Amendment No. 29 is really an amendment to amendment No. 28. Perhaps the Deputy would move it on Report. It is an amendment to sub-section (1) and that sub-section has been deleted.
Committee on Finance. - Industrial Relations Bill, 1946—Committee (Resumed).
I could still move it to the altered sub-section.
If it is an amendment to an amendment, it should be moved thereto before that amendment was disposed of.
That was not my fault.
The Chair was of opinion that it was not being moved.
It is a hook-up with amendment No. 66.
Would not the Deputy achieve his purpose by amendment No. 66 without moving this amendment at all?
Yes, but I might get some information from the Minister now as to what he thinks about it.
It would be more orderly to discuss the matter on amendment No. 66.
It would be better to discuss it on amendment No. 66. We shall have other suggestions in relation to that section.
Which might make this obsolete?
Yes.
Then I shall discuss the point on amendment No. 66.
Amendment No. 29 not moved.
Amendments Nos. 30, 31 and 32 are being left over for further consideration on our side, assuming similar consideration by the Minister.
Amendments Nos. 30, 31 and 32 not moved.
I move amendment No. 33, on behalf of Deputy Coburn:
To delete sub-section (4) and substitute the following sub-section:
(4) Persons may appear before the court by counsel or solicitor and rules under this section shall make provision accordingly.
The Deputy understands that amendments Nos. 33 and 33a stand or fall together.
Yes. I move amendment No. 33 because it is desirable that, if the tribunal thought it necessary, they should be enabled to allow counsel or solicitors to represent an interested party. If an interested party before appearing in proceedings before the tribunal wish to be represented in this way, I think it is undesirable they should be prevented by the rules. This amendment would enable an interested party to make their case before the tribunal by counsel or solicitor.
This is another of the proposals which came to me from the Council of the Bar of Ireland Law Society, to which I said that I should not offer opposition if there was agreement for their adoption. I find, however, that there is no such agreement. On the contrary, the view which is strongly held by the organisations representative of workers is that the ordinary business of the court should not be done either through counsel or solicitors. The scheme of the Bill provides, generally, for negotiation between all parties concerned in trades or occupations, followed by application to the court, under one section of the Bill or another, which would ordinarily be made on behalf of the workers concerned by their trade unions. The trade unions are accustomed to present their own cases without the help of barristers or solicitors and, if employers were represented by barristers or solicitors, it is obvious that legal points might be raised which would force the trade unions to employ barristers or solicitors as well. There are a number of trade unions which, in these circumstances, might be involved in costs so considerable in relation to their resources that they would hesitate to avail of the court at all. In any event, it is desirable to retain the practice by which trade unions, through their officers, speak on behalf of their members in cases where legal issues do not properly arise.
The rules to be made by the court may permit of counsel or solicitors being heard where legal issues are involved and I assume the court will be concerned to act in this matter so as to facilitate the parties coming before it and to induce parties to come before it. In framing this Bill, I have taken considerable note of the provisions of corresponding legislation in New Zealand. This Bill is different in many respects from the New Zealand measure but I notice that the New Zealand Act prohibits absolutely barristers and solicitors from appearing in conciliation cases, although they may be allowed to appear in arbitration proceedings, provided rules are made accordingly for the arbitration court.
Apart altogether from the merits of the case which can be made in favour of the amendment, I think the fact that there is no likelihood of getting agreement on the amendment is a substantial argument against it.
The difficulty I see about this amendment is that we may give this court a complexion which it is not intended it should have. It appears on superficial examination to be reasonable for Deputy Cosgrave to say: "Let the body be represented in court by solicitor or counsel if the body so desires." I think a practice of that kind, once started, may result in the course of time in every application which is submitted to the court or every defence which is made in the court being made to the accompaniment of a battery of legal people on both sides, with the result that, although you are endeavouring to set up an industrial court, you may very well, by permitting that type of practice to grow, evolve an ordinary legal court. I think it would be a mistake if this court were to take on a legal complexion. I do not think that we intended that the court should have that complexion. The whole intention underlying the Bill is to provide a recognised and formalised procedure by which unions and employers can now discuss before an industrial court matters which they discussed, perhaps, in the Department of Industry and Commerce or at some neutral venue. Our aim was to set up a court in an ad hoc manner.
It seems to me that the ordinary cases before the court will be types of cases which unions at present deal with by direct negotiations. For instance, if there is a dispute at the docks to-day, what happens is that the dockers' employers on the one hand and the unions on the other, when they are brought together, go to the Department of Industry and Commerce and there argue the points in dispute.
Both sides know what is involved in the point at issue: whether employers are prepared to give whatever those on strike want. Both know the other's point of view and what is at issue. Unless one were familiar with the technical vernacular of a particular employment, one could listen in to these discussions and know very little about what was happening. Those involved on both sides are familiar with what is at issue and are able to discuss the matter so involved. It does not seem to me to be necessary, if you have a strike at the docks, to bring in counsel or solicitor to argue the merits of whether a docker should get a week's holidays or a fortnight's holidays. Nor, if you have a dispute in a coal mine, is it necessary to bring in counsel or solicitor to adjudicate upon whether the check-weigh man in the colliery is doing his work in a particular way and whether he should not do it in another way. Nor, if you have a dispute in a cotton mill, is it necessary to have counsel or solicitor to argue whether the members of the staff there are to handle ten or 20 looms. That is the type of case which, in the main, will be heard by this industrial court. Frankly, I think it is better to leave these issues to the parties who are familiar with the points in dispute. Let them argue the merits of the case and let the court pass judgment on the issues submitted to it for consideration. As I said, I think it would be a mistake if you make this a purely legal court and if you import into it the type of procedure which goes hand in hand with the hearing of evidence in a properly constituted legal court. I think, therefore, that, except there is some point of law involved — and frankly it is not easy to visualise what points of law could be involved — the court should ordinarily operate by the employers' representatives on the one hand and the workers' representatives on the other hand submitting their case for adjudication by the industrial court.
I can understand legal people saying that if a case is going to be heard in a court people should have recourse to legal advice and it is probably the fact that it is described as a court that is inducing legal people to plead for the right of access to it. If it were described as an arbitration tribunal, possibly the question would not have arisen.
But, because it is described as an industrial court, very likely legal people think they ought to have access to it, feeling that once the title "court" is used they ought not to be excluded. But this is a special court doing in a regular way work done every day of the week without counsel or solicitor in the Department of Industry and Commerce. I do not think its functions will be in any way assisted by the granting of permission to counsel to appear there in any case in which either side desires to bring counsel. Probably the more satisfactory way would be to admit the principle that, if points of law are involved, there is the right either by the applicants or the body resisting the application to bring in counsel for the purpose of clarification of legal issues, but not on a matter of industrial facts or economic facts such as, in the main, will represent the work of the industrial court.
We need not discuss the question of law arising at the moment. But I think that if a question of law does arise, this tribunal will be in some difficulty in deciding it. I think it was Deputy Larkin pointed out on the Second Stage that you would have a lay tribunal dealing with matters which would be a question of law. Under Section 31, I think it is, any question arising under this part of the Bill shall not be heard in any court of law and shall be determined only by this court. So far as that goes, it probably does not arise. But I understand that the Wages Advisory Tribunal which has operated during the emergency has heard cases where employers, and, I think, in certain cases, trade unions were represented by either solicitor or counsel. So far as that tribunal was concerned, I understand that it worked satisfactorily
I agree with Deputy Norton, of course, that, if a solicitor and counsel are in a matter before the tribunal, it will in the normal way give rise to the rather lengthy procedure which is associated with a court. On the other hand, this court has power to hear evidence and, if you have a lay court and lay interrogators examining witnesses on oath, you may visualise a situation in which all kinds of extraneous matters will be brought in for which there will be no settled rule of procedure.
In an ordinary case, the judge and the practitioners before him are bound by the particular rules governing the examination of witnesses, etc., while in this case there will be nobody present who will be in a position to guide the court as to the proper procedure. To say that the registrar will keep the court right on legal matters is, I think, an extension of the registrar's duties. I know of one lay court, at any rate, which the registrar has not prevented from going off the rails although he has legal knowledge. Of course, if there is general opposition to it, I realise that this amendment may not meet with approval. But I should like to direct attention to the position in which non-legal people will be dealing in the normal way with what would be regarded as matters within the purview of people trained in legal procedure and the determination of such matters.
Of course the prohibition on representation of persons by counsel or solicitor is not absolute. We give the court power to make rules providing for cases in which persons may appear before the court by counsel or solicitor.
I think that a part of the difficulty in deciding this question is that referred to by Deputy Norton, namely, the use of the word "court". The usual conception of justice, so far as a court is concerned, is that of a blindfolded figure holding a scales. The figure, although it holds the scales, has no part in the weighing down of the scales. I think the type of court we are discussing is something much more informal. It is a court that will take an active part, not only in investigating and considering evidence, but even in eliciting evidence and, if necessary, even suggesting to either party particular forms of argument that might help to determine the question at issue. There will be no partisanship and no bias shown.
It seems to me the way in which the Bill sets down this matter is the best way, namely, that the court can set down certain cases in which parties may be represented by counsel. I think, without being unfair in any way to members of the legal profession, in certain cases where the parties are represented by members of the legal profession, there is a tendency to delay the proceedings. The presentation of the evidence must of necessity be secondhand. In cases where it is possible to have the employer present at the tribunal and either the workers directly concerned or their trade union officials, who have a direct and personal knowledge of the trade they represent, the proceedings have been quick and the court has been greatly helped in its work.
As to the question raised, that many employers have not got the experience of trade union officials in presenting cases, that difficulty is being rapidly overcome because a great number of employers have that specialised representation on their own side. So long as there is provision whereby the court can make arrangements for certain types of cases in which it might be considered necessary to have legal representation, I think that is sufficient to meet the arguments put forward in relation to this amendment. If we had a form of court in which both parties would be legally represented it might be a safeguard against some of the possibilities referred to by Deputy Cosgrave, but in some cases it might tend to give rise to further friction, which is not separable from courts of law. That is a thing we largely avoid in the informal way in which discussions between trade unions and employers are carried on.
Amendment, by leave, withdrawn.
Amendment No. 33a not moved.
Section 19, as amended, put and agreed to.
SECTION 20.
I move amendment No. 34:—
In page 8, line 45, to delete the word "twenty-five" and substitute the word "ten".
At various stages the Minister emphasised that this will not be an ordinary court and that we should move away from anything suggesting penalties. I suggest that a £25 penalty on a witness not attending the court or for not producing a certain type of document seems to be too drastic. We feel that at most the figure should be a nominal figure and we suggest £10 instead of £25. That is based on the principle that we should endeavour to keep away from penal clauses as far as possible. I do not think there is any case for such a drastic penalty as £25.
I will put my case to the Deputy and let him decide the issue. This is the normal penalty. It is a maximum penalty and it is imposed at the discretion of the normal court. It is not the labour court that imposes the penalty. An offence having been committed, it is the ordinary court that will decide what the penalty is. Ordinarily I would not be prepared to contest the suggestion for an alteration of this figure, but there is this point to be considered. If we depart from what appears to be the ordinary practice we appear to suggest that disregard of the summons of this court is a less serious offence than disregard of the summons of some other court or tribunal and it might appear that we are attaching less importance to the dignity of this court than to the dignity of other courts I have in mind such a body as the Prices Commission and other bodies of that kind which had power to summon witnesses. I would not like to regard disobedience of the summons of this court as a less serious offence.
There are a number of grounds on which a person might commit an offence. He might refuse to attend the court, he might refuse to take the oath, to produce certain documents or to reply to any question in regard to which the court might legally require an answer. Suppose workers are summoned as witnesses. It is quite conceivable that questions would be put to them and, because of their ordinary loyalty or the general atmosphere among workers, they might hesitate in answering and, if they failed to answer, the court could impose a penalty of £25. It is from that point of view that I think the fine might be reduced to the figure of £10 set out in the amendment. With regard to the failure of witnesses to attend before the court, to refuse to take an oath or to produce a document, we should keep in line with the practice in other courts. Here we are dealing with something more. We are dealing with ordinary workmen, not professional men who, in the main, would be called before such bodies as the Prices Commission, and we would be entering into realms where considerations other than legal considerations have a certain effect upon the witnesses.
If the Deputies regard it as worth while, I will accept the amendment.
If the ordinary courts impose a fine of £10 or £25 on a defendant and, if the circumstances justify an appeal, it is possible to appeal to the Minister for Justice to waive or reduce the fine. You have some kind of fall-back on a Minister, detached from the heat of the court, to review a fine imposed by the court after, perhaps, the lapse of time. In this case can you petition anybody if the court imposes a fine of £25 or £10?
I do not know what the law is in that regard or what the practice is but it is, as far as I know, in precisely the same category as any other fine imposed by the court.
I wonder is it. If, for instance, a witness is fined £25 or £10 in the circumstances set out by Deputy Larkin because he does not want to answer, or because of the trade practice of being loyal to one another, does not answer with the clarity the court may require, is there any opportunity whereby he can appeal to somebody else?
Yes; it is precisely the same as any other fine imposed by the court. There is no special classification of this fine which makes it any different from any other.
Is that the precise legal position?
Yes. A person who has failed to attend or refuses to give a document is charged before the District Court for that offence. If he is fined for that offence he has precisely the same rights in relation to appeals as any person sentenced or fined for any other offence by the same court. However, I accept the amendment.
Amendment agreed to.
Question proposed: "That Section 20, as amended, stand part of the Bill."
