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Dáil Éireann debate -
Thursday, 15 Jul 1982

Vol. 337 No. 11

Social Welfare (No.2) Bill, 1982: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".

It is regrettable that this Bill is being presented to the House. It is not what is required to deal with the problems which led to its introduction. The weakness in existing legislation has caused serious industrial problems over a long period, with the result that the companies in question were in danger of permanent closure. The companies' subsequent trading was affected due to this extended closure. Management or workers did not wish to see this situation arising. They were landed in a Catch 22 situation due to existing legislation. This Bill will deal with the immediate problems but I think it will create further problems.

Deputy O'Keeffe mentioned that he would like this Bill to be reviewed after six months. I would like to endorse that because this Bill is rushed and, while it is adequate to deal with the problems for which it was introduced, it could create difficulties which will have detrimental effects on industrialists, employers and workers. If there is a problem in an industry, employers and workers suffer. It is very important that adequate legislation should be introduced which will not just deal with a situation which requires remedial action but will bring about a permanent solution. This Bill will not bring about a permanent solution but will create many problems in the years to come.

I ask the Minister to accept the suggestion from our party spokesman that this should be reviewed. This Bill was promised last February and I do not understand why it is being introduced on the day before the Dáil goes into recess. I do not think it should be rushed through in one day. This type of legislation needs careful scrutiny and must be approached responsibly by all sides of the House. Most people here are very concerned that an objective view should be taken. We want to see legislation which will prevent the type of disturbance which we had in Kilkenny and Waterford recently. It is ironic that the two situations in question, due to section 35 of the Social Welfare Act, 1980, should affect workers in Kilkenny because the majority of workers in Clover Meats live in south Kilkenny and commute to their jobs in Waterford. In Castlecomer, over 100 workers employed in the Comer International Mills have been out of work since 15 March. They have at this stage taken up an entrenched position.

This situation should not have arisen to begin with, and secondly it should have been dealt with long before now. This Bill should not be necessary and we should be concentrating on better industrial relations, or our industrial relations should be strengthened and these disputes should not occur. That is where we should set our sights. It is not always possible to have perfect industrial relations but in smaller firms, particularly where management is very close to the workers, you do not have a great incidence of strikes and the differences that arise can be dealt with on a reasonable, man-to-man basis. This is what we should aim at and we should not clutter ourselves with Bill after Bill trying to plug holes. We should aim at bringing in good legislation, and I put it to the Minister that this is not good legislation, and while it is essential that this matter be dealt with immediately so that the people in Castlecomer will be enabled to resume work and this very valuable factory at Castlecomer which we appreciate very much can reopen its doors and resume normal working after six months, legislation generally in relation to social welfare should be renewed and updated.

It was mentioned here earlier in debate that many anomalies exist under the social welfare code. We all recognise this, and one thing referred to continually which every sane and rational person will agree with is that the incentive to work is being removed. Some people are receiving more on social welfare, whether it be unemployment benefit or disability benefit, than they were earning in their employment. There are also people, as already mentioned, who get more remuneration on a three-day week than in a full five-day week working situation. It is not employers who are complaining about this type of situation; it is the workers, because the workers must pay for the benefits being provided for the people who are so unfortunate as to be on disability or unemployment benefit. People who are working are not prepared to accept that those people on benefit should be better off than they are who are doing a full day's work every day, who are happy to be working, who do not resent people getting good benefit but who resent the fact that such people are better off out of work, and they are demanding that the Minister take action which is long overdue to correct this.

In relation to social welfare generally, the trouble is not all on one side. Many workers find themselves disadvantaged in that for one reason or another, they cannot get their benefit when it is due to them. Delays in decision sections in relation to unemployment benefit claims, delays in processing disability benefit claims, the fact that it is very difficult for a person from the provinces to contact the Department of Social Welfare due to the very bad telephone system in the Department, are all matters which need attention which is long overdue. The disability section of the Department of Social Welfare should be regionalised. This was promised and it should be attended to. Many problems exist for people who are on benefit, and we would all like to see these difficulties dealt with by legislation and by ministerial action.

