Dáil Éireann debate -
Tuesday, 23 Jul 1946

Vol. 102 No. 9

In Committee. - Industrial Relations Bill, 1946—Recommittal (Resumed).

Debate resumed on amendment No. 14.

Mr. Larkin (Junior)

I was speaking on amendment No. 14 when we adjourned. I had pointed out that the three sections constituting the court were the chairman, the members nominated by the employers' organisation and the members nominated by the workers' organisation. While some of the points I am now going to put to the Minister may not be covered so far as this Bill is concerned, I am quite sure that he will bear them in mind when he is exercising the powers given to him under the Bill. In so far as amendment No. 14 and the disability of the workers' representatives who may be members of the court are concerned, the amendment proposes that an ordinary member may in effect only be a member of the court; and he is debarred from other offices which would not, in fact, in any way affect his position personally or bring him any pecuniary gain, such as an unpaid trustee, an honorary secretary, etc. Yet the disqualification is fairly definite. On the other hand, when we come to the other two sections of the court there are rather wider implications concerned to which I think consideration should be given. The most important matter concerns the chairman. While it is laid down that the chairman shall devote the whole of his attention and time to the work of the court, I think both the Minister and the House will accept the principle that it is absolutely essential that nothing should occur in relation to the position of the chairman which would in any way prejudice the general attitude as to his impartiality or lack of partisanship. Yet the amendment makes it possible for the chairman to be a large shareholder in some concern, such as the Bank of Ireland, with very wide industrial and commercial interests and ramifications. At the same time he may be held to be not entitled to hold a position as director of a small private company because in that case he would receive a small fee in recognition of his services.

It seems to me the first position, where he would be a large shareholder in either an industrial, commercial, or financial concern, with very wide contacts, is such that the ordinary parties appearing before the court would be unable to have exact knowledge as to where his interests commenced and where they ceased; that would raise a very awkward situation if it subsequently became known that he did, in fact, have pecuniary interests in any concern which was the subject of inquiry by the court. For that reason I think the Minister, in making his selection, should keep that particular point in mind.

In the same way, in relation to the employers' representatives, there are not the same rigid conditions laid down in their case as in the case of the workers' representatives. Earlier in the debate to-day reference was made to the position which might arise of regarding the members of this court as being almost in the category of judges and completely divorced from their previous background. That is not my view of the court. I do not know if it is the Minister's view. While I agree that the workers' representatives should not continue to have an active official interest in any workers' organisation, I think it must be admitted that one of the reasons for the appointment of the workers'—or, indeed, of the employers'—representatives is that they have a certain background and certain interests and certain general viewpoints. It is in order to strike a balance that the two sides are represented on the court. Nobody expects that the workers' representatives, having been active members or officials of a trade union, could overnight step into membership of the court and discard all their previous views and beliefs. If that were to happen the court would have no value. In the same way nobody expects the employers' representatives to do that. We all accept that the members of the court must be competent, in so far as their personal abilities lie, to approach questions in an impartial manner and there must be no shadow of doubt that they are doing so. I had one experience in the past where such a doubt existed in regard to a court of this character.

From that experience I would urge upon the Minister that he should bear this in mind and widen the actual application of the sections in the Bill, not only in relation to the question of holding full-time office outside the court but also in relation to safeguarding the position of the chairman in every way. Somebody mentioned that we should try to make it analogous to the position of a judge. A judge is not debarred from having private holdings in a commercial enterprise. While nobody would expect that to be the position in this particular case, large holdings in an industrial, commercial or financial concern might mean a great deal more than actual full-time office in a small private company. Nothing can be done at the moment in regard to the Bill because it would be extremely difficult to find a suitable clause to cover the situation. The Minister is given certain responsibility in regard to the appointment of a chairman and the final selection of the employers' and workers' representatives. I think he will have to assume responsibility for ensuring that members of the court are not put in a position where, regardless of their personal impartiality and lack of partisanship, grave doubts might arise because of certain connections they might have.

Mr. Lemass

Would the Deputy prefer that I would not press this amendment? I am not very particular as to whether we include this amendment or not, but I thought it might be better to limit the sub-section.

Mr. Larkin (Junior)

I am not concerned about the second paragraph because I do not think it makes very much difference. A member of the court can still continue his membership of the union. I think that is all he would desire to do for sentimental reasons. As far as definition is concerned, I think the Minister will agree that it is a much tighter paragraph than that in relation to the chairman or other members of the court and I think there should be an even balance.

Mr. Lemass

It is. That is quite true.

Mr. Norton

The important point is requiring the employers' representatives, and particularly the chairman, not to be engaged in the hearing of cases in which they have some pecuniary interest. The Minister can select a person to act as chairman. To all intents and purposes he may be a person who is associated with a particular industry. He may intimate that he is discontinuing his association with that industry but privately he may be a substantial stockholder in a company, or group of companies, and that is something which would not be disclosed to anybody. It would be unknown to the Minister and unknown to the applicant's organisation; but it might, nevertheless, influence his judgment in a particular case. It may be difficult to make provision in the Bill to ensure that that cannot happen.

Mr. Lemass

It should not be assumed that the chairman is going to be of the employer, or stockholding class.

Mr. Norton

Quite. This point is raised merely to direct the Minister's attention to the necessity of taking precautions to ensure that the chairman will not be a person who will be put in the position of adjudicating on claims which in any way affect either his interests as an employer, or a stockholder, in a company or group of companies.

Mr. Lemass

I agree that the chairman must be not merely impartial but he must appear to be impartial. I think that is a very important consideration.

Mr. Dillon

The Minister has repeatedly emphasised throughout this debate that the success or failure of this court will largely depend on what happens during the first year or two of its operation. Because he is not satisfied that it is possible to choose an ideal person as chairman during the probationary period, he has fixed five years as the period of the first chairman, with the intention, I take it, of giving the chairman a more enduring tenure thereafter. I suggest that he ought to make provision, if he intends to provide something analogous to judicial tenure for the ultimate chairman of this body, with full salary and pensionable rights, that, if the temporary incumbent for the first five-year period should have his term of office terminated by the Minister, he will be given his pension rights as if he had survived the whole term of office.

That may never arise but the incumbent of the office should have complete independence of the Minister or of outside interference. He should be able to say: "Doing what I believe to be right in this period of office is not going to get me kicked out at the end of five years and, if it does, I will get all the benefits I would have got if I had kowtowed or been subject to undue influence and had remained in office during the whole period." In view of the Minister's prudent efforts to ensure that the court will enjoy confidence from the first day, I think that he should do as I suggest.

Mr. Lemass

The terms will have to be fixed with the individual under sub-section (3). He will have to be appointed on terms acceptable to him.

Mr. Larkin (Junior)

It is quite clear that the selection of a person as chairman must be the responsibility of the Minister and that there should be no intrusion upon that field of responsibility. I suggest to the Minister, however, that when he is considering means of getting suitable persons, he should elicit, as far as possible, the opinions of those on all sides who would be directly concerned as to not only the suitability but the acceptability of his possible choice. I think that he will agree that the key to the proper functioning of the court is the chairman. All of us would, probably, have our viewpoint as to the type of person who would be suitable, but if, through any unforeseen chance, a selection were made by the Minister which, while it might not be open to attack on specific grounds, would not be acceptable, it might be unfortunate. It would be helpful to the Minister and to the chairman if, by private means, the Minister was able to assure himself that the lines along which his mind was running would meet with general approval by those who would have to use the court.

Mr. Lemass

I agree.

Amendment agreed to.

Mr. Norton

I move amendment No. 15, which is in my name and the name of Deputy M. O'Sullivan:—

In page 6, Section 10 (9), after the word "resident" in line 29 to insert the words "and continues to reside."

Section 10 provides "A person shall not be appointed to be chairman or a member ... unless he is ordinarily resident in the State." It seems to me that it would be possible, in view of the terms of that provision, to appoint a person who is ordinarily resident in the State and discover at a later stage that he was not resident in the State. "ordinarily resident" seems to relate to the time of the appointment.

Mr. Lemass

And so would the Deputy's amendment. The section says that a person shall not be appointed unless he is ordinarily resident in the State. The Deputy's amendment of itself would not alter the position. It would be necessary to put in a consequential provision—that if the person so appointed ceased to be ordinarily resident in the State, he should cease to hold office.

Mr. Norton

My amendment would, I think, put a greater obligation on him to remain in the State. Looking at the section, a person so appointed would say "That is all right. I am not to be appointed unless I am ordinarily resident in the State. That related to the time of the appointment and I am not obliged to remain ordinarily resident in the State after the appointment".

Mr. Lemass

I think it is better to leave the position as the Bill leaves it—that, if the member ceased to be ordinarily resident, it would be regarded as a reason which could be stated for his removal. The Deputy's amendment, in view of the earlier wording of the sub-section, does not make sense. The sub-section says that a person shall not be appointed unless he is ordinarily resident in the State. What the Deputy wants to say is that he shall not continue to be a member unless he continues to be ordinarily resident in the State.

Mr. Norton

Once appointed, I should prefer to impose upon him the obligation to remain in the State.

Mr. Lemass

It is unnecessary to provide statutorily for that, because the fact that he had ceased to be ordinarily resident would be good reason for his removal. I think that it would be better to leave the provision as it is.

Amendment, by leave, withdrawn.

Mr. Lemass

I move amendment No. 16:—

In page 6, line 30, before Section 11, to insert a new section as follows:—

Whenever the chairman is of opinion that for the speedy dispatch of the business of the court it is expedient that the court should act by divisions, he may direct accordingly, and, until he revokes his direction,—

(a) the court shall be grouped into—

(i) a first division, consisting of the chairman (who shall be chairman of the division) and a workers' member and employers' member selected by him, and

(ii) a second division, consisting of the deputy chairman (who shall be chairman of the division), the other workers' member and the other employers' member;

(b) the chairman shall assign to each division the business to be transacted by it;

(c) each division shall, for the purpose of the business so assigned to it, have all the powers of the court and the chairman of the division shall have all the powers of chairman."

This is the amendment which I foreshadowed in Committee. It provides for the possibility that, during the temporary period, the burden of work coming to the court would be too heavy for it and would involve delay in the despatch of business. The amendment provides that, in such circumstances, at the discretion of the chairman, the court may be divided into two parts. That is, I think, the most satisfactory way of dealing with the position, if it should arise.

Mr. Larkin (Junior)

The new section is welcome in so far as it meets one of the points put forward from these benches. The procedure, however, does not appeal to me. Why should the chairman alone have to make the decision? We have a court consisting of five members. The decision to divide into two parts and to assign the business to be transacted by each part should be made by the whole court. It is essential that there should not be any impression given that the chairman is above the court. I do not see why the court should not decide this question rather than the chairman. The same question arose in regard to the chairman's powers if a particular member could not act. It was decided to leave that to the chairman, because it might involve personal questions which would be known only to the chairman. In this case, it would be preferable to have the whole court in plenary session deciding to divide and assigning the business to be dealt with by each division.

Mr. Lemass

It seems to me that this is the most practical way of dealing with the matter, and it is not much at variance with the practice adopted in the High Court and the Supreme Court. The President of the High Court divides the business between the individual members and the Chief Justice has certain powers of decision as regards the members who shall constitute the Supreme Court. In so far as it is primarily a matter of arrangement for the expeditious despatch of the court's business, it might be left to the chairman. The Bill makes it clear that, ordinarily, the court is to consist of five members.

It is only in the special circumstances that may happen in various eventualities that the chairman can exercise this power of dividing the court. The court, presumably, will have to decide by a majority, in any event, if there is a conflict of opinion between them. But, in practice, it is the chairman who will be arranging the order in which business will come before the court, and he will be able to foresee that business is likely to be forthcoming at a rate which the court cannot dispose of and decide whether congestion is likely to arise. From the point of view of machinery, I think it is better to leave it to the chairman.

