——of workers, regardless of their category of employment. It, therefore, establishes no more, in truth, than the principle of equal civil rights. It is quite unthinkable that the old concept of the master and the servant should prevail and an outdated definition of a workman as being somebody who works manually while the professional classes are in a different category is surely something that we should have dispensed with long ago. Apparently we have not done so and the Bill before us is therefore, necessary.
This immunity sought by Professor Wedderburn was granted in section 4 (1) of the 1906 Act. The definition in the British courts of the problematic phrase did not cause a problem. The Irish courts have defined the Act in a very narrow and discriminatory manner and quite differently from the English courts. By their so doing, many Irish unions have been deprived of the legislation protection which the 1906 Act was designed to grant them. It is arguable to what extent this has had a detrimental effect on their ability to work for and on behalf of their members. It certainly has not helped them and in a number of cases has caused extensive financial loss.
The Irish courts held, now hold and presumably will hold until this Bill is law, that the phrase "trade and industry" excludes workers in services and nonprofit making trades, for example, dock workers in a non-commercial public port authority, as in the B & I Steampacket, Limited versus Branigan 1956 case, or barmen in a Dublin workingman's club as, for example, the Smith v Beirne 1955 case.
It is interesting to note that in Britain the commonsense definition of trade and industry concluded that trade is not only in the dictionary sense but in the legal usage a term of the widest scope, that it was connected originally with the word "tread", an old English expression, and indicates a way of life or an occupation. In ordinary usage, it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may also mean a skilled craft. A professional worker would not ordinarily be called a tradesman, but the word trade is used in the widest application in the appellation of trade unions. Professions, for example, have their trade unions.
It is a little extraordinary that we should have to worry about this matter at this time. It has been embarrassing not just to the trade unions but to the country. This question has been raised in international labour fora and concluded upon in a manner detrimental to our country's image. In 1979 ILO Conference Report, for example, indicates that the Irish Government are held to be in breach of ILO Convention No. 87. On a number of occasions this type of allegation has been made by international bodies concerned with labour matters, and made with foundation. It is regrettable that the many and successive attempts to have this Act amended were not more expeditiously dealt with and were not successful — and I include in that those of all Governments. There were a number of attempts. In 1966, a joint working party on industrial relations and trade union law was established, with representatives from Congress and the Department of Labour. The text of a trade union Bill in 1960 was introduced, but lapsed at the time with the dissolution of the Dáil. Another effort was made in July 1975 and, again, in May 1977 it was the subject of discussion between the Minister for Congress and so on. It has a very unusual history, in a sense, for a measure so slight. Suffice it to say that there is a strong argument for this law being amended.
If a conclusion is to be arrived at about how tortuous the process has been I would ask whether there is a better way of dealing with questions of a technical or definition nature rather than occupying the time of the national Parliament, not because the time is not available but because of the linear process of Parliament it is impossible to deal with matters when they should be dealt with. Day after day we deal with issues which are years too late. It would not matter very much if we had a committee of the House sitting with commonsense understanding and clear parameters and dealing with the area of the definition of Bills such as this one. It could make simple recommendations and put them before the Dáil as a matter of form. We might get our business done more promptly.
I should like to deal with some aspects of the legislation which are the heart of industrial relations. The Minister in his speech acknowledged that it is frequently asserted that the law plays a relatively minor role in our system of collective bargaining. I subscribe to the view that in this area the less law the better, if there is some other way of ordering industrial relations and labour law affairs. We have attempted in a number of instances to enforce legislation and have failed miserably. If there is widespread support for a cause it is reasonable to assume that there is justice in that cause. If there is justice in it, the expediency of trying to enforce an unenforceable law against groups of workers is ineffective and brings the whole labour law process into disrepute. The more we try to bind large numbers of people by statute the more we misread the essential challenge of industrial relations and misunderstand its very nature.
I was struck by comments made by Professor Raymond G. Maguire of UCD in a address to the Irish regional conference at the Institute of Personnel Management in Galway recently. The professor is an expert in this field and he reiterated that legal changes in this field will not change industrial relations. He said:
Despite the recent and occasionally clamorous demands for a basic reform of the laws regulating labour/management relations in Ireland, it is unlikely that far reaching changes in the present legislative scheme of labour law will be attempted during the present decade and, if attempted, it is doubtful they will prove effective.
