Dáil Éireann debate -
Thursday, 15 Jul 1982

Vol. 337 No. 11

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

Minister for Social Welfare (Dr. Woods)

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to amend the provisions in social welfare legislation relating to the disqualification for receipt of unemployment benefit or unemployment assistance of persons who are involved in a trade dispute. A number of recent disputes have highlighted this area of social welfare legislation and the case was put forward, arising from those disputes, that the particular provision in question is inequitable in certain circumstances.

A trade disputes disqualification has been a feature of unemployment insurance from the outset. The general principle has been that unemployment resulting directly from a trade disputes in which the claimant is involved should not give him a title to unemployment benefit. This principle was based on the concept that the Social Insurance Fund should be neutral in relation to disputes. This general principle is a feature of unemployment insurance systems generally.

In Irish legislation the fundamental principle of disqualification for receiving benefit of persons involved in a trade dispute has been in existence since the introduction of insurance against unemployment in 1911. Changes have been made from time to time but these have been of a relatively minor nature and have not affected the basic principle. The latest amendment was made in 1967 and was designed to ensure that a dispute in which a person was not directly involved would not cause him to lose unemployment benefit.

Under the provisions we have in our legislation what the deciding officer or appeals officer in the case must decide is whether there is a trade dispute in existence. He is not required to make any judgment on the nature of the dispute or its merits. If he finds that there is a trade dispute the persons involved are disqualified from receiving benefit. There are separate provisions in the legislation which provide that where a person loses his employment by reason of misconduct or leaves his employment without just cause he will be disqualified from receiving benefit for a period of six weeks.

There is no doubt however that all trade disputes are not the same and that the elements which give rise to a dispute can differ from one dispute to another. The general principle of disqualification for unemployment benefit of workers engaged in a strike is, I am satisfied, a sound one. What I am not satisfied about however is that this principle should apply automatically in the case of all disputes. To do so would be unfair in certain circumstances and this is the situation I have set out to remedy by means of this Bill.

This position has been highlighted in a number of recent disputes and in consequence I have reviewed the existing provisions in detail. It is better to face up to the problems arising from a limited number of particular trade disputes rather than to allow the present unsatisfactory situation to remain. The amendment I am putting forward in this Bill is limited in scope and is designed only to redress the situation where workers are available for work, capable of work and willing to work but are deprived of their employment in what might be regarded as an unfair manner. This could happen for example where an employer lays off workers without proper consultations or without utilising the industrial relations machinery normally availed of by those prepared to follow good industrial relations practices. There is also the situation where an employer by unilateral and arbitrary action seeks to impose an unwarranted worsening of terms or conditions of employment on his work force. The workers concerned may then find themselves unwillingly caught up in an industrial dispute situation where no real effort has been made to employ normal industrial relations procedures. The automatic disqualification of the workers concerned from unemployment payments which is a feature of our existing legislation in such circumstances is unduly harsh and inequitable.

The provision being made in the Bill does not involve any change in the existing situation whereby unemployment benefit or assistance is not payable where industrial action in the traditional sense is taken by employees. The purpose of the provision is to set up separate machinery to deal with unemployment benefit or assistance entitlements in the situations I have outlined in the immediately preceding paragraphs. The new machinery will be separate from the existing social welfare decisions and appeals machinery and will come into operation only where a person fails to qualify for benefit under the existing provisions. The existing machinery provided for in sections 35 and 142 of the Consolidation Act would continue to be used and a deciding officer or an appeals officer, as the case may be, would decide, as heretofore, in cases where a worker loses his employment, regardless of whether a trade dispute existed. Depending on the decision unemployment benefit would be allowed or disallowed. If the decision were to disallow benefit then it would be open to the workers in relevant situations to have their cases referred to the Social Welfare Tribunal proposed in this Bill for adjudication. The tribunal would consider the various elements present in the case and would adjudicate on whether the workers lost their employment in circumstances that the tribunal considered to be within the provisions of the Bill and whether unemployment benefit should in consequence be paid. This decision of the tribunal would be binding on all parties.

In the procedures proposed there would be no intention of adjudicating on the merits or demerits of the fundamental industrial relations problem at issue. Rather would it be a question of investigating the manner in which workers had been deprived of their employment and all the circumstances surrounding this. This would be the kernel of the matter which would have to be evaluated by the tribunal and in doing so the actions of both sides to the dispute would be taken into account by the tribunal. The tribunal would be representative of the interests of employers and employees and would have the expertise necessary to enable them to examine the various elements in a dispute and adjudicate on whether the workers involved had been unreasonably deprived of their employment, with particular reference to the question as to whether normal industrial relations practices had been observed. The Bill does not tie the tribunal's hands with regard to the matters which they should consider in arriving at their adjudication. Trade disputes have tended if anything to become more complex in recent times and it is often difficult to see where the responsibility rests in particular situations. I am satisfied however that the proposals in the Bill represent a reasonable solution to the problem and I hope I can rely on the goodwill and co-operation of all concerned in the matter.

It is proposed that the provisions of the Bill will be brought into effect by order. It is my intention to give effect to the provisions without delay as soon as the necessary arrangements have been made to establish the tribunal and to determine the procedures to be followed in the conduct of its business. With this in mind I recommend the Bill to the House for speedy and favourable consideration.

Mr. O'Keeffe

Fine Gael have grave and serious reservations about the provisions of this Bill as at present drafted. I believe there is a real danger that its provisions may have the effect of encouraging and prolonging strikes, something that is not in the interest of employees, employers or indeed of the country as a whole.

The background to this Bill is relevant because it seems to me that it constitutes a political response by the Minister and the Fianna Fáil Government to a situation that arose some time ago when a commitment was given, without any consideration having been given to the consequences of its implementation. My views in this regard are borne out by an exchange which took place in this House on 6 May last when, during Question Time, Deputy Gallagher of Waterford confirmed to the House that a commitment had been given him by the Minister for Finance in the presence of the Minister for Social Welfare. In fact Deputy Gallagher referred to a written guarantee having been given by the Minister for Finance in the presence of the Minister for Social Welfare to amend this legislation. At that time he was pressing for immediate steps to be taken in that regard and he was assured by the present Minister that he need have no worries about it.