Amendment put and agreed to.

Amendments Nos. 17 and 18 not moved.

Mr. M. O'Sullivan

I move amendment No. 19:

In page 7, Section 16, after the word "appeal" in line 14, to insert the words "other than an appeal on a question of law".

This particular question was discussed on the Committee Stage and the Minister then indicated that he felt he was meeting the position by the introduction of an amendment on a supplementary list which is now incorporated in Section 26 (6). This amendment is put down again to ensure that, as a matter of vital principle, the individual's rights will not be prejudiced by the operation of the labour court. Actually, in its original form, we were advised that that particular section was not constitutional and because of that we should like to have the assurance of the Minister that the individual's rights will not be prejudiced. It was represented to us legally that we might find ourselves in conflict because of the operation of this section.

Take a workman's compensation case. A man may claim compensation and his employer may turn down that claim for compensation on the ground that the worker was alleged to be exceeding the duties for which he had contracted. At that stage it may be found necessary to examine the contract which was the subject of a registered agreement and the interpretation of that particular agreement is a matter for the labour court. It would be a question then, supposing a negative attitude was taken, of what was to happen the man's case. But supposing the labour court interpreted it in favour of the man so far as his contract was concerned, he has to proceed to a court of law because the labour court is not in a position to assess damages.

There would seem to be an unnecessary set of movements so far as the individual is concerned. What we are particularly concerned about is to ensure that any rights in common law which are inherent in the individual are not prejudiced by the adoption of this section.

Mr. Lemass

The sub-section which I moved in Committee, and which was accepted, was intended to provide that there should be no prejudicing of any rights of the worker under any other Act or any other Part of this Act. I think that is wide enough to meet the point the Deputy has in mind. The fact is that questions of law are not likely to arise at the labour court except questions concerning the jurisdiction of the court, which can, of course, be taken to the ordinary court and decided in the ordinary court.

Mr. Dillon

Surely no such case as Deputy O'Sullivan has envisaged would come before this court?

Mr. Lemass

I think not.

Mr. Dillon

A workman's compensation claim would have to go to the civil court.

Mr. Lemass

That is a bad illustration. I think the best illustration is the one I gave the other day, namely, a worker taking action for arrears of wages and a question arising in the court as to whether a particular agreement applied to him for the purpose of determining the amount of the wages. That action would be taken in the ordinary court of law, but the question of the application of the agreement to an individual worker would be a matter for the labour court. No question of law can in fact arise at the labour court except a question of the jurisdiction of the court. If there is any question as to the jurisdiction of the court, that matter can be taken to the High Court for decision.

Mr. M. O'Sullivan

The Minister undertook to have this legally examined.

Mr. Lemass

It is as a result of that examination that I am satisfied that there is no necessity for any provision here; that the only issue of law that could arise would be one affecting the jurisdiction of the court. On that, there is no question as to the power of any citizen to go to the ordinary court of law to have it determined.

Mr. Keyes

The labour court, presumably, would be dealing with the interpretation of agreements.

Mr. Lemass

Yes, that would be one of its functions.

Mr. Keyes

In the interpretation of an agreement you are likely to have a question of fact arising. How are you going to segregate the function of interpreting agreements without hinging upon matters of law? A decision given against a man may prejudice his case in the ordinary court.

Mr. Lemass

I think sub-section (6) removes that possibility.

Mr. Keyes

I do not think so. Section 26 (6) says:

"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."

That does not deal with the interpretation of an agreement by the court. It is quite a different thing.

Mr. Lemass

The interpretation of an agreement is a matter for the labour court. I do not think there should be an appeal from the labour court on a question of the interpretation of an agreement.

Mr. Keyes

I do not see the relation of Section 26, sub-section (6), to whether or not you are taking some right from the worker when you are giving the final decision to the labour court. We think that it would not do any harm if this were inserted so as to make it clear that we are not restricting any right of a citizen.

Mr. Lemass

The principle we worked on, and it is one which I imagine would be acceptable to persons advocating labour interests, is that the decision of the labour court on these issues, such as the interpretation of an agreement or the application of an agreement to any class of workers, should be final and that there should be no possibility of that decision of the court being the subject of an appeal to a higher court.

Mr. M. O'Sullivan

So far as the general question of appeals is concerned, would it not be correct to say that the appeal would have to come through the channel of the signatory trade union and not through the individuals affected?

Mr. Lemass

An appeal to whom?

Mr. M. O'Sullivan

To the labour court.

Mr. Lemass

For the interpretation of an agreement?

Mr. Keyes

There is no appeal by the individual to the labour court. It must be taken by a trade union. Let us take the case of a non-union member. A trade union would naturally be very slow to make representations to the labour court on behalf of a non-union member. What redress has that non-union member?

Mr. Lemass

The redress is under Section 30, which provides that a registered agreement shall apply to every worker covered by the agreement, irrespective of whether the worker or his organisation was a party to the agreement. The rights of the worker under that agreement are enforceable in the ordinary court. They are enforceable as a contract between the worker and the employer.

Mr. Keyes

The worker who is not sponsored by any union goes to the ordinary court and the ordinary court must send it back for interpretation?

Mr. Lemass

If that question arises, and only if that question arises.

Mr. Keyes

He must come to the labour court for that interpretation and then go back to the other court. In the first instance, he must go to the ordinary court knowing that he must come to the labour court. He is precluded from going to the labour court in the first instance.

Mr. Lemass

Therefore, I would strongly advise him to join a trade union. I do not see that there is any answer to that.

Mr. Norton

I wonder if sub-section (6) of Section 26 is as wide as it really ought to be. It says:

"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."

That seems to conceive a situation in which a person's rights will be wrapt up in this Act or in another Act. Is it not desirable to ensure that a registered employment agreement will not prejudice whatever rights a worker has under another part of this Bill, or under any other Act or instrument?

Mr. Lemass

I do not know what the Deputy has in mind.

Mr. Norton

Supposing a person has an agreement other than the one registered?

Mr. Lemass

The only agreement in this relation is a registered employment agreement; he contracts to observe that.

Mr. Norton

He does not contract as an individual. Suppose a person was originally employed——

Mr. Lemass

If there is an individual worker, not a member of a trade union, who becomes subject to a registered employment agreement, he is not prevented from enforcing any rights to better rates of remuneration or better conditions which his individual agreement entitles him to enjoy, merely because an agreement has been registered. In other words, the registration of the agreement cannot worsen his position; it can only improve it.

Mr. Norton

Where is the authority for that statement?

Mr. Lemass

Section 30. The effect is to ensure that an agreement which provides for a lower rate of wages or worse conditions of employment is deemed to be amended so as to provide a better rate of wages and better conditions.

Mr. Dillon

The Minister has not quite faced Deputy Keyes' dilemma, which brings the Minister within the ambit of the Constitution. Deputy Keyes envisages a worker who becomes affected by a registered agreement made by the union catering for the trade to which he belongs. This isolated individual alleges that his employer is not giving him the benefits to which he is entitled. He goes to the civil court. The employer raises in the civil court the issue of the correct interpretation of a registered agreement, whereupon the civil court stops the proceedings and says: "Recourse must be had to the Labour Court". But the isolated individual has no machinery for getting into the labour court. The only person who can go there is a trade unionist.

Mr. Lemass

No. The court can bring before it any person it may wish to hear in connection with any issue.

Mr. Dillon

The members of the court do not want to be drawn into the matter. The position is that a citizen of the State finds himself with no legal remedy for a wrong, because the civil court refuses to function until it has before it a report from the labour court. All the employer need do is to sit back and the isolated individual has no machinery to enable him to get into the labour court.

Mr. Lemass

Who says so? A trade union can go before the court and complain that an employer or a group of employers will not observe an agreement and the court can make the employer or employers observe the agreement under Section 31. But if a question arises in an ordinary court where an individual worker is enforcing his contract against his employer upon the applicability of a registered agreement, then that question must be referred by the ordinary court to the labour court for its determination.

Mr. Dillon

Has the registrar of the civil court power to direct the labour court to take cognisance of Geary v. Plunkett and to interpret the agreement and report back to the civil court the true interpretation of the agreement?

Mr. Lemass

He has. A court of law shall refer it to the labour court for a decision.

Mr. Keyes

If that is clear, I am satisfied. The job will be done for the individual by the civil court?

Mr. Lemass

Yes, and that is considered a better device than an alternative which would include the risk of conflicting interpretations being put on an agreement by a court of law and by the labour court.

Mr. Keyes

Is that the interpretation of Section 31?

Mr. Dillon

Section 32, but there is no provision in that section as to who shall do the referring. The section merely says, "shall be referred to the court whose decision shall be final." Unless you make a provision that the registrar of the court of law before which the proceedings are brought has a mandatory duty to do it, I suggest that Section 32 is hung up.

Mr. Lemass

I do not think so.

Mr. Keyes

I do not think there is any definite instruction to do what the Minister has stated.

Mr. Lemass

I shall have this matter looked into.

Mr. Keyes

Section 32 sets out that "Any question arising in any proceedings (including proceedings in a court of law) under this Part as to the interpretation of a registered employment agreement or its application to any particular person shall be referred to the court whose decision shall be final." The wording is involved as to what it does really relate to, or is it merely confined to this particular portion of the Bill?

Mr. Lemass

It is confined to this portion—only where a registered employment agreement is being interpreted or applied.

Mr. Keyes

Where is this instruction to have it sent from a court of law to the labour court?

Mr. Lemass

It arises in this Part of the Bill in relation to a registered agreement. So far as joint labour committees are concerned, the enforcement of rates of wages or conditions of employment is a matter for the Minister, who prosecutes.

Mr. Keyes

But where you have overlapping and you have no access to the labour court as an individual, you may go to the civil court, but it cannot function without an interpretation. Where is there anything in the Bill to cover the procedure the Minister outlined?

Mr. Lemass

I shall have that point examined.

Mr. Dillon

I take it the Minister assumes that no individual will avail of this machinery?

Mr. Lemass

I have not assumed it.

Mr. Dillon

To suggest that it is equitable or just that a man should go into the District Court to recover his rights against an employer, bear the costs of that court, and then find himself obliged to appear, by counsel, before the labour court——

Mr. Lemass

He cannot appear before the labour court by counsel unless the labour court allows it.

Mr. Dillon

But a man who has not a trade union to support him will be allowed to appear by counsel—you cannot expect the man to be able to speak for himself. Then he goes back to the District Court. No individual could contemplate such expense.

Mr. Lemass

The only point to be considered will be the nature of the work he is doing, and nobody can give evidence on that better than the man himself.

Mr. Dillon

He must go from the civil court to the labour court? Are there any costs in the labour court?

Mr. Lemass

Yes, witnesses' expenses can be defrayed.

Mr. Dillon

I am acting on the assumption that no individual will be required to take advantage of this procedure, because it is quite fantastic from the point of view of the individual. I quite agree that where there is a trade union it is workable, but no individual worker could contemplate the expense; he could not finance it.

Mr. Norton

The Minister referred me to Section 30 as covering the point I raised.

Mr. Lemass

It gives the worker a contract right.

Mr. Norton

It does not seem to cover the point I raised. Let us assume workers have an agreement with an employer and, as a result of the new agreement, which is duly registered, the workers get a lesser rate of wages——

Mr. Lemass

They cannot get that.