I believe he is correct. These demands are usually quite strident and if the Minister listened to them this Bill would have included measures which would have been orchestrated by strong groups in our society with the primary concern of extracting the maximum from groups of workers without necessarily paying them the full respect to which they are entitled. Any Government should be wary of introducing legislation in this area unless it is clear that the legislation will be effective. Any such clarity should be arrived at only after consultation with all sides.
The reason why industrial relations is not ideally suited to mass management by law is because we deal with the symptom rather than the cause. We are trying to order the affairs of unions and workers and in a sense this Bill is about that. It is really dealing with a symptom of a more fundamental problem. It is natural for man to work. Our society by failing to give work with dignity and meaning is undermining that.
Although the economic and social crisis and international recession in which we find ourselves may confront us with enormous challenges, it also presents an opportunity to us. We can break away more easily from old modes and introduce measures which can help us. The resolving effect of crisis which to some extent sunders culture allows us to tackle the real problem more easily. It encourages people to face up to the challenge of the moment rather than having a society which is extremely conservative.
We have an opportunity to deal with industrial relations and labour law. I concur with the Minister in appealing to all those engaged in this area to come to the table and be involved in discussions even if some of the parties involved are unhappy about the response they got prior to this regarding measures they may have proposed to the Minister. There is no room in this area for opting out. If a Minister seeks the help of unions, employers and workers he is entitled to have that participation and respect. The initial, understandable perhaps, anxiety or pique which caused people to draw back from the process of consultation should be reviewed and a more considered and constructive response in line with the tradition of the various bodies in this area should be forthcoming. The job is to get down to creating the best structures, law and society. If anyone opts out of that we will all suffer.
We need real leadership and imagination in this area. I appeal to anyone engaged in industrial relations — unions and employers — to give of their best, become involved and accept the Minister's invitation to discussion. The anxiety expressed by the employer representatives bodies is a measure of frustration not at this Bill or any specific measure but at a growing feeling that there is a drift in this area. The generating pattern of evidence in relation to labour law stability and industrial relations stability is something about which we should be concerned. There is evidence to show that. The statistical evidence in relation to the number of strikes and man days lost is not encouraging. Relative to our European partners with whom we must do business, it should be remembered that if we do not get our house in order the Irish worker will be the victim. When I talk about a house in order I am not talking about restrictions on trade unions or about the workers only wearing the cap. I maintain that there is a very strong responsibility on people in industry and commerce to give leadership based on sound principles far more comprehensive than the principle of returning the most favourable balance sheet which, unfortunately, is very often the primary or even exclusive concern of some of these parties. It is clear to me that a comprehensive industrial relations framework of policy is necessary. Its greatest strength will lie in the moral approval of large masses of people outside and it will probably be most effective if it is not enforced by legislation.
It is extraordinary that the mechanisms — the Labour Court, the commission, the conciliatory machinery — all of these mechanisms for trying to order industrial relations, are rarely if ever subject to review, that they are in many cases understaffed, that they have no framework within which to act, that they act on an ad hoc basis; that there is no regular and constant review or monitoring of their operations with a view to bringing about improvements. It seems to me, therefore, that if we are serious about encouraging an environment in which people will give of their very best, we should have the machinery to do that and that machinery should be primarily aimed at preventive action. The overwhelming burden on our industrial relations machinery is in trying to dissipate strike action already taken, trying to arbitrate in disputes, rather than getting involved in the preemptive area of trying to ensure that disputes do not occur initially or are tackled at a very early stage. Interestingly enough, the very important principle of justice and equity is often damaged by precisely this mechanism, because an attempt to settle a dispute in, for example, the Labour Court, may often be directed towards achieving a settlement which settlement can be very different indeed from what is just and right. A settlement can be based on expediency, on superior strength on one side or the other, can be based on a situation where workers simply cannot sustain action financially because they are not getting paid, although they may have a just cause. The primary concern should be to resolve disputes before they become critical and cause great damage to the economy.
