need to attend to endless regulations and red tape.

I will now offer a few comments on the amendments in group 1, which come under the composite heading of "Tribunals and assessments". Clauses 1 to 4 deal with industrial tribunals, in particular early conciliation and neutral assessment. I very much support early conciliation and neutral assessment, because we must do all that we can to reduce confrontation and encourage resolution. That overall aim is not affected by the amendments. The Minister has indicated that he will oppose clauses 4 and 8 and that they will be replaced by new clause 9A, which is tabled as amendment No 6. New clause 9A will provide the Department rather than the Labour Relations Agency with the power to make regulations for the neutral assessment service. The Department believes that it will therefore be better able to prepare for the setting-up of that service. The regulations under new clause 9A will be made under the negative resolution procedure and will cover issues such as what the neutral assessment service will consist of and how it might deliver.

Amendment No 7 would introduce new clause 9B, which deals with the review of the early conciliation service one year after its introduction and then on a three-yearly basis. The clause needs to be slightly amended to address confidentiality issues, but that can be taken forward at Further Consideration Stage. Amendment No 8, which would introduce new clause 9C, is not being moved today, and I suspect that we will take that back to the Committee.

Amendment No 2 was tabled by the Minister in response to Committee concerns. It amends clause 5, which is one of the clauses covering industrial tribunals. It deals with the power to require a party to proceedings to pay a deposit. The amendment would ensure that regulations dealing with deposits are subject to the affirmative resolution procedure, and we welcome that change.

Amendment No 1 would amend clause 5 by preventing multiple deposits. I oppose that amendment, because clause 5 provides an enabling power, and regulations will be made in due course. We should not tie the Department's hands at this stage in the Bill in the way in which amendment No 1 would do.

Amendment No 3, tabled by the Minister, is a technical amendment to clause 7, which deals with the extension of time limits to allow for conciliation. It makes a necessary change to clause 7(1), which amends the Fair Employment and Treatment (Northern Ireland) Order 1998 and will remove an obsolete reference to provisions that have now been repealed by the Employment Act (Northern Ireland) 2011.

Amendment No 5 relates to clause 9. It is also a departmental amendment and is similar to amendment No 2, which deals with industrial tribunals. Again, it has been tabled in response to Committee concerns about the need for affirmative resolution. It amends the Fair Employment and Treatment (Northern Ireland) Order 1998 to ensure that any regulations that are made around deposits are done on the basis of affirmative resolution.

I also oppose amendment No 4, which is an amendment to clause 9. It does for clause 9 what amendment No 1 does for clause 5, and I oppose it for the same reasons as I oppose amendment No 1.

Amendment Nos 18 and 19 amend schedule 3 and are technical changes that simply tidy up references to provisions that have been repealed. I leave my remarks on group 1 there.

Photo of Alex Easton Alex Easton DUP

I will speak on group 1, and I thank the staff for all the help that they have given on the Bill so far. I support the Minister in opposition to clauses 4 and 8. I support amendment Nos 2, 3, 5, 6, 7, 8, 18 and 19, and I will speak on amendment Nos 1 and 4.

The Committee was briefed by officials, who explained that there was no need for amendment No 1 as draft affirmative procedure would be used for regulations on deposits. The amendment would allow multiple appeals, which have the potential to be bogus and would potentially allow multiple appeals to go ahead without the appellant having to pay for them after the initial appeal. It could be costly and time-consuming for the Department and could be open to abuse. The amendment is ill thought-out.

On amendment No 4, which is basically the same, the Committee was briefed by officials, who explained that there was no need for the amendment as draft affirmative procedure would be used for regulations. As with amendment No 1 — I have to repeat myself, unfortunately — this amendment would basically allow multiple appeals, which have the potential to be bogus, and would allow appeals to go ahead without the appellant having to pay for them after the initial appeal. It could be costly to the Department and very time-consuming. The amendment is ill thought-out.

Photo of Basil McCrea Basil McCrea NI21

One of the things that are quite strange in the debate is the point on affirmative resolution made by Mr Easton and by the Minister in his opening remarks. I was really struck by how we were making such a play to move from a negative resolution as suggested in, I think, amendment Nos 2 and 5. The Minister made a great play to Mr Flanagan and the supporters of their amendments, saying, "You do not need to bring this in. It is not necessary, because we will do it by order or by regulation, or it will come to the Assembly and you will be able to have it by affirmative resolution". Here is the interesting dilemma. Members have spoken and have said, "We are not really happy with the way that you are going to move on this issue. We do not think it is necessary, and then we are going to move to affirmative resolution". What is the difference? I have just been talking to Wallace High School, explaining to them the difference and explaining petitions of concern. Affirmative resolution means that you will have to get a positive "yes" vote to make a change. Of course, any vote that is positive "yes" can be opposed by a valid petition of concern. The movement from a negative resolution to a positive resolution means that you will be able to stop any changes. We are getting more stasis in the Chamber, and we will not be able to make amendments that we want to make.

I apologised to Mr Flanagan, who realised that I was not able to be in the Chamber to hear his contribution, and I read the Hansard report of the previous debate on the matter.

Members are rightly concerned about multiple claims and whether there will be some impediment. That tells me that many things in the Bill have not yet been resolved. We have said, "Do you know what? We will deal with that later under affirmative resolution and look at it in the new mandate", but I do not think that we will be able to do that.

I give notice that I will oppose the changes to affirmative resolution. I do not think that that is the right way to go forward. We should have the debate here and now. If Mr Flanagan can marshal his arguments, he should be in a position to win his debate. This is the proper way to do it rather than pushing it to another date in another way when there could be unforeseen circumstances.

Photo of Phil Flanagan Phil Flanagan Sinn Féin 12:00 pm, 9th February 2016

I thank the Member for giving way. It is good that he acknowledges that he was not here for earlier contributions, because some Members highlighted the fact that the Minister can introduce a change to the system, and, if the Assembly does not agree, it is up to the Assembly to call that in and to try to overturn it, which presents considerable difficulty. The best way to make changes of this nature, which can be controversial and contentious, is through affirmative resolution, whereby, if the Minister wants to make that change, it should be done with the prior approval of the House instead of the House overturning his decision, which, as I am sure you will be concerned, would present the place in a very poor light.

