Dáil Éireann debate -
Tuesday, 14 Jan 1975

Vol. 277 No. 1

Death of Members. - Trade Union Bill, 1974: Report Stage.

Minister for Labour (Mr. M. O'Leary)

I move amendment No. 1:

In page 2, line 25, after "‘trade union'" to insert ", save where the context otherwise requires,".

This is a technical amendment arising from inclusion in the Bill of the new section 16 which provides that British-based unions may not hold or be granted a negotiating licence unless they have a decision-taking executive located within the Thirty-two Counties. It will be noted that section 1 provides that "trade union" has the same meaning as in the Trade Union Acts, 1871 to 1971, that is, "any combination, whether temporary or permanent, the principal objects of which are under its constitution statutory objects, namely the regulation of the relations between workmen and masters or between workmen and workmen or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business and also the provision of benefits to members." Deputies will note the archaic language of the old legislation.

Section 16 refers to a trade union under the law of another country. The purpose of the amendment is to make it clear that "trade union" in the context of section 16 means a trade union recognised under the law of another country and does not mean a trade union within the meaning assigned to it in section 1. It is a technical amendment arising from that change on the legislation.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 2:

In page 3, line 21, after "resolution" to insert "and the voting shall be by secret ballot".

The purpose of this amendment is to ensure that voting on instruments of amalgamation and transfer shall take place in secret. During the Committee Stage I agreed to a request from Deputy Dowling that the Bill be amended to ensure that voting on amalgamation or transfer should take place in secret and the amendment provides accordingly. It was our understanding from the draftsman and from the Bill as originally drafted that this voting would be in secret but Deputy Dowling was not happy it really meant voting in secret. To meet him we inserted the provision in that form.

Amendment agreed to.

Mr. Dowling

I move amendment No. 3:

In page 3, between lines 21 and 22, to insert the following paragraph:

"(b) every member of the union shall be entitled to vote by post where his circumstances so warrant."

I had some communication with the Minister in relation to this amendment when he indicated he had confirmed that section 3 (1) (c) would permit unions to arrange for the holding of postal votes. Section 3 (1) (b) states:

every member of the union shall be allowed to vote without interference or constraint and, so far as is reasonably possible, shall be given a fair opportunity of voting.

It is envisaged that postal votes will be provided where circumstances so warrant. However, this implies a right by the union to decide on the postal vote. It is our main concern that the member will have an opportunity of availing of postal voting where his circumstances so warrant. The Minister agreed with regard to a previous amendment that an advertisement would be inserted in the newspapers approximately a week before the meeting was to take place. There are many out-workers who may notice the advertisement in the papers indicating an important decision is about to be made and, if they are unable to return to base, it is logical they should be able to apply for a postal vote to record their vote with regard to amalgamation.

As the Bill stands it implies a right to the trade unions to decide on the postal vote but it does not give the member the right to insist on a postal vote if his circumstances so warrant. The member must have this right. The Minister was reasonable in relation to a large number of amendments. If he gives this matter some consideration he will realise it may happen that members may be far removed from the area where voting will take place. They may be working on the Aran Islands, or Rathlin Island or in some other outpost and I am sure the Minister will appreciate that our amendment is logical when one considers this possibility.

If the member has the right to obtain the vote there would not be the situation where he could say afterwards he did not have the opportunity to record his vote. Notwithstanding the best will of the union to try to meet all the problems in relation to voting procedures by endeavouring to notify personnel, the movement of people from one area to another complicates the issue in so far as movement may have taken place before receipt of the ballot paper or of written instructions.

It is reasonable to ask that if the member indicates that he will be at a particular place and wishes to obtain the necessary ballot paper to record his vote he can do so. I ask the Minister to accept this amendment. The union has the right but the member has not. We are concerned that the member's right be fully safeguarded, irrespective of what the union executive may decide to do. Members who are far removed from the scene of activity of the union meeting will see the newspaper advertisement and will have the right to demand a postal vote.