In that area of activity there is a lot of danger and some cause for dissatisfaction because we are not dealing with what we should be dealing with, that is, the problem of getting involved early and creating a climate where strikes do not arise, where there is spontaneous machinery which allows for a level-headed, rational resolution of disputes, and the key will be the integrity with which that machinery is seen by both parties. Other countries have done this. There is no reason why we cannot do it. The job really is to devise a comprehensive industrial relations policy. If we think about it, we are engaged this morning in tidying up a definition in a Bill which was introduced in 1906. That is the national parliament's contribution to industrial relations legislation in this year of 1982.
The areas we need to be dealing with are too great to go into but there are important aspects that we should be looking at, for instance, changing the attitudes of workers and employers; the cynicism towards the establishment, including trade unions; the growing cynicism, which to some extent we encourage and engender, towards the political system in connection with key bargains; the sacrifices involved in strike action; workers' view of management competence; the growing industrial technological revolution; union organisation, lack of managerial attention to industrial relations — in some cases it is absolutely foreign to managers to concern themselves, except in fire brigade action—the absence of employer solidarity; the multiplicity and efficiency of unions — we all agree that we have to help the unions to be better unions — the lack of machinery for dismissal. There is a very wrongful situation in relation to approving of effort put in by workers and disapproving of the contrary and, indeed, to being able to impose sanctions on workers where appropriate. The range of issues is daunting and a comprehensive approach is essential rather than the bitty approach we are taking this morning.
In an article in Administration, Volume 29, No. 3, Charles McCarthy said, and I quote:
If, as we believe, those engaged in industrial relations are disposed to good order, there is clearly room for extending the procedures parties should adhere to in the conduct of claims and the response to them.
He goes on to express grave concern with the nature of disputes and talks about the need for new machinery for overhaul and review. A man so eminent in this area, whose request is echoed by many of us, should be listened to. There is cause for listening to him. In the submission to the Commission on Industrial Relations by the Department of Industrial Relations in UCD you find in tables in relation to strikes, total days lost, workers involved, average days lost per worker. It is not a particularly bad picture. In some cases it is not as bad as it is said to be. For example, I do not join in the extreme anxiety, almost hysteria, in relation to unofficial strikes. Having tried to examine the situation I find that the situation in relation to unofficial strikes, while serious and something we have to examine, is not quite as grave as it might appear. Indeed, there is a difficulty about defining what an unofficial strike is. By and large the greater problem is in relation to the relative degeneration of the picture here compared to other countries over the last number of decades. We are steadily getting worse relatively speaking. The number of strikes, for example, in 1970 to 1978 was a yearly average of 159 whereas two decades earlier the number was half that. That is the kind of barometer we are talking about. In other countries they are ordering their affairs more positively and more constructively. We must be very watchful of that and try to act in a comprehensive way.
The fundamental nature of the real challenge has not been fully understood either by the Government or by many of the unions. In some cases trade unions are still fighting battles that they won long ago. Pay and conditions has been the primary concern and is still the primary concern of unions, and quite rightly, but I would suggest to them that in a sense some of the attitudes that some unions adopt are outdated and outmoded. I am talking here to union leadership which I distinguish from union rank and file membership. Let us stand back from some of the traditional developments in this area and consider some of the things that have caused concern. For example, demarcation. Is there anything more likely to fly in the face of personal growth and development, development of skills, for example, than the idea of demarcation? It is quite common in our society for a driver to come out with three or four workers in the back of a van. He walks up and down all day while the three or four workers do a specific job, because of demarcation. That is waste of manpower, waste of humankind.
Secondly, look at the damage to the work ethic in our extremely consumer-orientated society. The happy, successful man is the man who has to do the least work, who has the most leisure time, who drives one of those fast cars which we see on television which invariably are driven through the raging surf. I do not know why people have to drive cars in the sea, but they do it in all the best advertisements there. The idea of work as having dignity and being natural to man is being undermined.