It is necessary that the Bill go through today so that people whom I represent can get their just rights, but at the same time I have reservations about its implications that any rational person who reads it must have also. The Bill makes provision to set up a tribunal to deal with problems which arise. Difficulties as to whether a dispute is a dispute and whether it was caused by the employer will be referred to the tribunal. I can see difficulties here in that large number of disputes will be referred to this tribunal. I am sure the Minister envisages the tribunal dealing with one or two cases a year, but they will be very busy and I do not think that this is what the Minister set out to achieve. The tribunal will consist of five members—two from the employers, two from the unions and a chairman. I do not think that a tribunal should be set up in this fashion or that we should have a black and white situation of two from the employers and two from the unions taking opposite views in any case put to them. This is what automatically is bound to happen if you state specifically that a certain number of people must represent a certain opinion.

I suggest that the Minister set up this tribunal with independent people. He might ask who is independent and who is not, an employer or an employee. I suggest that, generally speaking, many people can be objective and that such people should be put on this tribunal to give an objective, full decision on any claim that might come before them. Under the present proposal to set up the tribunal it will be virtually the decision of the chairman that will be carried because it will be a two each vote situation in 95 per cent of the cases. It is not fair to this one person who is chairman to ask him to make the decision. Secondly, it is not fair to the employees and the firms who are required to go to this tribunal that their cases should rest on the decision of one person, and this is what we are arriving at in this type of tribunal.

I welcome the Bill in that it will deal immediately with the problems which must be dealt with, but it needs very serious consideration. Again, on the question of local issues I trust that the Minister will be able to assure us that his amendment will enable retrospective payment to be made to the Castlecomer Mills people, because otherwise it will not be possible for them to get back to work or for that good industry to start production again.

I am disappointed that the Minister left the introduction of this Bill to this very late stage with the result that we are now rushing it through. It is ironic that when the Bill was requested on Friday last we were told that it was not available——

(Waterford): It was not available in January last when the Deputy's party had the opportunity of introducing it but were afraid to do so.

——although its contents were made available to a Waterford newspaper during last week. Perhaps the Minister would explain why this should have happened, why the contents of a Bill could not be made available to Members of this House generally but were made available to one Member. While assuring the Minister of my co-operation in regard to the Bill, I am not happy that sufficient thought has been given to it or that the mechanics of the Bill are such as to achieve what the Minister is setting out to achieve. I should like an assurance that the Bill will be reviewed so that any difficulties that may arise may be dealt with in an orderly and sane fashion and not under pressure as is the case now.

I am very concerned at the reports referred to by Deputy Crotty regarding the making available to the public press, to two journalists, by way of one Deputy, the contents of this Bill in advance of its being circulated here.

That is not correct but I shall refer to this in my reply.

I will be waiting anxiously to hear what the Minister has to say on the subject and if his reply is not satisfactory I shall raise the matter with the Committee on Procedure and Privileges, of which I am a member. As the House is aware, publication of the contents of legislation in advance of its being circulated to all Members of the House is a very serious breach of the privilege of the House. However, I shall suspend judgment on the matter until I have heard the Minister's reply.

There are a few points I should like to raise concerning the wording of the Bill. In section 1 there is reference to a situation in which a person who has been adjudicated by a deciding officer not to be qualified for unemployment assistance under section 35 (1) of the Consolidating Act may apply to the tribunal. It would seem to me that that section should also allow access to the tribunal of an employer of a person who has been adjudged to be qualified for benefit under the provisions of section 35 (1) of the Consolidating Act. There should not be one-sided access to the tribunal whereby only employees who are affected by an industrial dispute are allowed to appeal. Given that the tribunal will be considering both sides of a dispute, it should be only right that both sides have the right to appeal to the tribunal in the event of a deciding officer making a decision which prejudices the case of either. Clearly, if a deciding officer makes a decision which allows benefit to be paid to people who in the view of the employer are effectively on strike, that prejudices the employer's negotiating position. We should have an equal approach to this matter and, consequently, I am asking the Minister in the interest of natural justice to amend the Bill accordingly.