I am concerned therefore that legislation can be brought into this House in this rushed manner with a background of a commitment having been given to the Workers' Party without regard to the overall consequences of its implementation. It is clear to me that this Bill must therefore be construed as the price of the support of the Workers' Party for the present Fianna Fáil Government. In that context there is a danger that we have here a situation of the tail wagging the dog without regard to the consequences for the country as a whole. I am concerned that legislation should be rushed through this House with that background, with a commitment having been given to the Workers' Party without its implementation having been thought through.

I appreciate the desire of the present Government to ensure the continued support of the Workers' Party. But where there is a danger that the price of that support may amount to a possibility of a worsened industrial relations environment, a danger of strikes being encouraged, then I feel the price of that support is too high.

I recall as late as Thursday last asking for a draft of this Bill in this House, at which stage it was not even available. Today the Government propose putting through all Stages. As a general principle I do not believe in rushing legislation through this House, because rushed legislation ipso facto is bad legislation.

Mr. J. Bruton

Hear, hear.

Mr. O'Keeffe

It does not permit time for consultation, for representations, discussion or reflection on its various aspects. It is ludicrous to suggest that a Bill such as the one before us — which is complex in that it interferes with existing arrangements — can be properly dealt with in a couple of hours in this House. I believe further that we are not doing our job as legislators in putting through legislation in this manner. I want to protest in the strongest possible manner at the approach adopted in this case. It is clear that the draft of the Bill was not even available last Thursday. It is further clear, from a reading of the Bill, that it has been put together in quite a slipshod manner. I do not blame the parliamentary draftsmen in this regard. The normal procedures imply that a Bill will have a Second Reading and that some time thereafter amendments will be put down, discussed on Committee Stage, when the parliamentary draftsmen will be afforded an opportunity of improving it as it progresses. No such opportunity exists at this stage unless we can provide amendments today. If the Government insist on putting through this Bill today I do not believe it will be in the interests of the country that it should form part of our permanent legislation. Therefore, I put down an amendment this morning proposing that the Bill would lapse after six months at which stage, if in the light of experience at that time the Bill is found to be in good order and workable, we can have a further full and proper debate here and we can re-enact the Bill. I put down that amendment proposing a lapse after six months with that in mind, so as to ensure that at the end of this year or early next year we shall have an opportunity of a proper, full debate. Indeed it might be said that at that stage we shall have the benefit of six months operation of the provisions of the Bill as at present drafted.

The question arises as to whether the provisions of the Bill may serve to encourage strikes, the general position in this country being that, where there is a trade dispute, unemployment benefit is not payable to the workers participating in such a dispute. This goes back to the beginning of the century, the idea being that the payment of unemployment benefit might encourage the prolongation of such disputes. Quite rightly, I believe, there is a provision that such workers' dependants will not be left in a situation in which they will suffer as a result and such dependants are therefore able to obtain supplementary welfare. However the basic provision in this country is that no benefit is paid while a strike continues. Lest we might think we are unique or that it might be suggested that this has an exceptional record in this situation it is relevant to point out that in all EEC countries workers involved in industrial disputes are precluded from receiving unemployment benefit. If I might synopsise, the general thinking in Europe in this regard is that this is so because workers' unemployment in that situation is regarded as being voluntary and is therefore considered their responsibility rather than that of the State.

The general thinking in Europe is that this is not so because unemployment in that situation is regarded as involuntary and, whatever about the philosophy behind it, it is relevant to note that this is generally the position right throughout the EEC. There is in Belgium provision whereby in exceptional cases benefit may be paid to workers involved in an industrial dispute where the employer is at fault either in failing to observe agreed dispute procedures or a lock-out takes place before such procedures have been exhausted. That is the only provision in Europe which provides for an exception to the general rule of no benefit being payable during the course of a strike. That has been the position here since the beginning of the century, modified to ensure that the dependants of workers on strike do not suffer adverse consequences as a result of that strike and so they are able to claim supplementary welfare during the course of the dispute.

We shall have to think again and examine our philosophy if we are making a major change which this Bill, as drafted, may do. We will have to consider the effect on our industrial relations and the effect on development if the result of the Bill is, unintentionally perhaps, to encourage strikes because of the payment of unemployment benefit to those on strike. I can accept to some degree the good faith of the Minister when he talks about hard cases. I do not believe he wants to open up the situation to abuse. While I have to question the background and the circumstances in which the commitment was made, I still believe the Minister will probably try to ensure that the tribunal and its decisions will fail in only very isolated cases.

There is an old adage which says that hard cases make bad law. The Minister mentioned some recent instances in which apparently injustice was done to workers. I do not propose to discuss the merits of the global dispute or, indeed, of the Comer dispute. I do not know all the facts and so I do not think it would be proper for the House to argue the facts. That is not the way in which this House operates. There may be instances which give rise to injustice. I do not know. The latest instance in Comer was one in which a specific commitment was given by the Minister. Whether he examined and adjudicated on the merits of the case I do not know. I shall certainly not try to do so. The facts are known to those involved and, as in many industrial relations situations, they are quite complex. My basic approach is that hard cases make bad law and any attempt to introduce provisions to meet such situations will have to be very carefully considered and given such careful deliberation as will ensure that such provisions will not be used or abused for other purposes.

This brings me back to the earlier point I made about legislation being rushed through here. We are not giving this Bill the careful deliberation it deserves. The Bill is not — indeed it could not be — carefully drawn because of the time factor involved and I see a danger of the Bill being used and abused for purposes other than those intended. Amendments are required to social welfare legislation generally. There are a number of areas which need to be carefully examined and amending legislation introduced. If there are genuine cases where workers are treated unfairly we shall have to examine how injustice can be remedied but I do not believe the problem is resolved by rushing through here a Bill which can be abused. What we need is an examination of the various problems and a Bill designed to deal with those problems. We know there are abuses. We have a situation today in which employees, because of income tax, PRSI and tax rebates, are better off on social welfare benefits than they would be if they did a full week's work. Is the Minister aware of that? Is he concerned about it? Does he intend to do anything about it? If we want to get the country going again, a country of which we can be proud, surely we cannot stand by and accept a situation where people are better off on social welfare than they would be if they were working. The same argument applies to what is known as the three-day week where in certain situations people drawing three days' pay and three days' unemployment are better off than they would be if they worked a five-day week.