Thirdly, look at taxation policy which penalises work. The longer and harder you work the more tax you pay. I know that is because you get more income, but there should be a tapering point where one would be encouraged to work longer and harder and more productively. Consider the recent suggestion of banning imports. This mechanism was employed in the sixties by a previous government and helped us towards economic strength when the country was in serious difficulty, but the principles of Sinn Féin on which this country stands and to which our party subscribe are anathema to the idea of banning imports in order to protect jobs unless, as a last resort, in certain key areas. That is the lazy man's way out. Better challenges lie in getting the best out of all of us, worker and employer. I say to the trade unions and the employers that these are some of the areas of concern. We may be getting our priorities wrong. The loud demands for reform as, for example, in this Bill should be accompanied by other requests and thought processes and much more fundamental questioning. In our society to work is in many cases to be seen to be somewhat foolish if you can avoid it, and some would maintain that the harder you work the more foolish you are. That is unfortunate, but it is clear that, at present, the country needs workers at all levels. I am talking about people at board room level also, many of whom invest little commitment and expect the man on the shop floor to punch in and punch out like an automation.
It is incredible that we still foster the idea that the trade unions should fight the company or the nation. It is astonishing that the employers see themselves as being apart from those they employ when they are all in the one organisation. They will fight them, and this process is like eating one's own entrails. This problem has been tackled in other countries. For example, in Japan it would be unthinkable for workers in the same community to fight each other or try to down each other, hence they have succeeded where other countries have not. What is good for the country is good for you and me, for the ordinary worker and the boss. We should have unity in facing common problems rather than some kind of mutual adversity. Therefore, instead of introducing this almost irrelevant legislation, our job should be to create the framework in which that kind of harmonious, mutually constructive approach to getting the best from all of our resources is possible.
At present, unfortunately, the role of our industrial relations machinery is primarily concerned with arbitration and negotiation, and that is not necessarily in the best interests of anyone. The whole attitude clearly is detrimental to all of us. We need each other and we should stress that message at all times. This attitude may be a stereotype, and there have been changes in recent years. There is some enlightenment now in the management area in terms of dealing with industrial relations problems, nevertheless many workers perceive that they are regarded as drones by those who employ them, who see them as a resource which is expendable at the earliest opportunity, In a work entitled Understanding Human Rights edited by Alan D. Falconer in an article called Human Rights and Industry David E. Jenkins quotes from material prepared for a British Council of Churches study on employment a statement by a sometime shop steward in the motor industry which sums up much of the disaffection and alienation in this area of labour relations. Mr. Jenkins says:
"The worker is controlled by forces over which he has little or no influence — by the limits of his education and qualification; his environment; the siting of factories and of schools; ‘town planning'; problems of housing accommodation; economic and social pressures... And who cares?... He has never seen his boss. The managing director is as far away and mythical a figure as the Mona Lisa or Whistler's Mother; the shareholder a mere cipher which everyone ignores. He has lost the relationship of shared labour, the interest and incentive of even minor achievement... He can no longer see himself as a human part, however lonely, of the total enterprise that is British Leyland or Courtaulds or Joseph Lucas or whoever it might be. His days are recorded on a time band, his efforts on a mechanical counter, his rewards on a punched card untouched by hand. His thoughts are not recorded at all, since it is assumed that he doesn't have any".
Perhaps that is extreme, but it gives a flavour of the perception of many workers today. Therefore, we should place as a priority in this House now — and I extend to the Minister our willingness to be involved in any possible constructive approach in this area — the question of a positive and comprehensive labour relations policy, not waiting to try to discuss or debate it in the context of a strike in a key area where emotion rules, but dealing with it preferably over a period of time in an unemotive, non-divisive atmosphere. The only way the House will tackle the fundamental problems in this area is by some attempt at joint constructive leadership which is so sadly lacking in the extremely divisive, destructive, cynical debates we get in this Chamber. I do not wish to minimise the difference between parties or to pretend that disagreements will not occur, but there should be a better way of doing the business of this country than we have witnessed over the last months. If we do not listen to that message — which is not mine — which is screamed at us from the mouths of young people particularly, then on our heads be it. That message should go to the trade unions also.