Under what circumstances would persons be summoned before this court, who would be present in the court, who would examine them, and would the court be public, because I can see a number of difficulties arising for witnesses? For example, a small trader, a businessman or a farmer summoned before this court might be asked questions in connection with his business to answer which might be very detrimental to his business. He might be called upon to give information without justification which it might not be desirable for him to give. Who is to protect the interests of a witness?
We are not attempting to lay down rules of procedure for the court. We say the court shall be absolute master of its own procedure and will make the rules governing its procedure.
I presume the chairman of the court would be aware of the danger of jeopardising a person's interests.
I think the Deputy may be assured on that point.
Would the Minister say what provisions will be made for witnesses' expenses? There do not appear to be any.
I do not think there can be any. This court would not have power to award costs in a case.
What about sub-section (4)? There is power there.
It is in sub-section (4).
It is.
The only point on sub-section (4) is that there have been occasions on which workers who were required to attend before various tribunals have had certain objection to the scale of expenses allowed.
So has everybody else.
The point is that there have been cases where they actually lost in relation to their daily rate of wages. I do not think that is fair.
It would not be fair, I agree. I promise to use my influence to get them a proper scale.
Is the Minister responsible for paying?
The sanction of the Minister for Finance is required.
Can we delete that portion?
Over his dead body.
Question put and agreed to.
SECTION 21.
I move amendment No. 35:—
In page 8, line 51, to delete the word "attained" and substitute the word "obtained".
That is accepted, Sir.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
I move amendment No. 36:—
Before sub-section (2), in page 9, to insert the following sub-section:—
(2) For the purpose of giving effect to the provisions of the next following sub-section there shall be attached to the court an economic section consisting of such and so many persons as the Minister may determine.
In relation to the section, it would not really be necessary to provide for that in the Bill. If we consider it desirable that there should be an economic section attached to the court staff, or economic advisers, there is nothing in the Bill to prevent it. You do not have to empower the court to do that. It would be merely a question of providing that staff. I was proposing in my amendment No. 37 to delete that part of sub-section (2) which suggested that the court should report upon the effect on employment and prices of the trend of wages and other matters arising therefrom, and not to have the court submit an economic review arising from its work, but if it was decided at some stage that the court should undertake economic research it can do it. It is not necessary to have a section empowering them to have a staff.
Our amendment was put down before we saw the Minister's amendment. I take it that the court will in fact confine its annual report to the actual cases coming before it.
It can make any observations it wishes to make on the trend of wage rates. I think it should be able to give us a review of the wage movement, without necessarily drawing deductions therefrom.
If it needs a competent staff to do that it should get it?
Yes. We would not have to put a section in the Bill, except we were going to put the obligation on them, as to who should compose the staff or the size of the staff. They can have the staff.
The Minister will appreciate that if we were putting the obligation on the court under sub-section (2) of Section 22 to produce an annual report containing these observations on the trend of wages, it ought to be done in some kind of planned manner, that the court ought not to discover in the middle of December if it is making a report relating to the calendar year that they have to present a report under Section 22 and then with inadequate staff, perhaps not a staff qualified to do this work, hasten to get out a report by the end of the year in order to comply with the provisions of Section 22.
I know.
If the court is being asked to report on this situation it ought to have an adequate, trained staff available so that this will not be regarded as just a skimped kind of job to be got out merely to comply with the section, giving us really no valuable information.
That is true. The main responsibility of providing statistical data rests upon the Statistics Branch of the Department of Industry and Commerce and they are at the present time preparing new tables and new material generally relating to wages and all that type of information. Therefore, it would be desirable to have some liaison between this court and the Statistics Branch in regard to this part of its functions, so that there would be no overlapping and that the information coming to one authority would be available to the other and thus help to increase the value of the reports published. There will be no difficulty in providing for this court, either on a temporary or permanent basis, whatever trained staff they require to prepare that part of their report.
Amendment, by leave, withdrawn.
I move amendment No. 37:
In sub-section (2), to delete all words after the word "rates" in line 6.
Amendment agreed to.
I move amendment No. 38:
In sub-section (5), line 16, to insert after the word "order", the word "recommendation".
This is a drafting amendment.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
I move amendment No. 39:
In line 19, to delete the word "industrial"and substitute therefor the word "employment".
I accept that amendment. I think it is an improvement on the wording in the section.
Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24.
I move amendment No. 40:
In page 9, line 28, after the word "employment" to insert the words "or the remuneration and conditions of employment".
There might be agreements covering the question of remuneration only or the conditions of employment only. It is conceivable that you might have agreements covering the question of remuneration and conditions of employment.
I put the point to the draftsman and he says that the amendment is not necessary, that, in fact, the wording covers agreements relating to remuneration and conditions and agreements relating to remuneration or conditions. The section provides for what the Deputy suggests.
Amendment, by leave, withdrawn.
I move amendment No. 41:—
In line 31, to add to the definition of "employment agreement" the words: "or made, at a meeting of a registered joint industrial council, between members of the council representative of workers and members of the council representative of employers."
As the definition of an employment agreement stands, it would not be possible for agreements arrived at by joint industrial councils to be registered by the court as several joint industrial councils have on them unions representing employers who do not possess negotiating licences under the Trade Union Act. As a trade union is defined in the Bill as a trade union possessing a negotiating licence, it is necessary to make special provision for the registration of agreements negotiated by joint industrial councils.
Amendment agreed to.
Amendment 42 not moved.
Section 24, as amended, agreed to.
Section 25 agreed to.
SECTION 26.
I move amendment No. 43:—
In sub-section (3) to delete paragraph (a) and substitute the following paragraph:—
(a) that, in the case of an agreement in which there are two parties only, both parties consent to its registration, and, in the case of an agreement to which there are more than two parties, there is substantial agreement amongst the parties representing the interests of workers and employers respectively, and.
The purpose of the amendment is to make it clear that, before an agreement is registered, there must be substantial agreement on each side and not merely substantial agreement by all the parties concerned. It is an improvement on the original wording.
It is in a way, but the phrase "substantial agreement amongst the parties" is used. What is the basis of substantial agreement?
That is a matter for the judgment of the court. That question was put to me before, and I invited everybody concerned to give me a better definition of what we had in mind, without success. I think there is no alternative to leaving it to the court to decide upon the interpretation of the term and its application in individual cases.
I think you are passing the buck by this amendment. Let us see what may happen. Suppose there is a dispute in the building industry affecting plasterers, slaters and builders' labourers. The plasterers are a small group, the slaters a small group and the builders' labourers a very large group, and some want to register, while others do not. The three agreements are dissimilar in ways because one relates to the conditions of plasterers, another to the conditions of slaters and then there is the position of builders' labourers generally. What does "substantial agreement" in a case like that mean?
It would not be the actual number in each party.
What will it mean? It must be based on something. Is it on the numbers involved?
No.
On what, then?
As I framed the Bill originally, it provided for absolute agreement between the parties as a condition precedent to registration. When I was discussing the matter with the Irish Trade Union Congress, Deputy Larkin pointed to the possibility of a situation arising in a trade like the building trade where there might be 14 or 15 trade unions of workers or 14 or 15 groups of employers concerned with the negotiations and in the drafting of the agreement. I was told it was considered desirable to prevent the possibility of one small union of workers——
Or employers.
——or one small group of employers preventing the registration of the agreement by objecting to its registration. That was the argument used against having absolute agreement amongst all parties. It was desired to create a situation in which, assuming all the important parties to the agreement wanted registration, registration could be effected, even though one small group on either side had some objection to it. It was to meet that difficulty that the Bill was amended. This particular amendment is merely an improvement on the wording of the section, but the Bill as originally framed was amended to try to meet the point. I could not devise any better form of words than those employed here: "substantial agreement amongst the parties." It is quite clear that the court will not be concerned to find out the number of individuals comprising each party. If there are eight or nine trade unions, it would require to have the substantial agreement of eight or nine trade unions. The mere fact that one union had more members than all the others put together would not enable that one union to procure registration even though the other six or seven object.
Suppose you have a case in which two relatively small unions and one large union are involved. What is substantial agreement in that case? Is it the membership of the one large union against the other two?
The majority of the parties, irrespective of the size of the parties.
Would it not be better to put in the words "a majority of the parties"?
That is what is there —"substantial agreement amongst the parties."
Amongst the parties representing those concerned.
I listened to the instance Deputy Norton gave with regard to the building trade of a dispute between labourers, plasterers and slaters. It would probably be a question of the rendering on the inside of the slates, or some such work.
I was not referring to a dispute between them. Suppose they were all looking for wage increases?
A comprehensive agreement covering the building trade in Dublin, such as we negotiated after the strike in 1936.
I never heard of a system of counting heads amongst the workers.
I want to know what is to be counted — whether it is their heads or their feet.
This arose out of the big building strike where the negotiation of a settlement was delayed for a very long time by a small section on each side. Deputy Dockrell will remember it, because he was a party to the negotiations. The main body of the agreement was settled long before the strike ended. The difficulty was one of getting the approval of a small section on each side for the agreement. It was to avoid the possibility of a small section on each side preventing the registration of an agreement that registration was made conditional upon substantial agreement amongst the parties, rather than absolute agreement amongst all parties.
Yes, but the Minister knows perfectly well that there is no good in having a resumption, unless practically all the labourers resume.
Certainly, but that is not the point. We are not talking of the negotiation of a settlement, but of registration of an agreement. There may have been no strike at all. I feel that existing agreements could be registered immediately the court is set up, without any question of a strike being involved.
Would this be a case of certain workers desiring to register and certain others——
Were opposed to registering, yes. It is merely a matter of registering, and not of negotiating.
Take the case of two unions, a small one and a large one, and the small union manages to secure agreement with the employers. In the drapery trade, for which two unions may be catering, how are you going to differentiate between the unions?
I think the commonsense interpretation of agreement must be not merely a bare majority of the parties but a substantial majority on both sides.
The trouble is that the word "majority" is abused.
Substantial agreement between the parties is much more than a majority.
That is just the difficulty. How much more than a majority? Supposing you have eight unions in the building trade involved in a dispute, and finally there is a settlement and an agreement registered, if five of the eight want to have it registered, is that a "substantial majority"?
It might be in one individual cases.
What fraction has the Minister in mind to represent "substantial agreement"?
The test I would apply, where the objecting parties are so small in relation to the essential parties, is that it would be unreasonable to refuse registration because of their objection.
Twisting it the other way, say that there are eight unions, and that five want registration, is that "substantial agreement"?
It might be in some cases.
In what case would it not be?
Where the three would be the important section of the operatives in the industry.
In that case there could be a majority.
They would not be a majority.
Could agreement amongst three as against five — the three being the large and the five the small unions — indicate substantial agreement to get registration?
No.
And five could not get registration either?
No.
Is that clear?
It is as clear as I can make it. If Deputies can improve on it I will be glad.
The difficulty I see is in interpreting "substantial agreement."
When I framed the Bill first I required absolute agreement. It was because of representations from the Trade Union Congress I tried to amend the Bill to permit registration despite the dissent of a small party. That is the best I can make it. I do not know if it is possible to improve on it.
I appreciate the Minister's difficulty, but he must realise that "substantial" is a word that it is difficult to interpret here. It may be that five want registration and they may be frustrated by three, representing a majority.
I would not say that. It could be that the parties concerned in the case the Deputy mentioned could meet their difficulties by registering an agreement but narrower than the scope negotiated by the five parties originally.
That does not meet the point.
If there is agreement to which there are eight parties, the court must be satisfied that the main body of opinion on both sides is in favour of it.
I do not agree with the Minister. Let us take the eight unions mentioned by Deputy Norton. If five or even four were agreeable to registration, the court would have to take that as being "substantial agreement."
That is not my view.
I want to have this watertight if possible. If the court does not determine that five out of eight indicates "substantial agreement" how are they going to interpret the word "substantial"? It is not a question of a majority or a minority. If there of the unions represented 3,000 members and if the other five represent only 300 members, on the wording here the court would be coerced to look on the five as representing "substantial agreement" amongst the parties.
I would not agree that the number of parties to the agreements is the determining factor.
That is not what I am dealing with. Under the wording of the amendment the court must recognise five as giving a measure of "substantial agreement".
That is not the case we are trying to meet. We are trying to meet a case where it would be unreasonable to refuse to register if there was such an obvious feeling in favour of registration, that the objection of a small section on either side should not be effective to prevent it. That is the case I am trying to meet. If the Deputy can improve on that phrase I will be very glad.
I am arguing that I do not think the wording covers the point the Minister is trying to meet.
Personally I think it does. It is substantial agreement.
I put it to the Minister that anybody interpreting the amendment would not agree that five out of eight would represent "substantial agreement". I do not think there is any doubt about that or that anyone could argue that it is "substantial agreement".
I would argue that.
Amendment agreed to.
Amendment No. 44 not moved.
I move amendment No. 45:—
In sub-section (3), page 10, to delete paragraph (b), lines 3 to 9, and substitute therefor:—
(b) that the agreement is expressed to apply to——
(i) all workers of a particular class or grade and their employers, or
(ii) all workers and employers in in a particular trade, avocation or industry, or
(iii) all workers of a particular class or grade and their employers in a specified area or in more than one specified area, or
(iv) all workers and their employers in a particular trade, avocation or industry in a specified area or in more than one specified area, or
(v) where the court is satisfied that it is reasonable or expedient, all the workers or all the workers of a particular class or grade and their employer or employers in one or in more than one specified establishment or undertaking.