I ask the same questions in regard to that situation. Is the Minister concerned about it? Can he do anything about it? The instances I have mentioned need to be carefully examined and the necessary steps taken to ensure that that type of situation in which people are actually encouraged not to work is ended. What we need in the social welfare area at the moment is not legislation purporting to deal with just one problem, legislation rushed through here in one day, but rather a review of all the problems. The manner in which we are expected to deal with this Bill serves to highlight the dangers of making political promises without regard to the appalling consequences that may ensue. It serves to highlight the dangers of rushing in with an apparent solution without teasing out the consequences. What should our aims in this area be? I believe that in a situation where we have more than 150,000 unemployed our main aim must be to get more people at work. Certainly one of our aims must be to have as few people as possible on strike. For that purpose we need a proper industrial relations environment, changes in the attitude of management in many cases and changes on the other side of the fence also. We need those changes so that in the overall interest of the country we will have a better industrial relations environment.

How can we justify spending hundreds of millions of pounds to encourage people to set up industries here unless we can at all times be constantly aware of this problem and trying to ensure that our industrial relations environment is improved? It is worth stating, although it is a truism, that without employers there would not be any employees and unless we can continue to encourage the establishment of industry here, unless we can continue to convince people that workers and employers can provide a proper working environment, we are doomed. It is worth making that point in the context of this Bill. What we are talking about when we are dealing with the payment of unemployment benefit is not just a glib situation of the State paying people. We are talking about getting our workers to contribute through PAYE to others who are not working. When one sees demands on the public purse for one reason or another it must always be borne in mind that whatever comes out of the public purse has to be put into it and that a major contributor to the public purse today is the PAYE sector. Any further demands on the public purse will inevitably result in greater burdens on that PAYE sector. I do not believe it is in the interest of those who are working and paying PAYE that we should indiscriminately pay moneys out of the public purse if that may result in an extra burden on them.

We should remember when we are discussing this Bill that we are not talking about the employer paying out money, we are talking about the State paying out money in certain situations. If I was asked for a synopsis or label of my views in regard to this type of legislation, a label that I would fairly accept is that I am pro-worker but anti-strike. My outlook in discussing any legislation will be motivated by that approach. In a strike situation it is important that the focus and emphasis should be on the Labour Court and its various bodies to find a settlement. I see a danger in the Bill, as it is drafted, that that focus and emphasis will swing from the Labour Court to the new social welfare tribunal. I see a danger that the initial reaction of anyone involved in a strike or a trade dispute situation will be to get this tribunal to adjudicate as soon as possible on the rights and wrongs and ensure that, if possible, a finding is obtained against the employer so that social welfare benefits will be obtained. If that happens, is there not a danger that strikes and trade disputes will be prolonged? Is there not a danger that the attention in regard to a strike initially will be focused on this row as to who was right or wrong, as to the entitlement of the workers to unemployment benefit? In that situation the whole emphasis will swing away from the Labour Court and its associated bodies who are there for the purpose of seeking a fair settlement to the dispute along established and well tried dispute settling procedures.

Since 1946 we have had industrial legislation which set up and operated a voluntary system to provide for conciliation and settlement of a dispute through the Labour Court, Rights Commissioners and conciliation services. The system has proved very successful in what is agreed to be a difficult industrial relations environment. As the Bill is drafted, a tribunal will decide on the reasonableness of an employer's behaviour in a trade dispute. Once it does so, is there any reason why an employee or a trade union would bother discussing their grievance any further at conciliation or at the Labour Court? They will already have in many cases an adjudication on their situation and why then should they bother with the Labour Court? That must be a major worry to anybody who is interested in finding a fair solution to the problem mentioned by the Minister and who, in the short time available, has been considering the effects of this Bill. We must ensure that Pandora's Box is not opened and that tried and tested industrial relations procedures are not thrown out the door. We must ensure in our efforts to provide a solution for hard cases that this is not the effect.

On that basis I put down a series of amendments which I believe will allow a solution to be found for the hard cases but, at the same time will prevent the new procedures from being abused for the purpose of generally encouraging or prolonging strikes. Every Deputy in the House wants to see our people at work, workers getting a fair deal from their employers and employers getting a fair return for a fair day's pay, and proper industrial relations. At the same time, there is a feeling that we should try to seek a solution in which justice will be evident to all. On that basis, let us ensure that the Bill we are putting through will deal only with injustices in industrial relations. We must ensure that existing procedures will be used before there is recourse to the tribunal, that claims will have been examined by both deciding and appeals officers of the Department.

If the tribunal are to consider the case of the employer and to adjudicate thereon, is it not incorrect that the conduct on the other side of the fence should not be opened and looked at so that the reasonableness or otherwise of the employee will be looked at? This makes sense, and as a former practising lawyer I have always felt that one does not get the full sense of a case or the full story until one has heard both sides. Therefore, the tribunal should be directed to examine specifically both sides and the reasonableness of the case on both sides.

More important, I believe we should provide that the emphasis will not be taken away from the Labour Court and their associated bodies. We must continue to provide every encouragement to employers and employees to have recourse to the Labour Court in their search for solutions. I am afraid that the Bill as drafted may result in the tribunal supplanting the Labour Court at least in the early stages of disputes and that the Labour Court efforts to look for early solutions will be hampered. Therefore, I should not like the tribunal to make decisions unless and until it can be shown that the machinery under the trade union Acts will have been availed of, that the officials of the Labour Court will have been consulted in the interests of good industrial relations, and that it has been shown and proved that either employer or employee has not done that. If workers are prepared to resort to the Labour Court and to co-operate fully with industrial relations procedures, should not the employers be subjected to the same procedure if they are shown not to have been willing to have recourse to the Labour Court, and vice versa? In my view it would be improper that this tribunal would supplant the Labour Court.