The findings of a survey carried out in 1977 and reported in Business and Finance in relation to Ireland's attitude to trade unions made some very unfavourable comments about the perception of the average man in the street of trade union power. Whether they are right or wrong is not important. The survey was carried out five years ago and I have no doubt that if it were taken now the figures would be more telling. Most people perceived then that unions had too much power in general and that their effects on society were not necessarily the best. I do not subscribe to that as a statement of fact, but I recognise a growing concern about union power which unfortunately is often misplaced. The trade unions must be helped by us to deal with this and to try to give leadership again to their members and to represent them in a way which gets the best from those members, rather than being forced into positions by unofficial action already taken or committed. The framework I am talking about is one within which employers and employees can relate honestly. This Bill has the whiff of Disraeli's two nations and the idea of the professional classes and the drones which is long outdated. We have to get away from that and see people as being not the same but equal in terms of their entitlement to respect and to enjoy the dignity of being a human being.
I was struck by the manner in which a company called The Scott Bader Company Limited of Great Britain managed their affairs. If the Minister has time, I would be grateful if he would have a look at how they achieved economic success and social success by incorporating new principles of shared management, real participation in decision making and real participation in profit making and profit sharing. That summary is outlined in Professor Schumacher's work "Small is Beautiful" which is a classic work in that area. The principles adopted by that company were revolutionary. I do not expect that they will take root over night, but they seem to work.
In the context of the debate this morning, we could be discussing much more pressing issues. I do not intend to go in detail into the problem of unemployment, but it is a daunting problem and will need the use of the best of all our resources from all sides and from all sectors of the community, and they should be forthcoming willingly to try to give leadership, which is the real challenge at present. That said, there will be a need for legislation. There will be a need for a legislative framework within which this chemistry can take place.
There will be a need for hard decisions to be taken, and that is a fundamental part of giving leadership. The truth is that we may have been and may still be misleading people by pretending that there are soft options and that quantitatively speaking, the availability of work is infinite when we know it is not. We may be faced with dealing with the problem, at least in part, by talking about work sharing, trying to get our economy back on the rails by dealing with questions of restraint in costs, wages, profits, proper discipline in our consumption patterns, less licence, perhaps, but more freedom.
If and when those hard decisions come to be made — and I say this to the Minister with great respect and with as much sincerity as I can possibly muster — if it is possible for this Minister or any other Minister to achieve some kind of outline consensus in this House, or outside it, with the relevant party spokesman, it will make it a lot easier for us to support the Government in dealing with these challenges if we have an opportunity to make a submission initially. To drop coldly into the Dáil Chamber a Bill in respect of which no one has had an opportunity to contribute except in the most peripheral way and which is designed exclusively by the Government of the day who, on occasion, seem to resent the suggestion that anyone should make an amendment of any kind, is to invite polarisation of political views unnecessarily with the result, unfortunately, that some of us will feel constrained inevitably to invent areas of difference where none exist. Some kind of consultative structures within the parliamentary process could help to minimise differences and to ensure that we do not create them where no true differences exist.
I suggest that our structures should be overhauled, and I should like to make one or two brief suggestions. We need more research. I am struck by the fact that there is an increasing tendency to accept as gospel statements made by politicians, trade union leaders and employer leaders which are not backed up by adequate research and which, in some cases, do not stand up when you analyse them. The areas of dispute prevention, dispute settlement machinery, workplace collective bargaining, grievance and disciplinary procedures, training and education needs, employer and worker organisations — how good are they; how effective are they? — the unofficial strike referred to earlier on, all need some framework within which we can analyse and research the problems and discover exactly what the lessons to be learned are, rather than adopting attitudes which may cause temporary and in some cases extremely serious inconvenience to the public and to ourselves as individuals. These matters are often dealt with emotionally rather than on a clear rational basis.
What about the possibility of having an industrial relations council? I am struck by the success of the ESB in this respect. What about having an internal arbitration mechanism which depends for its success on the respect of all? That is the key. We are wasting time legislating for industrial relations if the law will not be respected. No Government could even dream of shepherding thousands of workers, or hundreds of thousands of workers if we are to involve all trade union members, into a constraint placed upon them by a law we introduce here. There has to be respect. The best types of industrial relations are those which are spontaneous and automatic and have no threatening framework of legislation.