Mr. Norton

Let us say the registered agreement provides for a levelling out. These people had a contract by which they got a certain remuneration or special conditions. As a result of negotiations a new agreement is drawn up, which provides for a levelling out of rates of pay and conditions of employment. The effect of the agreement would be to bring them from a higher level of pay and good conditions to conditions less favourable. Let us assume that agreement is registered. Clearly, that is the rate of pay to which these workers will be entitled; that is the rate of pay and conditions of service provided for in the agreement. Is it certain that by Section 26 (6) their right to go to a court and sue for the fulfilment of a contract which the employer was not willing to keep and which was broken only by the negotiation of a new agreement to which perhaps these workers were not part, is still kept open? It is Section 30 that deals with it.

Mr. Lemass

The Deputy says "perhaps". That is the vital point. Section 26 (6) does not affect it. It is Section 30. If the workers were a party to the agreement then, of course, their old contract terminates and the agreement will regulate the conditions of employment for the future. If they were not a party to the agreement, if they only came into it incidentally, because of the general application of a registered agreement, their own contract is still in force as between them and their employer unless the employer takes steps to terminate it and substitute a new contract for it.

Mr. Norton

Is that so? By what section?

Mr. Lemass

Yes, because the effect of Section 30 is to level up workers' conditions where their contracts provide for worse conditions.

Mr. Norton

Is not it the position that Section 30 does not deal with that case at all?

Mr. Lemass

Shall I put it this way —what is important to that worker is the fact that there is no section in the Bill which invalidates his existing contract.

Mr. Norton

The Minister previously said: "Go to Section 30 and get your remedy." Section 30 provides no remedy. It says: "If you have a contract for wages and conditions which are less than those in the agreement then you are levelled up to the agreement and that is the floor of your conditions." What I am asking, and what I originally asked, is, is the saving clause, Section 26 (6)——

Mr. Lemass

No, that does not affect it.

Mr. Norton

——sufficiently wide to enable that person to sue for the fulfilment of his contract or is it narrowing his rights in any way?

Mr. Lemass

No. Section 26 (6) only relates to rights given by Act of Parliament, but if there is a contract between a worker and his employer we do not interfere with that contract. It is still enforceable by the worker against his employer. It cannot be altered except as a result of a new contract. The only case where this Bill interferes with that contract is where it provides for lower wages or worse conditions than a registered agreement. If it provides for lower wages or worse conditions than a registered agreement, then the contract is deemed to be amended so as to provide for the wages and conditions in the registered agreement, but if the contract already provides for those wages, or better, then it is not interfered with by any provision in this Bill. It is still enforceable.

Mr. McGilligan

Except that the lay court will have to interpret the agreement.

Mr. Lemass

No. I am talking about an agreement between an individual worker and an employer.

Mr. McGilligan

All the agreements will have to be registered. The interpretation is for this court.

Mr. Lemass

That does not affect this question.

Mr. M. O'Sullivan

On the point raised by Deputy Norton, take as a simple illustration the question of the employees of Clery and Company. They are under a certain agreement and by usage or practice certain sections of the staff may be entitled to a month's notice. There is a new agreement entered into which provides, say, for only a fortnight's notice.

Mr. Dillon

Which is registered.

Mr. M. O'Sullivan

That is the point Deputy Norton is getting after—how will they be affected by this particular section? I have to refer the Minister to Section 30.

Mr. Lemass

Is the Deputy assuming that the proprietors of that firm and the workers are parties to the registered agreement?

Mr. M. O'Sullivan

Yes.

Mr. Lemass

In that case, they are bound by the registered agreement.

Mr. Norton

That is the net point. Take, for instance, a large firm which employs, say, 500 workers. The union negotiates with the firm and finally, on one particular point, the firm says: "We are giving so much in respect of 400 workers; we are doing something else in respect of another 80, but we are not prepared to continue to give certain privileges to this last 20." The union people, after long negotiation, come back to their members and say: "After a long period of negotiation, this is the best offer we can get. We have done very well for 400, have got an improvement for another 80, but the one thing they dug their heels into the ground over is that they will not continue particular privileges that the last 20 have had for the past 20 years". That goes to the members on a ballot and the members by a majority accept the agreement and the agreement, therefore, is an endorsed agreement and can be duly registered. It confers substantial benefit on the majority of the members concerned but 20 have lost the privileges which they previously had and they are powerless to influence the decision of the 500 employees. Have the 20 a right to go to the court, if they have a contract with the firm, and say: "Although my union made an agreement in this matter, because they had to make it in the circumstances, and they did their best to protect our rights, we want, nevertheless to sue on the basis of the contract which we had with the firm"? Can they do that?

Mr. Lemass

No.

Mr. Norton

They cannot do it?

Mr. Lemass

No.

Mr. H.M. Dockrell

The court would say they were parties to the agreement.

Mr. Norton

The point I want to clear up is, if an individual worker, before the agreement is registered, says: "I protest against this contract being registered because it worsens my conditions," if this Bill was never passed, that person could go to the courts.

Mr. Lemass

If there is a new agreement, it replaces the old agreement whatever it was.

Mr. Norton

He is not a party to it.

Mr. Lemass

If not, they cannot register.

Mr. Norton

It can be registered by the majority adopting it but if 20 people out of the 500 people should be adversely affected by the new agreement and if the effect of the new agreement is to break their previous contract, can that agreement be registered in spite of them and, if it is registered in a blanket way, covering all the employees in the firm, can these 20 people go to a legal court and say to the legal court: "We had a contract with this firm and we want to compel the firm to perform it"?

Mr. Lemass

Am I right in assuming that the 20 are members of the union that makes the agreement?

Mr. Norton

Yes, of course, but they are in the smallest minority.

Mr. Lemass

That would not make any difference. The union would negotiate on their behalf.

Mr. Norton

It would cover the 20?

Mr. Lemass

You cannot have it both ways. You cannot be in and out.

Mr. Norton

I agree, but we are passing this Bill and we have some responsibility to the people who will be affected by it. I want to know whether, with our eyes wide open, we are saying to a person: "If as a result of a new agreement the majority of people take conditions which have the effect of worsening yours, you have no case at all and no remedy in the court and, if you have decent contracts, they are not worth the paper they are written on"? Is that the position?

Mr. Lemass

Yes, because, as I understand it, these 20 have authorised their union to make a new agreement for them. The union may have made an agreement that they do not altogether approve of but, so long as the agreement is made by the union and accepted by the union and registered by the union, it is binding upon the members of that union.

Mr. Norton

Can they save their legal rights in the ordinary court?

Mr. Lemass

They have no legal rights.

Mr. Norton

If they have a contract?

Mr. Lemass

No. I take it that there is a new agreement replacing the old contract.

Mr. Norton

I want to step down from that. Supposing these members who have got the old contract say to the union: "I authorise you to make an agreement provided always that that agreement in no way worsens my conditions", do they save their legal right to go to court to compel the employer to perform his contract?

Mr. Lemass

No, I would say not. I do not know what rights they possibly could have.

Mr. Norton

I want to get the position legally examined so that these people should not be swept down by a blanket agreement and denied access to a court if they have that access before this Bill is passed.

Mr. Lemass

I could answer that we are taking away no rights from them, that they have no rights, as I understand it, now.

Mr. McGilligan

They have a right under the old agreement.

Mr. Lemass

The old agreement is ended.

Mr. Keyes

That is taking it that the 20 members belong to a union and are governed by a majority. Take 20 members who are not members of a union.

Mr. Lemass

Their old contract would survive.

Mr. Keyes

This Bill sets out that if you make a rate that rate will govern all in that particular employment in that particular area, as the case may be. You are undertaking then to govern and legislate for people outside the contracting parties. Two unions make the agreement. Another union does not come into it at all, yet this governs them also.

Mr. Lemass

It does not fix a maximum.

Mr. Keyes

Are you including the others?

Mr. Lemass

On the contrary; what is quite clear is that if the individuals with whom the Deputies are concerned are not parties to the agreement, whatever rights they have under existing contracts are altered only to their benefit. Their contracts are deemed to be amended to secure them the registered rate of wages or conditions if their previous rights were worse.

Mr. McGilligan

Where is that?

Mr. Norton

In Section 30. That part is all right.

Mr. Lemass

It is in Section 30. If their previous rights were better, they are not deprived of them.

Mr. M. O'Sullivan

How can they redress any grievance they may have? Can they go to the ordinary court?

Mr. Lemass

They go to a court of law.

Mr. M. O'Sullivan

If that is so, Section 32 is in conflict with that decision. Section 32 says:

Any question arising in any proceedings (including proceedings in a court of law) ... as to the interpretation of a registered employment agreement or its application to any particular person....

We have an amendment down to delete those words—

".... shall be referred to the court whose decision shall be final."

Mr. Lemass

That is so. If a question arises in the ordinary court as to whether the nature of the person's work was such as to make him subject to the agreement, the matter must be referred to the labour court. This device has been adopted to secure uniform interpretation of agreements, and so that we will not have the risk of a court of law placing one interpretation on an agreement and the labour court another. It seems to me desirable that we should refer all these questions to the labour court.

Mr. McGilligan

Why

Mr. Lemass

In order to secure uniformity.

Mr. McGilligan

You will get uniformity by referring it to the other court. They are bound by their own decisions. If it is only uniformity that is required, you will get it by referring it to the ordinary courts.

Mr. Lemass

All questions will not necessarily go to the ordinary courts.

Mr. McGilligan

The interpretation of an agreement on a legal point should go to it.

Mr. Lemass

Remember that if it is a question of the interpretation of a registered agreement, that is not a question that goes to the ordinary court at all. It is a question of the rights of a worker under a personal agreement made previously.

Mr. McGilligan

Suppose a group of workers have an agreement which fixes the terms of their employment as well as the rates of pay and suppose the trade union catering for that type of worker decides to register the agreement. There is no doubt that the registered agreement will have effect beyond the membership of the union, that it will have effect with regard to all workers of that class. One knows that frequently in the courts, in connection with a very ordinary type of proceeding under the Workmen's Compensation Act, questions arise as to what is called added risk or added peril. That has to be determined in connection with the actual agreement. The courts look at the contract and see what are the terms of the man's employment. Did he take any added risk? Did he expose himself to peril, bringing him into danger, which resulted in an accident and incapacity to which he was not bound to expose himself under his contract of employment? A man hereafter brings a case before the courts for compensation under the Workmen's Compensation Act and the judge has to decide whether it is one of these added risk cases and he will, apparently, under this Act have to halt his proceedings——

Mr. Lemass

Not necessarily.

Mr. McGilligan

I am taking a case in which an agreement has been registered, so that it becomes a registered employment agreement. Under Section 32, any question arising under any proceedings must be referred to the lay court.

Mr. Lemass

Any question of the interpretation of a registered agreement.

Mr. McGilligan

I am taking a case which clearly turns on interpretation. You want to find out what are the limits of risk to which the man exposed himself under the contract of service and the courts have to determine whether he added to that unnecessarily, whether he subjected himself to what they call an added peril. That all turns on the interpretation of his contract of employment, his contract of service. Under this, as I understand it, the workmen's compensation proceedings would have to be stopped and that contract referred to the lay court to find out what are its terms and the proceedings then resumed in the ordinary court.

I may give another example. There is a very ordinary type of action which appears in the courts—an action for wrongful dismissal. A man presents himself to a solicitor and produces his contract of employment, in which the conditions subject to which he is to serve are laid down and under which there are certain recognised ways by which he may be dismissed. The man, having been dismissed, goes to the solicitor to find out if he has been dismissed in accordance with the contract or not, and the solicitor advises that he has not been so dismissed, and says: "You have an action for wrongful dismissal and you are worth £400 or £500 in damages." That case comes before the High Court as any action involving more than £300 must be heard by the High Court. Are the High Court to be stopped midway in the course of their hearing to decide whether the man was wrongfully dismissed until they get an interpretation from the lay court of what the terms of the contract are?