Mr. M. O'Leary

The effect of Deputy Dowling's amendment would be to provide that every member of a union would be entitled to a postal vote where the circumstances warrant it. That question was raised by him during the Committee Stage debate of the Bill and I indicated then that I believed the Bill already made adequate provisions in this regard. I pointed out that section 3 (1) (c), which states that the method of voting shall consist of the marking of a voting paper by the person voting, would permit trade unionists to arrange for postal votes. That provision must be taken in conjunction with 3 (1) (b), which states that:

Every member of the union shall be allowed to vote without interference or constraint and, so far as is reasonably possible, shall be given a fair opportunity of voting.

That would mean that under the provisions of the Bill it would be obligatory on a union to afford an opportunity of postal voting to those members who for one reason or another were unable to be physically present at the voting centre.

The Deputy may recall that I confirmed to him by letter in December, when transmitting a copy of a Report Stage amendment relating to secret ballots which I was considering moving to the Bill, that the Parliamentary Draftsman has confirmed, as I had thought when speaking on an earlier Stage of the Bill, that postal voting would have to be provided for where circumstances warrant it. All Deputy Dowling seeks by his amendment is already in the Bill.

Mr. Dowling

It gives the union the right, but not the member. This amendment is to give the member the right.

Mr. M. O'Leary

Section 3 (1) (b) gives it.

Mr. Dowling

I do not think it does.

Mr. M. O'Leary

If paragraphs (b) and (c) of section 3 (1) are taken together, in the opinion of the parliamentary draftsman it has the effect of doing what the Deputy seeks in his amendment.

Mr. Dowling

Why will the Minister not accept this amendment, which is a very positive one? It gives the member a right. The reading of those two paragraphs does not give the member that right.

Mr. M. O'Leary

I have been reasonable with the Deputy in dealing with any amendment where there was a positive deficiency in the Bill. He should be reasonable in this matter, when we are assured that the Bill already contains what he seeks to add to it. The Deputy will forgive me if I stick to the text of the Bill as it is.

Mr. Dowling

Let us assume a man is an out-worker and is moving around the coast, as the people employed in the Irish Lights service do. They go from one station to another. Despite the best efforts of the executive to contact such a man, it might be impossible to get him. That man might know his own movements within a week but the executive will not know them. Such a man should be able to say that he wishes to avail of a postal vote because he will be at Tory island, Rathlin island or some other outpost at the time the voting is to take place. His voting paper would then arrive. The onus would be on the particular member to make it known that he wants to avail of the postal vote.

Mr. M. O'Leary

In the case mentioned by the Deputy the member would have a fair opportunity of voting under the Bill. Under this legislation, he would have a case against the union in the instances the Deputy cites if he could not vote.

Mr. Dowling

If the man is away he will have to indicate if he wishes to obtain a postal vote.

Mr. M. O'Leary

I am pretty satisfied that, under section 3 (1) paragraphs (b) and (c), the member of the union must be given the right to vote and that this includes postal voting. In fact he would have a case against his union in the instances mentioned by the Deputy.

Mr. Dowling

For the purpose of the record, does the Minister say if a person applies for a postal vote he will get it?

Mr. M. O'Leary

I am saying it is provided for under the legislation. I am saying that if he finds he cannot attend the actual voting and applies for a postal vote, he will get it under the legislation.

Mr. Dowling

It is on the record.

Amendment, by leave, withdrawn.

Mr. M. O'Leary

I move amendment No. 4:

In page 3, to delete lines 31 to 33 and substitute the following:

"(e) not less than seven days before voting on the resolution begins, the union shall cause to be published in at least one daily newspaper published in the State notice (in such form as may be prescribed by regulations made by the Minister for Industry and Commerce under section 12) of the holding of the vote.".

During the Committee Stage debate on the Bill the following amendment was moved by Deputy Dowling and was accepted by me:

In page 3, subsection (1), between lines 22 and 23, to insert a new paragraph as follows:

"(e) not less than seven days before voting on the resolution begins, the union shall cause to be published in the daily morning newspapers notice of the holding of the vote."