Under paragraph (b) only a small number of agreements would come within its definition, and the amendment aims at bringing within the definition all sectional agreements which are negotiated between unions and employers. The amendment, therefore, sets out in a more classified way the types of agreement which can be registered and I think they are wider than under the provisions of the Bill as it at present stands. For instance, it seems to me to be doubtful if you can register an agreement between a single employer and a trade union. The possibility of doing that is provided for under the amendment now moved. It does not seem to me possible to do that under the Bill, as it stands, unless we can get from the Minister a clearer interpretation of the section than it is possible for me to make.
I thought that was what the Deputy was aiming at and on that basis I am advised that the amendment is not necessary. As Section 26, sub-section (3), sub-paragraph (b) stands at the moment it covers an agreement expressed to apply to all workers of a particular class, and the term class is not defined. No attempt is made to define it and I am advised that it would cover a class of workers defined as those employed in a particular industry, those employed by a named firm——
Where is the named firm?
It is covered by the term "class". Sub-paragraph (b) relates, first of all, "that the agreement is expressed to apply to all workers of a particular class" and the term "class" is not defined but it would cover a class of workers defined as workers employed by a named firm.
Even though there were different avocations.
Even though there were different avocations, yes. We do not attempt in any sense to narrow or limit the word "class".
Has the Minister been advised on that?
I have been advised on that. I take it the Deputy's amendment is to provide for agreements between individual employers, covering employees employed by individual employers or workers covered under particular criteria, or trades, which they normally follow. I am told the term "class" is wide enough to cover any definition you like so long as they can be clearly identified.
So, if a trade union makes an agreement with a large employer in the city, who carries on a diversified type of trade, such as drapery, hardware, bicycles, repair work, electrical goods, the sale or manufacture of electrical goods and repair work of such, that miscellaneous type of industry can be described under the agreement as workers employed in that particular employment and sub-paragraph (b) will cover that.
And sub-paragraph (b) will cover that.
Although it may cut across other agreements covering similar classes of workers.
That is where the court will come in. Clearly you cannot have two registered agreements applying to the same workers which may be in conflict with one another.
I think it is almost inevitable that it will cut across.
I take it that will be the concern of the persons negotiating the agreement. The employers must agree to the agreement also.
Taking the drapery trade as an illustration, supposing the distributive workers enter into an agreement with the employers in O'Connell Street and register that agreement, are they at liberty to enter into an agreement subsequently with the employers in Dame Street and register it?
That is right. We did in fact under the Emergency Powers Act make standard rate Orders for the drapery trade employees in the service of named employers in Dublin and only applicable to those workers.
Can a trade union therefore negotiate an agreement with one large employer covering a miscellaneous category of workers, move on to the next and do the same, and move on to the next and do the same? Is it possible to register all those under sub-paragraph (b)?
Yes, so long as the class of workers is clearly identified in the agreement.
That, then, can mean everybody employed?
Yes, certainly; but the agreement must be in such a form that there will be the least possible ambiguity as to whom it applies, as between employers and workers.
Could that not be covered by the fact that they are employees of a particular firm?
Certainly. If they are employees of a particular firm, that is a clear definition.
You do not have to classify their vocation.
No, but there might be an agreement covering employees in, say, Messrs. Clery's but exclusive of workers in road transport or employed on electrical fittings.
Quite so, if there is another agreement covering them.
Even where you define them as being employees of a particular firm you will still have to subdivide them. There you may come into conflict with the agreement. There have been cases under the Emergency Powers (No. 266) Order of such conflict. Apart from that definition of class, I would submit to the Minister that the amendment will be helpful to the court and also to the employers and trade unions in arriving at the particular category and the particular basis on which the agreement is made. The amendment grades the various types of agreement because we proceed on the very wide basis of dealing with a whole class or grade, then work down by reference to a trade or vocation, and finally we arrive at the case of the single employer, and then the areas.
In the section under the Bill at present we have very wide definitions referring to a particular class and their employers, or to all workers and employers, in a specified trade or industry, or all such workers or employers in a particular area. I would submit to the Minister that the amendment, apart altogether from proving helpful in clearing up the difficulty in regard to the final class, would be helpful in providing some foundation on which to work.
I think we are both anxious to secure that there will be no restriction of any kind upon the registration of agreements. The paragraph as framed is, I am advised, the widest possible so long as we do not attempt to define the word "class". The word "class" covers any group of workers which can be designated by reference to their employers, their place of employment, the name of their employer, or anything else. We have tried to break it down, but we are avoiding any attempt to define the word "class" precisely because that would have a restrictive effect on the powers of the court. I shall have the section examined so long as my statement on it, as it stands, is not misconstrued. Any class of workers can be defined by reference to any situation whatsoever and can be registered. I think that is all the Deputies have in mind. It is certainly what I have in mind.
Amendment, by leave, withdrawn.
I move amendment No. 46:—
In sub-section (3), page 10, to delete all words after the word "generally" in line 13 to the end of paragraph (d).
Section 26 (d) provides that the court shall register agreements in the register if it is satisfied, among other things, "that the agreement will not have the effect of unduly restricting employment generally or the employment of workers of a particular class and that it will not have the effect of ensuring or protecting the retention in use of inefficient or unduly costly machinery or methods of working". Now, the purpose of this amendment is to relieve the court of the obligation of saying—and personally I think it has no qualifications to say it—whether an agreement will restrict the employment of workers of a particular class, or whether it will have the effect of ensuring or protecting the retention in use of inefficient or unduly costly machinery or methods of working.
That seems to me to be a pretty heavy burden of responsibility to put on a court of this kind. For instance, if there was a dispute between bakery employers and bakers this section would place upon the court the obligation of ensuring that any agreement arrived at would not have the effect of retaining the present method of baking as against some other method of baking, or the use of inefficient methods. You might have a dispute between hairdressers and their employees and the agreement there must ensure that provision is not made for the retention of methods of dressing hair which are in fact regarded as obsolete and the consequent retention of inefficient methods of operation in such a case.
What qualifications has the court for making an inquiry into a matter of this kind? An agreement is negotiated and registered. Is the court to go through all such agreements individually and ascertain whether they can be registered having regard to these conditions, that the agreement will not have the effect of unduly restricting employment generally or the employment of workers of a particular class and that it will not have the effect of ensuring or protecting the retention in use of inefficient or unduly costly machinery or methods of working? Take, for instance, an agreement registered between coal owners and coal miners. What power or what qualification would the court have to adjudicate upon the question of whether the agreement was such as to have the effect of ensuring or protecting the retention in use of inefficient or unduly costly machinery or methods of working? The members of the court probably never saw a coal mine in their lives and probably would have no notion of going down a coal mine. They probably would not be interested in a coal mine. All they are concerned with is to promote industrial peace. This clause would seem to put on the court the duty of inquiring into the effects of an agreement before it can be registered. It is putting on the court a responsibility which it has no qualifications to discharge, which it will not have the time to discharge and which should not be placed on a court constituted in this way. I should like to hear what the Minister has to say in defence of this provision.
Let me be quite clear. All associations of employers and trade union workers can make any agreements they wish and enforce these agreements amongst themselves, even if these agreements have an anti-social effect but, having made an agreement which has an anti-social effect, it is I think unreasonable to expect that that agreement will be accepted for registration and made enforceable under the authority of the law, as a registered agreement will be. That is the point I am getting at, that we should not put behind an anti-social agreement the authority of this Bill. Such agreements have been made and will, no doubt, be made again. While we are not making them illegal and while we are not taking any action to upset them, we are not at the same time proposing to give them the endorsement of public approval which they would appear to have if accepted for registration. That is why the court should be entitled to say: "We will not accept the agreement for registration." That, however, does not end the agreement but we are not endorsing it from the public point of view by accepting it for registration.
Does the Minister not consider that to impose on the court the obligation to inquire whether the agreement will have that effect——
They are entitled to use their judgment.
Take the case of the coal mine again or the case of a marble quarry or a phosphate rock quarry — something far removed from what is the normal scene of the court's activities. An agreement is arrived at between the employers and the workers. The agreement comes up for registration. That agreement provides for the rate of wages to be paid to workers with certain types of machinery. Is the court expected to inquire whether that is in fact perpetuating the use of machinery which is inefficient or unduly costly?
Oh, no. I am not saying that they should carry out an efficiency survey. I shall give the type of agreement which I have in mind. It is purely an imaginary matter, I had better say, to prevent misunderstanding. Let us assume that an association of master plumbers made an agreement with a trade union of plumbers that they would grant an increase in wages on condition that the members of the trade union worked only for the master plumbers thus eliminating competition for the master plumbers. That agreement is anti-social in its effect and should not get registration.
What is anti-social in it?
It is a device to prevent competition developing against the master plumbers.
That would not get away under the second rule.
It was intended to be restrictive in its effect.
My amendment would still leave the proviso that the agreement should not have the effect of unduly restricting employment generally. The agreement in the case of a master plumber and the workman plumber which the Minister gave may be registered under (d) because nothing they have done would be a transgression of the other sections.
I think that the agreement would be refused registration on the ground that it was unduly restricting employment to workers of a particular class but there would be other cases. I think the best illustration I could give would be the automatic discharge of grain. That may be in issue at some port other than in Dublin. It was in issue at one time in Dublin but I do not think it is now. There were agreements in operation precluding the use for a time of the automatic plant. That situation in Dublin was resolved by an agreement in the negotiation of which I participated. Any agreement of the kind that had existed I would have regarded as unduly restrictive and of a kind to which we could not afford to give approval.
I could understand the Minister saying that the agreement should not be anti-social in character and if he did that I could understand the line of thought underlying this section, but it seems to me from the way in which the section is drawn that the court will have to be satisfied that the agreement will not have the effect of ensuring or protecting the retention in use of an inefficient or unduly costly machinery or methods of working. How can the court be satisfied that the agreement will not have that effect without making an inquiry into each agreement?
In normal cases they will not have much difficulty because it will be a matter of common knowledge.
How would the court go about ascertaining these facts in relation to a coal mine or a phosphate inquiry?
Ordinarily an agreement between workers' unions and employers' unions would not prescribe the type of machine to be used, say, in a cotton mill. There would be sections in the agreement covering the number of people to be employed in relation to a particular output or the number of machines that an individual operative could handle but there might be provision in it for the use of hand looms instead of automatic looms. If that were so, it would be undesirable that it should be registered.
I think it unwise for the Minister to put on the court an obligation which it can only discharge by literally interpreting this section. Whilst I can understand what the Minister has in mind, I think he should get some other form of words.
I should be glad to get agreement on a form of words but I am not quite sure what particular part of this paragraph the Deputy is objecting to.
I am objecting to the portion in which an obligation is put on the court, which it cannot discharge, of inquiring before it registers an agreement what effect that agreement has from the standpoint that it will not have the effect of ensuring or protecting the retention in use of inefficient or unduly costly machinery or methods of working. It seems to me that in every case in which an agreement is presented to the court for registration, the court would have to go through each agreement to see whether or not it would have these effects. In most of these cases the court will have simply to register the agreement automatically. I should not like to be a member of the court that would have to inquire, for instance, into the effects of agreements between employers and workers in the building trade. Deputy Dockrell is one of the few Deputies who could interpret an agreement of that kind. There are all kinds of phrases used.
I drew circles with Deputy Dockrell for three months, drawing up a building workers' agreement.
That shows the difficulty the court will be in, if it is to be satisfied on this point. I am afraid the court is having put on it an obligation which it cannot discharge, and I do not want this dead timber put in (d).
It is not an obligation on the board. It may refuse to register the agreement if it is not satisfied, but it is not under obligation to make an inquiry.
We must get back to sub-section (3) which says "if it is satisfied". It must make an inquiry and in the case of a quarry in Clare or a sandpit in Donegal the board would have to go there and look at the method of operation. That would be physically impossible.
Would it meet the Deputy's point if I say: "The court is satisfied that the agreement is not intended to effect"?
I agree with Deputy Norton. This does not secure for the Minister what he wants to secure. As the section stands, it is completely unworkable, not only putting an obligation on the court that it cannot discharge but also not securing what the Minister wants.
We would be a lot better off with a broad generalisation. The Minister is trying, as he says, to get a barrier against anti-social agreements, but the types he has in mind are not the types he is providing against. In the case of a large transport concern which undertakes to give very much improved conditions to workers, on the basis that they mutually agree to impose higher fares on the public, the company getting increased dividends and the workers getting exceptionally good conditions, there is a case where what the Minister has in mind would have to be considered. That is the kind of case a court could deal with, as it would have a report on the company's earning capacity and its capacity to pay wages. In the case of inefficiency or unduly costly machinery or methods, that would never appear in an ordinary agreement and, unless there is a specific agreement, it would not attract the attention of the court. This court will be up against the problem of making an inquiry which it is not competent to carry out. A much broader statement on the lines the Minister had in mind would be better, dealing in a general way with anti-social effects and leaving out the finer provisions he is trying to bring in.
In regard to the portion dealing with the restriction on workers in employment in a particular class, we are opening a field where the court would have to be very careful or would get into difficulties in regard to ordinary working practice and would not be effective against an anti-social practice. In such a case, it may be argued that a ratio of 3 to 1 is restricting employment, but if they start to inquire on those lines, the court will not make very much progress. That is the kind of prospect opened up to the court by the present phrasing. If it were stated that "an agreement which was manifestly anti-social in character should not be registered", that would give the court power to decide in exceptional cases. In the broad type of case that might arise, it might just be the type they would not inquire into. On the other hand, there is an opening left, if the court in its wisdom does not embroil itself in discussions in regard to working practice, creating many difficulties and imperilling its use as a labour court. The Minister might reconsider the matter.