Mr. Lemass

The terms of the registered agreement.

Mr. McGilligan

Does the Minister with any equanimity contemplate that type of proceedings—that the normal court procedure may have to be held up in order to see whether what has occurred is what the court describes as an added risk, and must they go back to the lay court to find out what it is about, in very ordinary cases of actions for damages or wrongful dismissal which turn entirely upon the technical point of what were the methods of dismissal permitted under the contract and whether they had been broken or not? Is it really contemplated that the High Court should be interrupted in its proceedings, if suddenly it emerges that the case turns on the interpretation of a contract and should say: "We are sorry; under Section 32, we cannot deal with it. Go back to the lay court and bring us back their interpretation." Is that contemplated?

Mr. Lemass

Yes, if the question of interpretation arises.

Mr. McGilligan

Are we arguing Section 32 on this?

Mr. Lemass

No.

Mr. McGilligan

They deal with the same point, and if I am entitled to argue it, I would say that I can well imagine—I understand that the Labour representatives here would prefer the lay court to the ordinary court in respect of some contracts; I deplore that attitude of mind, but, if it is their attitude of mind I do not suppose that any words I say will change it—those who represent Labour in this House saying: "We do not want all sorts of legal quibbles"—to take the lowest interpretation put on the processes of law—"or any legal delays arising from the interpretation of agreements," but I think their views would be met by saying that where the interpretation of any contract may lead to a trade dispute, it might be referred to the lay court, instead of to a court of law; but once you have your contract formed and registered, I suggest that if we have courts in the country and they are properly manned by an independent judiciary, they are the people to whom the interpretation of an agreement ought to be left, where people's rights depend upon them.

I can well imagine the Labour representatives here saying: "We do not want this niggling sort of legal business about interpretation. We want a broad judgment, and if it is a question of what men have agreed to, we want to be able to get back and find out their minds at the time they made their agreement"—matters which the court unfortunately will not consider, the court viewing only the bare matters in front of it. I can hardly conceive anybody contemplating with equanimity the two situations arising—and they are only two of many I could bring forward—that proceedings in the ordinary court should be held up to enable the lay court to determine what the agreement means and that the party should then hark back to the ordinary court to get the result declared there.

I think it is a matter that should be reconsidered. I can understand the Minister getting into this position when thinking entirely of a labour dispute, an agreement putting an end to a dispute and some trouble arising later as to what the parties meant. It is like the interpretation of a treaty as between two countries which was never ordinarily accepted as a legal document to be adjudicated upon according to the canons of the law—a question of finding out what the parties meant, and, if they had not written in their views properly, it would be necessary to rewrite it according to their intentions. I can understand that as the background to Section 32, but certainly not the two ordinary matters I have referred to.

Mr. Lemass

Will that be a common matter?

Mr. McGilligan

Very common.

Mr. Dillon

Does the Minister not see that what is emerging here is that, in fact, all Deputy McGilligan's representations are made on behalf of individuals? In effect, Deputy McGilligan sees, as we all see, that a trade union caught under Section 32, in fact, welcomes being caught. They want to go back to the labour court and get this lay interpretation on the lines laid down by Deputy McGilligan here, but it is the individual to whom Deputy Keyes first referred that we are thinking of and for whom these whole provisions are introduced.

Mr. Lemass

Does the Deputy realise that that may cause trade disputes, that the question of the interpretation may affect the ordinary conditions of employment of three or four hundred others? A trade dispute might arise on the question whether certain men come into the category of carpenters or plasterers and are thereby entitled to a different rate of wages. The determination may affect also the rate of wages to which other men are entitled. The labour court should decide that.

Mr. Dillon

The Minister's difficulty is comprehensible, but I think he is creating a wholly unnecessary complication by directing this labour court into a whole vast region of civil proceedings, where manifestly the Minister himself does not want to attract them nor do the trade unions or the legal profession. There has been pretty general agreement all round the House that, in the interpretation of issues generally between the unions and combinations of employers, the labour court is quite adequate, but there does not seem to be any inclinaation on the part of anybody to deprive an individual citizen of his civil rights in the civil courts to pursue his claim according to the civil law.

The effect of Section 32, without any saver for individual persons who are not members of unions and who do not propose to proceed through the medium of a union, is to deny the civil rights which those persons have. In the case of the small man, and if you have a general agreement controlling shop assistants in Earl Street and you have one girl in one small establishment who is not a member of a union and she goes to the District Court to sue her employer for the wage he should have paid her in accordance with the terms of the registered agreement covering all shop assistants, all the employer has to do is to say, bona fide or mala fide:“I raise the interpretation of the registered agreement”. Instantly, although its interpretation may be as plain as 1, 2, 3, the civil court must stop its proceedings, the registrar must refer the matter to the labour court, where the individual or girl must go and plead her case, either by counsel if the court will permit her, or alone, as to her interpretation of the arrangement. When she has prevailed in that court, she must come back to the civil court and resume the litigation. It is manifest that it is not within the resources of any individual labouring man or woman to travel from court to court in that way. It will be as much as these people can do to get into the District Court at all, but if you are going to enable an employer to haul them from one court after another you are, in effect, depriving them of their rights.

It is in the nature of the same difficulty that Deputy McGilligan's whole problem arises. Are you going to inject that labour court into all the civil courts of the country where you have differences between employer and employee as to the employee's right under a contract of service between them?

Mr. H.M. Dockrell

I am not a lawyer, but I have been listening to this discussion and I am somewhat confused as to how some of these instances could possibly arise in the one case. For instance, it has been mentioned that a worker sues an employer in the civil court and there is a question of the agreement. Now, surely the employer would have had to state that he did not consider that that worker came under the agreement—or some other point such as that? Surely the court would send for the registered agreement and perusal of that document would probably make short work of the rest of the case?

Mr. Dillon

They cannot peruse it, they are not allowed.

Mr. Lemass

Of course, it can read the agreement. It is only if there is a question of interpretation that it goes to the labour court.

Mr. Dockrell

Having got the agreement, I cannot see how a civil court is going to send the case on to the labour court to try it.

Mr. McGilligan

It must.

Mr. H.M. Dockrell

I cannot see that. It seems to me that they can get the agreement or can ask the labour court if Miss A., whom Deputy Dillon has mentioned, comes under the definition in the agreement. I think the court would be able to do that very easily.

Mr. Dillon

If Miss A.'s employer says: "I deny that Miss A.'s interpretation of the agreement is correct," then it must go to the labour court.

Mr. Lemass

Very big issues might devolve on individual cases.

Mr. McGilligan

It might be a more important issue for the labour court, but it goes to the labour court.

Mr. H.M. Dockrell

I cannot imagine that the two courts are to be treated more or less pari passu in this case, as the civil court must prevail once they have got the agreement from the labour court.

Mr. Lemass

We are providing that it is the labour court will decide. It may be a most important issue, as to whether a particular worker in a shop belongs to a class to which the agreement refers. The determination of that may affect the conditions of employment of hundreds of workers and we cannot risk the position that the court of law may decide one thing and the labour court decide another.

Mr. McGilligan

Let the court of law decide altogether.

Mr. Lemass

How can it, when the question will not come before it in 99 cases out of 100?

Mr. Dillon

Supposing both parties go into court—an employer who is not a member of an employers' organisation and an employee who is not a member of any trade union—and both say: "We admit the girl comes within the ambit of the agreement. This question does not arise." Then the girl comes forward, saying that she is paid so much and is getting dinner and tea value so much and that that is not in accordance with the agreement. Whereupon the employer rises and says: "I say it is in conformity with the agreement."

At that moment, the proceedings must stop in the civil court and the registrar must send the registered agreement to the labour court, with a query—"Does the deprivation of sugar in your tea, or whatever it is, or does the pay given to this girl constitute a breach of the registered agreement?" Until the civil court gets back from the labour court an ad hoc interpretation of the meaning of the registered agreement, it cannot proceed to do justice between the two parties.

Is it argued here that any individual employee, in the type of employment catered for by trade unions as a rule, can afford to go into a civil court with a vindictive employer and get justice under those conditions? The employee is driven from one court to the other simply by the employer getting up and mala fide raising a point of interpretation, which instantly sets aside the jurisdiction of the civil court and compels the plaintiff to trot off to a second court for an interim judgment.

Mr. Lemass

The intention is that the interpretation of these agreements will be decided by the labour court. That is the clear intention of the Bill.

Mr. Larkin (Junior)

The question may be muddy, but I do not think it is quite as muddy as Deputy Dillon and Deputy McGilligan are trying to convince us.

Many of us are aware of cases that are not covered by ordinary legislation. In the same way, while there has been what is regarded as a dismissal it would not in the ordinary way cover many cases of that kind that come before the court. It seems to me that while we are very concerned for the interest and welfare of individuals, the point made by the Minister should be given consideration. Take the case of dockers mentioned by Deputy Dillon, who are working constantly, and we get an interpretation from the civil court. That interpretation may affect hundreds of dockers working in similar employment in the city. In that case we are going to get an interpretation by a civil court partly on the question of law.

That is an interpretation which has been removed outside the whole atmosphere on which the original Bill was drafted, and is apart from the knowledge and experience of those in this court. While I am as anxious as Deputy McGilligan and Deputy Dillon to make provision for the cases they have in mind, I think it is a question of choice of the lesser evil. For ordinary civilians, if the question of interpretation arose, I would prefer an interpretation from this court, rather than have it decided by a civil court and possibly have further legal proceedings. I knew when I went to the labour court I would at least have a decision which would be, if you like, one from a labour atmosphere, by people familiar with conditions, and familiar with agreements. As far as I was concerned, that agreement, if in my favour, would be binding. I would feel, as far as individual workers are concerned, that the weight would be put on the side of the individual worker, to give him the benefit of the agreement.

The point I am more concerned with, and that nobody seems to have raised, is that mentioned by Deputy McGilligan as to the interpretation required by a labour court in regard to workmen's compensation. If they could cover that they would finally settle the legal question affecting workmen's compensation. It is a question to which I do not see any solution. The difficulty is in allowing interpretation of an agreement by the civil court. You are opening up consequences which are not only wide, as far as they affect great numbers, but undermine the whole basis on which you establish this court. Whether you could get a compromise which will maintain the authority of the labour court on the question of interpretation and, at the same time, safeguard the legal basis of the individual who has a claim, I do not know. I feel inclined to stand over the procedure in the Bill. It is not a question of having to go from court to court. We are dealing with a fulltime court. If a civil court at any time requires an interpretation of a decision an adjournment normally takes place for a few days.

In so far as labour agreements are concerned I think you will find, in relation to the majority of civil cases, that there would not be many questions of interpretation raised, because there would be no clause in the labour agreement on which a doubt could arise, if a person had a claim for wrongful dismissal. It would be only a question of rates of pay or hours of work. Normally they are not questions that can raise a difficulty and bring to a head legal proceedings on the part of an individual worker. There is the difficulty that it is a choice, if you like, between the proper functioning of this court and the other step to safeguard certain aspects for the individual. I agree, as far as the point raised by Deputy McGilligan is concerned, that an interpretation in a case of workmen's compensation which, in fact, would be final might prejudice and render nugatory the whole basis of legal compensation.