The affect of this amendment would be to require a trade union to publish in the daily newspapers notice of the holding of a ballot on a resolution approving an instrument of amendment or transfer. We discussed this with the Parliamentary Draftsman and he has suggested that Deputy Dowling's amendment should be replaced by that set out in this amendment here. This revised amendment does not differ in substance from that of Deputy Dowling and the changes contained in it are mainly designed to ensure that the notice of the holding of the vote may be published in a daily newspaper published in the State. This is very important. It also ensures that the notice will be in a form which will be prescribed by the Minister for Industry and Commerce in regulations to be made under section 12 of the Bill. In this way it will be possible to ensure that the notice will contain sufficient information about the holding of a vote on an amalgamation or transfer. I think this meets what the Deputy sought.

Mr. Dowling

There is one matter here. The amendment states "that the union shall cause to be published in at least one daily newspaper". Is the Minister satisfied that one daily newspaper is enough? If it were published in the Cork Examiner is the Minister satisfied that a trade unionist in Ballyfermot would be in a position to see it?

Mr. M. O'Leary

This expression "in a daily newspaper published in the State" follows on the 1971 Trade Union Act. I think there was a danger in the Deputy's amendment that it would not be a newspaper published in the state. In fact, you might find a regulation published in the Wigan Impartial Reporter or something like that.

Mr. Moore

If you adhere to that you are debarring, say, the Belfast Newsletter from having an advertisement inserted. The union could have branches in the North.

Mr. M. O'Leary

For the purposes of fulfilling the laws passed by this House it would have to be within the state.

Mr. Moore

You could have an amalgamation of a northern union and one down here. I can see it would be covered then from the northern side, but I think we should try to elaborate a little more, even as a gesture.

Mr. M. O'Leary

Deputies are aware that under the Bill people must be given full notice. I accept that the Deputy's amendment about the advertisements is a helpful addition but that is not to suggest that the advertisement is the only notification to people; there are other provisions in the Bill in that regard. I accept it is an extra insurance but not an extraordinarily important insurance when you consider that the amalgamation and instruments of transfer process will have been going on in some places for a year, a year and a half or two years and that there will have to be full advance information to all concerned.

Mr. Dowling

If the union is a very small one, one or two people could be the deciding factor, if they are outside workers, commercial travellers or any other group that are away from home.

Mr. M. O'Leary

You could suggest they might be illiterate also.

Amendment agreed to.

Mr. Dowling

I move amendment No. 5:

In page 8, between lines 18 and 19, to insert the following subparagraph.

"(2) Where the Registrar is of opinion that a complaint is not frivolous or vexatious, the complainant shall be exempted from the payment of expenses or costs under subparagraphs 1 (a) or 1 (f) of this paragraph."

We dealt at great length with this on Committee Stage. If a union member is entitled to pursue a claim which he believes is a valid one, even if the court decides against him, that person should not have to pay the union's costs. This would deter people from pursuing a valid claim. A person should not be denied his rights because of a penal clause such as we have here. To quote from the Schedule, on a complaint made under section 9 the registrar may:

(e) order the whole or any part of the expenses of hearing the complaint, as certified by him, to be paid either out of the funds of the trade union or by the complainant; and

(f) order the trade union to pay to the complainant out of the funds of the union, or the complainant to pay to the union, either a specified sum in respect of the costs incurred by the complainant or the union (as the case may be) or the taxed amount of those costs.

I can understand the Minister wanting to safeguard against frivolous complaints, but the bulk of complaints will be responsible ones, and the registrar would be able to decide which complaints were frivolous and which were not. I would ask the Minister to ensure that people who feel they have a legitimate case can pursue their claims without the threat, if the cause is lost technically or on a marginal basis, of having to foot the Bill. Under the Redundancy Acts if a person pursues a legitimate claim, the costs are paid out of the redundancy fund. In this case he has to dip into his own pocket in pursuance of a just and valid claim.