I am concerned about the reference in the Bill to the findings of the tribunal being final and conclusive. I know of no law passed in this country which provides that the findings of such a body should be final and conclusive, and it is improper that we should ever provide that the findings of a non-judicial tribunal should be final and conclusive — there must be recourse to the courts on points of law.

I am concerned about the review procedure. There is a provision that an application for a review shall be by a person interested, but the Bill does not specify who is to be "a person interested". I would be anxious to ensure that the Minister, who represents the public purse, would be entitled to a review if a material change of circumstances occurs. After all, it is the Minister who will be making any payments that will result from the findings of the tribunal.

I am concerned about the lack of definition of the position of chairman. The Bill clearly lays down that two members from both employers' and employees' representatives will be selected to act on the tribunal, but the Bill is silent on the position and the qualifications of chairman. It does not set out his term of office. I have already referred to the hasty manner in which the Bill was drafted, and because the tribunal will have quasi-judicial functions I suggest that the chairman should be a judge of the Circuit Court or the High Court. The Bill provides for the taking of evidence on oath in certain circumstances and it lays down that a person giving false evidence before the tribunal will be guilty of perjury. In that situation it is important that the chairman would be a person who would be able to adjudicate personally, who would have judicial experience in adjudicating. That is why I suggest the Bill should provide that the chairman be a judge of either court.

Another major point relates to the time for debating the Bill in this House. I would have wished that the Bill would have gone through Second Stage today and the remaining Stages at some future date. It appears now that we are not to have a Committee Stage. I know that the Dáil is rising tomorrow and I am aware of the Government's intention of ensuring that this Bill goes through this House before the recess. In that situation the Bill should have a time limit of six months and be amended accordingly. It may be that the Bill, particularly if it is amended on the lines on which I think it should be amended, will be an effective Bill and will not have the effect of encouraging strikes, as I fear it will. If that is the situation, well and good. If we have isolated the injustices and ensured that we have the machinery to cope with them then, on the renewal of this Bill, we would have very little difficulty with it. We would also have the benefit of the six months period of operation, we would have had an opportunity of deliberating with various bodies and hearing their views and we would be able to put through a Bill in the normal way to form part of our permanent social welfare code. But I do not believe that that can be done today. The solution, therefore, is to put a time limit on the Bill and to take up the matter again towards the end of that time limit.

The position, therefore, is that I will be formally proposing amendments along those lines later and I would hope that the Minister will be prepared to accept those amendments, perhaps not in the words in which they are put because I am not a parliamentary draftsman, but perhaps he would accept the spirit of the amendments. As the Bill stands there is a positive danger that it will achieve far more than the purpose for which it was intended, that it will encourage strikes when our whole minds should be devoted to discouraging them. In that situation I would not feel as worried about the Bill if the amendments which I propose are accepted by the Minister.

Mr. Pattison

I want to be a little critical of the Minister at the outset for the undue delay in bringing this measure before the House. This measure was promised earlier this year. The problem that sparked off the controversy about this measure occurred in Clover Meats which is on the borders of my constituency in Carlow-Kilkenny and the Waterford constituency, where workers were deprived of their employment because of failure to agree to conditions of employment which would have been less favourable to them and would have been detrimental to them and were deprived of social welfare benefits. I received an assurance from the then Minister for Social Welfare, Deputy Eileen Desmond, that steps would be taken immediately to amend the legislation that was preventing the social welfare benefits being paid in such circumstances.

I want to refute the allegations that were made at that time that the Minister had the power to make an order to enable social welfare benefits to be paid. That was not so. The present Minister could not do it and the last Minister could not do it. But that was used as a criticism against me when I was a candidate in the last election. The fact that the Minister is here today with this legislation proves that he could not have made an order declaring that social welfare benefits be paid in those circumstances and that the power rested with this House to make such a decision. That is what we are here to do today. I regret that it has taken so many months to bring forward this very urgent and necessary legislation. If I were on the Government side of the House I would not tolerate such a delay in implementing a measure of such urgency. It took some pressure over the past number of weeks from a number of Deputies here to get the Government to commit themselves to carrying out this promise. The former Minister for Social Welfare made this commitment but when this problem came to the fore the Dáil was dissolved. But rather than prolonging the dispute at that time it helped to shorten it. That is what this legislation does. It will avoid disputes rather than creating them and it will encourage settlements of this kind of dispute much earlier than would have been the case in the absence of this amending legislation.

There is a popular belief that workers have far too much protection from the law and that employers are at their mercy to a great extent. The events of yesterday, when a number of trade unionists were jailed for carrying out union activity, prove my point that the laws are very much weighted against workers, organised and unorganised. However, in the past two years we have had a number of laws passed which, to some extent, balance things a little bit. We have the Unfair Dismissals Act, the Anti-Discrimination Act, the Minimum Notice Act and other Acts such as the tightening up of the Holidays (Employees) Act. These were only passed in recent years. Still I do not think anyone could argue that the employee is statutorily in a stronger position than his employer in the present situation. Here again this is repeated in the Social Welfare (Consolidation) Act which did not change anything but just brought together all the previous Social Welfare Acts. But section 35 in that Act gave an unfair advantage to the employer over his workers.

Nobody is arguing that people who take a decision to go on strike for improved wages or better working conditions should get social welfare benefit. This is not what the Bill is about. It is about rectifying the position where an employer wants to disimprove the working conditions of his employees and uses the Social Welfare Acts to achieve that aim. In such a situation the workers wish to continue working under existing agreements and the employer enforces a change which is detrimental to them. At present he is aided by section 35 of the Social Welfare Act. If it is fair to say that the social welfare laws should not prolong strikes or assist strikers, then it is equally fair comment that the law should not be used to help an employer to impose detrimental working conditions on his employees.