On the question of what constitutes a cause on which the tribunal could decide that a person, though he was involved in an industrial dispute, was also capable of receiving unemployment benefit, the Bill states that although a person may be in industrial dispute, he is capable of being paid unemployment benefit if he is in dispute as a result of some act or omission on the part of the employer concerned which amounted to unfair or unjust treatment of the applicant. What is unfair and unjust is very subjective. What one person might regard as being unfair and unjust might be regarded by another as being fair and just. Therefore, it is worth saying that the Minister is incorrect in saying that in the procedures proposed there would be no intention of adjudicating on the merits or otherwise of the fundamental industrial relations problem at issue. I do not see how it would be possible for the tribunal to decide whether the act or omission of the employer was unfair or unjust without adjudicating on the merits or the demerits of the fundamental industrial relations problem at issue because that is what goes to the very heart of deciding what is fair or unfair, what is just or unjust, on the part of an employer in any set of circumstances. The Minister should declare clearly that what he said in his opening statement in this context is not correct in the light of the wording of the Bill.

Furthermore, I believe that, if it is going to be possible for this tribunal to decide that a person is entitled to unemployment benefit on the basis of the criteria laid down here regardless of whether the person has a financial interest in the issue in dispute—and it is notable that the draft here says that he may be given unemployment benefit notwithstanding any other provision of this Act—that sets aside the provision in the Consolidating Act which says that he shall not get unemployment benefit if he is "participating in or financing or directly interested in the trade dispute which caused the stoppage of work". It seems to me therefore, that this tribunal can set aside, on the basis of what I have shown to be subjective and broadly drawn criteria, the entire code of social welfare which says that you do not pay unemployment benefit to people who are on strike or engaged directly or indirectly in a dispute the outcome of which may be of financial benefit to them.

If that is what is happening it would seem to me that this is not just a Bill designed to meet a problem in Deputy Gallagher's or Deputy Crotty's constituency. We would all like to see problems resolved in their or anybody else's constituency. That is the nature of representation and our work as public representatives. However, it would appear that the whole existing code and practice in regard to social welfare is being set aside by this appeals procedure. It is going far beyond fixing a problem in Deputy Gallagher's constituency. I have no objection if the Minister wants to sort out a problem for Deputy Gallagher—I hope he will sort them out for me too, that is fine—so long as it does not involve a fundamental change in our national legislation which could cause unforseen problems all over the country. I believe that that is what is at stake in this Bill.

I would submit to the Minister also that instead of having reference in subsection 2 (a) (i) to "unfair or unjust treatment of the applicant" it should read "unfair and unjust treatment of the applicant". I cannot see how both words are necessary. Perhaps it should be just "unfair" full stop. I do not see why it is necessary to have two words there apparently saying the same thing. But, presumably because they are there, they are there for a purpose because the parliamentary draftsman is, I believe, trained to economise in words as in everything else. What is the significance of saying "unfair or unjust"? In my view it should be one word or both but not alternatives. I should be glad if the Minister would explain the significance of the use of the alternative form here.

Coming to the further reference in the Bill to a person being "temporarily laid off by the employer, without, in either such case, any reasonable or adequate consultation by the employer with the applicant or with a trade union action on his behalf," if there is not "any reasonable or adequate consultation by the employer with the applicant or with a trade union acting on his behalf," would that appear to be a ground for allowing him unemployment benefit? Again I should like to ask the Minister: what is the significance of saying "reasonable or adequate"? Surely the word "reasonable" would be sufficient? Is there any legal significance in the fact that the word "adequate" has been put in as well as the word "reasonable"? This may seem to you, Sir, or to other Members of the House to be a semantic point but I can assure the House that the precise wording of this section will be poured over by the Tribunal. They will be asking themselves the meaning of putting in "reasonable or adequate" rather than just "reasonable". The Minister should explain why he has chosen to put in both words in this instance.