Mr. M. O'Leary

Paragraph 1 (e) provides that the registrar may order the complainant or the trade union to pay the costs of the hearing of an appeal, and paragraph 1 (f) provides that he may order either the trade union to pay to the complainant his costs or the complainant to pay to the trade union concerned the expenses incurred by the union. The effect of Deputy Dowling's amendment would be to provide that the registrar may exempt the complainant from paying any expenses incurred by him under paragraph 1 (e) or 1 (f) provided the registrar is satisfied that the complaint is well founded.

The Bill as it stands would enable the registrar to meet the point raised. He has complete discretion in the matter of the awarding of costs. Deputy Dowling's amendment would seek to remove that discretion.

Deputy Dowling made the point on Committee Stage that paragraphs 1 (e) and 1 (f) would mean that members of trade unions would be afraid to appeal to the registrar as they might face a substantial bill for costs awarded against them. The reason I would urge Deputy Dowling to reconsider this amendment is that I believe it would be inappropriate here. It would be unthinkable that the registrar, as we said earlier in another part of this Bill, a barrister of at least ten years' standing, would award costs against a person who lodged a genuine complaint.

In addition, the registrar when hearing a complaint, since he has this discretion I referred to, enjoys a position somewhat similar to that of a judge, and it would not be appropriate to interfere with his discretion in the matter of the award of costs. In fact, the guides laid down here and the occupation and standing of the person involved in the hearing ensure that costs will be awarded where justice requires them to be so awarded. In other words, the provision which Deputy Dowling seeks to have added to the legislation is there already in substance in the Bill, with the one exception that the registrar has discretion in the legislation as we have it here. Obviously discretion must be exercised in the direction of a person pursuing a genuine complaint. I would ask Deputy Dowling to bear that in mind. I am not rejecting his amendment simply because I am too attached to the existing sections and subsections. I have already given evidence of being able to accept amendments from Deputy Dowling and I trust I shall continue to do that when desirable but in this case there is really no valid reason for accepting this amendment. I can understand the Deputy being attached to his amendment but I have considered the amendment diligently and I can see no grounds for the fears he has expressed about the complainant being discriminated against by the registrar unless this amendment is accepted.

Mr. Moore

The Minister would not ask a man appearing in the Labour Court to pay expenses.

Mr. M. O'Leary

The problem here is to ensure that justice is done and that justice is seen to be done. The man with the genuine complaint is protected. Deputies will appreciate that in this area we do not wish to see the interests of perhaps a few thousand people held up because of legislation giving to a vexatious complainant the chance of holding up the entire desirable development. There are no grounds for any fear than any individual with a genuine complaint will be discriminated against. We certainly do not want to write into legislation that any and every individual will, with complete assurance on the most trivial objections, be subsidised out of public funds for holding up desirable developments. I believe that opinion is also the opinion of many of those concerned in this area.

Mr. Dowling

This is a question of a trade union and a member of that trade union. Where does the cost come in? Surely the matter must be pursued to a conclusion. If the Minister provided that the complainant in the case of vexatious complaints would have to bear the costs we would accept that. That would be fair enough but why should a person have to pay the trade union expenses? This is a matter between the trade union and a member who believes he has a legitimate complaint and has the right to pursue that complaint in accordance with the provisions of this Bill. His trade union can apparently claim expenses against him although he believes he has a legitimate complaint and although he believes he is right.

Mr. M. O'Leary

There are the costs of witnesses and there is the question of what the High Court would regard as frivolous or vexatious.

Mr. Dowling

This would be a question of dealing with the registrar too.

Mr. M. O'Leary

All the necessary safeguards have been provided and because of those safeguards and guarantees, plus the discretionary powers of the registrar, it is unnecessary to incorporate this amendment. Indeed, it might work in the opposite direction to that intended by the Deputy.