I thought of the type of case to which the Deputy has referred and deliberately decided to omit it, that is, giving the court power to refuse to register an agreement because the effect would be to increase the cost of goods or services to the community. Clearly that could not be done, as any agreement providing for better conditions and improved wages must ultimately increase prices to the public, unless there is a considerable offset in savings on cost in other directions. I think it is sufficient to give the court power to refuse to register an agreement because it appears to the court, without any detailed examination, to be undesirable to register it on those grounds. That is why I suggest the paragraph might be made to say: "the court is satisfied that the agreement is not intended to have the effect". Then the court would have to have regard only to the expressed intention of the agreement and would have power to refuse to register only if it were expressly intended to limit the type of working, or the method or machinery used in the operation. That would meet the argument put forward that the court might be expected to undertake a technical investigation.
Would the Minister accept the amendment and put in a new sub-section saying: "an agreement of an anti-social character"?
That is too wide and would cover the type of question to which Deputy Larkin referred. The controlling of prices is a function of the Government. If prices rose too high, they might be controlled by tariff changes or by price limitation, but that should not be attempted by this method.
Before the court can register the agreement, it must be satisfied the agreement will have certain effects. That means it must inquire.
I am prepared to meet that point by saying: "expressed or intended to have the effect." That is reasonable. We do not want to give any approval to agreements intended to restrict employment or maintain obsolete methods of working, tending to raise the cost of goods or services to the community or to preserve an obsolete technique which should be got rid of. Those are the types of things we have in mind and we can reframe the section so that the court may have regard to the expressed intention.
That may be better, if it would say "expressed" or "shows on its face".
Would the Deputy leave it to me and I will try to redraft it?
Amendment, by leave, withdrawn.
I move amendment No. 47:—
In sub-section (3) to insert before paragraph (f) a new paragraph as follows: —
(f) that the agreement specifies, in regard to each trade union of workers which is a party to the agreement, the persons or bodies of persons (in this Part referred to as controlling authorities) who have authority to direct a strike of any members of that trade union who are affected by the agreement, and.
This amendment relates to another amendment to Section 30 and arises out of the discussion we had on the Second Stage. Section 30 provided that where a registered agreement is broken by a trade union which is party to the agreement, certain penalties could be imposed on the trade union. I do not want to refer to the particular penalties now, as that is a matter we will have to settle later.
It was pointed out that action might be taken by the president of the union or by members of the union without the consent of the controlling authority of the union which, in fact, made the agreement and that, therefore, it was reasonable to limit the penalties provided for breach of the agreement to breaches which were sanctioned by the controlling authority of the union which made the agreement. I accepted that contention and undertook to amend the Bill. It seemed to me that the best way of doing it was to require that, when an agreement was registered, the controlling authority of the union who would have authority to direct a strike should be indicated in the agreement. The legal difficulty is that a trade union is a trade union but there is not in law any indication of an executive authority in a union. The law relates to a trade union as a whole. Therefore, it was necessary to have the executive authority of the union clearly indicated in some way. The best way that I could get it indicated was to have it named in the agreement when registered. That is the purpose of the section, and relates to the other amendment to be moved later that provides that when an agreement is registered the authority of the union whose action could, if they wanted to do it, break the agreement, will be named in the section, so that if there is to be any penalty imposed for a breach of the agreement it will be on the named authority that it will be imposed.
The amendment says that the agreement must set out the persons or bodies of persons who have authority to direct a strike of any members of a trade union who are affected by the agreement. It seems to me to be drawn without knowledge of what really happens. Nobody in a trade union that I know of directs a strike except the people affected by the strike. Let us take a craft union in which all the members belong to the one craft. They have a claim in for some improvement in conditions. The employer says that he cannot concede the claim. He may offer something which is very much short of their demands. They may consider his offer and say that they will not accept it: that they want more. Negotiations go on and ultimately the stage is reached in which there is a deadlock.
The employer says that he is not prepared to do any more. The union ballot on the question of a strike. There is a vote taken and notice is served on the employer intimating that a strike will take place unless the demands made are conceded. There may be a membership of 4,000 or 5,000 in the union. There is a vote taken, and it is found that the majority are in favour of a strike. The majority decide on that and the strike is automatic. This amendment seems to me to conceive that it is an official or an executive committee that has the right to decide that.
If, in fact, there can be no strike except by the body of the members voting for it, then clearly it is the body of the members who are the controlling authority. If the situation is as the Deputy says, there will be no strike unless that body have voted for it.
The Minister wants this information for another purpose but the information that he is getting does not suit for the other purpose: if that is the information that he wants — who decides on the question of a strike. This agreement may, therefore, provide that for the purpose of furnishing this information, it is the members of the union, or the section concerned in the dispute, that decide on the question of a strike. That gives the Minister certain information, but that information is of no use for the purpose for which it is wanted in the later section, namely, to ascertain on whom the penalties ought to be imposed if there is an irregular breach of the agreement. This amendment seems to assume that someone is vested with the power to direct a strike. There is no question of that because in most unions the members vote on the question of a strike. The strike is then automatic. This amendment seems to conceive a situation in which there is a leader, a fuehrer, in the background and that it is he who gives the word "go".
The Deputy used the words "executive committee." I would accept that phrase if it would do, but it will not do. It seems to me that you cannot use the phrase "executive committee" unless you can say that it is the controlling authority which may not be the case and would not be the case in the illustration which the Deputy has given.
The members have a ballot on the question. The executive may think that it is unwise to go on strike. The members decide the question. There is a vote on the matter, and that makes the strike automatic. This amendment seems to me to make the approach that there is some authority which directs a strike. That is not the case.
I did not intend to convey anything like that. An agreement is negotiated on behalf of a union. There is somebody that will carry out the negotiations. The whole body of the members do not participate in the negotiations. The agreement would be negotiated through some executive committee or group of representatives, and having been negotiated will, presumably, be presented to the members for approval. The agreement is subsequently presented for registration, and is registered. Now, that agreement is clearly binding on someone. Those who made the agreement have entered into a contract with the other parties to it, undertaking to observe its terms. Registration, apart from anything else, is a proof of good faith in that regard. At a subsequent stage that agreement is broken by the trade union. The union calls the members out on strike against the provisions of the agreement. What we have got to decide is, who is responsible for that action? If we are going to make the Bill effective there must be somebody whom you can hold responsible for breach of the agreement if there has been a breach. I know there is difficulty there and I would like to get the views of those who are more familiar than I am with the organisation of trade unions on that point. We must have some means of designating the people of whom it can be said, if there is a breach of the agreement, that they are responsible for the breach, while at the same time protecting that authority within the union from being held responsible for action taken by a group of members against their will or their instructions.
I remember that during the building of the sugar factory at Mallow there were members of a local union of bricklayers employed there. One of the rules of that union was that no agreement could be arrived at unless all the members unanimously assented to it. It was a very unworkable rule, but apparently it had been a rule for a number of years so that even when there was a suggestion to improve their conditions, unless all the members were unanimous about it there could not be any action taken. Clearly, in that case you could not say that there was any authority in that small union except the whole body of the members. In every case there must be some authority which is recognised as the official authority in the union, and for the purpose of this section it must be the authority of whom it could be said that if they had not assented to this strike in breach of the agreement the strike would not have taken place.
Does the Minister mean that the union would not be liable if, in fact, the strike took place?
The authority of whom it could be said that if they ordered the strike they broke the agreement. Perhaps that is a better way of putting it.
The point at issue goes a little deeper than the impression conveyed by the Minister. I can understand the desire to insert this particular amendment to bring it into line with Section 30, arising out of the Second Reading debate, but while understanding it I cannot agree with it. The Minister will find, I think, that this particular section, with Section 30, are likely to give rise to very keen controversy so far as we are concerned. This Bill is intended to be a sort of peace machinery as between employers and their employees. Throughout the debate the Minister has expressed the view that the success of the Bill will depend on the confidence there is in the members of the court. I want to suggest to the Minister that he is unwittingly prejudging the whole issue. He is presuming that those who are going to break these agreements and, consequently, suffer the penalties set out are the workers.
No. There is ample provision in the Bill against breach of an agreement by employers too.
I want to give the Minister the background of the trade union movement in connection with this. I am sure that he will agree, as all members of the House will agree, that the trade union movement has been an extraordinary movement. It has been built up by the voluntary efforts and sacrifices of the members who are very jealous indeed of the rights which they have achieved down through the years. An illustration of that may be found in the position that arose after the Taff Vale judgment, when individual members of trade unions became responsible for the actions of the unions. The position remained in chaos until the Trades Disputes Act of 1906 was passed. The legal position which the Trades Disputes Act gives to the unions at present will be revoked, to some extent, by this particular section. Because of that, the average trade unionist or the trade union to which he belongs will say: "Why should we be linked up with machinery of this character if we are to be liable to very severe penalties?" To be successful, the Bill must have confidence from the start. It must not be assumed that the workers are out to destroy the Bill and that they must be made subject to heavy penalties. This is the background from the trade union point of view. There is a feeling of uneasiness on the part of trade unionists, not because of this particular section, because they were unaware of it, but because of Section 30 which carries these penalties. I suggest that the measure should commence to operate with goodwill on both sides and with the assumption that it will be worked for the purpose for which it is intended. It would be better if this amendment were deleted, together with the relevant sub-section in Section 30.
I want Deputies of the Labour Party to help me in this regard. It is clear that we cannot simply delete the provisions to which Deputy O'Sullivan referred. We set out a provision for registration of agreement. If an agreement is negotiated, it can be registered. Why should it be registered? There is no need to have an elaborate arrangement for registration of agreements unless certain effects follow from their registration.
A good moral effect will follow.
We want more than a moral effect. Once an agreement is registered, it becomes binding not only on the parties concerned but, in certain circumstances, on other parties. That is, however, a matter we can discuss on another section. For the moment, we may confine ourselves to agreements negotiated between parties and binding on them. The agreement is binding in law. If an employer gives his employees lower pay or worse conditions than the agreement provides, the trade union can go to the court, get the arrears of pay made good to the workers, get the conditions improved or get any consequential adjustments which justice may appear to require brought into effect. If the trade union breaks the agreement, there must be some corresponding advantage to the employer for having it registered. If he does not agree, the agreement cannot be registered. What is the inducement to the employer to assent to the registration of the agreement? That is the point we have to discuss. It is clear that the employer will not assent to the registration of the agreement unless there is some advantage to him in it and I think that the advantage you can give the employer is the assurance that the agreement will be kept by the trade union who made it with him.
There is a way out suggested in amendment No. 66.
That would not be regarded, in certain circumstances, by employers as a sufficient penalty. My argument against amendment No. 66 is that, if a union, having made an agreement which it wants to get out of, just breaks the agreement, and the court punishes it by cancelling registration of the agreement, that is not an inducement to employers to register agreements. I have put this to the trade union congresses and individual unions with which I discussed the matter. There must be some advantage to the employer or he will not assent to the registration of an agreement. There is no point in registration, from his point of view, unless it secures that, if the union breaks the agreement, he will have some redress. What is the redress to be? I was proposing in the original draft of the Bill that the penalties on the union should be the same as the penalties on the employer. The employer can be required to make good any loss to the worker by reason of his failure to comply with the terms of the agreement.
I was proposing that the union should be required to make good any loss to the employer by reason of the union's failure to keep the agreement. That was objected to. I decided to delete that provision and to propose instead that the union should be ordered by the court to stop a strike which is contrary to the agreement, and if it fails to stop the strike, having been so ordered by the court, that it should be subject to legal penalties. You must have some provision by which, if a trade union calls a strike in breach of an agreement which it has made, the court may say to the union, "You have broken the agreement and you must stop this strike". It seems to me that the very minimum which the Bill must provide is power to order a union to stop a strike which is in breach of an agreement and some penalty on the union if it refuses to comply with the court's direction and defies the court. There may be need to cover the case of an unofficial strike. The defence of the union to the labour court may be that its members are on strike against the wishes of the executive authority. They may say that they do not favour the strike, but that they have no means of preventing the men from going on strike. Some provision must be made to deal with that type of unofficial action, as well as official action by the union, but what we are discussing at the moment is breach of the agreement by official action of the union. My proposal is that if the agreement is broken by the union, the court should order the union to stop the strike and that it should be subject to penalty if it does not. There is a difficulty as regards the designation of the body which has authority to direct a strike and which is to be held accountable in these circumstances. This amendment endeavours to meet that difficulty of designation. Is there any objection to ordering a union to stop a strike which is in breach of agreement and, if you have not that provision, why should any employer assent to the registration of an agreement?
The whole force of the Minister's argument on this amendment and its corollary in Section 30 is that there will be no inducement to the employer to register an agreement. As it appears to us, all the advantages of registration will flow to the employer. The employer will, at least have this advantage that, having registered the agreement, it will ensure that his competitors will be obliged to pay the same rates of wages as he does. That is a sore grievance with him at present. I venture to say that it is the employers who will see all the advantage of registration under this scheme rather than the workers.
Even that argument only applies to agreements of general application, agreements applying to all employers.
The Minister is anxious to see that some advantage will flow to the employers. But, with Deputy O'Sullivan, I think it is already one-sided; that it is by no means on the side of the workers, but the reverse. The Minister states that when an agreement is registered the court will give back to the worker anything he has lost; if he has lost his employment through a misinterpretation of the agreement, that is the most he will get. The Minister forgets that at present the worker has the right to go to the ordinary courts.
No.