Mr. McGilligan

Deputy Larkin stated that the ordinary contract usually dealt with the matter. It does not. That is not the angle from which the courts approach it. They approach it in this way: What are the ordinary conditions? If there is no contract, what are the customs of the employment? If there is a contract the situation is, whether a man has put himself in greater danger of disability than he should have under contract. They would say that if it was a gratuitous act on his part, and that he did it against his employer's orders or warnings, then, in certain circumstances, he is deprived of an award. If it was a question of death or of serious disability, compensation would arise. Deputy Larkin was very precise in saying that contracts made between employers and employees did not deal with that question. The courts deal with ordinary risks and then consider the particular circumstances. In so far as they call for consideration of agreements that will have to be referred to the courts to say what are the limits. What is the limit except the danger of accident occurring? I do not agree when it is said that there will be no appeal. If the matter of an unconstitutional agreement is raised, you cannot prevent the courts using it. All the verbiage that there is no appeal, goes for nothing.

I can well understand people saying: "We do not want to go to the courts to get a court view on certain claims. We, certain Labour people, have made agreements with certain other people. We know what was in our minds. We believe, when the circumstances are brought back to the memory of the court, which listened to what is registered in front of it, that it will know what conditions were in our minds and, if the thing is not properly written they will re-write it."

My own court work brings to mind certain cases where there was agreement, and no re-creating of the conditions under which an agreement was written would bring about a better record than that in certain written documents. I will give an example. A case took place in the last six months in which a man claimed that he was wrongfully dismissed. The whole issue turned on that point. The judge said the plaintiff had no merits, that the issue was a mere technical point. The question at issue was in regard to a concern which has its main organisation outside this country, but which has a number of branch committees operating here. The question arose entirely as to whether there was a complaint, whether that complaint had been registered in the complaint book, and whether that complaint had been adjudicated upon by the Irish committee before it was sent to the English committee. As it so happened it was not recorded as a complaint, but the objection was that it was dealt with by the committee on the other side. The judge interpreted that as being wrongfully done. He said that should have gone through the course, the complaint written, the complaint considered and a recommendation made to the committee on the other side and inasmuch as that had not been done, that man was given an award of something over £100. Nobody would give a new interpretation to that, because it was an association, an insurance corporation, which laid down these conditions for employment. You could not get any interpretation of that. Supposing that were registered as between the employees and the employers concerned, that case would have to be interpreted in this lay court with certainly no better knowledge of the origins of the agreement than any court had that would have to interpret it. They would have to send back their interpretation to the court and the court would have to adjudicate upon it. That particular case would rule the occupation of thousands of employees in this country. We are discussing Section 16 and Section 19.

An Ceann Comhairle

We are not discussing any section on Report.

Mr. McGilligan

They are the two sections which are covered by these amendments. Section 16 says: "No appeal shall lie from the decision of the court on any matter within its jurisdiction to a court of law," and the amendment to that was "other than an appeal on a question of law." Supposing there had been an agreement willingly entered into between, say, employees and the Minister. I do not think the matter would have been written down in any other way. The whole point arises as to whether people going into a room, discussing conditions of individuals in relation to their employment and thereafter proposing to bring in these conditions if accepted as model conditions before other employees, is a breach of the Trade Union Act. That is purely a matter of legal interpretation. If that question hereafter arises, the matter will have to be referred back to the lay court. I do not believe that this was ever contemplated, but, personally, I have not such a clear mind on it, because I am not familiar with the circumstances that led Labour representatives to what to me is an unexplained and explainable hostility to the courts. One matter has been mentioned—the well-known gibe about the delays of the law. These delays are caused only because of the fact that the law courts have to deal with a very large amount of business which is disposed of in the circumstances in a well settled way.

Deputy Larkin said that he would rather have these things done by some method other than by an appeal to the court because of this delay. If he wants to shorten the extent to which use might be made of it, then that could be done by saying that there can be one appeal and one only. I do not know what the objection is to having the trained minds of independent people adjudicating upon such matters as the application of an agreement in certain conditions. I can understand a situation in which employers and employees would say: "Well, there is an agreement which is badly phrased. Certain circumstances have arisen which we did not contemplate and we will have to adapt the agreement to meet the new situation and re-write it." They may say: "We will go back to the court for an amendment. There it is and the court can adjudicate upon it. If it is something which the court cannot deal with, we will have to get the legislative body to interfere." Why should that matter not be left to the trained minds of people accustomed to adjudicate upon such issues? Notwithstanding all the lessons of history, all the fights that have been made against the old oppressors, the kings, and the new oppressors, democratic governments, to try to establish one body of people to stand apart from the Government and the kings, and put them in a position where they may be independent, when one thinks of the time, the energy and even the blood that has been expended, it is rather lamentable that this thing on which so much was spent in getting it achieved, is now being, so to speak, discarded and we are having a lay court instead of having some body of trained experts to determine these questions. I am not saying that there may not be certain objections to that procedure although I think they are gravely exaggerated and magnified but I think it would be much better to have these trained experts and this independent personnel to deal with it. I do think that the application of an agreed interpretation to an individual should be a matter for adjudication and no matter how you may seek to sidetrack it, you are driven into the courts unless you are prepared to break the Constitution.

Mr. Dillon

Is it not manifest that the Constitution gives me the right to go to the civil courts as defined by the law of the country and get my rights under the law? Any statute which purports to withhold that right from me and to drag me away from the civil courts as constituted by the law and bring me before other courts is manifestly unconstitutional. If the matter is brought before the Council of State, the Bill will be declared unconstitutional and a great deal of unnecessary trouble will be caused because this particular point is not faced at once.

I suggest that the key to the dilemma is to provide a different procedure where the plaintiff is a trade unionist from that which is appropriate where the plaintiff is an unattached citizen. If you face that difficulty now and deal with it, I think that many of the objections that have been urged here will fall to the ground. If you do not, you will end up in a constitutional crisis which will render the Bill nugatory.

Mr. Norton

I want to get the point which I raised cleared up by the Minister. I quoted a particular case and I shall put it again. A small group of workers in a firm has a contract with an employer under which the employer undertakes to pay certain remuneration over a certain number of years. The union registers the agreement and later negotiates and registers a fresh agreement. The agreement is endorsed by 90 per cent. of the workers, but not by approximately 10 per cent. who will be paid a lesser wage because the agreement provides for the abrogation of their contract.

Mr. Lemass

What happens in that case now?

Mr. Norton

If these people have no legal contract with their employer——

Mr. Lemass

They have.

Mr. Norton

I am talking about a case where they have got an agreement for certain conditions with their employer. If the employer purports to break this agreement and does in fact break it, the employees concerned will go to the court to compel the employer to fulfil his contract. What I want to know is that if an agreement is negotiated with a union which provides for the payment to these people of a lesser rate of wages or for the observance of conditions not as good as those contained in the agreement, will the registration of the agreement deny the persons adversely affected access to a court to compel the employer to fulfil his contract?

Mr. Lemass

Not its registration. If the union acts as their agent and makes a new agreement, then I take it the whole contract is changed.

Mr. McGilligan

But surely people can opt out?

Mr. Lemass

If they have contracts independent of the registered agreement, they are not affected adversely.

Mr. Norton

Suppose they have a contract by which they are paid, let us say, £5 a week, and 5 per cent. commission. Let us suppose that the 5 per cent. commission amounts to £2 a week. Suppose the employer says that he is tired of the agreement and proposes to pay them £6 a week. That means that everyone in that grade will get a higher basic rate, but that the net result will be that they will lose £1 a week if the agreement is registered.

Mr. Lemass

If the agreement is accepted by the workers.

Mr. Norton

It is accepted by 90 per cent. of the workers, not one of whom is affected by it, but it is not accepted by the ten who are affected. Does the making of the agreement and the registration of it bind the ten people, even though they are violently opposed to it since it worsens their position but improves the position of the 90 per cent?

Mr. Lemass

If the union negotiated for all employees, then the making of the agreement would affect their position but not its registration.

Mr. Norton

So that the ten people would have no right to go to court and sue on the basis of their contract once the union made a contract for them?

Mr. Lemass

As I understand it that is the position.

Mr. Norton

Is the Minister's statement on that fortified by any legal opinion?

Mr. Lemass

If the individuals are not members of the union, then the union will not have negotiated on their behalf.

Mr. Norton

But does it not seem a particularly strong reason for the amendment which is being moved by Deputy O'Sullivan—that a man with rights at the moment——

Mr. Lemass

Whatever rights he had under the old contract were ended by the making of the agreement, not by its registration, and whatever rights he had to better conditions at the time the agreement was registered are not affected.

Mr. McGilligan

If that is right, that is a new view of this.

Mr. Lemass

That is, if he had rights to better conditions.

Mr. Norton

This man had a contract to be paid so much. He is now getting so much less.

Mr. Lemass

And the union made that agreement for him.

Mr. Norton

I am quoting the case where a man says to a union: "Take notice that you are to make no agreements for me providing for the payment of less than £7 a week".

Mr. Lemass

We had a building trade strike here and, as a result of it, there was an agreement for rates of wages for different classes of workers. That agreement was put to the workers and by a majority was accepted. The Deputy's argument on this amendment is that the minority was not bound by the agreement.

Mr. Norton

I am not talking about building trade workers or about dockers or other classes of workers. I am taking a different type of case altogether—the case where a contract is made between an employer and his employees. Can these contracts be made the subject of legal proceedings in the courts if an agreement is made by the union giving those who were parties to the contract a rate of wages less than they had prior to the making of the agreement and its registration?

Mr. Lemass

If a man has a contract he can enforce it. The registration of an agreement does not take away his contract.

Mr. McGilligan

Does it not?

Mr. Norton

Did the Minister not say that the making of the agreement broke the contract?

Mr. Lemass

In the circumstances explained by the Deputy the making of the contract would appear to mean a new contract. If it was not, then it does not arise.

Mr. H.M. Dockrell

In this case I am bound to say that I agree with the Minister. Deputy Larkin quoted the case of a number of workers employed somewhere or other. The union gives notice for a termination of the agreement. In that situation, how is all the machinery that is being envisaged to be brought into play? I suggest that you have to assume that there was some sort of agreement which was denounced by the labour section. They now proceed to negotiate a new agreement. I rather think that the case argued here by Deputy Larkin was a very extreme one. It has been said that the position of 90 per cent. of the workers under it was bettered, and that the position of 10 per cent. of them was worsened. The Deputy wants to know if the 10 per cent. can say to their union: "You cannot worsen our conditions."

Mr. Norton

They had a contract for better conditions.

Mr. H.M. Dockrell

You have not a contract.

Mr. Norton

I am assuming a contract.

Mr. H.M. Dockrell

But you gave notice to terminate it.

Mr. Lemass

That is the question. Why was the new agreement negotiated except the old one was terminated?

Mr. Norton

I do not want to interrupt Deputy Dockrell. He misunderstands and I will explain the position when speaking again.

Mr. H.M. Dockrell

There must be some other conditions which Deputy Norton has in his mind and which he has not yet communicated to the House. From the point of view of the employer, the position would be quite impossible. Does Deputy Norton suggest that where a ballot is taken by a union, those who vote against, or make a protest against the agreement, are not bound by the agreement? Would they not be bound to communicate that decision to the employer? I imagine that if they did, the employer would say: "Well, now we must have an agreement; have it on or off; we must know who is affected."

I cannot conceive Deputy Norton going in later and saying to the employer: "Look here, 10 per cent. voted against this because they were not covered by the agreement". I think if he did that he would be told that that information ought to have been disclosed at the time that the general agreement was being negotiated.

Mr. Norton

Deputy Dockrell misunderstands the position. The case that I took was this. A number of employees in a particular firm say to the union: "Look here, these conditions which we have at the moment are the best conditions which the union could previously get for us; we took them as an instalment by way of being able to get something better subsequently; they are conditions which could stand a good deal of improvement; we want you to serve notice on the employer that as and from such a date we want them stepped up by 10 per cent. or 20 per cent."

Mr. Lemass

And as from such date, the contract is ended.

Mr. Norton

They say: "We want our remuneration stepped up by 10 or 20 per cent. and we want other improvements as well in our conditions."