An Lean-Cheann Comhairle

I would submit to the Deputy that perhaps Committee Stage might be a more appropriate Stage for extracting the meanings of or reasons for certain words.

Perhaps the Minister would indicate further what he regards as "adequate consultation by the employer" with the person concerned or with his trade union. It is accepted that trade disputes can arise very quickly. For instance, if a picket is put on a plant by one category of workers whose work is so essential to its operation that the plant could not continue for another 24 hours, and the employer tells the people concerned he can no longer continue to employ them beyond 24 hours and consults with them on the matter during those 24 hours, would that be considered to be "adequate consultation" or would he have to go on and perhaps consult with them over three or four weeks in order to meet the requirement of "adequate consultation"? The Minister needs to clarify what he has in mind in this regard.

The Minister also needs to make it clear what he means by "a worsening of the terms or conditions of employment of the applicant and taken without any or any adequate consultation with, or any or any adequate notice to, the applicant,...". It is clear here that even if the employer has given adequate notice, he also has to have adequate consultation in regard to any worsening of the terms or conditions of employment. We all know that a worsening of the terms or conditions of employment could mean for instance, an increase in wages, less than an increase in wages in a comparable employment, or an increase in wages less than the increase in the consumer price index over the period. It may well be that, in the interests of competitiveness in certain industries and if the industry is to survive, increases in wages are less than those in comparable employment or less than the increase in the CPI, may have to be offered and, indeed, perhaps no more could be given in certain industries in the interests of improving their competitive position. I have in mind here in particular the protected sector of our economy which is imposing heavy costs on the rest of our economy.

If that happened, notwithstanding that it was economically necessary would it constitute a worsening of the terms or conditions of employment within the meaning of this Bill? In the case of anybody who went on strike against such an increase being offered, which was all the company could afford but was less than the CPI or less than that being offered in some other more profitable industry, would that be sufficient reason to allow that person or those persons who were on strike to get unemployment benefit for the duration of the strike? If that is possible — and it seems to me to be possible within the wording of the Bill before us — then clearly the State will end up subsidising all strikes, indeed perhaps subsidising strikes in pursuit of claims for increases in wages which are in excess of the Government's guidelines on what the country can afford. If that is the case this Bill would be acting contrary to the interest of the improvement of competitiveness, indeed would be against the Government's own policy as far as increases in incomes and wages in our economy are concerned. The Minister needs to clarify the meaning of the term "a worsening of the terms or conditions of the employment of the applicant" in these circumstances.

I agree strongly with the point made by Deputy Crotty that this tribunal, because of its composition, is not a tribunal at all. It is simply a tripartite group constituted of two employers, two trade unionists and a man in the middle. No court of law is composed of counsel for the prosecution, counsel for the defence and a judge sitting in judgment. That is not the way in which the judicial process operates. The judicial bench is composed of judges independent of either prosecution or defence and they decide the issue independently of the case made by either side. What the Minister fondly calls a "tribunal" is simply a mish-mash of both sides to a dispute sitting around a table. To my mind it is an abuse of the term "tribunal". In this context it is meaningless. I agree with Deputy Crotty that this should be an independent tribunal, with representation of neither side, guided by precisely drafted legislation. This Bill, like so much other legislation emanating from the Department of the Minister, is very imprecisely drafted. It leaves many areas of doubt as to what it really means. I have identified three such areas already.

In regard to the staff of the tribunal, will the Minister state in regard to the appointment of staff, with the consent of the Minister for Finance, if he envisages — he must have a view on the matter — it being necessary to have staff permanently seconded to the tribunal or will temporary staff for the duration of inquiries be sufficient, such staff returning to other Departments when inquiries are not in progress? I hope the latter will be the case. The Minister is taking power to appoint staff, presumably permanent full-time staff, and he should indicate whether he believes such permanent full-time staff are necessary.