I suggest that that is the interpretation of the following section, that the industrial court may order — the word is "may", a very mild term — provided it has been in favour of the worker, the employer to do so-and-so, to the extent of recouping him for any loss sustained.
The court may order the employer to do this and the employer is subject to a penalty through the ordinary courts if he does not do it.
I suggest that there is no penalty whatever.
Precisely the same penalty.
All that a member of a union could get from the court, if his claim for misinterpretation of the award was sustained, is that the court may order or request the employer to make good any loss sustained by the individual.
Do not let us argue on a misunderstanding. The court's power in relation to an employer is, by order, to direct the employer "to do such things (including the payment of any sum due to a worker for remuneration in accordance with the agreement)——"
Is the word not "may"?
——"as will in the opinion of the court result in the said agreement being complied with by the said employer". If the employer fails to do so, he is subject to the same penalties as in the case of a trade union.
I was particularly interested in the mild word which was used, because I know what is being taken away from the worker. This is the final and the last word. He still should have power to go to a court of law if there is a question of rights involved.
If the Deputy will look at amendment No. 55a on the second list of amendments he will see that I am meeting that point and reserving any rights the worker has under any other Act.
On the other hand, you will find specifically set out here the penalties and punishments to be imposed on the trade union. If a trade union in a genuine way makes an agreement, I say it will have to keep the agreement. But there is a loophole by which the trade union can be involved willy-nilly. On the other hand, the corresponding benefits and advantages to the members are not so clearly set out as against the employer. I still contend that this matter of the industrial court when dealing with a misinterpretation or interpretation of an award when it is in favour of the worker is still too vague. At the most it can get him back his job and whatever wages he has lost Before the enactment of this law a citizen would be entitled to go to the ordinary court and take an action against his employer, perhaps for hundreds of pounds for loss of character. That can be taken away by this court.
It certainly was not intended to take it away. As a matter of fact, I feared that it would be argued that Section 30, whilst specific in relation to the penalties that could be imposed on an employer, was far less specific as to the penalties that might be imposed on a trade union and that the balance was the other way around. I do not really mind what goes in as long as something goes in which will make the Part effective. This is a matter which is far more a concern of the trade unions than it is of mine, in so far as they see the advantages in having a provision for the registration of agreements.
They see that before provision for the registration of agreements can be made effective there must be some advantages not merely to the trade union, but also to the employer. What advantage are you giving the employer? Why should not an employer register an agreement? That is a question which I want answered. What will be put in their place? If we put nothing in their place, is not it obvious that no agreement will be registered?
It seems to me that part of our difficulty in this particular debate, which has broadened out very much, is a conception that seems to exist in regard to what trade unions are, that they are something over and above and apart from the workers. Until we get rid of that conception, I think we will not make any headway in trying to get a working basis for Section 30. In the ordinary way as between an employer and a body of workers, the whole weight of the bargaining power is on the side of the employer and the redress for that is trade union organisation. It still is the same body of workers and the trade union organisation is not something apart from the workers. There seems to be a tendency running through Section 30, when we come to the question of the final controlling authority, that there is apart from and above the actual workers involved some other body, either an executive committee or a branch committee, or some kind of corporate body known as a trade union. Deputy Norton has tried to bring that out in dealing with the question of the controlling authority in regard to ordinary strikes.
If you went through all the rules of all the trade unions in the world I do not think you would find a complete parallel between any two unions. It varies from place to place. In some cases a ballot vote of the members of the union can call a strike; in other cases it is the members of the branch or even the members on a job, after having decided amongst themselves. Generally, the action of the executive committee or branch committee is more of a negative character. As Deputy Norton said, the members on a particular job may come together and decide that they want to go on strike. The actual giving effect to that or serving of the notice may be referred to a branch committee or an executive committee, and all they do in practice is either to delay or try to negative as far as they can the decision taken down below. But, in the ultimate resort, it is the decision taken by the members to which effect has to be given. If they are insistent or pressing enough, it has to be carried out.
Why we are pressing for a different approach to this matter is that, having defined the controlling authority which it is quite clear was running through the Minister's mind in the form of an executive committee, we come to Section 30 and we find this particularly objectionable section in the Minister's amendment whereby certain clauses of the Trade Disputes Act are taken away in so far as benefit is concerned. Whether he has considered the whole of the possibilities arising out of that I do not know. But it is clear from what transpired before and after this had to be rectified that if you define the controlling body of a union as the executive committee and a strike takes place called by a branch committee or a secretary or members of the branch, there is no guarantee at the moment that if the provisions of these sections of the Trades Disputes Act are denied to that particular body of workers or to the branch committee and so on, that even the executive committee may not be drawn in, once we open this door to conspiracy.
What I suggest to the Minister to consider is this: that in so far as the employer and the worker are concerned, if we leave these two parties together, all the advantages lie with the employer, as the ordinary body of workers employed, having no organisation, no financial resources, and completely depending on their own powers to fight an employer, are in a weaker position. As I say, the balance is redressed when they establish a trade union organisation, not only an organisation in the physical sense, but, more important still, the possibility of having financial resources and other powers behind them. If we accept the position that an agreement is registered and that we are a party to that agreement, we are under an obligation to keep it. If we break that agreement or, if it is broken, say, by the members on behalf of whom the agreement is registered, and if we can say then that the line is drawn and the ordinary benefits that flow from trade union organisation for that group of workers as against an employer will cease, then we can see our way clearer, and I think we would say that, where there was a breach of an agreement, that would put a stop on the central funds of the union. Then you leave the balance clear again between the employees and the employer. The employer has the benefit of having the agreement registered; he is back in the superior position again.
That is precisely what I am trying to do.
You are going further in the amendment in your reference to the Trade Disputes Act; you are imperilling the whole position of the trade unions.
That is a separate issue in my mind. It relates to the problem of the strike that is not authorised by the union. When dealing with the question of the penalty on the union, I will be quite content with the provision which stops the expenditure of the union funds in support of the strike. That is what I gather Deputy Larkin suggested. An amendment which has that effect will meet my point of view.
The amendment you move to Section 30, amendment No. 70, goes further than that.
This is getting beyond me. We have jumped from Section 26, amendment No. 47, to Section 30, amendment No. 70.
They are all linked up together and this amendment is consequential.
I know that. If it were not for my fears about the Minister's later amendment, amendment No. 70, I would find myself in agreement with what the Minister has said. So far as I understand the Minister, his point is that an agreement is reached between the employers and the employees; that agreement is registered in the court and, if either party commits a breach of the agreement so registered, either party should be penalised in accordance with the method set out here. The Minister's difficulty about the trade union is to know who should be penalised.
I do not think anybody will say there is anything unjust if, after an agreement has been voluntarily arrived at and registered before the court and there is a deliberate breach of that agreement, you impose penalties on one side or the other. I do not think anybody would argue against that. That is the Minister's case. The difficulty which I gather is put forward by those opposing it is that the wrong parties may be penalised.
So far as I am concerned, one of the most valuable parts of the Bill is that agreements may be registered and, in the vast majority of cases, it is to the advantage of the workers that agreements should be registered. Certain Deputies are approaching this part of the Bill from the Dublin point of view.
I do not say that in any offensive way. They are looking at it from the position where you have highly organised trade unions, where 100 per cent. of the workers are in the trade unions and where a trade union can exercise its influence. I am more concerned with agreements that may be made with employers, when this Bill becomes law, outside Dublin City, in the rural areas, where it will be definitely to the advantage of the employees that they should be registered. It should be made clear to employers that if any employer or any number of employers commit a breach of that agreement, the penalty is there and it is in the hands of the workers to see that the penalty will be inflicted. Speaking for general bodies of workers, some only partially organised, some completely disorganised, but who can be got together in groups and probably brought within the protection of this measure, I may say I am mainly concerned with that aspect. It is true, as Deputy Larkin says, that the working of trade unions varies, but I think, generally speaking, a strike of any importance does not take place without being sanctioned by the executive committee of the union concerned.
Not always.
I said, generally speaking, a strike which is precipitated, particularly if it is a strike in breach of an existing agreement by a section of workers in defiance of the national executive of that organisation. I think the position is one that should be dealt with. It seems to me that usually executives of unions are slow to sanction strikes unless there is a good case for a strike and unless the workers' interests are definitely jeopardised, because strikes — and I have had some experience of them — contrary to what many people believe, are not welcomed by those who have trade union responsibilities. Apart from all the other worries and troubles they bring, there is the very definite fear of heavy inroads being made on their financial position.
I cannot see how any trade union that is doing its work in the way in which I think it ought to be done and which its national executive or the executive committee is appointed to do—to safeguard the interests of all members of the union, not to have them jeopardised by a section in flat contradiction of a decision of the national executive—would lightly sanction such a strike. It seems to me the union which has not a national executive — call it by whatever name you like, but national executive conveys what I mean—is not, in my opinion, an efficient trade union. A union that has a national executive that is not prepared to put its foot down against a strike which it does not believe in, is not any advantage to the workers but might, in fact, become a very definite danger.
In reply to Deputy Morrissey, it is because we are trying to deal with the position where a union tries to protect both the union and the members as a whole against what you might call illegal or unofficial action of a small body of workers, that we are so concerned with this section. The effect of the Minister's amendment would be that no precautions could be taken by the national executive which would, in the ultimate, guarantee immunity of the union against the action of individuals or groups of members.
I am not at all arguing now on the merits of the amendment to Section 30. We will deal with that when we come to it.
This is linked up with it.
I know that, but I want to make the position clear in relation to what we are discussing; that is, the agreement that has been registered and the penalties to be inflicted for a deliberate breach by one side or the other.
I understood the Minister to say that, provided he got an assurance that the funds of the union would be estopped for the purpose of financing an unofficial strike——
Official or unofficial — that the funds of the union would be estopped from financing a strike which was in breach of an agreement.
The Minister says he is prepared, if he gets an assurance that the funds of the union will be estopped from supporting a strike in breach of an agreement, to drop his amendment No. 70 which relates to the Trade Disputes Act, 1906.
I want to put this to the Deputy: I am an employer. I make an agreement with a union covering the wages and conditions of my employees. A number of my employees go on strike for the purpose of getting higher wages or better conditions. I complain to the court. The court summons the executive of the union and the executive says: "We are not assisting the strike." It seems to me that would mean that the court cannot make an order directed against the controlling authority of the union because they are not in fact assisting the strike but, from the point of view of the employer, his position is no better. In fact, in some degrees, it is worse because his staff are out on strike in breach of an agreement and he cannot talk to the executive of the union about it because they are not supporting the strike; it is not official so far as they are concerned. What protection can you give him in the circumstances? I could not give any except this withdrawal of the Trade Disputes Act from that unofficial strike. I agree that the withdrawal of Sections 2, 3 and 4 of the Trade Disputes Act in that case might have wider consequences than I had in mind. I merely had in mind that an unofficial strike taken, not merely in breach of the agreement, but in defiance of the authority of the union, should not be given legal protection. I think, however, there is something in Deputy Larkin's point that the interpretation of Sections 3 and 4 of the Trade Disputes Act, might still involve the union authority and the union funds and therefore I would be satisfied, if this would overcome the Deputy's objection, to confine the penalty in the case of the unofficial strike to the withdrawal of the application of Section 2 of the Trade Disputes Act, which deals solely with picketing.
The situation would then be this: that if there is a strike in defiance of an agreement and the employer complains to the court and satisfies the court that there is a strike which is in breach of the agreement, the court may direct the controlling authority of the union, whatever that controlling authority may be, to refrain from assisting the maintenance of the strike. Or — and this is an amendment that I would be prepared to consider also — confining the power of the court to that action or the alternative action of making a declaration which would have the result of withdrawing the protection of Section 2 of the Trade Disputes Act from that dispute.
It is necessary to define the controlling authority of the union. That is going to be a problem. I do not think Deputy Larkin was quite fair to me when he was telling me that a union was not something apart from the workers because, as I framed the Bill originally, I was making no such distinction. I said the union has made the agreement; the union has broken the agreement; therefore the union should be subject to penalties. It was the practical difficulties that followed from dealing with the union as a whole, as mentioned by Deputy Norton, that led me into this attempt to distinguish the union from the executive authority of the union. The executive authority, if it is to be the body identified with the strike, must be defined in some way and the sole purpose of the amendment is to enable that controlling authority to be defined as the trade union wants it to be. If they say the controlling authority is the whole body of members, O.K., let it be the whole body of members. If they say it is an executive committee or convention of delegates, O.K., let it be a convention of delegates. It is whatever they declare it to be will appear in the agreement and it is against whatever controlling authority that is defined in the agreement that the order under Section 34 will be directed. Therefore, to meet the point that it is necessary to have definition of controlling authority because of the objection advanced on Second Reading by Deputy Norton, we must have some provision of this kind. Having got over that purely technical difficulty, the position would be that where an agreement is broken by a trade union and the court is satisfied that such a breach has occurred, having heard all the parties, it can do one or other of two things, but not both. It can either direct the controlling authority of the union not to assist the strike, or it can withdraw the protection of Section 2 of the Trade Disputes Act from the strike. It cannot do both. The first will be the obvious remedy where the strike is official. The second the only remedy where the strike is unofficial, but clearly there must be some consequences for the union if the controlling authority, having been directed by the court to refrain from assisting the strike, defies the court and proceeds to assist the strike in contravention of the court's direction. That penalty can only be a financial penalty imposed by the ordinary courts. I do not think it can be anything else.
I take it that the only objection to the Minister's amendment is taken against the background of the later sections, namely, 30, 70, etcetera. From the amendment I take it the Minister merely wants to find out or to have registered who the trade union is?