It is most important that this matter be rectified, because workers involved in such a dispute will be slow to settle if they are also being deprived of other entitlements such as social welfare benefits. The previous speaker mentioned various other areas of the social welfare code where he would like to see changes. As public representatives we hear many cases of workers who make a claim at the employment exchange and then find that their employer has not complied with his end of the bargain by having his insurance records and his PRSI contributions up to date. This problem is growing, judging from the number of replies from the Department to the effect that they have no records covering the governing year while a person was in full-time employment. The need for other changes in the social welfare code should not delay the passage of this legislation.

I can list many shortcomings in the social welfare payments scheme, such as the bleak period faced by redundant workers over 40 years of age until they qualify at 65 for an old age pension. Such people have little chance of finding employment in current economic circumstances.

I should like an assurance from the Minister that the provisions of this Bill will cover the workers in Castlecomer who have been out of work since 15 March last, although they have been most willing to work. If for any reason they are not covered by this Bill I would ask the Minister for an assurance that he will bring in a further amendment. These are precisely the kind of people who should not be deprived of social welfare benefits. It was possible by another means to make payments to the workers in Clover Meats and the Government may have experienced a certain kind of complacency, feeling that the problem would not arise again. I regret that it has arisen and will do so again unless this legislation is passed.

The problem tackled by this Bill is essentially concerned with social welfare and it is not directly involved in industrial relations. The problem cannot be resolved by the Labour Court. I do not agree that the courts should be brought into this matter. I have yet to see an industrial relations problem being solved by a court decision. Such decisions give rise to more industrial relations problems than anything else. These problems must be solved by common sense on the part of representatives of both employers and employees rather than by technicalities and points of law. Sometimes they are compatible but at other times they are not.

It is essential that the chairman of this tribunal should be a person of common sense, not tied up by legal definitions and technicalities and not having his work adjudicated upon by a court of law. The Minister might tell us how the chairman will be appointed and the qualifications he considers desirable.

This amendment will prevent further disputes of this kind. Provision has been there since about 1952 but it was only discovered on a large scale in recent times. Corrective action is now being taken to ensure that there will not be abuse of section 35 by employers. This will contribute enormously to good industrial relations and prevent rather than create problems in that field.

In common with other Deputies I received a submission from the FUE yesterday evening. I cannot accept some of their points, because we have seen the necessity for this legislation. In the two instances we can refer to, section 35 as it stands did nothing but prolong the disputes in question. That runs contrary to the view expressed by the FUE that the establishment of a tribunal would lead to prolongation of industrial disputes.

The FUE also submit that it would worsen the industrial relations situation because not only would the employer be contesting that his action in the matter was not unreasonable but he would also be contesting the right of workers to social welfare payment. That already exists under section 35. Are the FUE aware that what they are talking about exists in practice through the appeals procedure? An appeals officer invites the employee, employer and representatives, if necessary, to an appeals hearing and they thrash out the pros and cons of the claim for unemployment benefit. The FUE's reference to that aspect is incorrect.

I should have preferred to see a simpler Bill and one that would short-circuit the system. Problems of this kind are urgent and do not lend themselves to prolonged references to appeals officers, deciding officers and tribunals. The procedure should be speeded up. Nothing hinders the settlement of a dispute as much as delays in the machinery which is available for its settlement. Sometimes that machinery becomes overloaded and cannot deal with the problem as quickly as it might.

I welcome the Bill. If it does not meet the requirements I will be back looking for whatever amendments are necessary. I hope the Minister will assure us that he will amend it further if, for some reason, it does not meet the requirements. This Bill has been described as one to pay people who are on strike or give them social welfare benefits. That is not what it is about. It is a Bill to provide social welfare benefits for people who are out of work because of a decision by their employer to prevent them working and achieving conditions of employment which are more favourable than those in operation. Unfortunately the Bill is necessary. Its introduction will assist industrial relations. It is not the function of the Labour Court to decide entitlement to social welfare benefits. It was never intended that section 35 of the Social Welfare Act should have been interpreted in the way it was by deciding officers, appeals officers and the courts. I do not criticise them for that. Their job is to interpret it as they see fit, but they are answerable for their interpretations. Once the courts interpreted it in a similar way there was no option but to change the legislation. I hope the Bill will pass quickly through this House and the Seanad.

I should like the Minister to confirm that provisions of the Bill will enable employees in Castlecomer to receive their unemployment benefit from the date of their claim Monday, 15 March 1982. The real purpose of the Bill is to correct injustices of that kind. It is not to give any group an unfair advantage. It is a measure to take away any unfair advantage which might unconsciously have been inserted. Now that it has been discovered, it is the duty of the House to remove that unfair advantage. We should not give the employer the advantage of being able to enforce changes on workers with the help of the social welfare code by reason of the fact that they would be starved into submission.

I welcome the Bill and hope it will deal with the problems it is intended to deal with.

Mr. Gallagher

(Waterford): We should be clear in our minds as to what we are discussing. This Bill is a measure to rectify a serious loophole in the 1981 Social Welfare Consolidation Act where workers were in the case of Clover Meats and are in the case of Castlecomer, County Kilkenny, being denied their just entitlements because of the interpretation of Department officials of what constitutes “a trade dispute”. Contrary to the opinions expressed by Fine Gael today, this Bill does not and will not give a carte blanche to workers to be paid social welfare while on strike. It was never the intention of my party in seeking this amendment, or indeed of the other parties, to bring about such a situation. There have been mischievous, misleading and damaging statements from the media over the last few months and in the document which I received this morning from the Federated Union of Employers. They give the impression that what is being sought is carte blanche to pay workers while they are on strike. I categorically refute that statement. Section 35 (1) of the Social Welfare Act is rigid, unbending and unyielding in its definition of what constitutes a trade dispute. Employers have discovered this definition and are forcing through changes in working conditions and practices on foot of this Bill because they know if workers are denied their social welfare benefits — only getting the bare minimum in supplementary social welfare — they will only be able to survive for a relatively short period of time and will have to go back to work. They would then have to accept conditions which will be written and drafted from the point of view of the employers.