What about the expansion and decentralisation of the Labour Court? Why should not small disputes, particularly at the incipient stage, or disputes which may have a serious consequence but will not be dealt with for a long time, or will not be dealt with finally by the Labour Court until it is too late, be dealt with by a two-tiered local court? We would not even need a building if we had some official with court responsibility or a judicial function who could arbitrate at the beginning when people have not got ingrained attitudes and have not dug themselves in, when they have not adopted postures, when unions have not carried the flag into the streets and feel obliged to see it through until they exact some gain.
What about the extension of the conciliation service? There are many areas. The aforementioned are referred to in a submission by the Department of Industrial Relations to the Commission on Industrial Relations which had many positive proposals in it. Many people from all sides made suggestions of a constructive nature. We have no mechanism by which they could be processed. The Department of Labour have their hands full. It would be unreasonable to expect them to carry the whole burden or even the major burden because they are concerned primarily with the legislative area which deals with the symptoms rather than the basic problems.
The Trade Disputes Bill, while welcome, is a kind of sad example of how we do things wrongly. It clears up confusion about definitions in an Act 70 years old. Why cannot we create some better system which would allow us to respond more effectively and efficiently and on grounds of commonsense and reason?
Tribute should be paid to Mr. Murphy and his fellow commissioners who have done enormous work. Should we have more Rights Commissioners? Should there be a rights commission structure to which people could refer? Should we have a permanent industrial relations commission to suggest changes to the Government on the lines of the Law Reform Commission, but I would hope more attention would be paid to their recommendations than was paid to the recommendations of that august body who did such good work? Should there be less emphasis on legal regulations and more aid for self-help and development? Would it not be better for us to grant-aid people engaged in this process, rather than having damaging strikes which cost the country millions? Would it not be better if we helped people to create the machinery even if financial aid were necessary, rather than in the absence of that structure having a strike costing multiples of the sum which would have been involved in the first place?
We should have greater emphasis on education and training in the schools. From my own school days or during my teaching days, I cannot recall ever having had any formal dealings with the issue of industrial relations except in the context of the famous civics course which was, to put it mildly, somewhat peripheral to the main concern of passing examinations. There is change in that regard. I contend that a proper attitude to work, a proper attitude to strikes and a proper attitude to other people in our society are as important as knowing the root of a Latin verb. Yet they have not been given that status in our education system. Education and training in the work place and the question of real worker participation also arise.
In an article from the International Labour Review, Volume 113 No. 1, January-February 1976 Johannes Schregle said:
In this wider context workers' participation has a role to play in industrial relations in general, i.e. labour relations are not limited to the confines of the enterprise. In fact in many countries the new trend towards increased workers' participation is not restricted to the enterprise and reflects an overall approach to labour relations in the national economy. The need to co-ordinate shop-floor and enterprise workers' participation with the representation of trade unions on national councils and similar bodies is obvious. In an increasingly complex society many decisions cannot be taken at the enterprise level and must be left to higher authority. In a highly industrialised society such as Japan, for example, the most urgent problems of our times, e.g. inflation and pollution, are considered too big to be effectively tackled at the company level, and this holds true for other countries as well.
The point is that there is real democracy in the work place. Workers are treated not simply as people who have to be consulted but as people whose input is seen as valuable and able to help us to create a better environment and therefore a better country. What is good for Ireland is good for each one of us, down to what is known unfortunately, as the most menial worker. The question of ownership and profit-sharing needs to be looked at again.
On behalf of my party I want to reiterate my pleasure in having been given the opportunity to deal with some of these issues and my approval of this measure as presented, although I regret it was not part of a more comprehensive set of proposals. I wish to show a genuine willingness to work with the Government as well as possible in discussions leading to any new framework within which we can create more respect in the workplace for workers and employers, more productivity, more inducement to work honestly, and a better industrial relations scene and, at the end of the day, a better country for everybody, particularly the young people who unfortunately face a very daunting future.