Photo of Basil McCrea Basil McCrea NI21

I apologised for not being here. I thought that the debate might have run a little longer. In my discussions with Wallace High School, we listened to the debate in order to explain the implications of employment law for young people and our desire to get them jobs and employment in this part of the world.

The fundamental change from negative resolution to affirmative resolution brings petitions of concern into play. The Member raised the point, so he will be aware that our current set-up under the various agreements — the Good Friday Agreement, the St Andrews Agreement and the Fresh Start Agreement — is that the Executive have primacy. If you are a Minister, you are given executive control. I am sure that the Member and his party recognise that fact, and, for better or worse, it was a hard-fought-for political solution. It is not generally the case that this place can overturn ministerial decisions. In fact, what we have seen is the repeated use of petitions of concern.

To avoid doubt, I raise that issue here and now. This is a classic case of the dog that does not bark. If it has no meaning, why are we making such an issue out of moving from negative resolution to affirmative resolution? Here is what will happen: it will be impossible for the House to change any of these regulations in the face of a petition of concern. That is not the right way forward. I would much prefer to have an argument, discussion or resolution on the various points. Mr Flanagan should be entitled to win his argument, if he and his colleagues can do so without having to rely on some procedural motion.

I have made my points on the issues that I want to deal with. I cannot help but think that some things that we are trying to achieve have been lost in the haste to push the legislation through. Perhaps I will deal with those when I speak on the second group of amendments.

Photo of Stephen Farry Stephen Farry Alliance

In light of the constructive way that most Members approached the debate on this group of amendments, I will try to be relatively brief. I thank the Chair, members and staff of the Committee for the speedy and efficient way that they addressed the Committee Stage of the Bill. The Chair referred to several records that have been made. The Committee will no doubt be very much aware of those not only in the context of this Assembly but in the context of other legislatures around the world and how quickly it has dealt with the Bill. That was done without accelerated passage.

In reference to what Mr McCrea said, I would not suggest for one moment that we have rushed the Bill. The review of employment law started in 2012, and there has been a lot of discussion about issues in and outside the Bill in many fora. Today, we have issues on which it is possible to build a consensus across the House, and it is in that spirit that we should consider the amendments. In particular, the Committee has approached the Bill in a very pragmatic manner. There are issues for another day, and we will come back to them in due course.

I recognise the Chair and the Committee's understanding of the potential problem with confidentiality in proposed new clause 9C(3)(c). No doubt we will address that fully at Further Consideration Stage when we tidy everything up. I think that there is a mutual recognition that it is something that we need to address. I thank him for recognising the approach that we are taking to multiple deposits, which, it is probably fair to say, was the main issue of discussion in the House this morning in relation to this set of amendments.

The Deputy Chair of the Committee, Mr Buchanan, set the context very well when he spoke about the balance to be struck between the different perspectives on the benefits or otherwise of multiple deposits. It is worth stressing at this point that the Bill is supported by employers and employee organisations, that is, trades unions. They approach the issue from different perspectives, but there is a common understanding that the Bill works on everyone's behalf. This is not zero-sum politics, where a win for one side is a loss for the other. Of course, there are other issues that the interest groups want to be considered, and over which there are major differences of opinion, that are not in the Bill. Members are very much aware of them, and perhaps we will touch on some of them when debating the second group of amendments later.

I appreciate Mr Flanagan's comments on how the Bill has been taken forward. He acknowledged that the Department and I did not at any stage consider the introduction of fees for access to tribunals. I take issue, however, with his premise that, in some way, there is an agenda to compromise the rights of workers or that we are walking along a very fine edge. That is not my agenda. What we are trying to do is to find a system of employment relations for Northern Ireland that works in the interests of employers and employees more efficiently and effectively. Going to a tribunal, as is people's right and will always be their right, is the end point of the spectrum of interventions. It is in everyone's interest to address disputes further back along the spectrum, starting with prevention, which is about good practice in the workplace. Where disputes arise, you want to address them as much as possible through the different alternative dispute resolution mechanisms, and that is what we are trying to put forward in the Bill. That is the ethos behind the Bill.

There has been a lot of discussion, therefore, of the issue of multiple deposits and the shift. It has been the practice to handle multiple deposits through regulation. There is always a tension between what goes into a Bill and what is addressed through regulations. It is important for Members to bear in mind the distinction between a Bill, which is there for quite a long period — opportunities to amend primary legislation are fairly infrequent — and regulations, which can be changed more frequently. That is a factor in determining the level of detail that should go into a Bill. Issues to do with deposits have traditionally been viewed as suitable for regulations.

Obviously, and this touches on the comments made by Mr McCrea, if you move from handling something through negative to affirmative resolution, that changes the balance and how it moves through the House. <BR/> If you move to something having to be done by affirmative resolution, there is a risk because, when you are looking for active approval of the Assembly, a petition of concern could block a proposal from a Minister. However, that is a reflection of where we are in the Assembly. People want to change that in some ways, but that is the reality of the need to build a consensus around issues where people feel that there are potential breaches of people's particular interests.

That said, moving now to put in the Bill the outcome around multiple deposits is prejudicing the policy process that we are still undertaking. That process has not really been given full Committee scrutiny. In some ways, Mr Flanagan was implying that this was the sounder way of going about it. What is proposed today is actually curtailing people's rights and opportunities to have scrutiny of this issue. With a switch from negative to affirmative resolution, and indeed Mr Flanagan was to the forefront of this, the Committee has been very keen to ensure that the safeguard is in place that any decision will have to have the full approval of the Assembly, rather than adoption of the negative procedure as was the original draft of how we approach these things.