Mr. H.M. Dockrell

And they terminate the agreement?

Mr. Norton

I will give the Deputy that point for the sake of peace. A dispute takes place. The employer says that he is not prepared to concede what is being asked. A strike then takes place, and after a while there are negotiations. The negotiations are protracted because the union is endeavouring to get what it originally hoped to get. The employer is prepared to give certain things, so that the point is reached when you may get the employer to recognise that he will concede certain things to certain grades of employees in that firm and that he will do certain other things for other grades. But he finally digs his heels in and says: "That is as far as I am going to go; certain people employed in this place had privileges which, I think, they should not have enjoyed for so long; the circumstances in which they got the privileges have entirely changed and, not alone am I not prepared to give them any increase in wages, but I am not prepared to continue with this contract because it is now out of date having regard to the circumstances in which it was introduced; to those people in the future I propose to pay only what is permitted."

Let me take the case I quoted previously—£6 per week wages instead of £5, plus 5 per cent. commission, making a total of £7. The union negotiating that agreement will take it to their members and say: "This is the best we could get for you." Now, 90 per cent. will say: "After all, it is a substantial improvement and we will take it." But 10 per cent. will say: "Yes, but under this agreement, which is the best you could get from our employer, we are going to get less." What I want to know is, if the 10 per cent. who have an agreement with the employer, under which he is bound to pay them a certain rate of salary and commission, can sue in the ordinary court to compel the employer to carry out that agreement?

Mr. Lemass

When the Deputy talks about the 10 per cent. minority I take it he has in mind a separate agreement independent of the registered agreement.

Mr. Norton

There is no registered agreement at this stage.

Mr. Lemass

If there is a separate agreement, which has not been terminated, it is still in force.

Mr. McGilligan

Is it? I take Section 24. It defines an employment agreement as an agreement "relating to the remuneration or the conditions of employment of workers of any class or workers in any trade or industry"—not of "such" workers, but of workers—"made between a trade union of workers and an employer or trade union of employers". Now, I may be wrong in this but I understand that to mean: suppose there is an organisation dealing with people working in foundries and there is a trade union representative of these workers which makes an agreement with certain employers, does that bind all foundry workers? Am I right in that? I think I am.

Mr. Lemass

It can be expressed to bind all foundry workers and will be accepted by the court for registration if the court is satisfied the people who made the agreement are substantially representative.

Mr. McGilligan

If there is no explicit exclusion it will bind them all. But the section does not say of any "such" workers; you want to limit it to the group who are negotiating. In the day when Ford manufactured tractors here for export to Russia and other countries it was their habit to let out work; they gave an enormous amount of work to certain foundries, notably one in the County Cork. Fords gave good conditions with regard to continuance of employment.

They were objected to somewhat by trade union leaders in this country because of some of the conditions which they operated with regard to hours of working. But they undoubtedly gave continuance of employment and good rates of pay. Suppose now a dispute takes place between foundry workers generally all over the country and you have the people in Macroom—that is one of the particular places I have in mind now—with a good contract of employment which could only be broken by six months' notice on the part of the Ford Works at Cork, and suppose the trade union representatives of foundry workers negotiated certain conditions and those conditions were ruled up into an employment agreement and registered, as I understand this measure, the Macroom people would no longer be able to go before a court of law——

Mr. Lemass

Where is that in the Bill? What stops them?

Mr. McGilligan

Because the employment agreement would bind the Macroom people.

Mr. Lemass

As defined in Section 30.

Mr. McGilligan

Section 30 only means that if there are certain people who are under particular conditions——

Mr. Lemass

They are brought up to it.

Mr. McGilligan

They are not to get worse during the continuance of the agreement, but they can go to the court.

Mr. Lemass

Where is that?

Mr. McGilligan

Are they not governed by the conditions of employment?

Mr. Lemass

To the extent indicated in Section 30, yes.

Mr. McGilligan

Section 30 says as part of the registration of the agreement and as part of the matter that may have to be considered by the lay court there are certain reactions.

Mr. Lemass

No, Section 30 says the effect of the application of the agreement to everybody is that everybody's contract is brought up to the agreement terms. It does not say that nobody can get better terms.

Mr. McGilligan

Where is the man to go to get the surplus or to get something additional to what he has already got?

Mr. Lemass

He can enforce his personal contract, the same as he could always enforce it, in the ordinary courts.

Mr. McGilligan

But I thought what operated thereafter was an employment agreement with additions—not an employment agreement and another contract. I thought that it was an employment agreement with the consequential result that it could not worsen the conditions of the people who had better conditions than the employment agreement gave. But, once ruled into an employment agreement, everything goes before the lay court as I understand it. If the Minister assures me that under Section 30 two things will remain over—the employment agreement, so far as it governs conditions of employment of a particular class, and a special contract which will not be regarded as part of or have anything to do with the private agreement, then the situation is clear. But that is not in the Bill.

Mr. Lemass

That is the Bill.

Mr. McGilligan

It is not the Bill.

Mr. Norton

It is not in the Bill. What about the fellow who is brought down?

Mr. Lemass

He is not brought down. That is the point I am making.

Mr. Norton

But you told me it prevented him taking his case to the court.

Mr. Lemass

Only if he has no contract.

Mr. Norton

Is he all right if the union makes it?

Mr. Lemass

The point the Deputy was trying to make was: he was assuming the union was negotiating on behalf of its workers and that the workers were bound by a contract made on their behalf by the union. If that is the case, the workers have no rights except the rights under the contract made for them by their union. But if they had an agreement existing independently of the union's agreement then they can enforce that agreement against their employer and, presumably, they will do so if that agreement provides better conditions. If it provides worse terms, then Section 30 deems their contract to be amended.

Mr. McGilligan

And it says nothing more about the other agreement. As far as Section 30 is concerned it says, for instance, that if the Macroom workers are paid £10 a week and the rates throughout the country are £5 per week and an employment agreement is brought in which brings the rates throughtout the country up to £7 per week, then all contracts are to be read as if they included £7 a week.

Mr. Lemass

No.

Mr. McGilligan

All contracts except the Macroom one.

Mr. Lemass

Yes.

Mr. McGilligan

What happens the Macroom one?

Mr. Lemass

It remains.

Mr. McGilligan

But Section 30 does not say that the Macroom contract is outstanding and the court will look at this Act to see what is excluded from the lay court. They will look at Section 26 which says that a registered agreement shall not prejudice any rights conferred on any worker. By what? Another Part of this Act, or another Act, but not by another contract.

Mr. Lemass

Where is it said in the Bill that it is prejudiced? You do not have to put into the Bill the fact that the law is unchanged. The law is not changed.

Mr. McGilligan

The law has certain canons of interpretation. One of those canons is that if you express certain things precisely you are deemed to have negatived any other exclusion or inclusion provision. You have Section 26 (6) which says that a registered employment agreement shall not prejudice the rights conferred by any other Act or any other Part of this Act. The ordinary canon of interpretation which the court will apply will mean that a registered employment agreement will prejudice nothing.

Mr. Lemass

Oh, nonsense.

Mr. McGilligan

I do not ask the Minister to take my advice, but I would ask him to take the advice of the legal authorities behind him——

Mr. Lemass

Certainly.

Mr. McGilligan

——as to the canon of interpretation, and I think he will find that I am correct in what I state. I gather in any event, after all this discussion, that the Minister's intention is in the circumstances of which I have spoken—I tried to clarify Deputy Norton's point of view—that the Macroom contract is outstanding and would not be governed by the employment agreement and would not even be brought under the exclusive purview of the new court but can be litigated as an ordinary contract.

If that is his intention, it is not fully borne out by the Act and I think that the ruling will be against him on Section 26 (6). If the Minister can get better advice than I can give him, he should act on it. The Minister is not, as he thinks, withdrawing this from the purview of the courts. He is only bringing the Macroom agreement——

Mr. Lemass

It does not come under this unless it is mentioned.

Mr. McGilligan

By the interpretation which will be placed on Section 26 (6) the Minister will find that that which he thinks is outstanding is brought within the scope of this measure.

Mr. Lemass

I shall have it examined.

Mr. McGilligan

The appeal on the point of law?

Mr. Lemass

Whether sub-section (6) of Section 26 has a restrictive effect.

Mr. Norton

And whether the fellow who has been brought down can go to the courts.

Mr. McGilligan

The amendment we are discussing is whether there shall be an appeal on a point of law. I hope that will be pressed.

An Leas-Cheann Comhairle

I understand that the amendment is being withdrawn.

Mr. Norton

As the Minister has undertaken to examine the matter, I shall not press the amendment.

Mr. Lemass

There is no question as to the right of appeal on an issue concerning the jurisdiction of the court and that is the only question of law that could arise.

Mr. Norton

There is a question whether the provision is not too specific.

Mr. Lemass

I shall look into that.

Mr. McGilligan

Can the Minister see any objection to changing the wording of the sub-section to: "By separate contract other than the registered agreement or by another Part of this Act or by any other Act"?

Amendment, by leave, withdrawn.

Mr. Lemass

I desire to move a consequential amendment—No. 19a—to amendment No. 19, arising out of the amendment which we have passed. The amendment I move is: "In page 7, Section 19, line 38, after the word "subject" to insert the words "to Section 11 of this Act and".

Amendment agreed to.

Amendment No. 20 not moved.

Mr. McGilligan

I move amendment No. 21:

In page 7, Section 19 (1), line 38, to delete the words "subject to sub-section (2) of this section".

Mr. Lemass

Circumstances might arise under which, for one reason or another, a court of five would not be able to meet. Ordinarily, the court would consist of five members but, if a member were ill, it would be desirable that the court should still be able to function. Obviously, the absence of one member must involve the absence of a second member. If one of the employers' members is absent, one of the workers' members would have to remain off also. If the five members are not able to act, the court would then be reduced to three. The same position would arise if, in any particular case, for personal reasons—say, association on the part of one of the employers' members with the business in question or some similar reason affectting one of the workers' members—one of the members of the court was unable to act. The chairman could still ensure that the court would function.

Mr. McGilligan

Is this provision mainly intended to meet the case of illness on the part of a member?

Mr. Lemass

Or a member not being able to act in a particular case.

Mr. McGilligan

That is not what one would gather from reading the sub-section. The words used are: "for the consideration of a particular matter."

Mr. Lemass

That meets the case of illness.

Mr. McGilligan

Why not say "in certain circumstances, the court may consist..."

Mr. Lemass

It might be a matter of a particular case.

Mr. McGilligan

I took it to mean that, if a certain class of case came before the court, this would apply.

Mr. Lemass

An individual case. The Deputy will appreciate that, if a firm with which an employers' member had previous associations was interested in the proceedings, it might be regarded as undesirable that he should act in that particular case. In the circumstances, the chairman would decide that, as the employers' member would not be acting, one of the workers' members should go off and the court should consist of three.

Mr. McGilligan

I thought that the determination would not be in regard to circumstances but in regard to matters.

Mr. H.M. Dockrell

If the two members from a particular side—the employers' members or the workers' members—were both excluded, what would happen?

Mr. Lemass

The court could not act.

Mr. H.M. Dockrell

The time in which it would be out of operation might be far too long.

Mr. Norton

You could remove the four and appoint four others.

Amendment, by leave, withdrawn.

Amendments Nos. 22 and 23 not moved.

Mr. McGilligan

I move amendment No. 24:—

In page 8, Section 19 (3) (i), line 2, to delete the words "the majority of the ordinary members" and to insert therefor the words "a majority of those of the ordinary members who vote upon the question".