I am amazed at the contribution by Deputy O'Keeffe. He stated that he was not in a position to discuss the circumstances of the Clover Meats or Castlecomer situation because he did not know the background. Yet he came into the House and pontificated on the merits and demerits of this Bill. I listened carefully to him and he is simply regurgitating the document circularised by the FUE. I got a copy of that document from another source yesterday but I only received a copy from the FUE this morning. Deputy O'Keeffe has seen fit to quote me in regard to a question which I tabled to the Minister, but he deliberately omitted to state that Deputy Deasy and Deputy Collins, both front bench spokesmen for Fine Gael and conspicuous by their absence here today, in conjunction with me, tabled questions to the Minister for Social Welfare asking for exactly the same type of amending legislation which we are now discussing.

The questions concerned are Nos. 22, 23 and 24 which were answered on Thursday, 6 May 1982. Deputy Deasy asked the Minister for Social Welfare if he would amend section 35 (1) of the Social Welfare Consolidation Act to allow for the payment of unemployment and pay related benefits to workers such as those in Clover Meats, Waterford, where there was a failure to agree on terms and conditions of employment but where no industrial action was involved. Deputy Eddie Collins asked the Minister for Social Welfare when amending legislation would be introduced to remove the anomaly in the law which originally prevented the workers in Clover Meats, County Waterford, from receiving unemployment benefit. Of course it is one thing to make promises at local level but it is another thing to come in here and back up what they are seeking.

It would be a worthwhile exercise if I illustrated the background to the Clover Meats dispute. It might enlighten Deputy O'Keeffe as to the circumstances which led to this amending legislation. In Clover Meats, because of the live export of cattle from the port of Waterford, the raw material was not forthcoming to the Clover Meats factory. Consequently, the management tried to bring about a change in working practices and conditions which were unacceptable to the workers. Because agreement could not be reached, the management handed the workers their cards. As a result, the workers went to the local labour exchange, made a claim for unemployment benefit and the manageress referred the matter to a deciding officer in Dublin, who decided that a dispute existed. This was upheld on appeal. Is Deputy O'Keeffe aware that the management of Clover Meats and the workers testified to the deciding officer and to the appeals officer that no dispute existed? I wonder was he aware of those circumstances when he spoke about giving a carte blanche to workers to get unemployment benefit and that that would lead to a prolongation of strikes? That is absolute nonsense, and he should have been properly briefed before he spoke in such a manner.

Reference has been made in relation to the previous Minister for Social Welfare, Deputy Eileen Desmond, and her interest in this matter. I was not elected to Dáil Éireann when the issue of Clover Meats came up and there was no hint of a general election at the time. In my capacity as an elected representative to Waterford Corporation, in conjunction with other members of the city council, various representations were made to the Minister to bring about a resolution of a very serious problem whereby 350 people and their families were denied the barest necessities and entitlements. Some of these people had up to 35 years ongoing contributions in PRSI and PAYE payments and all had enjoyed good industrial relations with the management of Clover Meats. On behalf of my party, I made various attempts to contact the Minister of the day through letter, telegrams and a score of telephone calls. It would be easier to get an audience with the Pope than to get a communication from the Minister in question. She seemed to be totally unmoved by the sufferings of these families in Waterford. We then had the general election, and when I was elected I received permission from my party to raise the matter with the leaders of the three main parties. I want to make this quite clear so that there will be no charge of making deals or pacts with anyone. I wrote to Deputy FitzGerald, Deputy Michael O'Leary and Deputy MacSharry, the former Minister for Agriculture. I asked them for their observations and what their party commitment would be towards amending the legislation, if they would accept the principle that the legislation in itself was defective and that when it was amended compensation and retrospective payment would have to be made.

Our party had discussions with Deputy O'Leary, Leader of the Labour Party, in which he stated that amending legislation was "currently being formulated". That is an exact quotation of what he said then. I accepted that in good faith, but on the following day we had discussions with the leader of Fine Gael, Deputy FitzGerald, who refuted that completely and said that Deputy O'Leary had it wrong and that, far from amending legislation being formulated and retrospective payments being made, nothing could be done in this instance and that his advice from his officials was that it would be a dangerous precedent to set. Then I met Deputy MacSharry and he did not see any problem. Now the Clover Meats factory is open and giving gainful employment to workers who are back at work where they should be and compensation has been paid.

I welcome the legislation being introduced and I welcome the Bill. On behalf of The Workers' Party I am pleased that the Minister has seen fit to honour the commitment he has given. Despite the reservations expressed by the Fine Gael Party, I do not see that this legislation would be subject to abuse. I ask the Minister in his summing up to make clear the intention of the Government to set up this tribunal immediately and to tell the House when the regulations to be set in train with the Bill will be ready. I ask him, finally, to come to an agreement with other speakers in relation to the functions, powers and capabilities of the chairman. It is important that the chairman of this tribunal be versed in industrial relations procedure and have the necessary expertise. I do not agree that a judge of the High Court would be a proper or fitting person to engage himself in the complex area of industrial relations, and to appoint such a person would be a detrimental step.

Do the Castlecomer workers of south Kilkenny come under the terms of the amending legislation now before us? The Castlecomer situation is different from the Clover Meats situation in that the workers there accept that initially a dispute existed but after two weeks and after the intervention of the union concerned a compromise was reached and the workers decided to go back to work. On reporting for work they were faced with a completely different set of working conditions and practices and the manager, with full knowledge of the Clover Meats history, told them that they could please themselves, they could either accept the new conditions or the factory would remain closed. He was sure that if the factory remained closed the workers would not qualify for social welfare benefits, and that is what happened. Over a hundred workers in Castlecomer, County Kilkenny, were denied for approximately 19 weeks every penny of social welfare benefit to which they were entitled. They were subjected instead to depending on supplementary social welfare which would barely keep body and soul together. A fair percentage of the workers in the Castlecomer firm did not qualify for any benefit whatsoever. I ask the Minister in his summing up to give a categorical assurance that the Castlecomer case will be placed before this tribunal as a matter of urgency and that if the tribunal see fit to adjudicate on behalf of the workers and come to the conclusion that the situation of the workers has been exacerbated by the attitude of the employer, then full and total payment of the social welfare benefits for the 19 weeks which they were denied will be paid. I ask the Minister to be clear and unambiguous on that point.