With that, there are full safeguards for the Assembly. Nothing is lost from the rights of the Assembly if it waits until the policy is fully evolved and full scrutiny has occurred. Frankly, to move ahead today with the amendments from Mr Flanagan and his colleagues would cut off any discussion of that process. That process, in all probability, will suggest that we do not have multiple deposits, but it is important that we listen to the stakeholders in our wider society and ensure that we find the right overall balance in how we address these issues. I stress that they are all about having a proper equilibrium between how we address the interests of employers and the interests of employees within a system.

We are doing all that we can, and we have avoided many of the changes in Great Britain. One of the pluses of having devolution in Northern Ireland is that we avoid many of the things that have impacted on the rights of individual workers that we have seen elsewhere. At the same time, we have to recognise that the process of tribunals can be very lengthy and very stressful. For companies, it can be a diversion of staff and other resources. For those taking cases, it can be a very difficult process as well. It can be a financially risky process, particularly if people feel obliged to spend some of their own resource on getting legal assistance. Therefore, it is in people's interests that we try to find that balance and try to invest as much as we can in alternative dispute resolution. I again urge the House to reject the amendments from Mr Flanagan and his colleagues, not because we necessarily disagree with where they are going but because they are not necessary at this stage and because, after the full process is done, the Assembly will still have exactly the same ability to influence an outcome.

Comments were also made on neutral assessment, first by the Chair and also by Mr Diver. I stress again that we are not moving away from neutral assessment. It has to be very much part of the spectrum of the different interventions that are available. We are simply moving from neutral assessment being telegraphed as something that the LRA would offer to a situation, with the amendments tabled today, whereby neutral assessment is there but we have a process to determine in which of the different types of bodies that are involved in employment relations it best sits. That could be the LRA. Equally, it could be the Tribunals Service, which is already piloting such an intervention, or a set of third parties.

I think that that covers most of the comments that were made at this stage. We look forward to moving to the second group in due course.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

Before I put the Question, I remind Members that we have debated the Minister's opposition to clause 4.

Question, That the clause stand part of the Bill, put and negatived. Clause 4 disagreed to.

Clause 5 (Power to require party to proceedings to pay deposit)

Amendment No 1 proposed:

In page 5, line 10, after &quot;add “&quot; insert

<BR/>

&quot;(irrespective of the number of heads of claim)&quot;. — [Mr Flanagan.]

Question, That the amendment be made, put and negatived.

Amendment No 2 made:

In page 5, line 12, at end insert



&quot;(2) In Article 25 of that Order (regulations and orders)?—


 


(a) in paragraph (1), for “All” substitute “Subject to paragraph (1A), all”;


 


(b) after paragraph (1) insert?—


 


“(1A) Regulations which include provision under Article 11(2)(a) shall not be made unless a draft of the regulations has been laid before, and approved by resolution of, the Assembly.”.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 5, as amended, ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7 (Extension of time limit to allow conciliation)

Amendment No 3 made:

In page 7, leave out line 37 and insert



&quot;for “to Article 46A” substitute “and to Articles 46A and 46B”.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 7, as amended, ordered to stand part of the Bill.

Clause 8 disagreed to.

Clause 9 (Power to require party to proceedings to pay deposit)

Question, That amendment No 4 be made, put and negatived.

Amendment No 5 made:

In page 8, line 39, at end insert



&quot;(2) In Article 104 of that Order (regulations and orders)?—


 


(a) in paragraph (1), after “101(1)” insert “and no regulations which include provision under Article 84B(2)(a)”;


 


(b) in paragraph (2), after “Schedule 1” insert “and regulations which include provision under Article 84B(2)(a)”.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 9, as amended, ordered to stand part of the Bill.

New Clause

Amendment No 6 made:

After clause 9 insert



&quot;Assessment of matters relating to tribunal proceedings


 


Assessment of matters relating to tribunal proceedings


 


9A.—(1) The Department may by regulations make provision for a prescribed person to provide relevant parties with an assessment in accordance with the regulations of prescribed matters in connection with any tribunal proceedings which might be or have been instituted by one or more of those parties.


 


(2) In this section?—


 


“prescribed” means prescribed by regulations under this section;


 


“relevant parties” means such persons as may be prescribed;


 


“tribunal proceedings” means prescribed proceedings before an industrial tribunal or the Fair Employment Tribunal.


 


(3) Regulations under this section are subject to negative resolution.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

New clause ordered to stand part of the Bill.

New Clause

Amendment No 7 made:

After clause 9 insert



&quot;Review of early conciliation


 


9B.—(1) The Department must review the operation of?—


 


(a) Articles 20 to 20C of the Industrial Tribunals (Northern Ireland) Order 1996;


 


(b) Articles 46B and 88ZA to 88ZC of the Fair Employment and Treatment (Northern Ireland) Order 1996; and


 


(c) the amendments made by Schedules 1 and 2,


 


at the end of the period of one year beginning with the commencement of this section.


 


(2) The Department shall, having consulted with relevant stakeholders including employers, lay the findings of this review in a report to the Assembly.


 


(3) The report shall in particular include?—


 


(a) a synopsis of consultation responses;


 


(b) an assessment and evaluation of the effectiveness of these provisions;


 


(c) the number of cases overall, the number dealt with by early conciliation, the length of time taken for each and the outcome of each;


 


(d) any savings directly attributable to the introduction of these provisions.


 


(4) The Department shall also review and report as in subsections (2) and (3) at the end of the period of three years beginning with the coming into operation of early conciliation.&quot;. — [Mr Swann (The Chairperson of the Committee for Employment and Learning).]

New clause ordered to stand part of the Bill.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker 12:15 pm, 9th February 2016

I will not call amendment No 8 as it is mutually exclusive with opposition to clauses 4 and 8, neither of which stand part of the Bill.

Clauses 10 to 13 ordered to stand part of the Bill.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

We now come to the second group of amendments for debate. With amendment No 9, it will be convenient to debate amendment Nos 10 to 17, which deal with information, employment rights and traineeships. I call the Minister for Employment and Learning to move amendment No 9 and to address the other amendments in the group.

Photo of Stephen Farry Stephen Farry Alliance

I beg to move amendment No 9:

In page 10, line 28, after &quot;Assembly&quot; insert

<BR/>

&quot;or to the Secretary of State for laying before both Houses of Parliament&quot;.