I was not present at the discussions on Committee Stage, and I was not able to follow up in the Debates what the House determined in regard to this question of voting. The original proposal was that if there was a majority of the court in favour of a certain course, the majority should rule accordingly. That was, I take it, a majority of those who could vote. It is now provided that, if a majority of the ordinary members agree, the question shall be determined accordingly. According to the new amendment, No. 25, if a majority of the ordinary members do not agree but a majority of all the members agree, there can be a determination accordingly. Suppose there is a case in which one or two of those members do not want to vote. Does a majority of the ordinary members mean a majority of those present and voting or a majority of the four?

Mr. Lemass

I could not contemplate any circumstances in which the court would not be able to give a verdict.

Mr. McGilligan

I was contemplating that. You have a chairman and four members. Suppose you have a situation in which one of the employees' members does not want to take part and says he will not vote. What is the situation then? A majority of the ordinary members means three.

Mr. Lemass

Yes.

Mr. McGilligan

Is that a majority of those who are present or not?

Mr. Lemass

They must be present.

Mr. McGilligan

Then it is a majority of the members present and voting. There may be two employees' members present and one employers' member.

Mr. Lemass

The full court must be there—either five or three.

Mr. McGilligan

Suppose they do not vote. The quorum is five. That means that five must be present.

Mr. Lemass

It does not make any difference whether a man votes or not. If he does not vote, he is against the proposal.

Mr. McGilligan

He may say, "I am neutral."

Mr. Lemass

A majority of the members of the court must agree upon some course. If there is not a majority of either class, then there is a decision by the chairman. The particular point is that not every question can be settled by a majority vote. There may be five individual views. It is necessary, however, to provide that there shall be a decision. We want to avoid the possibility of the court having to call back the parties to say that the court cannot decide something. Therefore, in the last resort, if a majority cannot be devised in any other way, the chairman decides the issue.

Mr. McGilligan

There is a quorum of five, the chairman and the four members. The question is put and it goes to a division. Two ordinary members vote for and one ordinary member votes against and a majority of the members present and voting determine the case. But the Minister counts a man who does not vote as being against. Why should he?

Mr. Lemass

Because there must be a positive decision.

Mr. McGilligan

It is two to one. That is a majority of those present and voting, but not a majority of the ordinary members.

Mr. Lemass

It must be a majority of the ordinary members.

Mr. McGilligan

The Minister wants to have a majority of the members present.

Mr. Lemass

A majority of the ordinary members present must be in favour of any course to make that a decision of the court.

Mr. McGilligan

Suppose there is a case in which an employers' member says: "I do not want to vote."

Mr. Lemass

Then there is no majority, unless the other three agree.

Mr. McGilligan

There is a vote and the result is two for and one against, that is a majority for.

Mr. Lemass

We think there should be a majority of the ordinary members to give a decision on behalf of the court.

Mr. McGilligan

Are you sure the Bill gives you that?

Mr. Lemass

Yes.

Mr. McGilligan

I am not familiar with what happened in Committee, but it seems to me that there is a possibility of trouble arising in this way, that once a vote in taken and there is a majority of the people voting in favour of a particular thing that that is not a majority of those present. What is the determination going to be then?

Mr. Lemass

There must be actually a majority of the ordinary members or of those present to come to a decision which will be announced as the decision of the court.

Mr. McGilligan

Is it clear that the words, "if the majority of the ordinary members agree" means that there must be three out of the four voting? Supposing it is recorded on the minutes that two voted for and one against.

Mr. Lemass

There is not a majority.

Mr. McGilligan

Is that not a majority of the ordinary members?

Mr. Lemass

No.

Mr. McGilligan

Generally speaking, if you want to insist on an absolute majority, you say so. If you do not do that, I think the interpretation will be a majority of those voting. I want to get the matter clear. I think that should be the situation. Take the case of an employers' member saying, "I will not vote on this; I have no views one way or the other." Therefore, out of four people brought there to vote, one is against and one says he is half and half. Surely the majority are in favour of a determination.

Mr. Lemass

It would not be a decision of the court.

Mr. Cosgrave

Why not use the ordinary phrase used in connection with companies, "a majority of those present and voting"?

Mr. Lemass

I think it is clear that a majority of the ordinary members must vote for something in order to make that something a decision of the court. It is not always a case for and against one question. There may be the case of workers who, under Part VII, may claim an increase of 10/-. They can get 1/-, 2/-, 3/-, 4/- or 5/-. There may be five different opinions. If three of the ordinary members agree upon one figure, that is the decision of the court. If they do not, three of the total members of the court can agree upon a figure, and, if they do not, the chairman decides.

Mr. Cosgrave

Each question will be decided separately.

Mr. McGilligan

Unless they follow the rules established in this House about voting.

Amendment, by leave, withdrawn.

Mr. Lemass

I move amendment No. 25:—

In page 8, Section 19 (3), to insert before sub-paragraph (ii) a new sub-paragraph as follows:—

(ii) if a majority of the ordinary members do not agree, but a majority of all the members agree, the question shall be determined accordingly.

This is an amendment which I agreed to introduce and I think it meets the point raised in Committee.

Mr. Norton

Under this you can get a situation in which, if two employers' members take one view and two employees' members another view, and the chairman gives a vote, that is a majority decision, and that operates whether the two employers' members are present at the time of the decision or not.

Mr. Lemass

They must be present.

Mr. McGilligan

At the time of the decision?

Mr. Norton

It would not be necessary. Suppose, for instance, the court having heard the case, the employers' members, for some reason, say: "We are not going to vote on this one way or the other". It is sufficient for the purpose of getting a decision of the court and the contrary would also operate. If two representatives vote on one side with the chairman, that is a majority of the court, and that is the decision of the court.

Mr. Lemass

The practice will be this. The issue goes first to the ordinary members. The chairman does not participate in the first instance, only the ordinary members. If three of the four ordinary members agree, that settles the issue. The chairman gets no opportunity of expressing his opinion at all by means of a vote. But, if they do not, if the voting is two and two, then if the chairman finds himself able to agree with one or the other, it is a decision of the court. If he finds himself unable to agree, he has to decide himself.

Mr. McGilligan

That means two and nought.

Mr. Lemass

Unless there are three in the first instance, or three in the second, the chairman decides.

Mr. McGilligan

Supposing one does not vote?

Mr. Lemass

A man not voting is obviously not agreeing.

Mr. McGilligan

If there are two and nought, the chairman says: "I am for the nought," and that becomes three.

Amendment put and agreed to.

Amendment No. 26 not moved.

Mr. McGilligan

I move amendment No. 27:

In page 8, Section 19 (4), line 9, to delete all words after the word "purpose" down to the end of the sub-section.

What is the purpose of attempting to establish that no other opinion shall be mentioned and that even the existence of another opinion shall not be mentioned? Why should not the existence of another opinion be mentioned?

Mr. Lemass

Because of the particular nature of this court. It must be the court's decision. If you were to have the workers' representatives announcing how they voted it would be a very unsatisfactory state of affairs.

Mr. McGilligan

Does the Minister think that he will ever establish this provision, that the existence of another opinion shall not be disclosed? That is only bringing the law into contempt. It will be disclosed. It may not be disclosed by a public announcement, but it certainly will be disclosed.

Mr. Lemass

It will not be revealed that it was a majority decision.

Mr. McGilligan

That is a point of view that baffles me. In certain cases we have constitutional decisions in the Supreme Court and we have certain decisions in the Court of Criminal Appeal. When there is a decision in the Court of Criminal Appeal and the Executive comes to exercise the prerogative of mercy with regard to a person who is sentenced, the Executive inquire whether there was a unanimous decision.

Mr. Lemass

This is a different type of court. This is a court consisting, not of five judges, but of two workers' representatives and two employers' representatives and a chairman. They can pronounce a combined opinion.

Mr. McGilligan

The Court of Criminal Appeal consists of three judges. It has been decided that there is to be one decision of that court. This is copied from that. There is no other opinion to be pronounced and the existence of another opinion is not to be disclosed. The Minister as a member of the Government must know that the first thing the Minister for Justice finds out in a case of that kind is whether there was another opinion in respect to the individual. Despite the prohibition against the disclosure of another opinion, he asks for the disclosure. That is the procedure so far as I know. In the matter of a constitutional question, we debated on the Constitution whether or not when a constitutional question was discussed there should be publicity given to the fact that there was a different point of view. Two points of view were canvassed in this House. One was that there should be only one declaration so as to pretend at least that it was unanimous. All the judges were so clear about what a constitutional case meant, that there was no variation of opinion between them.

There is another point of view. I spoke in favour of that and I said that it would lead to constitutional development to have the expression of different points of view. They would then know what were the matters that exercised the minds of the judges. In any event, you always have a majority decision. Here you are not dealing with any such sacrosanct matter as the Constitution of the country and why must we have this pretence that there is no view other than the majority view, particularly when it may mean in the end that two employers have voted one way, two employees the other, and the chairman has stated his view?

Yet the Minister wants us to pretend to the public that it is what the whole five agree to. I can understand the Minister saying: "I do not want any other opinion stated for the court except the one," and he goes on to say that the existence of another opinion shall not be disclosed. People are human beings and these things are disclosed. I submit it is only bringing the law into contempt.

Amendment, by leave, withdrawn.

Mr. M. O'Sullivan

Amendments Nos. 28 and 29 are purely drafting amendments. I move amendment No. 28:—

In page 8, Section 20 (1), line 27, to delete the word "power" and substitute the words "possession, procurement".

Mr. Lemass

I am advised that the word "power" has the same meaning as "possession" and "procurement" and it is preferable from the legal point of view.

Mr. McGilligan

Who advised you in that way?

Mr. Lemass

My legal advisers.

Mr. McGilligan

In an ordinary affidavit you will find the words "power, possession or procurement" and they are not supposed to cover the same area. I think the Minister should add the words.

Mr. Lemass

I gather that modern legal opinion regards them as archaic.

Mr. McGilligan

The words "power, possession or procurement"? When the Attorney-General is being sworn, these archaic words are repeated.

Mr. Lemass

"Power" is the modern form.

Mr. McGilligan

It has become modern only to-night.

Amendment, by leave, withdrawn.

Amendment No. 29 not moved.

Mr. Norton

I move amendment No. 30:

In page 10, Section 26, to delete lines 1 to 7 and substitute therefor the following paragraph:—

(b) that the agreement is expressed to apply to—

(i) all the workers of a particular class and their employers, or

(ii) all the workers and their employers in a specified trade or industry, or

(iii) all the workers of a particular class in a specified area and their employers, or

(iv) all the workers and their employers in a specified trade 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 to register such agreement, all the workers or all the workers of a specified class and their employer or employers in one or in more than one specified establishment.

Mr. Lemass

Would amendment No. 31 meet that?

Mr. Norton

I do not think so. Since we discussed this matter on an earlier stage, the members of this Party considered it more closely and it appeared to us to be more restrictive than the amendment we suggested on this sub-section on the last occasion. Whatever is intended in the section, we have the Minister's assurance that it means a certain thing. When we seek to find out where the Minister got his assurance, we are told it comes from his legal advisers that the section has that certain meaning. In our amendment we approach this matter in stages. We suggest that the agreement is expressed to apply to all the workers of a particular class and their employers. That is the top of the tree, as it were. We then come down to all the workers and their employers in a specified trade or industry.

Mr. Lemass

I am taking that out. "Class" can be defined in relation to anything. Workers of any class could be defined as workers employed by one employer or in a named employment. Class is the widest possible term. You could have an agreement, for instance, for all workers with red hair.

Mr. Norton

Or no hair.

Mr. McGilligan

That was an example given in a recent Supreme Court case and it was laughed at.

Mr. Lemass

It all depends on who laughed.

Mr. McGilligan

It was in the Supreme Court, as the Minister knows, on account of his Trade Union Act.