I welcome this Bill. It is a positive step. It is not retrograde, contrary to the line that the Fine Gael Party are taking, which to me is a cause of wonderment.

For the record of this House, this debate commenced at 12.30 p.m. Two Deputies in the Fine Gael front bench represent the Waterford constituency and they were very vocal in their condemnation of the treatment of the workers of the Clover Meats factory and in calling for this amending legislation, but they are not present in this House now at 2.05 p.m. to make a contribution on this legislation which is of fundamental importance to working people.

Mr. J. Bruton

Unfortunately, The Workers' Party have not put up a candidate for Clover Meats.

Mr. Shatter

I would not give this legislation the praise that Deputy Gallagher has heaped on it. I see the Social Welfare (No. 2) Bill, 1982, and the Bill we dealt with last week, the Trades Disputes (Amendment) Bill, 1982, as just more ad hoc legislation in which we are trying to deal with important areas of labour law, and on this Bill social welfare law and labour law as they intertwine, in an ad hoc way, not thinking fully of the implications and consequences of the legislation we are enacting. Fundamental reforms are required within our social welfare code and labour relations laws. This is an unfortunate Bill. I understand why it is being introduced and the difficulties experienced by the workers in Clover Meats, but the function of this House is not to deal with one isolated problem. The function of this House is to provide legislative mechanisms which apply here and now and which will apply to all trades disputes as they arise in future. There is a need for a complete overhaul and review of our industrial relations legislation. There is need to blow away many of the cobwebs attached to it and to bring it in touch with the realities of industrial problems as we find them at present. I deplore the fact that the Trades Disputes (Amendment) Bill, 1982 last week and this Bill before this House today are being dealt with in a manner in which all Stages are passed through the House in one afternoon, in which there is no real time to consider amendments to the Bill, in which this House is effectively asked to rubber-stamp a Bill, prepared by the Minister's office, to which no real consideration can be given.

We are undermining the legislative function of this House by the manner in which legislation is being dealt with. A whole series of important measures which have had relevance in the social, economic and labour area over the past six months have been rushed through for all sorts of semi-plausible reasons when, if we had reformed the procedures of this House, they could probably have been passed through this House just as quickly but would have been given more detailed consideration. I am not going to list all the legislation that I would regard as coming within the ambit of that comment in the context of this debate, because so little time is being given to this debate and it would be unfair to colleagues in this House to do so, but this House should never be asked to complete all stages of a Bill in one day. No matter what the importance of legislation is, once Second Stage has been completed, Committee Stage should not take place until all Members of the House have been given the opportunity of considering what was said during Second Stage and in particular what was said by the Minister in introducing the measure and giving his reasons for the need for the legislation. I intend illustrating my reasons for saying this in the course of my contributions on this Bill.

I am confident that the Minister means well in so far as this Bill is concerned, but some of the comments he has made about it are not accurate. In addition, I expect that some of its consequences are not fully foreseen by the Minister. It should never have been agreed that a Bill of this nature should be put through all Stages in one day. The fact that we have come to the end of term should not mean that every last vestige of business that the Government wish to have passed should be passed. Neither should it mean that the House should cease functioning until the end of October. If the Government wished to have this Bill through before the adjournment there was no reason for not having the House sit for another couple of weeks. That would have allowed time for proper consideration to have been given to the Bill. Proper consideration should have been given, too, to the Trades Disputes (Amendment) Bill which we passed last week.

The Bill before us is an ill-conceived and poorly-drafted measure. It will have the effect of undermining the conciliation and arbitration procedures established under the Industrial Relations Acts. The Minister has suggested that that will not be the case and says he is not providing anything new in the Bill, that he is merely trying to remedy an injustice. There is an old saying that hard cases make bad law. That applies particularly in this instance.

Starting with the Industrial Relations Act, 1946, we have established down through the years a whole series of mechanisms for conciliation and arbitration through rights commissioners and the Labour Court. When a trade dispute arises it is usually the wish of all parties concerned that the dispute be resolved as rapidly as possible with the minimum amount of damage being done to the industry concerned and that as little confrontation as possible takes place. This Bill will bring into effect a social welfare tribunal, a new body whose help will be sought in sorting out the rights and wrongs of trade disputes, without the tribunal having the capacity to do that.

The Minister said in his speech that the provision being made in the Bill does not involve any change in the existing situation whereby employment benefit or assistance is not payable in cases in which industrial action in the traditional sense is taken by employees. The Bill will involve a fundamental change in the existing situation because it will mean that whenever a trade dispute arises, instead of the procedures available under the Industrial Relation Acts being used, there will be an enormous temptation on the part of unions and of workers to seek to prove, before going to the Labour Court, that an employer has been unreasonable in his behaviour. This Bill could result in an automatic rush to the social welfare tribunal, the other procedures having been gone through, to seek to get that sort of adjudication. Rather than involving the Labour Court and the rights commissioners in a form of arbitration and conciliation, this will result in automatic confrontation between employer and worker where the worker will try to establish that he is totally in the right and the employer will try to establish that the worker is totally in the wrong.

Lest what I am saying should be misrepresented as merely spouting the FUE line, we all know that industrial disputes are very often like marital breakdown in that there are wrongs on both sides, that steps that both sides could have taken to avoid a dispute reaching the stage at which industrial action is taken, are not taken. I would defend workers in this sort of situation because very often they are put in a position by an employer whereby they have no choice but to resort to industrial action. On the other hand, we often have the situation in which industrial action and strikes are resorted to much too quickly, but when they are resorted to we should seek to ensure that the proper mechanisms within our labour legislation are used instead of having some social welfare tribunal being used as a form of review or justification mechanism.