The following amendments stood on the Marshalled List:

No 10: After clause 16 insert



&quot;Gender pay and disclosure of information


 


Gender pay gap information


 


16A.—(1) Employers must, in accordance with regulations to be made by the Department under this section, publish?—


 


(a) information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees; and


 


(b) details of the methodology used to calculate any statistics contained in the information.


 


(2) Where there are differences in the pay of male and female employees, an employer must publish an action plan to eliminate those differences.


 


(3) A copy must be sent to all employees and any trade union recognised by the employer.


 


(4) This section does not apply to an employer who has fewer than 50 employees.


 


(5) The regulations must prescribe?—


 


(a) descriptions of employer;


 


(b) descriptions of employee;


 


(c) how to calculate the number of employees that an employer has;


 


(d) a standardised method for calculating any differences in the pay of male and female employees;


 


(e) descriptions of information;


 


(f) a requirement that information include statistics on workers within each pay band in relation to:


 


(i) ethnicity, and


 


(ii) disability;


 


(g) the time at which information is to be published; and


 


(h) the form and manner in which it is to be published.


 


(6) The first regulations under this section must be made by 10 November 2016.


 


(7) Regulations under subsection (5)(g) may not require an employer, after the first publication of information, to publish information more frequently than at intervals of 12 months or less frequently than at intervals of 36 months.


 


(8) The regulations may make provision for a failure to comply with the regulations?—


 


(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale for every employee;


 


(b) to be enforced, otherwise than as an offence, by such means as are prescribed.


 


(9) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer.


 


(10) Within 18 months of the day on which this Act receives Royal Assent, the Department must, in consultation with trade unions, publish a strategy including an action plan, on eliminating differences in the pay of male and female employees.&quot;. — [Mr Flanagan.]

No 11: In clause 17, page 11, leave out lines 43 to line 6 on page 12 and insert



&quot;“(4) The Department must make arrangements under this section for providing careers guidance for such persons as the Department considers appropriate.


 


(5) The guidance must?—


 


(a) be provided in an impartial manner; and


 


(b) be in the best interests of the person receiving it.


 


(5A) The Department may by regulations make such provision concerning arrangements under subsection (4) as the Department considers appropriate, including provision requiring the guidance to be delivered or otherwise provided by a person who has such qualifications as the Department may determine.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 12: In clause 18, page 12, leave out line 18 and insert



&quot;must be made under this section for providing apprenticeships and traineeships&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 13: In clause 18, page 12, line 20, at end insert



&quot;(8) Regulations under subsection (7) may make provision as to the components of apprenticeships and traineeships.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 14: After clause 18 insert



&quot;Qualifying period of employment


 


Qualifying period of employment


 


18A.—(1) Article 124 of the Employment Rights (Northern Ireland) Order 1996 (right to written statement of reasons of dismissal) is amended as follows.


 


(2) In paragraph (3), for “one year” substitute “two years”.


 


(3) In Article 140 of that Order (qualifying period of employment), for “one year” substitute “two years”?—


 


(a) in paragraph (1); and


 


(b) in paragraph (2).&quot;. — [Mr B McCrea.]

No 15: After clause 18 insert



&quot;Zero hour contracts


 


Zero hour contracts


 


18A.—(1) Zero hour contracts are prohibited.


 


(2) Zero hours contracts means a contract of employment or other worker&#x0027;s contract under which?—


 


(a) the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and


 


(b) there is no certainty that any such work or services will be made available to the worker.&quot; — [Mr Flanagan.]

No 16: In clause 19, page 12, line 36, at end insert



&quot;(8) An order under paragraph (7) may exclude the application of paragraph (2) in relation to any sum increased or decreased by the order for such period as may be specified in the order.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

No 17: In clause 20, page 13, line 31, after &quot;only&quot; insert &quot;by or&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Photo of Stephen Farry Stephen Farry Alliance

I will deal first with amendment No 9, which is to clause 14. Clause 14 as introduced establishes regulation-making powers that require a prescribed person for the purposes of article 67F of the Employment Rights (Northern Ireland) Order 1996 to produce an annual report on disclosures. During consultation on that issue, the Northern Ireland Human Rights Commission, which is a prescribed person for the purpose of matters that engage human rights, was supportive of the policy proposal but was concerned that a requirement for it to report to the Assembly could be outside the legislative competence of the Assembly. Having reviewed the legal advice and engaged with the Secretary of State on the issue, I am satisfied that it is appropriate to bring forward this amendment so that, where a report relates to the functions of a body in the reserved field, it will be sent to the Secretary of State for laying before Parliament, rather than to the Department for laying before the Assembly. I ask Members to support that amendment to take account of the fact that certain arrangements remain outside the remit of the House. Without it, my Department will be unable to develop regulations that apply to the Northern Ireland Human Rights Commission or any other body that is in a similar situation with regard to accountability to the devolved institutions.

Turning to amendment No 11, which relates to clause 17, I acknowledge at the outset the context of the Committee’s inquiry into careers policy and practice and its desire for a statutory duty in relation to the provision of advice. As introduced, clause 17 enables my Department to make regulations concerning the impartial provision, by suitably qualified persons, of careers guidance that is identified as being in the best interests of those receiving it. I have been asked by the Employment and Learning Committee to strengthen the clause by bringing forward an amendment that converts the enabling power to make regulations concerning careers guidance into a duty on the Department to do so. Having given the issue some thought, I am proposing a revision that meets the Committee’s understandable desire to see action taken in that important area. The amended clause will require the Department to make arrangements to provide careers guidance for such persons as it considers appropriate. Such guidance must be provided in an impartial manner and be in the best interests of the person receiving it.

The new obligations on the Department do not require regulations to be introduced. The Department must simply comply with the requirements. However, the revised clause will still contain a regulation-making power. That is to enable the Department to deal in more detail with the provision of careers guidance, including the means of delivery and the qualifications of the persons developing or delivering it The clause commits the Department to taking action and extends flexibility to flesh out requirements in regulations, where appropriate. The Committee’s proposal will help to strengthen clause 17, and I hope that Members will support the amendment.