Mr. Norton

The purpose of the amendment is to make the Bill applicable, in addition to the categories I have outlined, to all workers and their employers of a particular class in a specified area, to all the workers and their employers in a specified trade or industry in a specified area, or in more than one specified area, and, lastly, it can operate as between the employer and his employees in one or more than one specified establishment. To us it appears there is a better cataloguing of the agreement provided for in the amendment.

Mr. Lemass

I suggest the amendment has a limiting effect. It limits the term "class".

Mr. Norton

In what sense?

Mr. Lemass

It limits it to those classes mentioned in the amendment. The use of the term "class" without any sub-division is much wider.

Mr. Norton

I cannot see in what way that limiting takes place. If you look at the amendment you will find it provides for different types of agreement to be registered. The circumstances under which the agreement would be so registered are catalogued here and whatever agreements are to be applied, they could be caught in any one of those sections.

Mr. Lemass

You cannot be sure of that and the widest possible form is to say that an agreement is expressed to apply to all workers and employers in a particular class. Any attempt to define that further has a limiting and not a wider effect.

Mr. McGilligan

What is meant by "class" in that connection?

Mr. Lemass

Any group of workers in relation to anything—the work they do, the place in which they work, and the people with whom they work.

Mr. McGilligan

Or their ages?

Mr. Lemass

Yes.

Mr. McGilligan

Or their red hair?

Mr. Lemass

I presume so, but we are not likely to have an agreement of that kind. As long as they can be identified by the description, the term applies. Any attempt to define "class" will have a limiting effect— so I am advised.

Mr. H.M. Dockrell

The discussion seems to range around the word "class". I am wondering how "all" will survive. After all, you could not suggest that any agreement registered covered all workers. Would engaging in work outside invalidate the agreement?

Mr. Lemass

The agreement will apply to the workers who are identified in the agreement.

Mr. McGilligan

It is expressed to apply to all workers of that class.

Mr. Lemass

Of that class.

Mr. McGilligan

Will the agreement identify the class?

Mr. Lemass

The agreement would have to identify the class, and the tribunal would have to be satisfied that it was desirable and normal practice or that it was expedient to have a separate agreement for that class. These are the only two points that will arise.

Mr. McGilligan

There is no definition in this Bill of "class".

Mr. Lemass

No.

Mr. Norton

If the Minister is satisfied that it is wider, I am satisfied.

Mr. McGilligan

I think the Minister will find that the courts did find them selves stumbled by this.

Mr. Lemass

The Deputy will agree that it is the very argument that was advanced earlier, that the setting out in the Bill of a definition of class has a limiting effect.

Mr. McGilligan

I do not think so.

Mr. Lemass

That is the principle of legal interpretation that was used against me earlier.

Mr. McGilligan

There is no definition of class.

Amendment, by leave, withdrawn.

Mr. Lemass

I move amendment No. 31:—

In page 10, Section 26 (3), to delete the words "or to all" in line 2, and the entire lines 3 and 4, and to delete the word "area" in line 7 and substitute the word "class".

Amendment agreed to.

Mr. Lemass

I move amendment No. 32:—

In page 10, Section 26 (3), to delete paragraph (d), lines 10 to 15, and substitute the following paragraph:—

(d) that the agreement is not intended to restrict unduly employment generally or the employment of workers of a particular class or to ensure or protect the retention in use of inefficient or unduly costly machinery or methods of working.

This is the alteration of sub-paragraph (d) to meet a point raised in Committee. The effect of it is to provide that the court can have regard, not to the effect of the agreement, but to the intention of the agreement and I think this is the best way of meeting the objection that was raised.

Mr. Norton

It is an improvement on the previous position, in any case.

Amendment agreed to.

Mr. Everett

I move amendment No. 33:—

In page 10, Section 26 (4), to delete all words after the word "shall" in line 24 to the word "with" in line 29 and substitute therefor the words "publish specified particulars of the agreement in such manner as in its opinion is best calculated to bring the application to the notice of all persons concerned."

The section directs that the parties should publish the agreement. Our amendment suggests that it should be the duty of the court to publish the agreement and not to have the responsibility on any of the unions. One union may publish it and another union may refrain from publishing it and in that case there would not be sufficient publication to the interested parties. Therefore, I suggest that the onus should be put on the court to publish the recommendations, which will mean that all interested parties will get due notice.

Mr. Lemass

I think it is not unreasonable to ask the parties applying to the court to comply with this condition of publication.

Mr. Everett

Why should not the responsibility come on the court?

Mr. Lemass

There are responsibilities upon the court for publication subsequently but, where it is a question of application, I think the applicants can be required to publish.

Mr. Everett

My only fear is that one party may publish. If there is a joint application it is quite different.

Mr. Lemass

It is the court which shall specify the parties who will publish.

Mr. Everett

One union may refrain from publishing.

Mr. Norton

Is not the position that the agreement will not be registered until the union complies with the direction? Therefore, if you do not do it, you do not get your agreement registered.

Mr. Lemass

That is right. I think it is better as it is.

Mr. Everett

The Minister's amendment, No. 37, goes very near it.

Amendment, by leave, withdrawn.

Mr. Lemass

I move amendment No. 34:—

In page 10, Section 26 (4), lines 28 and 29, to delete the words "and the court may refuse to register the agreement until the direction has been complied with".

Mr. McGilligan

This is withdrawing what Deputy Norton has been referring to.

Mr. Lemass

Amendment No. 34 is consequential on 35. It was pointed out in Committee that the mere publication contemplated in the section did not serve any purpose unless publication opened the possibility of objection, that the purpose of publication was to bring the application to the attention of parties who might object and that it was necessary to have in the Bill provision for objection. That is the purpose of amendment No. 35 and amendment No. 34 is consequential.

Amendment agreed to.

Mr. Lemass

I move amendment No. 35:—

In page 10, Section 26, to insert before sub-section (5) a new sub-section as follows:—

(5) (a) The court shall not register an employment agreement until the lapse of 14 days after publication of particulars of the agreement in accordance with sub-section (4) of this section.

(b) If within that period the court receives notice of an objection to the agreement being registered, the court shall, unless it considers the objection frivolous, consider the objection and shall hear all parties appearing to the court to be interested and desiring to be heard, and if, after such consideration, the court is satisfied that the agreement does not comply with the requirements specified in sub-section (3) of this section, the court shall refuse to register the agreement.

Amendment agreed to.

Mr. Lemass

I move amendment No. 36:—

In page 10, Section 26, to delete sub-section (5), lines 30 to 33.

Amendment No. 36 relates to and is consequential on amendment No. 38. Perhaps I might mention the purpose of amendment No. 38. It was mentioned here that it was desirable that an agreement which was for an unspecified period should be capable of annulment on six months' notice by either of the parties. That is the purpose of the first part of the amendment. There was also a suggestion that, on the expiration of a period for which an agreement was registered, it would continue subject to three months' notice by either party. That is the purpose of the second part of this amendment. The effect would be, therefore, that if the agreement is not for a stated period, then, after 12 months, either party can give six months' notice of its annulment. If it is for a stated period it will continue at the end of that stated period subject to three months' notice by either party.

Mr. McGilligan

The six months' notice can be given any time after 12 months and will operate at the end of the six months?

Mr. Lemass

That is right.

Amendment agreed to.

Mr. Lemass

I move amendment No. 37:—

In page 10, lines 38 to 44, to delete Section 27.

Amendment No. 37 links up with amendment No. 41 and is also to meet points raised in Committee. Amendment No. 41 provides that the court shall publish in such manner as it thinks fit notice of the registration of the agreement together with such particulars of the agreement as the court considers necessary; that when it is varied the court shall publish details of the variation; that when it is cancelled, the court shall publish notice of the cancellation and, to meet the point raised by Deputy Larkin, we are putting on the court the obligation of publishing from time to time lists of registered agreements together with such particulars of the agreements as the court considers necessary, with the ordinary provisions already in the Bill that the court will cause to be supplied to any person who applies therefor and pays the prescribed fee a copy of the registered employment agreement.

Amendment agreed to.

Mr. Lemass

I move amendment No. 38:—

In page 11, Section 29, to delete sub-section (3), lines 14, 15 and 16, and substitute the following sub-sections:—

(3) Where a registered employment agreement does not provide for its duration or termination, the court may, after the lapse of 12 months from the date of registration, cancel the registration on the application, made after six months' notice to the court, of all parties there to representative of workers or of employers.

(4) (a) Where a registered employment agreement is expressed to be for a specified period, it shall, if in force at the end of that period, continue in force until its registration is cancelled in accordance with this sub-section and the terms of the agreement providing for its duration shall be of no effect.

(b) The registration of an employment agreement to which paragraph (a) of this sub-section applies may be cancelled by the court on the application, made after three months' notice to the court, of all parties thereto representative of workers or of employers.

(5) Where a registered employment agreement is terminated by any party thereto in accordance with its terms, the court shall, on receiving notice of the termination, cancel the registration."

There is a typographical error in this amendment. The word "sub-section" in the second last line of paragraph (a) should read "section".

Amendment agreed to, with correction.

Mr. Lemass

I move amendment No. 39.

In page 11, Section 30, lines 17 to 24, to delete sub-section (1) and substitute the following sub-section:—

(1) A registered employment agreement shall, so long as it continues to be registered, apply, by virtue of this section, to every worker of the class to which it is expressed to apply, and his employer, notwithstanding that such worker or employer is not a party to the agreement or would not, apart from this sub-section, be bound thereby.

This is a re-cast of the provisions of sub-section (1) and is, I think, a substantial improvement on the original form.

Mr. McGilligan

How does this affect the discussion that took place earlier in the evening?

Mr. Lemass

It is only a redraft of the sub-section.

Mr. McGilligan

Let us consider it as it now is. A registered employment agreement, so long as it is registered, is to apply to every worker of the class, whether he is a contractor to it or not, notwithstanding that he is not a party to the agreement and would not, apart from the sub-section, be bound thereby. The Macroom worker would be tied up now.

Mr. Lemass

That is quite right and the effect is to bring up his wages and remuneration to the wages and remuneration set out in the registered agreement.

Mr. Cosgrave

If above?

Mr. Lemass

If above, it does not affect it.

Mr. McGilligan

Surely it ought to be subject to the provisions of Section 26?

Mr. Lemass

It is by virtue of the section and particularly sub-sections (2) and (3) of the section.

Mr. McGilligan

Read that by itself.

Mr. Norton

Cannot this be read as levelling down as well as levelling up?

Mr. Lemass

No.

Mr. Norton

Why cannot it?

Mr. Lemass

Because there is nothing in the Bill to level down.

Mr. McGilligan

Except that.

Mr. Lemass

That does not level down.

Mr. McGilligan

A £10 worker is of a class of workers in respect of whom a £7 agreement is made. The £7 agreement applies to him whether he is a party to it or not. Leave that by itself. Is that not so?

Mr. Lemass

When an agreement is registered, something must follow from its registration. What follows from it? What is set out in the Bill follows and anything that is not set out in the Bill does not follow.

Mr. Norton

I think that Section 30 (1) as in the Bill is preferable to this.

Mr. Lemass

Oh, no. The memorandum prepared by eminent counsel and forwarded to me by a colleague of the Deputy would suggest that this change was desirable.

Mr. Norton

I will get the Minister a dozen different legal views. He has probably got them himself. In relation to our discussion on the earlier amendment moved by Deputy O'Sullivan, I think it could be argued that the whole intention of Section 30 was to level up. This amendment seems to make it possible to level down.

Mr. Lemass

How does it make that possible?

Mr. Norton

Perhaps I had better move to report progress.

Progress reported; Committee to sit again.