There is provision for a fine of £100 where people are adjudged guilty of neglect to attend or a refusal to give evidence or other essential information to the tribunal. A fine of £100 is not adequate where an employer, an employee, a trade union or a union of employers attempt to withhold essential information for the purpose of the tribunal coming to a determination. The large sums potentially involved by the State under the particular section render a fine of £100 utterly inadequate.

On a general basis, will the Minister indicate how this Bill will relate to the general provisions for unemployment benefits? One of the grounds upon which an applicant is refused benefit is if he refuses an offer of suitable employment. If people are paid unemployment benefit while on strike from a particular employment surely it would not be possible to offer such people employment elsewhere. In that case they would cease to be on strike. By paying unemployment benefit, if that is what the Minister intends here, to people on strike then the Minister is invalidating a basic principle of social welfare legislation to the effect that one may only draw benefit if one is available for work in suitable alternative employment. A striker cannot avail of an offer of alternative employment and, on my interpretation, here it would appear that the cornerstone of unemployment legislation has been removed and the possibility is it will not be long before it is removed in other instances also. I agree with the points made by other speakers to the effect that ipso facto, as Deputy O'Keeffe said, legislation such as this is in itself bad because there is not an adequate opportunity to explore all the implications. This debate is insufficient on legislation of such a far-reaching character. If adequate time were given some of the fears I have expresed could probably be allayed. I doubt if in the time at his disposal the Minister will be able to allay them this afternoon. It is most undesirable that legislation like this should be enacted in such haste.

I thank Deputies for their contributions. I shall try in the time available to answer as many of the points made as I can. First of all, this whole process of looking at this legislation again was initiated by my predecessor on 24 February when the then Minister wrote to ICTU and the FUE seeking their views on amendments to section 35. When I resumed office on 11 March I repeated that request. I pursued the matter further. Members have adverted to the delay and the haste with which the measure is now being enacted. I would have been very happy to have the considered views of all involved presented much earlier to enable us to bring the Bill before the House earlier than this. The considerations which had to be given to various aspects involved a considerable amount of time and discussion. It was certainly not my desire to have a situation in which we find ourselves up against the closing stages of the session with very little time at our disposal in regard to this Bill. However, the fact that there is so little time has tended to concentrate minds wonderfully on the problem. There has been some difficulty in getting speakers to apply themselves assiduously to finding solutions, solutions everyone said were necessary but which no one could see.

The ICTU were consulted and gave serious and lengthy consideration to the proposals. They expressed their support of the proposals and their appreciation of the speed with which the Bill had been finalised. As far as industrial relations are concerned, these people deal with them in a practical day-to-day way and they have to face the difficulties, the balances and the counterbalances. They have given very detailed consideration to the Bill. They are satisfied that these are good measures which will represent an improvement in the situation and that they do not open doors widely in every direction as some Deputies suggested.

Most Members said they welcomed the provision of the Bill but at the same time expressed some reservations. That is fair enough because when one proposes changes one must be concerned about any loopholes that may develop or other problems that may arise. Considerable thought has been given to this matter and I believe we have covered the problems in so far as we can. The Bill is adequate, particularly when one takes account of the amendments before the House.

Some Members suggested that adequate consultations did not take place with the FUE beforehand. We have been in contact with the FUE from the beginning and they expressed their views on the legislation. On 13 July the FUE issued a response to the Bill which, broadly speaking, coincides with the views expressed to us in the course of our discussions. The FUE made it clear that they do not hold any brief for workers, trade unions or employers who do not utilise the machinery of the Labour Court and the normal industrial relations procedures. They also stated that the number of cases this measure will cover were few and exceptional. It will cover a few and exceptional cases and we are anxious to do that. It is important to recognise that we are not talking of paying unemployment benefit to people who are on strike but we are dealing with exceptional cases.