I also propose to amend clause 18, which deals with apprenticeships, to include provision in relation to traineeships. That is the purpose of amendment Nos 12 and 13. Traineeships will be the new professional and technical training offer for 16- to 24-year-olds, as articulated in the recently published youth training strategy, ‘Generating our Success’. A completed traineeship will provide an individual with a qualification equivalent to five GCSEs at grades A* to C, including English and maths. The purpose of including a reference to apprenticeships and traineeships in the clause is to recognise that, while complementary parts of the new professional and technical training system, they are different offerings. Traineeships will be available in professional and technical occupations at skills level two. Apprenticeships will be available in professional and technical occupations from skills level three to skills level eight.

If amendment No 13 is agreed in addition to amendment No 12, the clause will also specify that regulations may make provision about the components of apprenticeships or traineeships. Components are the various elements that need to be in place for a particular training programme to be recognised as an apprenticeship or traineeship. The components will ensure that there are clearly defined requirements with respect to apprenticeships and traineeships and will ensure a high-quality offer and consistency across different occupational areas.

I now want to draw Members' attention to amendment No 16, which affects clause 19. Clause 19, as introduced, amends article 33 of the Employment Relations (Northern Ireland) Order 1999. As this is a somewhat technical issue, some context will be helpful. Article 33 of the 1999 Order requires my Department to make an order updating the maximum amounts of certain awards of industrial tribunals and other amounts payable under employment legislation for each year in which there have been changes to the retail prices index (RPI) between one September and the next. The amounts that must be updated include the maximum compensatory award for a finding of unfair dismissal and the weekly rate used for calculating statutory redundancy payments. Clause 19, as drafted, amends article 33(2) of the 1999 Order so that future changes to the relevant limits are to be made on 6 April each year, rather than, as is the current arrangement, "as soon as practicable". That provides greater certainty about when changes will be applied. Clause 19 also modifies the rounding calculation set out in article 33(3) of the 1999 Order so that changes in amounts are rounded up or down to the nearest pound. That ensures that they more accurately track the rate of inflation as measured by the RPI. Finally, clause 19 introduces a new paragraph into article 33 — article 33(7) — specifying that my Department may at any time make an order increasing or decreasing sums dealt with under article 33 without reference to the RPI. That will give the Department flexibility to review rates in a more fundamental way but with the safeguard that any order of that kind has to be laid in draft before, and approved by, the Assembly before becoming operational.

Since the Bill was introduced, there has been a realisation that, if amounts are revised by an order of this kind, there may be no need to make a further order that is linked to the RPI for that year. Amendment No 16 resolves that issue by providing that there is no need to make an RPI-linked order under article 33(2) where an order is made under the new article 33(7).

Amendment No 17 affects clause 20. Again, allow me to provide some background. Clause 20 introduces a new article 90B into the Industrial Relations (Northern Ireland) Order 1992, prohibiting the disclosure of information relating to a worker, employer or trade union that the Labour Relations Agency holds in connection with performing its duties. Article 90B(2) specifies the circumstances in which the prohibition does not apply. For example, it does not apply if the disclosure is made for the purposes of a criminal investigation, or in a way that means that no one to whom the information relates can be identified. Article 90B(4) of the order makes a breach of the prohibition a criminal offence, punishable by a fine. Article 90B(5) provides that the prosecution of such an offence requires the consent of the Director of Public Prosecutions.

Following discussions with the Public Prosecution Service (PPS), the Department has determined that a minor amendment to the wording is necessary to provide the PPS with increased flexibility in taking cases of this kind forward. The change will allow the director or a member of staff, on the director's behalf, to institute proceedings. That is consistent with the approach taken by the PPS to a range of issues.

I will now say a few words about a number of proposed amendments that have been tabled by Members, and which deal with matters that are not currently provided for in the Bill. Amendment No 10 has been tabled by Mr Flanagan, Mr McCann and Ms McGahan. The amendment introduces clause 16A, which requires my Department to make regulations obliging employers to publish information dealing with gender pay imbalances. Where such imbalances exist, the clause requires employers to publish an action plan to eliminate them. The clause also requires my Department to publish an action plan on eliminating gender pay differentials. That is the essence of the clause.

That is an important policy area. The amendment essentially replicates section 78 of the Equality Act 2010, which applies in Great Britain only, albeit the relevant regulations have not yet been enacted. The Department with lead policy responsibility for gender pay is the Office of the First Minister and deputy First Minister. From May, the responsibility will pass to the new Department for Communities. At no point does the proposed clause 16A define &quot;Department&quot; which, in accordance with clause 25, must, therefore, be read as a reference to the Department for Employment and Learning and in future, therefore, the Department for the Economy. It also creates specific timelines for the introduction of regulations, which may prove to be unrealistic, especially with elections coming up, the creation of a new Department and the need for the Department to do the necessary policy work and consultation from a standing start.

In Northern Ireland, gender discrimination on the basis of pay is prohibited by EU law and by two separate but related domestic statutes: the Equal Pay Act (Northern Ireland) 1970 and the Sex Discrimination (Northern Ireland) Order 1976. The former applies to contractual pay, and the latter covers non-contractual issues, such as recruitment, training, promotion, dismissal and the allocation of benefits. There is no legal requirement in either piece of legislation for employers to publish information about the pay of their employees. Engagement with OFMDFM officials suggests that they are not aware of any recent discussion on the issue, nor are there any recent proposals to introduce such a requirement.

An Equality Commission code of practice published in 2013 provides practical guidance for employers on how to promote equality of opportunity and avoid sex discrimination in pay structures. The code does not itself impose legal obligations, but it gives general guidance to employers regarding their legal obligations under the Equal Pay Act (Northern Ireland) 1970. The code is, however, admissible in evidence in any proceedings under the Act.