Mr. Dowling

Can the Minister say if there is to his knowledge any case where a man makes a complaint against his union and has to pay the union costs?

Mr. M. O'Leary

Obviously that would be the case if it came before the courts and the courts decided there were no grounds for the complaint.

An Ceann Comhairle

The Chair appreciates the exchange of views but we are attempting to treat the debate on this amendment as if we were still on Committee Stage. I must point out to Deputies that we are on Report Stage and Deputies may speak only once on an amendment. The mover has, of course, the right of reply.

Mr. Dowling

I will withdraw this amendment the Minister having indicated that, if the complaint is legitimate, no costs will be involved by the complainant.

Amendment, by leave withdrawn.

Mr. Dowling

I move amendment No. 6:

In page 8 between lines 28 and 29, to insert the following subparagraph:

"(2) Where the Registrar is of opinion that a complaint is not frivolous or vexatious, the complainaint shall be exempted from the provisions of the preceding subparagraph of this paragraph."

Clause 2 of the Schedule provides:

A person who, on the application of any person, is required to attend before the Registrar as a witness in proceedings on a complaint under section 9 shall be entitled to be paid by the person on whose application he is so required—

(a) such sum in respect of loss of time and travelling expenses as he would be entitled to on being served with a summons to attend as a witness in the High Court, and

(b) if he duly attends, a sum equal to any further allowances to which he would be entitled if attending as a witness in proceedings in the High Court.

Will this debar a complainant from calling a brother trade unionist to substantiate his claim? Not alone will the complainant have to pay the costs of the trade union but he will also have to pay the costs of any witnesses he calls. This is quite wrong. Surely it is the job of the registrar to listen to complaints and one should not be victimised by being called on to pay compensation in respect of loss of time and travelling expenses. Surely that would be most unreasonable. The Minister has put it on record that in certain circumstances a person pursuing a legitimate claim will not have to pay, but this is a completely different situation. The calling of witnesses may be all-important in the pursuance of a legitimate complaint and the fact that one is not on his own and has the support of brother trade unionists can boost a complainant's morale. The Minister must surely accept this amendment as a reasonable amendment. It refers to legitimate complaints rather than vexatious or frivolous complaints. If the Minister does not accept this amendment I am afraid we will have to differ from him in the division lobby.

Mr. M. O'Leary

The point here is that if the complainant had a legitimate case there would have to be payment for expenses involved in calling witnesses. We have not got any kind of free legal system here and, therefore, Deputy Dowling's amendment is not quite of a piece with the rest of the legislation. In the normal course of a case of this sort going to court, witnesses' expenses would have to be paid. I would ask Deputy Dowling to understand that this amendment is unnecessary, as I see it. If a person with a genuine case calls a witness, the registrar can compensate him for calling the witness under 1 (f).

Mr. Moore

The registrar could subpoena a witness to appear on the application of a third party. He must go, I presume if the registrar has the power to make him attend. That is rough on him.

Mr. M. O'Leary

In that case the registrar would have to pay. Under 1 (f) the registrar has power to compensate the complainant for the calling of witnesses.

Mr. Moore

He could refuse to call him. Supposing I applied to the registrar to call Mr. X and he would not call him?

Mr. M. O'Leary

We are back to the discretionary power of the registrar, who has a role to play in dispensing justice. Where there is a genuine case, obviously the registrar will be as well aware of it as the complainant, and he will be in as good a position as the complainant to judge the importance of calling the witness.

Mr. Dowling

Supposing an individual brought a case to the Labour Court, would he have to pay expenses?

Mr. M. O'Leary

No, he would not.

Mr. Dowling

The person would be able to proceed with a legitimate claim to Labour Court level. Under this if he goes to the registrar he can be victimised and have to pay the witnesses' expenses as well as his own. The registrar is there to do a job.

An Ceann Comhairle

The Chair is concerned that we are again reverting to Committee Stage procedure. The Minister may answer the question and I will allow Deputy Dowling to reply.