No, the authority in the union that has the power to control the union funds.
That is what I mean — in other words, their head or whatever you like to call it. The Minister has said that if they like to specify the union as a whole, then he is satisfied. I want to point out that many strikes start as unofficial strikes. They are then taken over officially and there is a period in which the employer very often is left in the position that he really does not know what the strike is about or whom it is with. Supposing the Minister withdraws this amendment and leaves it that there is no protection for the employer who has registered an agreement which contains sections which he has scrupulously to observe or he will be pulled up, and the employer finds that the agreement has been broken and that the reply of the union is that it is unofficial. The minute you withdraw the penalty from a trade union you will immediately be up against another difficulty, which I am surprised the Minister has not mentioned, namely, that the unofficial part of the union who have taken part in a strike or called a strike which possibly the executive objects to or frowns on, when approached, will say to the officials of the union, "what are you worrying about? We have broken the agreement. Perhaps we will get something out of it and anyway, there is no penalty."
If we are to get this machinery to operate efficiently, we cannot start off by assuming that a union which enters into an agreement voluntarily will desire deliberately to break it.
Certainly. I regard that only as the seal of good faith. The good faith must be there.
If a union enters into agreement with an employer for a certain period it ought to respect its obligations to honour the agreement, and I think there will be no difficulty so far as trade unions are concerned generally in having these agreements observed for the stipulated period. The only difficulty which I think the Minister envisages is the difficulty which arises from an unofficial strike and I think, frankly, trade unions, and trade union executives in particular, have to face up to the responsibility of dealing with the unofficial strike. The unofficial strike is a menace—Deputy Dockrell would say that it is a menace to the employer — a worse menace and a worse undermining of authority so far as the trade union is concerned. No general in charge of an army would allow a portion of that army to decide when they would go on the offensive, or would allow any particular section to decide what tactics they would put into operation. Anybody controlling either an industrial army or a military force has to make sure that there is only one authority in control, and a trade union which has an elected authority has more moral force than any army headquarters staff ever had. If unions have a democratic way of picking an executive, they have to put up with the obligation of obeying the executive, until they get another.
Nothing has done more harm to the trade union movement than unofficial strikes, ill-conceived, ill-considered and put into operation without the slightest regard for the good name of the union, or for its standing, its status, its prestige and its bargaining power. Unions have to face up to the responsibility of dealing with the unofficial strike. It is a phase of trade union activity which does much more harm to a trade union than to anybody else. In the main, it does not last long —it is a sporadic thing, usually conceived on the spur of the moment and implemented without very much consideration, but it does this harm, and, particularly in a country like this, that it creates an agitation and propaganda against trade unions which does much more harm to the trade union movement than it does to employers or anybody else.
My objection to the unofficial strike is that it is a challenge to a disciplined organisation and a challenge which the trade unions will have to deal with. Members will have to know that, just as in Parliamentary elections and just as in every other type of democratic activity, there has to be a majority controlling within the trade union. Any other type of control or method of implementing decisions simply leads to chaos, and if there has been repressive legislation in certain countries in recent years against trade unions, I am not sure that some of the ill-considered actions of irresponsible people who wanted to injure trade unions were not in some measure responsible for the growth of the mentality which gave birth to that repressive legislation.
The Minister is here concerned only with one aspect, the unofficial strike. I suggest that that situation can easily be met by the amendment in the names of Deputies Larkin and Keyes, amendment No. 66, which says: —
"....
(b) if after due consideration the court is satisfied that the complaint is well-founded —
(i) the court may, by order, direct the said trade union of workers to refrain from assisting out of its funds in the maintenance of the said strike;
(ii) the court may cancel the registration of the agreement."
The Minister there gets authority to empower the court to order a union to estop the utilisation of its funds for the purpose of assisting in the maintenance of an unofficial strike. It cannot, No. 1, finance an unofficial strike.
How does the Deputy relate amendment No. 71 to that? Deputy Larkin and Deputy Keyes are moving not merely to insert the words set out in amendment No. 66 with regard to sub-section (2) of Section 30, but to relate sub-section (3), which is the section providing for the financial penalty if a union defies the order of the court. What happens then? If, under that amendment, the court orders a trade union to refrain from assisting a strike and if the trade union defies the order and continues to assist the strike, what happens? Must there not be some consequence for that defiance of the court's direction?
In this case we are dealing only with the unofficial strike.
It is not merely a matter of the unofficial strike. I will admit that the probabilities are that a strike of that kind will be unofficial, but the law must provide against both possibilities.
I do not think you can provide on the basis that a union which makes an agreement and registers it and which up to now is a body whose faith and fidelity in the matter of agreements have never been questioned must now be asked to give bail for its future good behaviour.
We are asking the employer to give bail for his future good behaviour.
You have to ask only a certain type of employer. The generality of employers who make agreements will observe them. It is the lad who always lags behind and who being bound by an agreement will be compelled to pay wages at the level at which good employers have always paid them, the lad who always wants to be in the rearguard who will be in trouble.
That is so, but any employer breaks an agreement subject to penalties. The point I am putting is that amendment No. 66 provides that the court shall hear the parties, and if, after consideration, the court is satisfied that the complaint is well-founded, it may direct the trade union to refrain from assisting out of its funds in the maintenance of the said strike.
And may cancel the agreement.
Suppose a union proceeds to assist a strike out of its funds in defiance of the court's order, what happens? Clearly, there must be some penalty on a union if it defies the court's order in that regard.
A union which wants to do that can easily break the agreement and say: "If we are going to back an unofficial strike to the extent of defying an order of the court not to use our funds for that purpose, let us tear up the whole agreement and have a free-for-all".
The mere cancellation of the registration of the agreement might not be a penalty. It might not be a penalty in some circumstances — it might be an advantage to a union.
It might be an advantage?
To get an agreement cancelled, yes.
Why? So far, the case has been that an agreement and registration were advantageous to a union. I want to hear the advocates of this theory now telling us why it would be an advantage to cancel it.
Suppose an agreement is made between a union and an employer, expressed to last for two years. It provides for certain rates of wages and certain conditions of employment, and the employer proceeds to make his plans for the carrying on of his business, or enters into contracts, on the assumption that these are the wages and conditions which would apply for that two-year period. If, in the course of that two-year period, the union authorities begin to regret having made that agreement and want to get into a position in which they can demand better wages or better terms—they are tied to the agreement because they made it — if the Deputy's amendment is accepted, they can get out of the agreement by the simple process of breaking it and defying the court when the court directs them to refrain from assisting. The only penalty would be cancellation of the agreement which might be precisely what they wanted to secure.
Deputy Norton's whole case, as I see it, is that if a union is prohibited from using its funds for financing a strike, it will accept, that no union would consider for a moment breaking an agreement which they had registered and had voluntarily arrived at and no union would refuse to carry out an order of the court when its funds are estopped. Therefore, it does not matter about the penalties, because then the penalties do not come into play at all.
Let me put this possibility. Supposing an agreement is entered into and is registered, that subsequently there is an unofficial strike, and the union executive is directed by the court, in accordance with the amendment, and they agree to the direction, that executive might be changed at a general meeting. The volume of opinion at that meeting might be against the agreement, and there might be sufficient change in the executive to make all the difference.
I put this suggestion to Deputy Norton. I will withdraw my amendment. I will accept amendment No. 66, and he will withdraw amendment No. 71. When I suggest the withdrawal of amendment No. 71, I would not necessarily oppose some alteration of the provision in it about the penalty.
Who is to pay the £500?
I put in £500 because I thought, in so far as that penalty would apply to employers who break an agreement, it would be a heavy penalty. It must be clear that employers will not find it cheaper to pay the penalty than the prescribed wages in certain cases. If the objection is to the size of the penalty we can come to agreement on that. I merely provide, in accordance with the Deputy's amendment No. 66, that if there is default there will be an action against the union involving some penalty.
Are you going to consider what will be substituted?
Which amendment is the Minister withdrawing?
The one we are discussing is No. 47, and also No. 68 and No. 70. Amendment No. 70 (a) will have to go in in some form.
I thought you were going to introduce a new amendment on the Report Stage.
We will adopt amendment No. 66 and have sub-section (3), subject to re-examination. It will leave open the amount of the penalty.
Sub-section (3) of Section 30.
Sub-section (3) refers to the person to whom the direction is given, and states that he "shall be guilty of an offence." The position is quite clear in the case of an employer, but not in the case of a union.
When I stated that I would accept amendment No. 66 I made a proviso with regard to sub-section (3) which requires the consent of four members of the court. My objection is not to the practice but to the introduction of a new principle, which involves an announcement of the manner in which the court arrives at a decision. I was anxious to avoid that, so that it shall be merely a decision of the court, and not that one member voted for, or that another member did not vote at all.
Would it follow that any clue would be given?
There would be an announcement of the decision of the court, but there would be no question of announcing that four members approved of it. In so far as there is to be reconsideration of the voting provision, the Deputy may leave that out to be examined. He can put it in again.
Amendment, by leave, withdrawn.
I move amendment No. 48:—
In sub-section (3), paragraph (f), line 24, to delete the words "all respects" and substitute the words "a form."
That is a drafting amendment which I think has been agreed to.
Amendment agreed to.
I move amendment No. 49: —
In sub-section (3), paragraph (f), in line 25, after the word "registration," to insert the provision: —
"Provided that an agreement which in the opinion of the court is drawn in such terms as reasonably corresponds to the form of agreement in common use in the trade or industry to which the relevant agreement relates shall be deemed suitable for registration."
Does not an amendment to paragraph (f) meet this point?
It might. What I want to make sure of is that where an agreement is drawn in such a way as to be clearly understood by employers on one side, and by workers on the other side, but where it is vague, and might not normally be understood by the court, that fact should not of itself prevent registration, once both sides express agreement in terms which they understand from long usage.
A common-sense court will do that. The intention is to avoid having an agreement so ambiguous as not to be understood. Clearly if the court says to the parties: "You understand from customary practice what the agreement commits you to and we will accept it for registration." I think that is all I had in mind, and all that the Deputy wants.
My point is that where employers and workers have by long usage established agreement in what might be called trade language of their own and if they persist in using phrases which they clearly understand, an agreement ought not to be incapable of registration, merely because by resorting to other language it might be thought not to mean the same thing.
That is why I leave it to the discretion of the court. We merely say: "You can send back an agreement or refuse registration because it is ambiguous." Clearly the court will not refuse to accept an agreement, because they do not like the phraseology, but which means what the parties are committing themselves to.
An agreement in the vernacular is something that might be registered, notwithstanding the fact that it sinned against literary taste, which the court might not approve of.
I think the only thing the court should be concerned with under (b) is the possibility of disputes arising in the future as to the interpretation of the agreement. If the court is satisfied such disputes will not arise then the agreement will be registered.
Amendment, by leave, withdrawn.
The following amendment was agreed to: —
No. 50. To delete sub-section 4. — (Aire Tionnscail agus Tráchtála.)
Amendments Nos. 51, 52 and 53 could, I think, be discussed together. Of course, if No. 52 is carried No. 53 cannot be moved.
I think No. 52 covers the point. I assume it does anyway.
I agree; No. 51 generally is covered by No. 52.
Amendment No. 51 not moved.
Amendment No. 52 put and agreed to.
I wanted to say something on No. 53.
You can certainly discuss the principle of it now, but it cannot be moved, because No. 52 has been carried.
I will tell you what I want to do. I want to point out that the difference between the Minister's amendment and mine really is that he wants to get the particulars of the agreement and I want to put more stress on the intention to register. The important thing is to notify the people concerned of the intention to register. Once they see that, the particulars are really needless. I merely commend it to the Minister's attention that the intention to register is more important.
Than the provisions of the agreement?
Yes.
I think it is covered by the amendment which I moved. You see my amendment requires that the court shall direct the parties to publish the particulars óf the agreement.
To publish specified particulars.
But in such manner as, in the opinion of the court, is best calculated to bring the application to the notice of the persons concerned. I think that clearly means that the persons concerned will know that this application is being made as well as the nature of the agreement which it is proposed to register.
It is not a question that all the particulars of the agreement must be registered.
No. The court will decide what particulars are necessary fully to inform the parties concerned.
Amendment No. 53 not moved.
I move amendment No. 54:—
Before sub-section (6), in page 10, to insert the following new sub-section: —
( ) If an objection to the registration of an agreement, which, in the opinion of the court, is a bona fide objection, is made to the court within the 21 days next following the publication of the particulars mentioned in the next preceding sub-section, the court shall cause an inquiry to be made into the nature of the objection and if upon such inquiry the court is satisfied that the agreement should not be registered, the court shall refuse to register such agreement.
I am not wholly in love with this amendment.
I thought there was something in it and I was prepared to accept the principle of it.
I am interested from the point of view of ascertaining what exactly the Minister has in mind in respect of the publication of the intention to register an agreement. In the amendment which the Minister has moved to sub-section (5) — that is, amendment No. 52 — there is provision by which the court shall direct persons as to the manner in which they shall publish the particulars of the agreement which it is proposed to register; and then the court may refuse to register the agreement until that direction has been complied with.
What is the purpose of publicising the whole thing if it is not intended that somebody will be entitled to comment on the proposal to register the agreement? If they do comment on the proposal to register the agreement what function has the court in respect of their comments? Has it, for instance, any power to hear them and, having heard them, has it any power to decline to register the agreement? What precisely underlies the idea of publishing the intention to register?