An OFMDFM statistics and research branch publication entitled 'Gender Equality Statistics 2015 Update' contains statistics on pay and earnings that show that in 2014 the average median full-time gross weekly earnings for a male were £460·50 compared with £444·40 for a female. Given the clear differential between male and female weekly earnings, I consider that the purpose behind the amendment is a positive one. However, it has not been raised with my Department throughout the preparations for the Bill, it was not raised at Committee Stage and no preparatory policy considerations have been undertaken, consultations carried out or impact assessments conducted. It is also not something on which the Executive have agreed a position or that we should approach in a rushed or ad hoc manner.

I think that Members will be in agreement that we want to see the elimination of gender pay differentials. I do not believe that is in dispute. As a Department, that is not our current responsibility, so as Minister for Employment and Learning, I cannot take a formal view on the matter in that regard. It is something that is very much in the hands of the Assembly. However, I am personally sympathetic to the intent of the amendment. Perhaps, given some of the potential pitfalls that I have raised so far, I suggest that the proposers may wish to opt not to move the amendment today and to table a revised version at Further Consideration Stage.

I turn now to amendment number 14. The new clause 18A that Mr McCrea is proposing through the amendment would increase from one to two years the period for which an individual must be employed before having the right to make a claim to an industrial tribunal of unfair dismissal. As I indicated at Second Stage, my Department has consulted extensively on the matter, and I am satisfied that there is insufficient evidence at this stage to support what would be a very significant change to our system of employment protections. I appreciate that there are strong views in favour of changing the unfair dismissal qualifying period. However, there are also strong views opposing change. Without wanting to oversimplify the matter, employer organisations have tended to support a change, while employee representatives have opposed it.

It is clear that there is no political consensus on the issue. Unfair dismissal is a very serious matter. It can affect an individual's livelihood, future job prospects, physical and mental health and sense of self-worth. In the absence of clear evidence and support for a move away from the present position at this time, I cannot support the new clause.

Photo of Alastair Ross Alastair Ross DUP

I know that, last week or the week before, the Minister was overseas helping to try to attract investors to Northern Ireland to create jobs. From his experience of working alongside the Minister of Enterprise, Trade and Investment or, indeed, Invest Northern Ireland, does he understand their view on whether employers, when they are looking to invest in Northern Ireland, look at more flexibility to encourage them to create jobs and, indeed, whether smaller, family-run companies will be more likely to create new jobs if the risk of doing so is diminished by giving them more flexibility when it comes to unfair dismissal?

Photo of Stephen Farry Stephen Farry Alliance

I thank the Member for his comments. Maybe that is slightly jumping ahead of some of the things I was going to say. First of all, with regard to my inward investment efforts, I have not really received much representation about employment law issues. It is, however, something that is cited by employer organisations as part of their concern at this time. It is fair to say, however, that the evidence base is not yet established. I will move on, but I will just say that the issue does not die today, so we are not in the situation where we have to take a decision on it either way at this moment in time. Looking at our competitive position internationally, I would say that the qualifying period for collective redundancies where more than 100 redundancies are being made is probably a bigger issue in how we stand out compared with international practice. That includes both our neighbours, Great Britain and the Republic of Ireland.

Picking up on what Mr Ross said and more generally, I want to stress that, as I said at Second Stage, rejecting change now does not rule it out for the foreseeable future. If there is clear evidence and a degree of consensus to support it — there is not at present — a change to the qualifying period can be made through secondary legislation. I will retain an open mind on that issue and encourage other Members to do so.

Photo of Basil McCrea Basil McCrea NI21

Can you clarify whether that secondary legislation would be agreed via affirmative or negative resolution?

Photo of Stephen Farry Stephen Farry Alliance

We are about to come to that. It is by confirmatory procedure, moving to affirmative procedure. Clause 21 modifies the procedure for making such secondary legislation in that it ensures that no change can be made without the prior approval of the Assembly.

Photo of Basil McCrea Basil McCrea NI21

I want to clarify something about the move to affirmative resolution. What the Minister said raises the possibility of a petition of concern stopping the issue. His assertion that the matter is not finished could be open to a different interpretation — I shall put it that way — in that I think that this will be the end of the matter. If we vote no to my amendment and accept affirmative resolution for change, that is the end of it for ever and a day; we will not get it through. We should maybe address the issue today.

Photo of Stephen Farry Stephen Farry Alliance

The point that the Member makes applies as much to what is happening today in that the Assembly could very easily table a petition of concern against Mr McCrea's amendment. That situation has not arisen today, for whatever reason. Members will know that I set a very high bar for when petitions of concern should be used, but that could well have happened in relation to Mr McCrea's amendment. We will have a democratic vote on that and perhaps a democratic vote in the context of a future Minister making a recommendation through draft resolutions to change the qualifying period. I do not think that we are any better or worse off through not having the amendment agreed today than we would be if we left it to the affirmative resolution procedure.

I want to make it clear that we propose to move from the current situation where it is done through a confirmatory procedure to the use of the affirmative procedure. That provides safeguards because, as the situation presently exists, any Minister could take a decision that might ultimately not be agreed to by the Assembly but would nevertheless remain in place for a short time until the Assembly voted on the issue. That would, at the very best, create confusion and, at the very worst, create chaos in employment law. That is why we are tightening it up and making it the affirmative procedure. Under both the confirmatory and affirmative procedures, there has to be a positive vote in the Assembly. In that context, the situation does not change in any respect.

I stress that, given the degree of sensitivity around the issue, we should approach it with the ambition of at least trying to get consensus in the Assembly. It may well be that, as we look to employment relations and employment law issues as a package, we will sometimes see that it makes sense to liberalise something in one direction at the same time as we look to put in place other protections elsewhere. That is perhaps a scenario down the line, and we could see some of these issues moving ahead in that way. I stress that the evidence is not yet established on this. However, I certainly retain an open mind, and I hope others will do so as well. The Assembly may well wish to return to the issue in the future; indeed, a future Minister for the Economy may wish to move in that respect and table regulations to the Committee and the Assembly and see what happens in that regard.

I come to amendment No 15. By way of the amendment, Mr Flanagan, Mr McCann and Ms McGahan propose the adoption of new clause 18A, which would prohibit the use of zero-hours contracts, as defined in that clause. I explained at Second Stage that I support reform of zero-hours contracts. However, I cannot support this clause.