The FUE stated that they considered that the objective of the proposed legislation would be secured if a social welfare deciding officer, or appeals officer, was enabled to take full account of the decisions or views of the Labour Court in arriving at a decision in any case that may come to it. That is where the problem arises. The deciding officer, and the appeals officer, are not entitled now to take the special circumstances into account. If they could do what the FUE suggest we would not have a problem because a deciding officer normally exercises considerable discretion. The practical situation is much more complex than Deputy Shatter suggested exists outside. I should like to pay tribute to the Labour Court and those involved in industrial relations who have carried out a difficult task in an admirable way down the years. They have achieved great success in their efforts to find balances in areas where one cannot have strict legal definitions. The problem is that deciding officers and appeals officers at present cannot deal with the situation. That is why we are setting up a reference for these cases only. Those cases will be considered and the Department of Social Welfare will be in a position to work on the decision.

The FUE went on to echo the sentiments that have been expressed here, particularly by Fine Gael Members, that other changes in our social welfare arrangements rated as a higher priority. They defined clearly how this measure will deal with specific cases and, at the same time, expressed the view that the other changes needed rated a higher priority. They were referring to changes that should be made in regard to abuses, the three-day week and other matters. We also heard such sentiments expressed today. In regard to those matters the Government have established a working party to consider the measures necessary to deal with abuses and try to make the operation of the system as efficient as possible. A report from the working party will be available by the early autumn and we will be able to include them in the economic programme to be presented then.

I hope the Opposition Deputies, who are so anxious to see action taken in this area, the FUE, and employers generally, will support the measures which will be proposed following the deliberations of that working party. One of the problems in the Department of Social Welfare is to get employers to support the work of locating and identifying abuses. One of our great difficulties relates to prosecutions where it is necessary to get the support of employers. One may be able to show that there has been a loss of revenue, or even get the revenue back, but one cannot proceed with a prosecution unless one gets the wholehearted co-operation of an employer. That is why I would welcome the support that will be necessary to implement the measures we expect to introduce in the autumn.

Under existing legislation workers can be unfairly treated. It is possible that at a time of depression such problems only come to the forefront because there is a temptation by companies to save by keeping workers locked out. We must take action to deal with that problem although I do not believe it will occur often. I was sorry Opposition speakers were not in the Seanad this morning to hear their colleagues put a different case to me. In the Seanad the Opposition made the case that the unemployed are the real poor here and that while there may be some abuses the bulk of the unemployed and those on long-term social welfare benefits were needy people who must be protected. I did not hear that view being expressed by the Opposition here today. I heard a great deal of talk about the abuses outside that context. We must learn to look at those abuses in the proper context. The officials in the Department of Social Welfare who have to deal with such matters recognise the reality of the situation.

The Minister will appreciate that we are talking about people on strike, not unemployed.

The Deputy's colleagues dealt with unemployment benefit, the payment of it and the abuses of the system.

We are talking about people prevented from working by their employers.

We are talking about people out of work who do not have any income other than social welfare. A person who is single does not have recourse to any payment unless his circumstances leave him destitute. I am not against adopting measures which will improve our legislation and this measure will. Our proposals are designed to meet a limited and clearly defined situation. We have taken measures in the Bill, and the appropriate advice, to ensure that that is what we are doing. I will be accepting in essence a number of the amendments tabled by Deputy O'Keeffe in his desire to ensure that the legislation will be successful.

I would be prepared to arrange that some time after the enactment of the Bill we might have an Oireachtas Committee to review how it has been operating and to decide whether it needs amendment. Because of the limited time for Second Stage I have not been able to deal with all the points raised by Deputies but I am sure we can discuss them on Committee Stage. Some of the statements made during the Second Stage were inaccurate. The general principle of what we are planning to do in the Bill has been discussed with the FUE and the CII, but the only person who looked for copies of the report was Deputy Flaherty, the Opposition spokesman on Social Welfare.

(Waterford): Several Deputies asked the Minister if he would state clearly whether the legislation would cover the Comer International workers?

That will be appropriate on Committee Stage. It is my view that they would come under the legislation.

Will the Bill provide retrospection?

The amendment proposed would deal with that.

Question put and agreed to.

With grave reservations.

Agreed to take remaining Stages today.