The particular point of objection I had in mind was this, that the parties to the agreement might not, in fact, be representative of the employers or workers concerned. I was not contemplating objections to the provisions of the agreement, if the parties who made the agreement were representative of the workers and employers concerned. The provisions of the agreement are solely a matter for the parties themselves. The court may register the agreement without regard to its provisions, except in accordance with the provisions laid down here. It would have to have objection if the agreement were lodged and if it were such that the trade union that signed the agreement did not, in fact, represent the workers concerned or the employers who signed did not, in fact, represent the employers concerned. That would be a valid ground under which the court could object to registering the agreement. The idea I had in mind was the representative character of the agreements.
Where does the court get authority to make inquiries as to the representative character of the parties to the agreement and where does it get authority to receive complaints?
That is why I said I though there was something in the Deputy's amendment. Some provision of that kind would be necessary. I think it would have to be quite clear that the court could receive and hear complaints as to objection on the ground that the agreement was not of a representative character.
You can have the amendment so, if you wish.
If you will leave the amendment over I shall try to draft an amendment for the Report Stage which will cover that point and we can then reconsider it.
One of the reasons for my amendment is because the section, as it stands, might let in professional cranks who would object to the registration of any and every agreement. I want to keep those out.
Therefore, in the first instance, the court would have to be satisfied that the objectors were bona fide and were entitled to be heard.
Amendment, by leave, withdrawn.
I move amendment No. 55: —
In sub-section (6), line 44, to delete the words "two years" and substitute the words "one year".
I think this amendment is most desirable. Some of the trade union representatives thought it was preferable to have a shorter period. It might operate to the advantage or disadvantage of the workers. I think, on the whole, it is preferable to have a shorter period.
Amendment agreed to.
I move amendment No. 55a: —
At the end of the section to insert a new sub-section as follows: —
( ) A registered employment agreement shall not prejudice any rights as to rates of remuneration or conditions of employment conferred on any worker by another Part of this Act or by any other Act.
I think this matter has been referred to two or three times already. It might happen that new legislation would become effective which would provide minimum conditions of employment better than those provided in a registered agreement. It might be that an agreement would be registered which would help to cover a class of workers already covered by a joint labour committee and for whom minimum rates would be in force. Generally, I think it is desirable to have some safeguarding clause of this kind to ensure that, whatever effect a registered agreement may have on workers, it cannot deprive them of any rights they have under any other law or any other part of this Act. I think it is desirable there should be such a safeguarding clause in view of such a possibility.
Amendment agreed to.
Section 26, as amended, put and agreed to.
SECTION 27
On Section 27 it is provided that the court may publish in such manner as it thinks fit notice of registration, together with such particulars of the agreement as the court considers necessary. Would it be possible to have some provision whereby they would also have an index or register?
There is a register of agreement I think.
A public one to deal with difficulties which may arise, such as the difficulties that arose under the Emergency Powers Orders.
I am fully in agreement with the principle and I will examine that. I think it is desirable that registered agreements of this kind should be available for inspection in order that the people will know what the agreement are and in order that those preparing to negotiate an agreement for some other trade will have an opportunity of examining precedents.
Section 25 obliges the court to maintain a register to be known as the Register of Employment Agreements.
What we shall have to do is to provide that the register will be open to inspection by the public. I see no objection to making the provisions of the agreement public.
There should be an index giving the full range for reference purposes.
I will consider that point.
Section 27 put and agreed to.
SECTION 28
I move amendment No. 56: —
Before Section 28 to insert a new section as follows: —
(1) If a registered employment agreement provides for the variation of the agreement in accordance with this section, any party to the agreement may apply to the court to vary it in its application to any worker or group of workers to whom it applies.
(2) Where an application is made under this section to vary an agreement, the court, having notified all parties appearing to the court to be concerned, shall consider the application, and the following provisions shall have effect —
(a) the court may, as it thinks fit, refuse the application or make an order varying the agreement in such manner as it thinks proper;
(b) if the court makes an order varying the agreement, the agreement shall, as from such date not being earlier than the date of the order as the court specifies in the order, have effect as so varied.
This is a section which I devised following certain discussions with trade unions. There are trade unions that cater for a diversity of classes of employees in various parts of the country where standard conditions are not necessarily enforceable. It was considered desirable, in the case of either sections of workers in a particular area, or individual workers perhaps in another area, that a provision should exist for the amendment of a registered agreement if a case for its amendment could be made. The proposal here is that an application can be made to the court for an alteration of the agreement in respect of some sub-classes or an individual covered by the agreement. If the court agrees, then the agreement can be amended accordingly and the altered provision becomes equally enforceable.
Amendment put and agreed to.
I move amendment No. 57: —
In sub-section (1), lines 53 and 54, to delete the words "for the time being bound thereby" and substitute the word "thereto".
This is a drafting amendment.
There are actually three amendments concerned with this point. While it may appear that the Minister's amendment is a drafting amendment, the way the section reads at the moment is that the registration can be cancelled only on the application of all the parties — of both sides bound by the agreement. The Minister's amendment improves the section but in amendment No. 58 there is a further improvement which might be considered in relation to amendment No. 57. That is, that on the application of either all the parties representing the trade union of employers or all the parties representing the trade unions of workers, the agreement may be cancelled. In other words, the Minister's amendment provides that there must be agreement between all the parties on both sides to the cancellation of the agreement whereas amendment No. 58 contains a provision whereby the court can consider an application for cancellation where there is agreement between all the parties on one side.
I was relating amendment No. 58 to the proposals in amendments Nos. 59 and 60. I thought it was the same point that was intended to be covered. Amendment No 58, as I understand it, aims at providing that either the trade unions or the employers can get out of the agreement after 12 months.
Yes, at any time after the expiration of 12 months from the date on which the agreement was registered.
The Bill does provide that an agreement must last for a stated term.
You have made that for one year now. It was previously two. It must bind for a minimum period of one year.
In order to get cancellation at the moment you must have a combination of all the parties.
I would agree to amendment No. 58 in regard to an agreement that was of undefined duration, but if an agreement is made for a defined period, unless all the parties are agreeable to its cancellation, it should last for that period. If an agreement registered is of undefined duration then some provision of this kind seems desirable.
Is there not a case to be made, where an agreement is made for a period of two years and where there is a radical change in conditions, for cancellation of the agreement on the application of one of the parties?
One party can apply for cancellation on the ground that there has been a fundamental change in conditions, where the agreement is for a defined period, but both parties can get it cancelled irrespective of any change where the agreement is for an undefined period. I would be prepared to agree to an arrangement under which an agreement that was expressed to be of a undefined duration could be ended by one party on reasonable notice——
Without the court having any jurisdiction?
After 12 months.
If it was for an undefined period, it could be automatically terminated by either party without giving notice?
I had in mind a notice of six months so as to allow ample time for the possibility of negotiating a new agreement which could be registered.
If it was in operation for six months——
I would say that a reasonable provision would be that the agreement should hold for 12 months and that after 12 months it could be cancelled after six months' notice by either party, provided it is of undefined duration. If it is of defined duration it cannot be cancelled without the consent of both parties or unless there is a fundamental change in conditions. I shall meet the point to that extent.
Amendment agreed to.
Is amendment No. 58 withdrawn?
Is it clear that the Minister is giving effect to it? If there is agreement that it is for an undefined period, will the conditions of amendment No. 58 apply?
If it is for an undefined period, either party will be given the opportunity of getting out of the agreement after 12 months, if six months' notice is given. If it is for a defined period there may be an agreement between the parties that there has been such a fundamental change in conditions that the agreement should be cancelled or one party may be given an opportunity of convincing the court that there has been such a fundamental change in conditions that it is undesirable that the agreement should continue in force.
Amendment No. 58 not moved.
The following amendments appeared on the Order Paper: —
59. In sub-section (3), before the word "cancel" in line 5, to insert the words "continue the registration subject to three months' notice of cancellation by either party to the agreement and at the expiration of such three months' notice shall". —(Deputy H.M. Dockrell.)
60. To add to the section a new sub-section as follows: —
Where the registration of an employment agreement is cancelled by the court under sub-section (3) of this section, the court shall, if the parties to the agreement so require, again register the agreement in accordance with this Act.—(Aire Tionnscail agus Tráchtála.)
In regard to amendments 59 and 60 I am inclined to think that Deputy Dockrell's amendment is better than my own. The point that was put to me is that there are agreements of so complicated a nature made by unions with employers that they just continue indefinitely and that circumstances might arise in which the union would prefer not to have the obligation of negotiating a new agreement because of the complicated issues it might involve. There might, in fact, be general agreement between the unions and employers not to negotiate a new agreement. I was proposing then that when the agreement ceased to be registered with the lapse of time, it could be renewed and would be renewed automatically if both parties applied. Deputy Dockrell's suggestion is that the court can continue the registration subject to three months' notice of cancellation by either party. I think that is a better device. If that is agreed, I shall withdraw my amendment, and if Deputy Dockrell will withdraw his I shall have that prepared officially by the Parliamentary draftsman for the Report Stage.
Amendment No. 59, by leave, withdrawn.
Amendment No. 60 not moved.
Section 28, as amended, agreed to.
SECTION 29.
I move amendment No. 61: —
To insert before sub-section (1) a new sub-section as follows: —
(1) The employer of a worker of a class to which a registered employment agreement applies, shall, in respect of any period during which the agreement is registered, pay to such worker remuneration at a rate not less than the rate provided by the agreement and applicable to such worker and grant to such worker conditions of employment not less favourable than the conditions fixed by the agreement and applicable to such worker.
The purpose of this amendment is to make a registered agreement generally applicable. I stated that I intended to introduce this amendment. I think it is desirable that there should be a provision of this kind.
Amendment agreed to.
I move amendment No. 62: —
In sub-section (1), page 11, after the word "payment" in line 8, to insert the words "in an area, in a trade, avocation or industry, to which the agreement is expressed to relate".
The only purpose of the amendment is to widen the scope of the section. We suggest that there should be a closer definition in respect of an area, trade, avocation or industry on the presumption that the agreement will apply to particular areas. We feel that the section would be improved by the insertion of this amendment, leaving it on a border basis.
It is really a drafting amendment and I am advised by the draftsman that it is not necessary. There is provision for payment of remuneration at particular rates and payment at that rate must be made and the agreement can, of course, apply for variation of rates between areas. Since that provision is made, it is not necessary to have this amendment.
Amendment, by leave, withdrawn.
Amendment No 63 not moved.
Section 29, as amended, agreed to.
SECTION 30.
I move amendment No. 64: —
In sub-section (1), line 24, to delete the words "If any party (being a trade union of workers) to a" and substitute the words "If a trade union representative of workers affected by a".
This is a drafting change. The Federated Union of Builders, Contractors and Allied Employers of Ireland proposed to me an amendment for this section, which I have not drafted and on which I would like to get some views. As the section stands, a complaint that an employer is not keeping an agreement must be made by a party to the agreement, by a trade union representing a workers' party to the agreement. In the Federated Union's view, it is desirable in their trade to give the individual worker the right to make the complaint to the court that he is not being paid the prescribed rates of wages or being given the prescribed conditions. In many parts of the country, workers will not be organised or organised effectively by trade unions and some of them may not be capable of putting forward a registered agreement, unless they get the benefit as individuals of the right to come to the court. I think there is something in that point of view and I would be inclined to move an amendment to that effect, unless there were objection to it. Quite clearly, the approach to the court can only be through a trade union. It would tend to strengthen the union's organisation, which may be a good thing, but it also may result in workers isolated, not getting the benefit of registered agreements and by not doing so create a situation detrimental to the preservation of the agreement and the interests of the workers concerned. There are two points of view concerned, but I think the wider point of view, of the workers getting the benefit of the agreement, would make it desirable to give the individual worker the right of access to the court on a complaint on this one point, namely, that he is not getting the benefit of the registered agreement.
We are not discussing the amendment now?
No, I put the point forward as I would be anxious to introduce it. If there is strong objection I will not do anything about it, but if it is worth consideration I will produce an amendment.
This is amendment No. 64.
I admit I am out of order. Perhaps it would be better to deal with it on Section 30 and deal with the amendments first. Amendment No. 64 is a drafting amendment.
Amendment agreed to.
I move amendment No. 65: —
In sub-section (1), line 29, to add, at the end of paragraph (a), the following words "and shall hear all persons appearing to the court to be interested and desiring to be heard;".
This is also a drafting amendment. It is clear that the court must do more than consider the complaint. It must hear all persons desiring to be heard and interested.
Amendment agreed to.
On behalf of Deputy Larkin, I move amendment No. 66: —
In page 11 to delete sub-section (2) and substitute therefor the following sub-section: —
(2) If an employer or a trade union of employers (party to a registered employment agreement) complains to the court that a trade union of workers (party to the agreement) has deliberately promoted or assisted out of its funds in the maintenance of a strike which to the knowledge and with the connivance of the governing body of the trade union of said workers took place in contravention of the agreement and which had for its object the enforcement of a demand on an employer who is a party to the agreement to grant to any workers of a class to which the agreement relates remuneration which is more favourable to the workers than that stated in the agreement, or to alter in the interest of the workers, the conditions stipulated in the agreement, the following provisions shall have effect —
(a) the court shall hear all parties interested and consider the complaint;
(b) if, after due consideration, the court is satisfied that the complaint is well-founded —
(i) the court may, by order, direct the said trade union of workers to refrain from assisting out of its funds in the maintenance of the said strike.
(ii) the court may cancel the registration of the agreement.