It is a complex issue, to which a nuanced approach is necessary. We are seeing increased casualisation in the labour market in Northern Ireland and other jurisdictions. Zero-hours contracts are one example of that increased casualisation. They may work for some businesses in which flexibility is important. For some workers, they also may be beneficial, and that has been demonstrated through various surveys. For others, they are regarded as being exploitative, where there is uncertainty over pay and hours and potential impacts on family life and benefits, such as accessing mortgages.

There is a strong case that our employment law should keep up with employment practice. Therefore, there should be proportionate regulation. In the proposals that I originally had in mind, I wanted to see an approach developed that would support the responsible use and regulation of contracts of that kind and that could tackle the abuse of such arrangements without eliminating reasonable flexibility and choice. My Department consulted on proposals around zero-hours contracts in 2014 and put to the Executive in February 2015 a paper proposing a range of progressive measures to regulate the use of contracts of that kind.

The proposed reforms were more radical than the recent measures in Great Britain. They went well beyond simply banning exclusivity clauses, which affect only a small minority of those on zero-hours contracts, with the potential also for the creation of a statutory code and rights to request a regular employment contract after a prescribed period. I regret that no agreement was reached at the Executive on the issue. It is for others to explain why that was the case.

What is proposed today in amendment No 15 is an outright ban on zero-hours contracts. There has been no public consultation on an outright ban. The Committee for Employment and Learning has not yet had the opportunity to have detailed consideration and scrutiny of the issues. There has been no assessment of the potential impacts on business or on opportunities for employment. Even without a detailed assessment, however, it is clear that an outright ban would significantly impact on our economy, affecting many businesses and those whom they employ. At the same time as addressing abuse, it would eliminate what currently works for employer and employee. The amendment lacks the kind of proportionate approach that I originally wanted to pursue.

Any realistic opportunity for considering that important issue during the present mandate has now gone. There needs to be time for the proper scrutiny of any measures around zero-hours contracts to ensure that they will do what they are designed to do; namely, to prevent unforeseen consequences, build consensus and secure buy-in from stakeholders. That is something that regrettably we do not yet have, or have the time to accomplish.

Indeed, some immediate risks could arise from an outright ban. Once any measure became law, employers would be faced with changing the nature of employment contracts, and that may not be feasible in every situation, particularly where flexibility is at a premium. There is therefore a prospect that an outright ban could lead to the loss of thousands of jobs. My understanding is that the thousands of bank nurses contracted to the health trusts in Northern Ireland could be construed as being on zero-hours contracts. There are 10,000 names on the Northern Ireland Substitute Teacher Register (NISTR) who can also be regarded as being on zero-hours contracts, together with those on a number of such contracts in the further and higher education system. Therefore, the import of an outright ban on zero-hours contracts, if that were to be adopted, would be to create chaos in the health and education systems.

I also draw the attention of the House to a possible flaw in the definition of "zero hours contracts" in the Small Business, Enterprise and Employment Act 2015 — from which the definition in the amendment is drawn — whereby a contract will come within the definition, and therefore the protections of legislation, only if a worker is obliged to accept work when it is made available.

I appreciate that those are important matters, and I look forward to hearing the views of Members on the amendments in the group.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

Before you sit down, Minister, can you confirm for the record that you formally moved amendment No 9?

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

Too late. You are on the speaking list.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

No challenges here.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

I call, then, the Chairperson of the Committee for Employment and Learning, Mr Robin Swann.

Photo of Robin Swann Robin Swann UUP

Thank you very much, Mr Speaker. As Chairperson of the Committee, I welcome amendment No 11, which amends clause 17. Clause 17 concerns the provision of careers guidance. The Committee welcomed the Department's intention to introduce regulations providing impartial careers guidance on the back of the recommendations from the Committee's inquiry into careers education, advice, information and guidance. However, the Committee felt that the duty on the Department was not strong enough and asked the Department to strengthen clause 17. It agreed to do so, amending the wording from "The Department may make arrangements" to "The Department must make arrangements". The Committee is therefore content with the proposed amendment to clause 17.

Amendment Nos 12 and 13 amend clause 18, which concerns the provision of apprenticeships. The Committee welcomed the introduction of a statutory duty regarding the provision of apprenticeships but took on board the concerns of stakeholders who called for this power to be broader. The Department took on board these concerns and seeks to amend clause 18 to make provision for traineeships as well as apprenticeships. At that, the Committee is content with clause 18 as amended. The Committee supports the Bill and will watch closely how it is implemented.

During Committee Stage, the Committee did not have sight of amendment Nos 10, 14 or 15, so I will be speaking as the Ulster Unionist spokesperson for employment and learning. Amendment No 10 came as a surprise as it was not raised at any stage in Committee. On behalf of the Ulster Unionist Party, I am happy with the intent of this amendment, but I ask its proposers to take forward the offer that the Minister has made to bring forward the appropriate amendments to this current amendment, which would see it being more flexible and more user-friendly so that we would be able to support it and deliver the intent of this amendment. We are content to support the intention and the overall thrust of the amendment if it can be properly delivered at Further Consideration Stage.

The issue that amendment No 14 seeks to deal with was discussed in Committee, but, again, has been mentioned and contained in regulations. Mr McCrea said that issues do not have to die today, but I feel that, with this piece of legislation, neither the Committee nor the House has received the evidence or had the foresight to receive what was going to happen in regard to this amendment. I am also led to believe that, because of the concerns that have been raised, there may be moves to table a petition of concern on this amendment. I think that Mr McCrea has raised the issue of moving from draft affirmative to regulations being possibly brought about in the House today. Rather than the cut and thrust of the debate and the democratic process being brought forward, Mr McCrea, you have been the author of your own destiny in this case.

