Paul Murphy: Zalewski Case Exposes 'Voluntary System' Myth
Paul Murphy criticised the industrial relations system in a speech centred on the Zalewski unfair dismissal case and the Workplace Relations Commission (WRC). He argued the case exposes a voluntary system that is heavily tilted in favour of employers and leaves workers without effective access to justice.
Zalewski case and unfair dismissal
A security worker was the victim of an unfair dismissal, Murphy said, noting the employer failed to produce witnesses yet a judgment was issued. He praised Mr Zalewski and his legal team for pursuing the case and said it laid bare how evidence and adjudications at the WRC can proceed without workers seeing all the employer's documents.
Problems at the WRC and legal barriers
Murphy described the WRC process as confusing and unbalanced, allowing employers to drag out cases until workers without resources give up. He warned that costs, slow timelines, IBEC-sponsored lawyers and arbitrary awards - often modest sums such as €1,000, €5,000 or €10,000 - deter workers from taking cases and make enforcement of favourable decisions difficult.
Concerns about proposed penalties
While supporting a fine for false evidence in principle, Murphy warned a measure could intimidate workers when evidence is disputed. He said the threat of fines of up to €100,000 and a possible ten-year prison sentence could be used to discourage workers from bringing claims.
WRC under-resourcing and inspection shortfall
Murphy highlighted chronic under-resourcing of WRC inspections: an agreed target of 90 inspectors from a 2016 pay deal has not been met, with 53 inspectors in post as of 1 May 2021. He said that shortfall was evident in the meat plants, where the Government turned a conscious blind eye and accused those who raised concerns of slandering the meat factory owners.
Broader industrial relations critique
Murphy argued the problems reflect wider failings in workers' rights - lack of union recognition, anti-union provisions in the Industrial Relations Act, attacks on pension rights, the spread of low pay, precarious employment, migrant labour abuse and bogus self-employment. He called the Government's recent proposal "very weak, too little, too late" in addressing these systemic issues after Covid.
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I want to thank Mr Zalewski and his legal team for pursuing this case and for laying bare the fantasy that operates here in relation to third party arbitration and industrial relations in this country. And that fantasy is that we have, as the government insists on telling us over and over again, a voluntary system, i.e. that employers and employees are equal, that they agree freely to enter or not to enter into contracts of employment. Because behind the technical definitions on the Zalewski case, behind the legal interpretations, behind the judgment that we are now legislating for, is a very simple and stark fact. A security worker was the victim of an unfair dismissal. His employer did not bother to have witnesses show up, but a judgment was issued anyway. It is only because he then and his legal team pursued the case that it went any further. The case shows what many workers experience at the WRC and elsewhere. Not justice, not fairness, not vindication of their rights, but a confusing and heavily unbalanced system, which rewards the actions of employers who try to drag out the process and hope that workers who do not have the resources to match simply give up or move on. In this case, the adjudicator's decision made reference to documents, written evidence from the employer which the worker had not even seen or been given. Unfortunately, I do not believe that Mr Zalewski's experiences are one-off or particularly unusual. Many workers have had similar experiences in these forums, a process that is dragged out by employers, where appeals to decisions are left at the last minute, where IBEC hired and sponsored lawyers and legal experts are used. The cost, the length of time it takes, the entire process mitigates against workers taking cases in the first place. Even the question of awards, the arbitrary nature of awards, where workers do not know if successful will they be awarded. 1,000 euros, 5,000 euros, 10,000 euros mitigates against workers taking this action. The fact that in many cases workers find it extremely difficult, even when they have a decision in their favour, to actually get that determination enforced. We should be providing free legal aid for those workers to take cases to the district court to seek for these to be enforced. Or take the question of unfair dismissal in the case of complaints in relation to health and safety. It is clearly against the law, but if someone has not been working there for 12 months, they will not be able to take a case and get justice. So far from the fantasy of a system based on the equal power between workers and employers, this case is an example of the imbalance between the two in this country. The entire system is based on that inequality of power, and it reflects much wider issues about workers' rights and the lack of them in this country. The lack of any right to union recognition, the lack of the right to have your union rep in your workplace to fight for your rights, the anti-union laws in the Industrial Relations Act which must be repealed, laws which are copied and pasted into large part from