Mr. M. O'Leary

I apologise if Deputy Dowling and I appear to be infringing the rules because of Deputy Dowling's great expertise in this area and his anxiety to do justice to his amendment and because of my anxiety to point out to Deputy Dowling that in the legislation we have already met the substance of his amendment.

There are two systems here. The Labour Court has a slightly different system of arranging things from that of a court proper. In a sense the registrar is the entry to the court proper. We are already, if not at the portals of the court proper, in the precincts of the court proper when we are in the presence of the registrar. In a genuine case cited the registrar will have no hesitation in seeing that the complainant is not at a loss. There is no doubt about that. Under 1 (f) if a person is in pursuit of a genuine case, payment will have to be made for the calling of witnesses. Therefore Deputy Dowling's worries do not apply. The Bill will ensure that no complainant with a genuine case will be at a financial loss.

An Ceann Comhairle

Deputy Dowling to reply to the debate on amendment No. 6.

Mr. Dowling

If a complaint is made to the Labour Court and there is a sitting of the Labour Court as a result of that complaint, the person who pursues the complaint is not liable for any expenses, witnesses or otherwise. If a person makes a complaint under the Redundancy Act certain courses are open to him and he is not liable for any expenses. In this case if a person pursues what he believes to be a legitimate claim and if he calls a witness, he is under the threat of having to pay that witness's expenses in addition to the other expenses he might have to incur. The registrar hearing the case will be able to enforce any type of penal clause such as we have here.

I hope the Minister will accept this amendment. It is necessary and desirable that a person should be able to call his fellow workers as witnesses in what he considers to be a legitimate claim. It is unreasonable to have embodied in the legislation a section which could or could not be enforced at the whim of the registrar. I accept that he will be a very responsible person and that he will carry out his duties in accordance with his instructions, but he is a human being and he may or may not decide on the toss of a coin whether he will impose a penalty, taking into consideration the attitude of the person. This may be an aggressive attitude because he believes in the claim he is pursuing and he believes he has been hoodwinked by his union. This would apply mainly to small unions rather than to big ones.

It is desirable that this aspect should be eliminated from the legislation so that witnesses could be called freely. If it was a frivolous complaint the registrar would not allow a large-scale hearing to develop and there would be no necessity to call witnesses or bring forward union officials to answer charges. We should have this protection for a person pursuing a legitimate claim. The Minister does not want frivolous claims. He wants to ensure that the legislation in no way impedes mergers. We are of the same opinion, but in the last analysis justice must be done.

Everybody should have a reasonable opportunity. If people are given rights under the Bill they should be able to pursue them to the end without fear of incurring financial obligations. We are all with the Minister on the question of frivolous or vexatious claims. Nobody wants to see a person trying to impede an amalgamation or a merger. The registrar has the necessary mechanism to deal with the person who has not got a legitimate claim. It would have gone through a rather lengthy process before one would have to call witnesses and bring in union officials to deal with the matter in a lengthy and detailed way. If that was necessary there is no reason why the registrar should say that the decision is against a person and that that person will have to pay not alone his own costs, the costs of the trade union and the witnesses involved. That is unreasonable. It is a clause that would stop people from pursuing what they regard as a legitimate claim.

I do not mean to imply that the Minister has deliberately inserted this into the Bill to ensure that people would be impeded, but it has this meaning. I ask the Minister to be reasonable and accept this amendment so that one can freely call witnesses in their own defence of the claim they make. That is not unreasonable. There are expenses which have to be met otherwise and the onus would be on the individual to meet them, but to specify in the Act that he must pay would impede people from pursuing a legitimate claim.

A claim may be 99 per cent correct but, because there is that slight doubt, the person pursuing the claim is liable to all this expense. That is grossly unfair and it is an injustice to the trade unionist. It is a penal clause that will prevent people from pursuing their legitimate claims.

Amendment put and declared lost.

Bill, as amended, received for final consideration.

Agreed to take Fifth Stage today.