Photo of Basil McCrea Basil McCrea NI21

Before we move off that issue, the elephant in the room is that the qualifying period for unfair dismissal is a big issue. It is something that people have very strong views on. I have to say that I am surprised that the Ulster Unionist Party, which I previously thought was a party that supported the conservative position, is now taking a different view from the one that it had taken before. I am sure that, as Mr Ross mentioned, there are many small owner-run businesses that have supplied evidence to him and his Committee and his party to say that this is a very serious issue. I am far from being a prophet of my own doom; I actually think that this is where we should be having the debate. This is what we want to do. If a petition of concern comes forward, that is the process, but we should have the debate front and central. This is important. This is not a knee-jerk reaction. This is something that we need a considered opinion on.

Photo of Robin Swann Robin Swann UUP

I fully agree with the Member's comments. He talks about the Ulster Unionist position, and I remember attending an Ulster Unionist group meeting where he and I had exactly the same conversation on whether we should move to two years rather than one year. At that stage, the party retained the one-year position, if I am correct. I think that he was Chair of the Employment and Learning Committee at that stage. When the first section of the Bill came forward, that was one of the issues that was raised. I think that the Member knows well my position and where we, as the Ulster Unionist Party, agreed our position at that time. The concerns of small employers and all of the rest of it were taken into consideration, and I think that that is where the Minister has given the opportunity here not to close the door on this. It will be unfortunate if a petition of concern does come down to bring that finality into this debate, because the abuse of petitions of concern in the House, which the Member has raised, has killed debate and continues to do so on this very issue and other issues.

We will be opposing amendment No 15. That is not because we do not want to see the abuse of zero-hours contracts ended. It is because we do not think that this amendment will bring about the intention that the Member sees in it. In regard to the concerns that have been mentioned, this amendment would introduce an outright ban on zero-hours contracts.

As Chair and Ulster Unionist spokesman on employment and learning, I know that concerns have been raised with regard to health bank nurses and supply teachers. Employers also raised concerns about what the amendment would deliver. One union, in particular, raised concerns about how the amendment would affect some of its employees and feels that the totality of zero-hours contracts and the problems that they bring about have not been fully addressed. That goes back to why the Bill was delayed for so long: this was one of the contentious issues on which the Executive parties could not agree. The opportunity to manage and bring about regulations on zero hours is not a problem for the House, but it was a problem that could not make its way out of the Executive.

The amendment is also somewhat lacking is in its definition of zero hours. Looking at it from a layman's point of view, I could see employers who wanted to abuse the system moving very quickly to annualised hours contracts and one-hour-a-year contracts. There are options that move away from the very tight definition that the Members have brought to the House. That is why we will oppose amendment No 15. That concludes my comments.

Photo of Thomas Buchanan Thomas Buchanan DUP

In this group, I welcome amendment Nos 11, 12 and 13. Amendment No 11 deals with impartial careers guidance, and amendment Nos 12 and 13 not only deal with apprenticeships but take into account traineeships, which were not originally in the Bill.

As the Committee Chair said, amendment No 10 has come as something of a surprise, in that it never appeared before the Committee, and there was no discussion about it at any time in the Committee. The Committee is where it should have come to be scrutinised and debated. However, we as a party are of a mind to support the amendment, if it is moved. I have to add that, as the Minister said, changes need to be made to it, and we would like its supporters to take the opportunity to make those changes in order to make it more amenable.

Amendment No 14 changes the qualifying period from one year to two years. Members will know that opinion on the matter is much divided. A lot of people feel that it is a missed opportunity, and that was stated at Second Reading. The Confederation of British Industry, the Federation of Small Businesses and the Engineering Employers' Federation were among those to express disappointment, saying that they felt that the Bill was a missed opportunity to extend the qualifying period for unfair dismissal. They argued that it would ensure Northern Ireland's competitiveness and encourage inward investment and indigenous growth, and we cannot turn a blind eye to that. Opinion has been divided, but we see from the Engineering Employers' Federation and from all the folk involved in business that they are not really that divided on it. All say that it would be good to move from a one-year to a two-year period. We are, therefore, minded to support the amendment that the Member has brought to the House today.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Member for giving way. Perhaps he disagrees with what his party colleague, the Member for East Antrim, said on the matter. I am talking about Mr Hilditch, not Mr Ross. At Second Stage, Mr Hilditch said:

"I support the idea of not following suit with the rest of the UK by deciding not to increase the qualifying period for unfair dismissals from one to two years." — [Official Report, Vol 111, No 2, p51, col 2].

What has happened to the DUP policy since that stage?

Photo of Thomas Buchanan Thomas Buchanan DUP

There was no consensus at Second Reading, and the Minister said that he would put forward a provision to deal with it. When we look at the issue before us, we see the strong concern coming from industry, and we cannot turn a blind eye to that. If we do, it will be at our peril, and we will be the losers in the long term. That is one of the reasons why we are of a mind to support the amendment.

Amendment No 15 relates to zero-hours contracts. We will not support that; we will oppose it. There has been no consultation on an outright ban on zero-hours contracts or assessment of the potential economic and equality impacts of such a ban. Even in the absence of an impact assessment, it is clear that an outright ban on such contracts would undoubtedly have significant impacts on many businesses and those whom they employ. An outright ban, as suggested by some, would have a disproportionate impact on flexibility in the economy and potentially remove some employment opportunities. Furthermore, employers could use diverse new means to obtain a measure of flexibility that circumvent any legislative response to the current situation.

Zero-hours contracts work well in some cases, although we are not turning a blind eye to the fact that there are some cases where they do not work as well as they should. That is why, as the Chair of the Committee said, we are not saying that the matter should not be amended, looked at or talked about and changed in some form or other, but banning it outright would close the door on that and have a detrimental impact on many small and medium-sized businesses across Northern Ireland. Therefore, we will oppose the amendment.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

The Business Committee has arranged to meet at 1.00 pm today. I propose, therefore, by leave of the Assembly, to suspend the sitting until 2.00 pm. The first item of business when we return will be Question Time. The first Member to speak when we resume the debate will be Phil Flanagan.

The debate stood suspended. The sitting was suspended at 12.56 pm.

On resuming (Mr Deputy Speaker [Mr Dallat] in the Chair) —