(3) No direction shall be given by the court under paragraph (b) of the next preceding sub-section of this section unless with the consent of not less than four members of the court.
I am accepting this amendment, if the Deputy will agree to delete sub-section (3) of the amendment.
With the right to argue the point later.
And, what is more, I am reserving to myself the right to amend the wording of the Deputy's amendment. I will have to get it done by the Parliamentary draftsman.
But not to alter its substance.
Yes, that is understood.
Amendment, amended by the deletion of sub-section (3), agreed to.
Amendments Nos. 67 to 70 not moved.
In regard to amendment No. 70a, on the separate sheet, I will have to withhold this, as its wording will require revision in view of the alteration in the section, but I take it that it will be desirable to preserve this protection for trade unionists in the matter of paying strike pay in the circumstances indicated. I will introduce this amendment in a form which relates to the revised section.
Amendment No. 70a not moved.
On amendment No. 71: —
In page 12, to delete sub-section (3).
Is the Minister going to look into sub section (3)?
On sub-section (3), I want to put forward the two points of view. There are arguments in favour of not having a high penalty as it might frighten people off registering agreements. On the other hand, there are arguments in favour of having a high penalty as it might frighten people from breaking agreements. I think the bounds of consideration are in favour of high penalties. I am prepared to provide for a reduction there but I would be rather apprehensive about reducing the penalties so far that the employer might find it cheaper to pay the penalty than pay a proper wage. One must have the same penalty apply in both cases and on the whole I think it wiser to provide for a reduction and I am prepared to provide an amendment for that purpose.
Amendment No. 71 not moved.
Question proposed: "That Section 30, as amended, stand part of the Bill."
On the question of the proposed amendment suggested by the Minister the whole set-up of the section seems to make the individual worker a very infinitesimal complainant having regard to the machinery that confronts him. Quite clearly it pre-supposes that breaches of the agreement should be dealt with by means of complaints from very well organised bodies.
That is quite right.
They will have great strength and great resources. For instance, an employer who breaks the agreement will be met by a well-organised trade union with resources and finances to make a complaint to the court and will provide evidence to show that his complaint is justified and can get whatever satisfaction is provided for by Section 30. Similarly, if an employer can show that a trade union has broken an agreement, he has his resources or the resources of his organisation and can go before the court and utilise those resources to demonstrate the truth of what he asserts.
I am thinking of this small man of no money, no power, no wealth and no resources and very little wages who has been working down in some rural area and who has not been paid the proper rate of wages. He has no union behind him, he has very little education and probably is not equipped in scholastics to such an extent that he can express himself very adequately to the type of complaint from which he is really suffering. It is suggested that that man should make a complaint to the court. So he can, but bear in mind what the machinery of the court is. The court shall consider the complaint and after such consideration, if it is satisfied that it is well founded, the court will do certain things. How will that affect this small man? He may be away in a rural area and you will have to bring him up to town to make a complaint. It has to be in writing and presumably he is to be cross-examined on the complaint and is held in town while the complaint is being examined. He is finding it hard enough to live on the small wage he is getting, without bringing him up to town where he probably never has been before and the mere mention of his coming up would probably be sufficient to keep him away. If you get him into town, he arrives there with some doubt as to what he is going to get in the way of expenses and with a pretty fair knowledge that when he goes back he is going to lose his job.
It is in circumstances like that you bring this small man before the courts and say: "Well now, what exactly happened to you and what is your real complaint?" I am afraid the struggle is too unequal for this small man. If the man is to make his complaint at all, I would prefer that he would make it to the Department of Industry and Commerce. It could arrange to obtain a statement from him through the manager of the local labour exchange. The facts would then be transmitted to the court which would thereupon make an investigation. In that way, the position could be sifted by, perhaps, a conciliation officer. He could ascertain what was in the complaint, and if it was found that there was something in it then the machinery under the Bill would operate.
I am afraid that you are going to get very few complaints if you have to rely on the small man employed by, say, a building contractor. I agree with the point of view that some machinery should be provided to deal with the case of a contractor who might, under the threat of dismissal, compel his workers not to disclose the conditions under which they are working. In that way, that contractor might be able to get behind a registered agreement. In the early days of the Housing Act of 1932 I came across cases of that kind in my own constituency where employers insisted that workers should not disclose to anybody the wages they were being paid because there was a fair wages clause in the 1932 Housing Act. The contractors, in fear of being caught and of being deprived of the subsidy, went almost to the extent of administering a secret oath to their employees that they were not to disclose the wages they were receiving. It was found pretty difficult to penetrate some of that secrecy in regard to low wages. I appreciate the point of view that the Minister is endeavouring to achieve, but I am afraid the machinery suggested will not work.
I think it is wiser to leave the enforcement of a registered agreement to the trade unions concerned.
I still think the Department could do what I suggest.
We could have proceeded in that way and made the registration of agreement effective by bringing into operation enforcement through the Department of Industry and Commerce, but we decided against that. The Department would enforce wages fixed by joint labour committees, but I think that a registered agreement should be enforceable by the parties to the agreement through the machinery of this court. I think it is wiser to keep it that way. If you once go to the point of bringing in officers of the Department of Industry and Commerce in relation to the carrying out of registered agreements, I do not think that we could stop intervention at the particular point the Deputy has in mind. We might have to inspect trade unions to see whether they were keeping their agreements. Therefore, it seems to me that you must have official enforcement all the way or unofficial enforcement all the way.
I do not see any objection to allowing a person to make a complaint.
I think the best suggestion is that we might at some stage give the court power to direct conciliation officers to investigate such complaints.
Take the case of a worker who is employed in some particular trade or craft in an area where the only union operating might be a general union which was not actually a party to the agreement. In such a case, I think that general union might be empowered to act on behalf of that individual. It very often happens that in remote parts it is only a general union that would have contact with such workers.
I will have the whole thing examined. It was only this morning I got the letter and I thought that perhaps I might refer to the point on the section.
Take the case of an employer who is covered by an agreement and fails to carry out the terms of it. An order is made against him by the court, but rather than give effect to that order he closes down. We had a recent case where a particular firm which was a party to a national agreement withdrew from the national agreement and closed down rather than pay the rates agreed to. It may be argued, of course, that you cannot compel an employer to carry on business if he does not want to, but there should be some means for dealing with an employer where the court is satisfied that he is merely acting in a spirit of obstinacy.
In a case like that, the court should have power to apply something more than mere penalties to enforce the terms of an agreement. Suppose an order is made against an employer, and that instead of obeying it he closes down business for six or 12 months. What happens at the end of the period if he reopens? Is the order still effective, or can he get away from the effect of it?
As I understand it, if an employer has failed to pay in the past the prescribed rates of wages and a complaint is made to the court, the court may direct the employer to repay any sums that may be due and to observe the agreement in the future If the employer fails to do that, he can be made liable to a continuing penalty under Section 3 and, of course, that penalty mounts up the longer the period is during which he fails to pay. Clearly, if he goes out of business he cannot be required to pay the employee while he is out of business, but he can be required to pay the amount due for the past services of the worker. If he goes back into business, assuming that the registered agreement is in force, he will be bound to observe its terms.
Suppose there is an agreement for two years and that during a period of 16 months the employer fails to keep the terms of it and an order is made by the court against him for refusing to observe it; if the he goes out of business and remains out until the agreement expires in eight months, what happens?
I do not know any means by which you can compel a man to continue in private business.
Suppose he comes back into business after the agreement has ceased to have effect?
I think that you can only make the agreement effective for the period that he is in business.
But suppose he resumes trading under another name?
He must observe the agreement no matter what name he trades under so long as he employs workers to whom the agreement applies.
Section 30, as amended, agreed to.
SECTION 31.
I move amendment No. 71a: —
In lines 10 and 11 to delete the brackets and words "(including proceedings in a court of law)".
Doubts were expressed on the Second Reading of the Bill concerning the capacity of a lay court or tribunal of this kind to interpret agreements. While the general trend of the discussion has shown that the House favours a court which will be in absolute control of its own affairs and that will be absolute master so far as agreements are concerned, I think Deputies will agree that, where the question at issue is one of interpretation, it is inadvisable that the court shall be the final body to deal with it. I think that was clearly demonstrated to-night on amendment No. 43, and that the phrase in that amendment "substantial agreement" has, in its ordinary connotation, the same meaning for everyone. Most people understand what is meant by "substantial agreement". We examined a concrete case to-night in which, possibly, eight trade unions were concerned in a dispute. Five of them were in favour of agreement. The Minister suggested that, in that case, it might be said that there was not "substantial agreement", although five constituted a majority of the unions concerned. I do not think that he would get many supporters for that point of view. Such a situation could arise. In the ordinary way, the phrase "substantial agreement" can be easily understood but, if a court comes to interpret the phrase, it may present difficulty. It is inadvisable that the section should be left as it is so far as proceedings in a court of law are concerned. It should be amended and any proceedings, other than proceedings with which the court itself would deal, should be left, in the event of an appeal, to the ordinary courts. It is undesirable that, in the event of litigation of some kind reaching the Supreme Court, the Supreme Court should have to refer it back to this court under Section 31. You would have a lay court interpreting the phraseology of an agreement which had been referred back to it by the Supreme Court.
I do not follow the Deputy's reference to "substantial agreement" in connection with the registration of agreements. That may be a problem for the labour court when deciding whether or not to accept an agreement for registration. When an agreement has been registered, all questions concerning its interpretation and applicability to particular cases will be decided by the labour court. I think that there would be very substantial objections to the proposal contained in the amendment. If there is a question to be settled whether a workman comes within a particular agreement, I think that a court of law is an unsuitable tribunal to decide it. It is hoped that this court will, in the course of time, become experienced in the interpretation of agreements and in deciding questions of their applicability, and should prove to be a more suitable tribunal for deciding questions of that kind than a court of law. Apart from the suitability of a labour court to discharge this function, as contrasted with the ordinary courts, it is desirable that we should avoid the possibility of a labour court giving one interpretation of an agreement and a court of law deciding otherwise. A worker might sue his employer for arrears of wages in an ordinary court. The question of the amount of wages due might involve the determination of an issue as to whether an agreement referred to him or not. At the same time, the labour court might be giving a direction to the employer, in regard to the agreement, concerning a particular class of workers. You might, possibly, have a situation in which the law court would decide differently from the labour court. Whatever scheme we adopt, it is desirable we should avoid the risk of conflicting decisions of that kind. It seems to me quite clear that the labour court is a more suitable tribunal to determine these questions than the ordinary court. In coming to that view, I have in mind legal practice in other countries. Under the Wages Council Act in Great Britain, which directs an employer to observe the conditions prescribed in any national or local agreement, no worker can sue his employer for failure to comply with the provisions of that Act until he has gone first to the national arbitration tribunal and secured a decision from that body that the agreement is applicable to him.
Similarly, in other countries where labour courts are established, it has obviously been decided that the labour court, and the labour court alone, should have the right to decide whether a particular agreement applies to a particular worker or not. That is why I ask the Deputy not to press his amendment. There are serious objections to it. These objections are based not merely on the suitability of a court of law to discharge these functions but also the desirability of avoiding a possible conflict between the labour court and the ordinary courts.
Major de Valera
A point I should like to make to the Minister in support of this amendment arises on the words of the section. The Minister will, perhaps, tell me whether I am right in assuming that one of the objects of the draftsmanship of this Bill is to give this court exclusive jurisdiction in the matters with which it is concerned.
Yes.
Major de Valera
If that is the case, I take it that no proceedings can arise under this Part of the Act — Part III — in a court of law — that, in fact, any proceedings that can legally arise can arise only in this court. If that be so, the inclusion of the words which this amendment seeks to delete is meaningless.
The Deputy may not have understood the case I mentioned in relation to a workman sueing his employer for arrears of wages in an ordinary court. One of the matters that might have to be decided would be "How much wages are due to the worker?" That might involve a question as to whether a particular registered agreement applied to that worker or not. If that issue should arise in an ordinary court, it would have to be referred to the labour court for a decision but the action for arrears of wages would be pursued in the ordinary court.
Major de Valera
Such a proceeding would not be a proceeding under this Part of the Act.
The decision as to the applicability of the agreement would come under this Part of the Act.
Major de Valera
I disagree. The section states: "Any question arising in any proceedings ... under this Part ... shall be referred to the court." This section applies to proceedings exclusively under this Part of the Act and no further. That being so, taken in conjunction with the other provisions of the Bill — Section 16 particularly — there can be no proceedings in a court of law. The inclusion of the words to which I have referred appear to be meaningless and redundant. To that extent, there is a case to be made for the Deputy's amendment.
As regards what the Minister says about proceedings for arrears of wages, under the Agricultural Wages Board Act, which may or may not be changed as a result of an earlier amendment to this Bill, claims for arrears of wages are decided every day in the Circuit Court.
Such claims in industrial cases would also go to the Circuit Court.
In many cases, the court has to decide if the claimants work the time required or if they work overtime or whether they work on Sunday or not.
These issues would not be decided by the labour court. They would be concerned only with the applicability of the agreement — whether it applied to a particular class or to a particular individual. Actions for arrears of wages or any other claims of that kind would go to the ordinary court, as at present.
This court will, probably, become conversant with the phraseology and terminology of members of trade unions and employers. As such a body is not now available, the courts have to deal with the interpretation of agreements and their applicability. If there is not a complete stoppage of proceedings by an employer or an employee, as the case may be, it is undesirable that, in the event of proceedings being commenced, they should be referred back to the tribunal. I move to report progress.
Progress reported; the Committee to sit again to-morrow.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 17th July, 1946.