The effect of this mechanism, though I do not believe this is the intention of the Minister, will be to exacerbate the confrontation aspect of industrial disputes. In this regard I would refer to the reviewing powers that the tribunal will have. If at some stage the tribunal, having been asked to intervene, decide that the social welfare payments were made rightly, or alternatively, that the employer was not being unreasonable, which means in effect that the employees were unreasonable, there is power for the tribunal to review their decision as the industrial dispute continues. Therefore, there could be a situation where not only were the procedures provided by way of the Labour Court avoided but whereby once the tribunal had given a decision that would not appeal to the employees involved in the industrial action, they can continue to go back to the tribunal asking for a review of the original decision on foot of some change in circumstances having taken place.

This piece of legislation could have a disastrous effect on labour conciliation and arbitration services. The Minister, referring to the procedures proposed, said that there is no intention of adjudicating on the merits or otherwise of a fundamental industrial relations problem. That cannot be the case. If the tribunal decide that an employer has been unreasonable that in effect will be a judgment on the merits of the industrial relations problem at issue. To describe it as anything else is to engage in woolly thinking.

The Bill is very poorly drafted. From the point of view of an employee who is on strike and who is seeking unemployment assistance, the Bill may not even provide the protection it is designed to provide. I say this because it has the same sort of a fault that is inherent in much of the legislation that has been passed in this House in the time I have been here, that is, that it is an extremely woolly measure which is not fully and properly drafted. There are no substantive provisions telling the tribunal when they should or should not adjudicate in favour of an employee within the terms of the Bill. The Minister says that the Bill will not tie the tribunal's hands in respect of matters they should consider in reaching their decisions. The Minister says this as if it is something meritorious, as if we should create tribunals and tell them that they have enormous discretion, that they may look into their hearts or their inside jacket pockets and decide in their wisdom whether it was appropriate to make a decision in favour of a particular applicant.

Legislation establishing a tribunal should contain strict and definitive provisions that determine the manner in which the tribunal should make decisions. We should state strictly the law governing those decisions. That is not the case so far as this Bill is concerned. It is Kafkaesque in the extreme. An employer might find himself trying to justify his actions before the tribunal without knowing what criteria at the end of the day the tribunal would apply in determining his case one way or the other. I do not believe that constitutes a merit. Indeed, I believe this is yet another example of hastily produced and rushed legislation. I have no doubt that within 12 months an amending measure will be before the House designed to try and resolve the difficulties and problems this Bill will create. I believe we shall have before us a measure spelling out in far greater detail the exact circumstance in which the tribunal can make a decision one way or the other.

The tribunal will have extensive powers. It will have power effectively to sub-poena people to attend court. It will have power to give notice in writing requiring an individual to attend. An employer faced with an industrial dispute who wishes to use the existing conciliation service and does not wish to get in confrontation with his workforce or engage in argument before the tribunal as to whether he or his workers were unreasonable, may find himself sub poenaed to appear before the tribunal to justify his actions. The possibility is he may be questioned in detail about fundamental matters appertaining to his firm, to its operations or employment. He may be required to give details about his business of no relevance whatsoever in the context of the dispute, details which could possibly be used subsequently in other circumstances. That is yet another example of the confrontation technique this Bill will introduce into the industrial relations sphere. If an employer is subpoenaed to attend before the tribunal and does not do so he will be liable to conviction for a criminal offence. I believe, and I am sure Members of this House will agree, that criminal law should not be involved in industrial disputes. It is wrong that it should be involved in the manner in which this legislation envisages.

Why is there a need at this stage to establish a new social welfare tribunal of this nature? The Social Welfare Acts provide for a deciding officer and an appeals officer. It may be argued it was desirable to ensure employees receive social welfare payments in the sort of situations this Bill is designed to meet. Why could that not be dealt with in the context of the existing deciding procedures? The establishment of this tribunal is an indication that it is accepted by the Government that the tribunals which presently sit to deal with and determine applications are inadequate in that there are no proper provisions at present for people to be formally represented in the context of decisions made in secret by the deciding or appeals officer, decisions remote from those most nearly involved in them. Why is there a need to establish a special tribunal to deal solely with this particular area? Should there not be a more comprehensive approach?

In the context of the tribunal the Minister envisages two persons appointed to represent trade unions and two to represent employers. I hope the Minister will tell the House what the attitude of employers is to this legislation. Has the FUE agreed to nominate persons? Is there a possibility this tribunal may be boycotted by employers who regard this as supernumerary to the industrial relations procedures that exist? Could it be that this will be a white elephant? We are in process of passing a Bill in two or three hours which may never be implemented at all because of the possibility of employers not being willing to co-operate in the establishment of the suggested tribunal.

I believe there should have been more consultation. I believe there should have been greater consideration given to the effects of this Bill on overall industrial relations. There is yet another aspect that can be regarded as part and parcel of the confrontation aspect in labour relations. I refer to the awarding of costs. The tribunal will have power to award costs and expenses in a totally undefined way. How will this operate? Extensive and comprehensive aspects requiring to be implemented should be dealt with by substantive legislation. They should not be dealt with by way of statutory instrument or regulations introduced by the Minister.

I deplore the manner in which important areas of legislation have been dealt with in some few hours on a single day over the last two weeks. A Bill to deal with the injustices this measure purportedly seeks to remedy could have been passed by the end of this week if proper procedures were available. The time has come for the establishment of a whole series of select committees to process legislation in an expert and detailed manner, dealing with amendments on the basis of representations from those affected and dealing with those amendments in a manner divorced from the party political battles that go on here. The aim should be to avoid the very real difficulties that have arisen in legislation passed by this House in the last 12 months. By this time next year I believe we will have yet another measure before the House seeking to remedy the difficulties in the industrial relations sphere created by the enactment of a badly thought out, badly drafted and ill-conceived Bill.

Minister of State at the Department of the Taoiseach (Mr. B. Ahern)

All Stages of this Bill were to be completed by 2.30 p.m. The Government propose now that the Second Stage continue after Questions and be completed not later than 4.30 p.m. and that the remaining Stages be completed not later than 6.30 p.m.

An Leas-Cheann Comhairle

The proposal is that discussion of the Bill continue after Question Time, that the Second Stage be completed not later than 4.30 p.m. and that all remaining Stages be disposed of not later than 6.30 p.m.

Agreed.

Debate adjourned.