Thatcher's laws, the laws against solidarity and secondary picketing. The entire industrial relations machinery in this state is a system designed to give employers the upper hand in their dealings with workers. The odds are heavily stacked against workers. That's what a voluntary system means. It's effectively a free-for-all for employers. And the results of that deliberate policy are seen absolutely everywhere you look in this country. Ireland will rank at the bottom of almost every indicator for workers' rights across Europe. It's seen in the spread and prevalence of low pay, the growth of precarious employment, the widespread abuse of migrant labour and young workers, the spread of bogus self-employment to evade paying sick or pensions or other entitlements, the attacks on pension rights and defined benefit schemes, the absence of a statutory sick pay scheme in one in five countries in the EU. Now we have a very weak proposal, too little, too late, from the Government to address it after Covid has shed a light on it. We're at the bottom of the table, or close to the bottom, in terms of annual leave and public holidays, etc. So in relation to this bill, I don't believe it adequately addresses the systemic issues and problems faced by workers seeking justice. And I do have some concerns that, given the wholly unequal system that we have and the severe imbalance, that, for example, the measure, which obviously I agree with in general, about a fine for false evidence, but that in a scenario whereby evidence is disputed, where there are two contradictory cases, a statement of facts by the employer and the worker, I fear that in this scenario, given the actual imbalance of power, that such a measure could be used to say to the worker, well, if you take a case and you don't get found in your favour, will then look at the fine that you could be facing, of up €100,000 and a possible prison sentence of ten years. It could be used to intimidate workers from taking cases. So that's something that we'll have to watch carefully for and react to, if that's a consequence. So I wanted to make a point about the under-resourcing of the WRC, and in particular in relation to the inspection side of the WRC. Since 2016, it was agreed, as part of a national pay deal, that it would be increased to 90 inspectors. As of the 1st of May 2021, there has been a total of 53 WRC inspectors. And while workers' representatives and unions and most of society know that there has been a rapid increase in the abuses of workers' rights, the State hasn't bothered to increase or even achieve the agreed level of workplace inspectors needed. And that was highlighted above all in the question of the meat plants, where the Government turned a conscious blind eye to what was happening, and accused those of us who raised concerns of slandering the meat factory owners, and the inspections came so, so late. The fact that the WRC has detected breaches in more than one-third of all of its investigations, well, it tells us something. And it tells us that, well, if you had more inspections taking place, we'd be uncovering significantly more breaches. So almost 36% found breaches by employers regarding the non-payment of the minimum wage, employment permits, the protection of young persons, annual leave and public holiday entitlements, and unpaid wages. Sectors such as food and drink, retail, wholesale, hair and beauty, and construction have seen consistent breaches of employment law in recent years. I also just want to make reference briefly to the allegations made by George McLaughlin, who was a former inspector in the forerunner to the WRC. And the allegations he has made are extremely serious. I've spoken to him. He's not making wild allegations. He has them backed up with documentary evidence, and so on. And I'll just quote briefly from the observation that he made to the Village magazine, where he says the proper work of the Labour... I'm sorry, I don't know that it's in Ethiopia to be raised in cases of that nature, where the parties involved are not here to answer for themselves. It means on the public records. I'm going to quote from just a magazine article, one paragraph, if that's... It doesn't name any individuals or anything like that. He says, quote, The proper work of the Labour Inspectorate in ensuring that employers in low-pay sectors of the economy comply with the State's most basic employment rights legislation is being deliberately undermined by a management that sees its primary function as facilitating some employers in circumventing the very legislation they are supposed to be enforcing, thereby leaving vulnerable workers at the mercy of unscrupulous employers. It's something I don't think the Government has responded to properly. He has made, I think, two protected disclosures at this point in time. But to move on, I'll finish. I mean, we need more inspectors. That's a bottom line. But we also need a thorough shake-up of the entire industrial relations system. Above all, what we need, and the thing that will make the biggest difference to workers' rights, is to see the growth of fighting trade unions that will represent and fight for their members' rights. The right to join and be represented by a union of your choice is ultimately the only real safeguard that workers can rely on. Thank you. Thank you. Thank you. Thank you. 88 below
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